#### Otto Schmidt, App’lt, *v.*The Steinway & Hunters Point R. R. Co., Resp’t.

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

*Filed February 10, 1890.)*

1. Negligence—What constitutes.

While plaintiff was at work in a sewer near defendant’s tracks, one of defendant’s cars was driven against a piece of pipe used as a guard, which was thereby knocked into the sewer upon the plaintiff. The driver did not look into the sewer to give notice to anyone therein. *Held,*that the driver was guilty of negligence.

2. Same.

The driver is not excused by the fact that some one beckoned him to come on; nor can the defendant relieve themselves from liability for a failure to conduct their business in a proper manner by a reliance upon the contractor to notify his men when cars approached.

3. Same.

The negligence of a co-employee may prevent a person injured from recovering from the common employer; but it is no defense in an action against another person.

Appeal from judgment entered upon a nonsuit . Action to recover for personal injuries alleged to have been caused by defendant’s negligence.

Plaintiff was in the employ of a contractor at work upon a sewer near defendant’s tracks. At the time of the accident he was in the sewer,, and the other men had placed a guard around it consisting of iron sewer pipes three feet long, placed upright, on which planks were laid from one piece of pipe to the other. One of defendant’s cars came along about this time, the driver of *202which saw the pipe, drove his car against it and knocked it into the sewer upon the plaintiff. He did not look into the sewer to notify anyone, nor measure the distance between the pipe and track to see if there was sufficient space to pass.

The court held defendants were not guilty of negligence, denied plaintiff’s application to go to the jury and dismissed the complaint.

*M L.*Towns, for *app’lt; W. J.*Foster, for resp’t

Pratt, J.

Defendants’ counsel are quite correct in their contention that the burden of proving negligence rests upon the plaintiff, but we are not able to agree with them that negligence was not shown.

The testimony shows that the pipe was standing in full sight of the driver, and was, in fact, seen by him before he drove against it He was aware of the work in progress, and it was his duty to guard against injuring the employees. Of that he was conscious and stopped his car, but his caution did not go so far as to be effectual. Had he looked into the sewer, which would not have required any appreciable time or trouble, he would have seen the plaintiff and. doubtless would have given him warning to remove.

Clearly, he should not have driven against the pipe unless he knew no one was below it to be injured by its fall. His negligence in so doing is too clear to require argument.

The excuse given for his going on, viz., that some one beckoned to him, does not help defendants. That may serve to show that another person was also negligent, but where the negligence of two persons concur to cause an injury, neither person is excused; both are hable. *Colegrove*v. *R. R. Co.,*20 N. Y., 492.

The driver could not excuse himself for not using due care on the ground that he relied upon some other person to do it.

Defendants’ counsel suggest that the person who beckoned to the driver was probably an employee of the contractor who was building the sewer. If that were so it would have no legal importance in this action. The negligence of a co-employee might prevent plaintiff from recovering against the common employer, but it is well settled it will be no defense in an action against another person. *Perry*v. *Lansing,*17 Hun, 34; *Young*v. *N. Y. Central R. R.,*30 Barb., 229.

But we think the evidence tends to show and, if not contradicted or explained, established that the person who gave the word to the driver to proceed was an employee of defendants, for whose negligence they are of course responsible.

It seems he was not of the sewer party; and the fact that the drivers obeyed his orders is evidence that he was 'in authority over them. If he was not, it is entirely clear they should not have acted upon his orders.

We think, as argued by plaintiff’s counsel, that defendants could not relieve themselves of the duty to conduct their business safely; and that if they relied-upon the contractor to notify his men when cars approached, they did not thereby relieve themselves from liability.

Judgment reversed and new trial ordered, costs to abide event.

*203Barnard, P. J.

The case as proven was one for the jury. The complaint avers that the defendant’s driver drove one of its cars carelessly against a pipe, which fell into an excavation in which the plaintiff was working.

The pipe fell on him and seriously injured him. The evidence shows that a sewer was being excavated alongside of the defendant’s track for about two hundred feet and then turned across the track of the railroad company.

On the 1st of June, 1888, at evening, the sewer workmen were guarding the track for the night. This was done by placing sewer pipes on end and placing plank on the upper end of the pipes. This guard extended for the length of three or four boards, for the case shows there were that number of pipes i p-right on the edge of the sewer.

The defendant’s driver stopped his team before he came to the first of the pipes. The man was told to go on by a man stationed at the excavation, who had been there for the four preceding days controlling the passage of the defendant’s cars. It was proven that he was not one of the contractor’s men who was excavating the sewer.

It was proven that he had the right to signal the cars to move. The driver’s evidence is rather baffling, but he states this fact distinctly. The company owed extreme vigilance in the management of its cars, and this duty was increased by the excavation. It should have placed a man there if dangerous. A man was placed there by some one and the conductor was informed of his right to control the cars in some way. The proof that the man apparently acted for the defendant, or was in its employ, as evidenced by his acts, was proper. It was too much to require for the plaintiff to produce a witness to the contract of employment. A *prima facie*case was made out for the jury when it was proven that he acted for the railroad company. The defendant is then called upon for its defense. If the jury could find that the man was employed by the defendant, the company is liable for their servant who gave the signal for the car to move when it was not safe to do so. The car struck the pipe and threw it into the trench and hurt the plaintiff.

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs.