On or about the third day of August, 1895, the plaintiff's intestate, a locomotive engineer in the employ of the defendant, was killed by the derailing of a train resulting from an open switch, through which the train passed from *Page 544 the main track while running at a high rate of speed. There can be no doubt that the negligence of the person who had charge of the switch and left it open was the cause of the accident. The plaintiff was nonsuited at the trial upon the ground that the person in charge of the switch, and to whose negligent act the accident is to be attributed, was a co-servant with the deceased, and the judgment has been affirmed at the Appellate Division. The facts upon which the nonsuit was directed are substantially these: At the time of the accident the Western Union Telegraph Company was engaged in stringing a line of telegraph wires along the defendant's road and that of the Boston and Albany Railroad Company from Albany to New York. The telegraph company had a push car, by which it moved its materials from point to point, placing the car on sidings convenient for the purpose. The work was first done from Albany to Chatham, which is the northerly terminus of this road of the defendant. The foreman of the telegraph company testified that when the working party reached the defendant's road he notified the train dispatcher of the defendant that he was about to commence work, and requested "that a man be detailed to protect the tracks." In pursuance of that request the dispatcher sent to the working party one Miller, who was in the general employ of the defendant as a brakeman, and had served in that capacity for several years. He was paid by the telegraph company during his service with its workmen. He procured the key to the switches, and was the only person who could open or close them. On the occasion of the accident the push car of the telegraph company had been run in on a siding. Miller neglected to close the switch, and the train on which the plaintiff's intestate, the engineer, was, ran into the open switch, collided with a car standing thereon, was derailed and the engineer killed. If Miller, the switchman, was at the time of the accident in the service of the defendant and the co-servant of the deceased, the judgment below is right. If, on the contrary, he was not at that time in the defendant's service, but in the service of the telegraph company, then the nonsuit was improper.
It must be admitted that this case is well on the border line, *Page 545 but we are inclined to hold that the switch tender, whose negligent act caused the death of the plaintiff's intestate, was not a co-servant of the latter within the meaning of the rule that exempts the master from liability to the servant for personal injuries. The negligent switchman was undoubtedly the general servant of the defendant, but the latter had loaned him to the telegraph company that was engaged in independent operations on the railroad track at the time of the accident. The switchman was then taking his orders, not from the railroad company, but from the telegraph company. He was paid for this work by the latter, and he opened and closed the switches, as it needed that work to carry on its operations of stringing wires and working upon the telegraph line. In opening and closing the switch he was not doing the work of the railroad but that of the telegraph company, as the latter required that act to be done from time to time in order to move the push car whenever and wherever it became necessary. The defendant had permitted the telegraph company to carry on certain work of its own on the railroad track distinct from that of operating the railroad. In order to accomplish what it set about to do the telegraph company was obliged to add to its working force, and it procured from the defendant one or more of the men employed to do work as railroad employees. Miller, so far as it appears, had never been employed by the railroad as a switchman, but had been assigned to other duties. He became the switchman only when the telegraph company needed him for that work, and procured the defendant to send him to it for that work, to act under its own orders and directions, not in operating a railroad but in assisting to repair the telegraph lines. The fact that he had been selected and taken from the employees of the railroad does not prove that he still remained in the service of the defendant, or was not the servant of the telegraph company. Therefore, for the time being, he held the same relations to the telegraph company as the other men engaged in repairing the line. At the time of the accident, therefore, and in respect to the very transaction out of which the injury arose, the switchman was not in the defendant's service, but in the service of the telegraph company that *Page 546 paid him his wages and directed his acts. It is the case of a general servant of the defendant employed for a special and particular purpose by the telegraph company, and so ad hoc the servant of the latter. The facts in this case render it somewhat difficult to designate the master of the switchman at the moment he committed the negligent act which resulted in the death of the intestate, but we think it should be held, within the doctrine of recent cases in this court, that he was then in the service of the telegraph company, and hence not the co-servant of the engineer who was killed. (Murray v. Dwight, 161 N.Y. 301;Higgins v. W.U.T. Co., 156 N.Y. 75; McInerney v. D. H.C.Co., 151 N.Y. 411; Wyllie v. Palmer, 137 N.Y. 248.) Where the person injured and the person guilty of the negligent act from which the injury results are both at the very time and with respect to the very transaction in the service of a common master, no question can arise with respect to the rule that exempts the master from liability. But here the telegraph company, with the defendant's consent, took one of the workmen of the latter to render service in the repair of the telegraph line, which was a different service to be performed under the directions of another master. The relations of this switchman to the other servants of the railroad were thereby changed for the time being and he assumed for the occasion new relations with the servants of the telegraph company. Miller had charge of this switch, not in consequence of the direction or appointment of the defendant, but by reason of the orders and directions of the telegraph company. The telegraph company needed a man to perform that service, and the fact that it selected a man who had been in the general employ of the defendant in another capacity, does not change the relations of master and servant as between the switchman and the telegraph company. The defendant gave the use of its track and the control and management of the switch to the telegraph company, and it was when the latter was in charge that the accident happened, in consequence of the neglect to properly manage and guard the switch. That was a duty that the telegraph company assumed for the time being with the consent of the defendant, and Miller was the *Page 547 agency it employed and paid to perform that duty. He was none the less the servant of the telegraph company when so employed and paid merely because he was selected from the railroad force at the request of the foreman of the telegraph company. The identity of the master at the time of the negligent act charged must always be determined with reference to the particular facts of each case. The facts of this case, while perhaps they render the question one of some doubt and difficulty, I think warrant the conclusion indicated.
The judgment should be reversed and a new trial granted, with costs to abide the event.