This judgment should be reversed, but I cannot assent to the grounds stated in the prevailing opinion. The judgment dismissing the complaint was affirmed by the Appellate Division on the ground that Abraham Miller was a co-servant of the deceased intestate and that the railroad company was, therefore, not liable. It is now proposed to reverse this judgment on the ground that the defendant railroad company had loaned its employee, Abraham Miller, to the Western Union Telegraph Company, and that he is to be regarded as in the employ of the latter company at the time of this accident. A number of cases are cited in support of this view, and among them McInerney v. D. H.C. Co. (151 N.Y. 411). In that case the defendant company loaned an engine and its crew to one Willard, a lumber dealer, who had private tracks constructed on his own premises; while he was engaged in switching cars on said tracks in the prosecution of his business, with the aid of the engine and crew he had thus borrowed, the plaintiff was injured. It was held that the railroad company incurred no liability in such a situation and that the engine and crew were to be treated, for the time being, as belonging to and employed by Willard. It is difficult to see what possible application this and kindred cases have to the one at bar.
The telegraph company, before entering upon the work of stringing wires along the defendant's road, applied to its general train dispatcher to furnish a man "to protect the tracks;" thereupon Abraham Miller was sent to represent the company *Page 548 for that purpose. Here was a gang of men in the employ of the telegraph company, engaged in work entirely distinct from that of operating a railroad; it involved the presence of a car loaded with materials on the main track of the defendant, and it was absolutely essential that the company should detail a representative to protect the running of its trains and the general operation of the road; in view of this unusual situation Miller cannot be regarded as an ordinary switchman, whose sole duty it was to open and close the switches at various points. It is equally inaccurate to say that Miller was engaged in the work of the telegraph company and subject to the control of its foreman. It may be that when the business of the telegraph company required the car containing the materials to be placed upon the side track for its own purposes, Miller was bound to operate the switch and place the car where requested. This, however, was not his chief duty; he was called upon to represent the defendant company to "protect the tracks;" to see to it that the prosecution of the work by the telegraph company did not interfere with the running of trains upon the road and imperil the lives of those operating them; as to that duty he was the representative of the company; he alone carried the keys to the switches; he only knew the running time of the trains, and upon him solely rested the responsibility of regulating the movements of the telegraph company's car so as to enable the defendant company to continue in the discharge of its duty to furnish a safe place in which its engineers and other trainmen might work, as the presence of this alien gang of workmen was neither an ordinary nor obvious risk assumed by an employee. The fact that the telegraph company paid Miller for his time is of no importance. This case is most unusual in its facts and is to be treated as sui generis. Miller filled a position which is to be distinguished from that occupied by any other employee of the defendant company; he was, quoad hoc, the sole representative of the defendant.
It follows from these views that Miller was neither a co-servant of the deceased, nor in the employ of the telegraph company, and his negligent act rendered the defendant company liable. *Page 549