(dissenting):
The plaintiffs’ intestate, who was an engineer in the employ of the defendant company, was killed on the 3d day of August, 1895, while running his engine over the defendant’s railroad. The engine on which he was employed ran off the track at a station known as Craryville, where a switch had been left open in such a way as to turn the engine off of the main track while it was passing the station at' full speed. The switch had been left open by a person named Miller, who was engaged at work there at that time, and the court at Trial Term held that he was a co-employee with Hallett in the defendant’s service at the time the accident occurred, and that the plaintiffs were not entitled to recover, because the negligence which brought about the accident was the negligence of a co-employee of the intestate. He consequently dismissed the complaint, and from the judgment entered upon that dismissal this appeal is taken.
The injury to Hallett, the plaintiffs’ intestate, happened because a switch upon the defendant’s road had been left open. The duty of the defendant in regard to him was to use reasonable care to see that the road was in' proper condition. If it permitted its track to be used by some other corporation for the latter’s business, the defendant could not thereby escape the duty it owed to its employee to protect him, and it was liable for any injury occurring to its engineer for the acts of those persons who, by their carelessness in doing the work of a strange corporation on these tracks, left open the switch and caused the derailment of Hallett’s engine. That this was • *130the act of Miller was conceded. If when he did it he was engaged in the business of the defendant, he: was a co-employee of Hallett, and defendant was not liable ; but if at that time he was in the service of another master, he did not hold toward Hállett the relation of co-employee, and the defendant -must answer for the negligence. So. it will be seen that the only question presented is whether Miller, who left the switch open, was, at the time of committing the act which required him to open the switch, not only in the employ of the defendant, but engaged in the business of the defendant in such a way that he was the defendant!s servant at the time the work was done.
The complaint was dismissed by the learned justice at the close of the plaintiffs’ evidence, and the plaintiffs, therefore, are entitled to every fair inference in their favor which may be drawn from the evidence; and if in any aspect in which- the case was presented the jury might have found that Miller, when he left the switch open, was actually the servant of, some one other than the defendant, it must be deemed that they would have thus found it, and the judgment must be reversed.
The facts were that on the day and at the place where the accident occurred, the Western Union. Telegraph Company was engaged in stringing wires along the line of the defendant’s railroad. For that purpose, the men in the employ of the telegraph company had been furnished by it, and not by the defendant, with a car called a push car, upon which were loaded the wire and tools and such other things as it was necessary to take with them for the performance of their work. Miller, the person who left the switch open, was a brakemán in the employ of the defendant. Hé had been detailed to work with the Western Union gang to aid them In doing their work at the request of that corporation, having been sent there by the defendant; as it was said, to protect the tracks, this protection being necessary, not because of any work of the defendant then doing, but solely as a part of the- business which the Western Union Company was engaged in along the line. Miller had furnished to him by the defendant a key to the switches, and no one else could open or close them. There was, however, a foreman of the gang, who had charge of the manner in which all the work should be done, except the mere opening and closing of the switches. He gave *131directions as to what should be done with the car.. The car was moved when he gave instructions to do so. The car was put upon the side track, in pursuance of his orders, wMqIi he says were to be obeyed in that respect. The car was taken from place to place where it might be necessary to use the supplies that were upon it, and the foreman gave directions when it should be taken and where it should be left for the convenience of the men who were working in the gang. It was not transported along the track by the defendant’s .engines, but was pushed from, place to place by the men in the Western Union Telegraph gang. It is undisputed that the car had been taken to the particular place where the accident occurred and put upon the side track by the direction of the foreman of the Western Union gang. Miller was there for the purpose of superintending the transfer of the car from place to place as it was directed to be done by the foreman. He went either ahead or behind the car as might be necessary, to flag it when it moved, and opened the switches to put the car upon the side track when he was directed so to do, and was expected to close them •again. He was paid by the Western Union Telegraph Company. Was he, or was he not, in doing this particular work, the servant of the Western Union Company?
Ordinarily, of course, the question whether one man is the servant of another depends upon whether the alleged master hired him and pays him and may discharge him, so that he has control of his movements and the right to direct him in what he shall do. When that condition of affairs exists, the person who hires and controls and may discharge is undoubtedly the master. But all those things may exist, and yet in the particular case the alleged servant may be the servant, of another person than the man who has hired him and who may discharge him. In this case, while Miller was hired .by the defendant and was generally in its employ, yet it appears that he was paid for the work that he did by. the Western Union Telegraph Company. Whether or -not that company could have, discharged him is a matter of very little importance. . Undoubtedly, if his work were unsatisfactory they could refuse to permit him longer. to continue in their gang: What , would have been the result of it— whether the defendant company would have allowed them, to go on with the work.— is a matter of no importance; but undoubtedly *132they might have refused to pay him or to permit him to work any longer in that gang, in which case! he' would no longer be engaged in that particular duty. So it will be seen that the fact that he was employed originally by the defendant, and that he was sent by the defendant with the men at work f;or the Western Union Company, is not itself decisive of the question whose servant he was, because, where one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as The servant for the man to'whom he is lent, although he remains the general servant of the person' who lends-him. (Hasty v. Sears, 157 Mass. 123.) So in each case the question is whether at the time the act of negligence was committed, the person.who committed it was in the employ of the person sought to be held liable, or of somebody else. (McInerney v. D & H. Canal Co., 151 N. Y. 411; Wyllie v. Palmer, 137 id. 248; S. & R. Neg. §§ 160, 161.) As is.said in the book last cited, servants who are employed, and paid by'one person may, nevertheless, be ad hoe the servants of another in a particular transaction, and that too even where their general employer is interested in the work. (S. & R. Reg. § 161.)
The decisive question here, therefore, is whether at the time Miller committed this act of negligence lie was in fact engaged in the. business of the Western Union Telegraph Company or in the-business of the defendant. It is quite clear that the push car was transported from place .to- place by the Western Union Telegraph Company and for their .convenience. The work to bé done with that car was their work. Whether it was done at all was a matter, so .far as the evidence shows, of not the slightest importance to the defendant. It is .very clear that ¡if the Western Union Company had-not been desirous of stringing its wires, it never, would have-had the push car there-and would have had no occasion to be -upon, the defendant’s track with it: ít is not correct to say that the-.defendant Was transporting the gcjods of the Western Union Company upon this track. Roth-ing of jthe sort appears. The jury-might: have found from the evidence that the defendant had put its track at the disposal of the Western Union Company, so that it could run its car over the defendant’s road fjor the purposes of the telegraph company, arid that everything that, was done while the ear- was. thus *133passing over that track was done by the Western Union Company’s agents for the Western Union Company to enable its men to do its work,, and not to do anything in which the defendant had the slightest interest. It is true that Miller was protecting the track. But he was protecting it against the passage of the car which was sent over it by the Western Union Company for its own purposes. -If that company had not been using the track, there would have been no occasion for Miller to do that work. He was sent there for' the purposes of the telegraph company, to do thé work which was required in the' business of that company. His employment there only lasted as long as that company had occasion for it, and everything that he did was made necessary to be done because the Western Union Company was transporting that car over the defendant’s railroad for its own purposes. There is nothing in the case to show that while Miller was thus engaged he was at all under the direction of the defendant. The evidence is that the car was moved by the Western Union men at the direction of the foreman of that gang. Miller had nothing to say, so far as appears, as to when it should be moved or where it should be taken, or where it should be left; but his only duty was to go in front of or behind it, as might be necessary, to protect it, and open the switches, that it might be put where the Western Union Company wanted to put it. There is not one word of evidence to show that in doing this work he was subject to the control of the defendant or any of its officers. When he was relieved from this duty, he ceased to be paid by the Western Union Company, and he went back to his work as a brakeman. But while he was at this work he was not only paid by the Western Union Company, but he was under the directions of the foreman which they had put there to control this work. It cannot be said that he was the servant of the defendant, but he was out of the service of the defendant for this particular purpose, and the doctrine of negligence of a co-servant to relieve a party from his own negligence' cannot be invoked for the benefit of the defendant here..
The judgment should be reversed, and a new trial ordered, with. costs to the appellants to abide the event.
O’Brien, J., concurred.
Judgment affirmed, with costs.