The material facts are not in dispute. At about noon on the 21st day of November, 1903,. plaintiff’s intestate was in defendant’s .employ, engaged in cleaning ashes from an engine standing over an ashpit in the defendant’s yard in the city of Buffalo. In order to perform such service it was necessary to go into the pit and under the engines to be cleaned. While thus engaged, the engine under which he was at work was moved, and in attempting to escape he was run over and injured in such manner that he died soon after. The deceased' had been in defendant’s employ for a considerable time prior to the accident and was entirely familiar with the method of doing the work in .which he was engaged. Concededly, when it was necessary to dump or clean the ashes from an engine it was run "over the ashpit by a “hostler,” was marked “dump” by the superintendent or person in charge, and other employees then Went under it to hoe out the ashes into the pit. When that was done a hostler took the engine from the pit. It was the universal custom in defendant’s yard, and the hostlers had been instructed not to move an engine from the ashpit until they had examined to see if any one was under the engine, then to sound the whistle and' ring the bell before, starting the same, and such instructions had been given to the hostler who moved the engine in question.
At the time in question two engines had been placed upon the pit. One was a live engine, the other crippled; both coupled together, and only capable of being moved by power from the live *541engine. These engines had been upon the pit for about an hour, and a Mr. Illinan, who was acting as superintendent in respect to the movement of the same, went into a shanty about twenty-five or thirty feet from the ashpit, where a Mr. Chamberlain and a Mr. Brown, who were hostlers, were eating their dinner, and directed Chamberlain to take the two engines from the pit, stating, as the jury had a right to find, that they had been dumped and were ready to be moved. ■ Illman then left the hostlers in the shanty eating their dinner, got upon his own engine and went away. After five or six minutes, when he had finished his dinner, Chamberlain went to the pit to remove the two engines. He made no examination or obseiwation to see whether or not any one was under the engines or in the ashpit, but got into the cab, gave a blast of the whistle, rung the bell and moved the engines, with the result that the plaintiff’s intestate in attempting to get out of the pit was crushed under the wheels and killed.
We think the evidence was of such character as to justify the jury in finding that the deceased was free from contributory negligence. The only question left to the jury by the trial court as to defendant’s negligence was whether or not Illman, who was then acting as superintendent, was guilty of negligence in stating to Chamberlain when he directed him to take the two engines from the ashpit that they had been dumped and were ready.
It must be conceded that if the accident occurred solely because of the negligence of Chamberlain the plaintiff cannot recover, because he was a coemployee with the deceased, and the trial court so charged. It is equally clear that if it resulted because of the negligence of Illman or would not have occurred except for his negligence, the defendant is liable, because at the time he was acting as superintendent, and under the Employers’ Liability Act, his negligence was the negligence of the master. So that the only question presented by this appeal is whether or not it was permissible for the jury to find that Illman was negligent because he directed Chamberlain to take the engines from the ashpit and stated z to him at the time in substance that .they had been dumped and were ready to be moved. If. Chamberlain had followed the express instructions given to him by the defendant and the custom which had been universally adopted in removing engines from the ashpit *542the accident would Hot have happened, for then he would have discovered that plaintiff’s intestate was in the pit and would'not have moved the engines.
.Could Illman have anticipated that his directions and statement would be interpreted by Chamberlain to mean that the engines in question might be moved in violation of the express directions given to him by the defendant and in violation of the custom adopted for doing such work; that he was thereby relieved from making any examination to ascertain whether any one was under the engines before moving the same? If Illmari. had given the direction and made the statement attributed to him with the engines in his view or under such circumstances that his order was to be carried out under his observation or immediate direction, another question would be presented. But here the superintendent found the hostler eating his dinner,; entirely away from the engines,' doing no act in connection with them. Under these circumstances he gave the order directing their removal, stating in substance that they were ready to be removed, and also that it was desirable that they should be moved as speedily as possible. We think such direction and statement should not be construed to mean that Chamberlain was authorized to move such engines, except in the usual manner and in accordance With the directions which had been given him for the performance of such work. After the directions were given by Ill-man Chamberlain waited live or six .minutes before attempting to move the engines. During that time any employee might have gone into the pit, which only emphasizes the" suggestion that the statement made five or six minutes before, “ the engines are ready,” could not be interpreted as an assurance on the part of Illman that no one was in the pit, and, therefore, that the hostler was relieved from making an investigation in that regard. Indeed, it very conclusively appears that Chamberlain did not so interpret the statement, for he sounded the whistle and rung the bell, all of which was unnecessary except. ■ for the purpose of warning any person who might be in the pit underneath. The rules in force upon practically all railroads require .that before a standing engine is .put in motion the bell shall be rung. If a superintendent should give an order directing that an" engine standing not in his view should be moved and should state that everything was ready for its *543starting, could such an order and statement be interpreted by the engineer to mean that he was not required to ring the bell, that it was permissible for him to violate the express rules of the company in that regard ?
In the. case at bar if Chamberlain was authorized by reason of what was said by Illman to violate the express instructions which required him to look under an engine before moving it from the ashpit he was equally authorized to omit sounding the whistle or ringing the bell.
We think the order given and statement made by the superintendent did not authorize the hostler to move the engines in question except in the ordinary way and after having taken the precautions imposed upon him by the express instructions of the defendant for the protection of his coemployees, viz., before moving an engine from the ashpit to see that no one was underneath and then to sound the whistle and ring the bell; that the accident in question resulted solely because of the negligence of Chamberlain in. failing to obey such instructions, and that for such negligence the defendant is not liable.
Having reached the conclusion that the evidence fails to establish that the superintendent, Illman, was guilty of negligence which caused or in- any manner contributed to the accident, it is unnecessary to consider any other of the questions raised by this appeal.
It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
Judgment and order affirmed, with costs.