It is not contended that this judgment may be upheld because of any liability arising out of the Employers’ Liability Act.* Counsel for the plaintiff states in his brief that the trial court declined to submit to the jury any question arising out of that act, and the plaintiff was required to maintain and establish his cause of action under the common-law rule.
McDermott, the engineer operating the steam shovel, and Davis, the cranesman operating the dipper, both knew of the existence of the gas pipe. The superintendent was not present when the accident occuri'ed, but they had been warned the morning before of the gas pipe, and that it might be necessary to block up the machine. The danger of encountering this gas pipe was apparent and well understood, and the failure to block up the machine, or otherwise avoid encountering the pipe, was through either an error of judgment or carelessness upon the part of these two men operating this machine.
Counsel for the defendant requested the court to charge that if the accident was caused by the negligence of McDermott or Davis in operating the dipper, the plaintiff cannot recover, which was refused and an exception taken. I can see no difference in principle between negligence in operating the dipper, so as to encounter the gas pipe, and the negligence of a workman striking the pipe with a pickaxe, causing the rupture thereof, followed by an explosion from the escaping gas, after the workman had been informed in regard to the pipe and warned of the danger of striking it. In either case it seems to me it is the act of a fellow-servant and a detail of the work.
I do not think the engineer and cranesman were the alter ego of the master respecting the negligent act, as is held in the prevail*229ing opinion. (Crispin v. Babbitt, 81 N. Y. 516.) I am of the opinion that this case falls within the rule of Citrone v. O’Rourke Engineering Construction Co. (188 N. Y. 339) and Russell v. Lehigh Valley R. R. Co. (Id. 344).
I vote for reversal.
Robson, J., concurred.
Judgment and order affirmed, with costs.
Laws of 1902, chap. 600.— [Rep.