#### Philip Riley, App’lt, *v.*John O’Brien *et al.,*Resp’ts.

*(Supreme Court, General Term, Second Department,*

*Filed June 28, 1889.)*

1. Negligence—Fellow workmen—Who are.

The plaintiff was employed by defendants at the new croton aqueduct. The defendants’ superintendent told plaintiff to get some brick from a pile to load a car. The plaintiff called the superintendent’s attention to the shakey condition of the brick pile, and was told it was “ all right, I will attend to ■that.” The plaintiff continued work, the pile cracked, the covering slid off and broke the plaintiff’s leg. There was no proof that the superintendent was incompetent, and none that the brick were either badly piled or unskillfully covered. *Held,*that the case shows only a neglect of a fellow servant.

*7212. Same—Risk ok employment—Liability oe master.

*Held,*that the grade of superintendent does not vary the principle that an employee assumes the risk of the service, and that the neglect of an. employee gives no cause of complaint against the master.

Appeal from a judgment entered upon the dismissal of plaintiff’s complaint.

Action brought to recover damages for personal injuries.

*William Riley,*for app’lt; *E. T. Lovatt,*for resp’ts.

Barnard, P. J.

The liability of the master for injuries occasioned an employee by the immediate act of a co-servant, and not by the personal act or omission of the master, turns upon the character of the act. If the fellow-servant, whose act or omission caused the injury, was at the time representing the master in doing the master’s duty, the master is liable. If, on the other hand, he was simply performing the work of a servant in his character as servant and employee merely, the master is not hable. Assuming that the plaintiff was an employee of the defendants, the case shows that one Thomas Jones was the defendants’ superintendent at shaft No. 17 of the new croton aqueduct.

He told the plaintiff to get out some brick from a pile to load a car. The plaintiff called attention to the shakey condition of the pile of brick after, and was told it was “all right, I will attend to that.”

The plaintiff continued work, the pile of brick cracked, and the covering of boards on the pile slid off and broke the plaintiff’s leg.

The question is, whether the master is liable for the injury. There is no proof that Jones was an incompetent foreman, and none that the brick was either badly piled or unskillfully covered. The case seems to show only a neglect of a fellow servant. The grade of the superintendent does not vary the principle that an employee assumes the risk of the service, and that the.neglect of an employee gives no cause for complaint against the master. *Crispin*v. *Babbitt,*81 N. Y., 516.

The case, then, resembles *Loughlin*v. *State of New York*(105 N. Y., 159; 6 N. Y. State Rep., 826).

In that case the captain of a state vessel put a workman under him in a dangerous place under a bank. When the bank was loosened below the part overhanging fell on the plaintiff.

This was held to be the act of a fellow servant. The captain had power of direction, but it was in respect to the manner of proceeding with the work which was committed to his discretion and judgment.

The judgment should, therefore, be affirmed, with costs.

All concur.