The action is brought for damages for the death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence under the following circumstances: On August 3rd, 1895, the deceased was in the employ of the defendant as a locomotive engineer. At that time 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 brakeman and had been so for several years. He was paid by the telegraph company during his service with its workmen. He had 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 had been run in on a siding. Miller neglected to close the switch; the train on which the plaintiff's intestate was the engineer ran into the open switch, collided with the car standing thereon, was derailed and the engineer killed. A nonsuit at the Trial Term was affirmed in the Appellate Division by a divided court, a majority of the members holding that Miller, whose negligence caused the accident, was a fellow-servant of the deceased, while the minority were of opinion that he was the servant of the Western Union Telegraph Company.
There can be no question that the negligence which occasioned the injury to the deceased was in the conduct of the work as distinguished from a failure of the master to provide for his servant a safe place to work and safe appliances. There is no claim that the switch was defective; the train was derailed because Miller left the switch open. The operation *Page 550 of switches along the line of a railroad is a detail of the work of transportation and switchmen and train hands are fellow-servants, and for the injury caused to the one by the negligence of the other the master is not liable. (Harvey v.N.Y.C. H.R.R.R. Co., 88 N.Y. 481; Randall v. B. O.R.R.Co., 109 U.S. 478.) Therefore, had the accident occurred in the ordinary operation of the road it would be clear that the defendant was not responsible. It is now to be considered how far this rule of liability is affected by the presence of the push car upon the defendant's railroad. It was not unlawful nor negligent in itself to permit the telegraph company to transport its material along the road on a push car or to place that car upon a siding. Materials for construction or repairs along the line of a road are often transported in that manner. Switches to connect with sidings used wholly for private purposes, such as those leading to coal and lumber yards, to elevators and to factories, are to be found on the line of every railroad and are necessary to afford proper facilities in the transportation of freight. It is conceded that had the defendant by its own servants transported the telegraph company's material on the push car the defendant would not have been responsible for the negligence of any persons engaged in that work. The defendant cannot be liable on the mere ground that the party whose negligent act caused the injury was not its servant. Its liability must result from some fault on its own part. Doubtless it could not suffer its track to be invaded by third parties occupying and obstructing it without control, and so endanger the safety of its employees operating the trains. It was, therefore, incumbent upon the defendant to see that the license or permission which it had given the telegraph company to use its tracks was so exercised as not to create greater danger or hazard to its employees than would result from its own operation of the road. The accident in this case did not occur from the movement of the push car along, or from its presence upon the main tracks of the defendant, but from the failure to close the switch after the car had been placed on the siding. It is true that the use of the push car made it necessary to open the switch to enter the siding, but *Page 551 the use of the siding as a place for standing cars was a proper one, and the case cannot be differentiated in principle from the use of the siding for defendant's own cars, much less from the use of switches to connect with sidings belonging to private parties. What then was the precise duty of the defendant as to the adjustment of the switches in the present case or in those of private sidings? It was to furnish a competent servant to see that the switches were properly set. If it did so, the negligence of the employee in the operation of the switches was, as to the trainmen on the road, the negligence of a co-servant. If it did not furnish a proper switchman, but suffered the switch to be operated by an employee of third parties, the defendant would be liable, not because the employee was the servant of another master, but because it had failed in its own duty to provide a switchman. There is neither allegation nor proof that Miller was not a competent and proper servant for the work to which he was assigned. So if Miller remained the servant of the defendant during his connection with the work of the telegraph company, the defendant was not liable for the injury done to the plaintiff's intestate. The evidence as to the exact status of Miller is somewhat meagre. But bearing in mind that the burden was on the plaintiff to affirmatively show the misconduct or negligence of the defendant, the result of any insufficiency in the evidence must fall on her. It appears that Miller had been for some years in the general employ of the defendant. On previous occasions when telegraph work was being done along the line of the railroad, he had been assigned to service with the workmen of the telegraph company, and on the termination of the work returned to his ordinary duties with the defendant. The request made by the foreman of the telegraph company of the train dispatcher was, "that a man be detailed to protect the tracks." The foreman testified: "The duties which he (Miller) performed was the turning of switches if it became necessary to turn on the switch; he had keys. He was the only one in the crowd who had keys. He was the only one permitted to turn the switches. When our car was on the main track he was the flagman; he generally flagged ahead and one of my men flagged from behind. He knew of the *Page 552 time of the approach of trains and guarded against collision between our car and the trains." "Brownie Miller had charge of this supply car, that is, protected it against trains. * * * Brownie Miller was supposed to be the man who had charge of opening the switch upon this track at that time. * * * That was the way the car was driven; it was pushed by the men. Miller was not one of those men; he usually was ahead with the flag. He was not always with the car. He was ahead as a general thing — sometimes behind, whichever would be necessary. He had control of the men when the car was moving. It was under his care. It was under my directions that the car was transferred to the side track. I gave orders to put the car on the side track. My orders were the orders to be obeyed in that respect. Q. You had control of the management of that car, did you not? A. I did and I did not." We think that the only fair inference from this testimony is that the foreman of the telegraph company had, as necessarily he must have had, general direction as to what points along the line the supply car was to be moved to; but that the actual movement or transportation of the car over the defendant's road and the turning of the switches necessary to put it on the sidings were under the direction of Miller, and in the discharge of this work he was not subject to the control or orders of the telegraph company or its foreman. Though he was paid by the telegraph company he was not subject to discharge by it. The terms of the request made by the foreman that the defendant's train dispatcher should detail a man to protect the tracks imply that the man so detailed was to remain the servant of the defendant. The dispatcher was not asked to recommend any person for employment by the telegraph company. The evidence does not show what the agreement or arrangement under which the telegraph company entered upon the defendant's road was, except so far as it is to be inferred from the request made of the train dispatcher. The license to the telegraph company to be inferred from this conversation did not authorize the operation of its car over the defendant's tracks, except under the supervision of the employee detailed by the railroad company. This workman was not selected by the telegraph company. It is not claimed *Page 553 that the switch keys could have been taken from Miller or that he could have been controlled in the opening and closing of the switches by the foreman of the telegraph company. It is doubtless the rule that the general servant of one master may, in a particular work, be the servant of another master, so that the latter and not the former is liable for negligence on his part. As is said in Shearman Redfield on Negligence (§ 160): "He is to be deemed the master who has the supreme choice, control and direction of the servant and whose will the servant represents, not merely in the ultimate result of his work, but in all its details." An example of this rule is to be found in Wyllie v.Palmer (137 N.Y. 248). But here the details of the work in moving the car were not under the direction of the foreman of the telegraph company, but only the ultimate result, and as also said by the same learned authors (§ 162): "A master who hires out one of his servants to work for another person, is liable to the hirer for such servant's negligence in the work, and this even though the particular servant was selected by the hirer himself, and unless the master abandons the entire control of his servants to the hirer, he remains liable to strangers for their negligence. The hirer cannot properly be said to have control of the servants, unless he has the right to discharge them and employ others in their places in case of their misconduct or incapacity, that being the only practicable means by which free servants can be controlled. If, therefore, the hirer has no such power, he is not responsible to any one for the faults of the servants." This principle has been applied in several cases. (Coyle v. Pierrepont, 37 Hun, 379; Gerlach v. Edelmeyer, 15 J. S. 292; affirmed, 88 N.Y. 645; Murray v. Dwight,161 N.Y. 301.) If I am right in the view that the foreman of the telegraph company had no control over the details of the transportation of the supply car, the operation of the switches, nor power to discharge Miller from the work which he was assigned to perform, the latter was the servant of the defendant and not of the telegraph company, despite the fact that he received his pay from the latter company. Such payment was a mere method of reimbursing the defendant for the expense to which it was put by the privilege afforded the telegraph company. *Page 554
The cases cited by the learned counsel for the appellants, as to the liability of a railroad company to its passengers for the negligence of the servants of another company whom it has allowed to use its road, have no application to the present case. The liability of a company to its passengers is wholly different from that to its employees.
The judgment appealed from should be affirmed, with costs.
MARTIN and VANN, JJ. (and BARTLETT, J., in memorandum), concur with O'BRIEN, J., for reversal; PARKER, Ch. J., and WERNER, J., concur with CULLEN, J., for affirmance.
Judgment reversed, etc.