The plaintiff was a track repairer in the employ of defendant and his duties required him to work on. its elevated structure, around and between the railway tracks upon which trains were being operated. In charge of the gang with which plaintiff was working was. a boss or foreman named McEwen, and a part of his prescribed duties was to warn the workmen, when on the track, of approaching trains. At the time of the accident the foreman was témporarily absent from the place where plaintiff was working, and no warning was given plaintiff by him and he was struck by a passing train, while, at work, and. received the injuries for. which he complains.
The plaintiff had been engaged in this kind of work for several months, and testified that it was the custom for the foreman to give warning of an approaching train, and lie manifestly relied upon the fact that such warning would be given to him.
By the charge of the court all questions respecting tlie negligence of the defendant were taken from the jury except, that of the foreman, McEwen, in failing to perform his duty of giving warning ■ of an approaching train. As to the foreman the court charged that respecting his duty to give warning so that a reasonably safe place might be provided for the plaintiff in which to perform his work, he stood in the place of the master and was its alter ego and that his neglect in that regard was that of the defendant, and refused to charge that such neglect in failing to give warning was the neglect of a fellow-servant.
This instruction was erroneous. The action is not under the Employers’ Liability Act (Laws of 1902, chap. 600), but at common law, and it must be tested by the rules applicable to such an action.
Under the law of the case as enunciated by the trial court no *349question remained for the jury to determine except whether or not the foreman, McEwen, was negligent in not giving warning of an approaching train. Mo question was raised as to the competency of McEwen to perform his duties, and it must be assumed that he was a competent man for the position. Under the facts appearing the master fully performed its duty to plaintiff by furnishing such competent foreman to give the necessary warning.
The giving of warning of approaching danger by a foreman to a gang of workmen is a detail of the work of the master. (Ryan v. Third Avenue R. R. Co., 92 App. Div. 306; Riola v. N. Y. C. & H. R. R. R. Co., 97 id. 252.) At common law the master is not liable to his employee for the negligent acts of a superintendent in the management and detail of the work. Although the superintendent is of a higher degree than the- one injured, he is still a servant as -to the detail and management of the work, and not the alter ego of the master and his negligence in those respects is the negligence of a coservant for which the master is not responsible. (Loughlin v. State of New York, 105 N. Y. 159 ; Cullen v. Norton, 126 id. 1; Ryan v. Third Avenue R. R. Co., supra.) It was to relieve from the harshness of this rule that the Employers’ Liability Act was enacted by the Legislature. (Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577; affd., 181 N. Y. 519; Gmaehle v. Rosenberg, 178 id. 147.) To obtain the privileges of that act, however, the action must be brought under it and not for common-law negligence. An employee.'cannot bring his action under the act and without amendment of his complaint recover upon a common-law cause of action, nor can he bring it at common law and recover under the act. (Davis v. Broadalbin Knitting Co., 90 App. Div. 567; affd., 185 N. Y. 613; Chisholm v. Manhattan Railway Co., 116 App. Div. 320.)
In Ward v. Manhattan Railway Co. (95 App. Div. 437) this court made the observation that as it then construed the Employers’ Liability Act the provisions of sections 1 and 2 could not be taken advantage of except the action was brought under the act, but that the provisions of section 3, respecting the assumption of risks, applied to all actions by an employee against his employer, whether under the act or at common law. Further consideration has led us to conclude that in order to entitle an employee to the *350benefit of the provisions of the Employers’ Liability Act he must bring his action under that act and conform to its terms in so doing (Chisholm v. Manhattan Railway Co., supra), and that in-an action for common-law -negligence he is not entitled to the benefits of its provisions, but must be governed by the rules of the common law.
The Employers’ Liability Act is’not an abridgment of the rights of an employee against his employer as they existed at the time of its passage. Such rights as he had at common law still exist, and the act has added other rights of action which he may take advantage of if lie conforms- to the provisions of the statute. (Gmaehle v. Rosenberg, supra; Bellegarde v. Union Bag & Paper Co., supra) The present action' having been brought under the common law, its rules apply, and for the error pointed out the judgment must be reversed and' a new trial granted.
The judgment and order should he reversed and a new trial grañte'd, with costs to the appellant to abide the-event.
Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.
Judgment and order reversed, new triaLordered, costs to appellant' to- abide event. Order filed.