(77 Hun, 69.)

#### McGUCKEN v. WESTERN NEW YORK & P. R. CO.

(Supreme Court, General Term, Fifth Department

April 12, 1894.)

Carriers—Passengers—Employe Traveling on Pass.

A railroad employe who is ordered to go to a certain point on the railroad, and travels thither on an employe’s pass, is during the trip a passenger; and where, without orders, he leaves the passenger car, and enters the cab of the engine, where he is killed by a collision, defendant is not liable, it appearing that no one in the passenger cars was injured; and it is immaterial that the engineer, who did not know that decedent was in the cab until the train was in motion, gave him instructions as to the duties which he was going to perform. e

Appeal from circuit court, Monroe county.

Action by Sophia B. McG-ucken, as administratrix, against the Western Hew York & Pennsylvania Railroad Company, to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a *299motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT,, and BRADLEY, JJ.

S. S. Rogers, for appellant.

E. Van Voorhis, for respondent.

DWIGHT, P. J.

The action was to recover damages for the death of the plaintiff’s intestate, William H. McGucken, due, as alleged, to the negligence of the defendant. The deceased was, and had been for about a year and a half, in the employ of the defendant as a “wiper” in the engine house at Rochester. The men so employed are sometimes called “hostlers,” and their duty, as the name imports, is to take care of the locomotive engines when housed between trips, to wipe the machinery, bank the fires, and keep up the necessary supply of water in the boilers, so that the engines • may be ready for immediate service when required. On the day of his death, McGucken was directed by his foreman to go to-Portage, to take care that night of engine ¡No. 91, in place of a wiper at the engine house at that station, who had been taken sick. For that purpose he was furnished with an employe’s pass, which entitled him to ride free on the passenger train which was to be drawn to Portage by the same engine, ¡No. 91. In pursuance of his orders, he took his seat in one of the passenger cars of the train, and rode to ¡Nunda, the last station on the road before reaching Portage. There he left the passenger car, and, without orders, or invitation from the engineer, took a seat in the cab of the engine, on the fireman’s side of the boiler. The engineer, discovering his presence after the train was on its way to Portage, asked him what he was there for, and told him it was no place for him; but, learning that he was going to take care of the engine that night, told the fireman that, since he was there, he had better show him how the injector worked, which he did. Shortly before the train reached Portage it collided with a freight train going in the other direction. The engine of the passenger train was overturned, and the plaintiff’s intestate was crushed beneath it, and killed. ¡No-other car of the train was overturned or thrown from the track, and no one in either of the passenger cars was injured. A rule of the company, which had been in force for several years, and was duly promulgated, forbade any person to ride on the engine without an order from the superintendent, except the engineman, fireman, assistant engineer, and supervisors on their respective divisions, and conductors in the discharge of their duty. The collision was due to a mistake in the transmission of orders for the movement of the trains, and it may be conceded, for the purposes of this review, that the fault was attributable to the defendant, and that the fact of negligence on its part was established; but it is still impossible that the plaintiff’s recovery should be sustained, for the reason that the undisputed evidence shows a disobedience of orders and violation of duty on the part of the deceased, without which the *300injury complained of could not have been sustained. He had no . right to be on the engine. To be so was in direct violation of a rule of the company, with which he must be supposed to have been familiar. He was a passenger,—though a free passenger,—and Ms place was in the passenger car. Had he remained there, he could not have been crushed under the engine, and, as the evidence tends to show, he would have been safe from injury of any character. He betook himself to the engine at Ms own risk, and there is nothing in what occurred after the engineer discovered Mm there which at all affects the situation. The engineer was not bound to stop his engine to put Mm off, and there was no stopping place until Portage was reached. Such being the case, it was proper enough to utilize the opportunity to point out to the deceased the peculiarity in the injector pipe, which otherwise would have been explained to him after reaching Portage; but tMs in no manner excused Ms violation of the rule which forbade Ms riding . on the engine, nor rendered the risk which he assumed in doing so any the less his own. The question here considered was raised by the defendant’s motion for the direction of a verdict on the ground that the deceased was guilty of contributory negligence in riding on the engine, and by several exceptions to the charge, and to refusals to charge as requested, on the same point. For the error thus indicated, the judgment and order appealed from must be reversed, and a new trial granted. So ordered, with costs to abide the event. All concur.