The action is for damages resulting from the death of plaintiffs intestate, caused through the negligence of the' defendant. The deceased was working for the defendant on its railroad and was struck by a train and killed. The jury rendered a verdict in favor of the plaintiff.
The defendant urged upon the trial, and still insists, that the evidence failed to show either that it was negligent or that the deceased was free from contributory negligence, and those questions were presented by various exceptions as well as by a motion made on defendant’s behalf for a new trial upon the minutes of the presiding justice. The trial, court held against the defendant’s contention. ■
The accident happened bn the morning of August.31, 1906, at a point about a mile, west óf Angola, where the defendant has four tracks, being the main, line of its railway from Buffalo to Chicago. The tracks' are numbered respectively 1, 2, 3 and 4 from the south side to the north. On the two southerly tracks, Nos. 1 and 2,' the defendant runs its west-bound trains, No. 1 for freight trains and No, 2 for passenger trains. On the two northerly tracks, 3 and 4, its east-bound trains are run, passenger trains on No. 3 and freight trains on No. '4. The tracks- are straight toward the east for the distance of about one-half or three-fourths of a mile.
The men, about forty in number, were engaged in' raising up track No. 1 and putting in new ballast.; It was the duty of deceased, a man fifty-one years of age, to supply the workmen'with drinking water. Just before the accident happened he was passing among the workmen engaged in that duty. A west-bound freight train approached on track No. 1. A rail was being raised and the train was flagged. It stopped within ten- or fifteen feet of where the men were at work. The bell on the engine which had been ringing, stopped ringing. What occurred after this is in dis*845pute, but the evidence fully sustain the claim of the plaintiff, that when the track was lowered and ready for the freight train to- pass, over it, the bell of the freight engine began ringing again, and about the same time the foreman gave the warning, “ Look out, boys,” stepping away from track 1 and -toward of on track 2. At that time an express train was coming on track 2. It seems that the warning was intended for the express train, but the deceased evidently thought that the foreman referred to the freight train, and stepped over onto track 2 with other workmen and was struck by the express train coming from the east.
It was contended on behalf of the plaintiff that the deceased was not sufficiently or adequately warned of the approach of the express train, and the- sole question submitted to the jury as regards the ' defendant’s negligence was its failure to give reasonable, sufficient and adequate warning to the deceased of the approach of this train. We think this question, as well as that of the contributory negligence of the deceased, was properly submitted to the jury, and that the evidence sustains the verdict.
At the time the warning was given the deceased was busily engaged in his work, and besides, the freight train, consisting of about seventy cars, to some extent obstructed the view of the approaching express train. Beyond that the bell of the freight train had commenced ringing. The track was ready for that train to proceed ;• the foreman, who was standing between tracks 1 and 2 when he gave the warning, stepped away from the freight train track, and it is not at all unreasonable that the deceased should have assumed that the warning was intended for the freight train.
It is contended, however, on behalf of the defendant, that the failure of the foreman to properly warn the deceased was the act of a 'fellow-servant, for the negligent performance of which the defendant is not liable. Very likely that would be true under the common-law rule. (Riola v. N. Y. C. & H. R. R. R. Co., 97 App. Div. 252; affd., 184 N. Y. 596 ; Curran v. Manhattan R. Co., 118 App. Div. 347.) But it seems clear that under the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600), as supplemented by the so-called Barnes Act (Laws of 1906, chap. 657, being section 42a of the Railroad Law*), the foreman was the alter ego and *846vice-principal of the defendant as regards the negligent act, and that it is liable therefor. (Schradin v. N. Y. C. & H. R. R. R. Co., 124 App. Div. 705 ; Brown v. N. Y. C. & H. R. R. R. Co., 126 id. 240.)
We think the evidence sustains the verdict of the jury, and that none of the exceptions taken by the appellant and urged upon our attention was well taken.
The judgment and order should, therefore, be affirmed, with costs.
All concurred, except McLennan, P. J., and Wtlt.ta.-mr, J., who dissented. -
Judgment and order affirmed, with costs.
See Laws of 1890, chap. 565. — [Rep.