(dissenting). This is an action against the town of Richmondville for having negligently caused the death of the town’s superintendent of highways who was killed when a truck owned by the town was backed over him on a highway construction job. The jury returned a verdict against the town but the trial court set it aside and dismissed the complaint on the ground that the *488decedent was guilty of contributory negligence as a matter of law and that no negligence of the town was shown. From this order and the judgment entered thereon plaintiff appeals.
The appellant urges that she established upon the trial that the negligence of the defendant was eight-fold: •
1. The driver of the truck backed “ blind ” upon a public highway.
2. The driver failed to exercise due vigilance as required by subdivision 3 of section 83 of the Vehicle and Traffic Law.
3. The truck was not equipped with a mirror or other reflecting device so adjusted as to give the driver a clear and full view of the road to the rear as required as subdivision 11 of section 15 of the Vehicle and Traffic Law.
4. The truck had a wood projection extending out for such a distance on each side of the cab that it was impossible for the driver to look to the rear while operating it in reverse.
5. The rear window of the cab of the truck was dirty.
6. The dump body of the truck was piled with stone so high that half of the window in the back of the cab was covered and the driver could not see through it to the rear.
7. There was no signalman or watchman to guide and warn the driver as was customary under similar circumstances.
8. The driver disregarded or failed to see a warning given to him by the operator of a tractor some distance to the rear.
The acts of negligence which the plaintiff thus claims to have proved may be divided into two classes, (1) those chargeable directly to the driver in the operation of the truck and (2) those having to do with the equipment of the vehicle and its use generally. There is no question as to the legal responsibility of the town for the acts of the driver in the operation of the truck. (Gen. Municipal Law, §§ 50-a, 50-b.) There is, however, a serious question as to whether any of such acts were shown to be negligent in their relation to plaintiff’s intestate.
At the time of the accident the truck was backing southerly down a narrow town road toward a spot where sub-base was being laid some 150 feet away. It had already backed a distance of 122 feet. It was a Ford truck with a dump body loaded with stone piled so high that a portion of the opening in the body directly back of the window of the cab was covered. The driver had opened the left door of the cab alongside of his seat and was leaning out, looking to the rear as the truck proceeded back at the rate of about two miles per hour. When the driver commenced backing down the road he saw plaintiff’s intestate standing some distance off of the road to the east talking with a neighbor and that is the last time he saw him. At that time the road was clear save for a tractor *489almost 300 feet away, down by the sub-base. Van Burén then walked in the same direction as the truck was going, out of sight of the driver, until he reached a point just south of the rear end of the moving truck. He there stepped into the road ahead of the right rear wheel of the moving truck, started on a little trot, took two or three steps, stumbled and fell directly in back of this wheel and 5 or 6 feet from it. The operator of the tractor about 150 feet to the south, who was sitting in the cab of the tractor with the motor running, shouted, but there is no proof that the truck driver heard him. As the truck ran over plaintiff’s intestate, the driver felt the bump and stopped the truck immediately.
Van Burén thus was in a place of safety in so far as the operation of the truck was concerned as the driver commenced backing. There was nothing in the situation to warn the driver that the town superintendent would leave his place of safety and come within the realm of possible danger from the operation of the vehicle. There is nothing in the facts of this case making his conduct careless as to plaintiff’s intestate. There was no more notice to this driver that his manner of driving this vehicle did or could imperil the town superintendent than there was to the station guard in the Palsgraf case (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339). Anticipatorily there was no reasonable possibility that the interest of the town superintendent, who stood talking with a neighbor about thirty feet from the highway and who had saluted the driver as he drove past him and still stood there when the driver began to back the truck down the road, would be invaded by the operation of the truck. As stated in the Palsgraf case (at p. 341): “The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it "was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘ Proof of negligence in the air, so to speak, will not do.’ ” That Van Burén would place himself in a position of hazard was not reasonably predictable. “ If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity with reference to some one else. * * * The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.” (Palsgraf v. Long Island R. R. Co., supra.) After the driver saw and waved to the *490town superintendent, he again ascertained his position before starting to back his truck. At that time the town superintendent was where be had previously been, in a place of safety, and far from the path of the backing vehicle. The town superintendent was not in the orbit of danger as was disclosed to the “ eye of ordinary vigilance ” of one in the position of the driver of the truck.
The plaintiff established upon the trial the negligence of her own intestate. Neither the town nor driver was responsible for the condition or equipment of the truck or the lack of a signalman. These responsibilities rested squarely upon the decedent. “ All tools, implements and other highway equipment owned either by the town or the highway districts therein, shall be used by the town superintendent in such manner and in such places in such towns as he shall deem best. They shall be under the control of the superintendent and be cared for by him at the expense of the town.” (Highway Law, § 142.) Thus, by statute, this truck and its equipment and manner of use generally were all under decedent’s immediate personal supervision. If these were not reasonably safe or in any way failed to comply with what reasonable care or statute required, the duty and responsibility of correction and repair were his and his alone. He was the only person who had authority to remedy the defects. The driver was not authorized to expend town funds for the purchase of a mirror or to alter or repair the truck. He took it as it was furnished to him by the decedent. That was the responsibility of the decedent. The town superintendent of highways is not the agent or servant of the town. He is an independent public officer, exercising powers conferred by statute and charged with duties prescribed by law. (Youngman v. Town of Oneonta, 204 App. Div. 96; affd., without opinion, 236 N. Y. 521.) Thus when the plaintiff proved that the truck and its equipment were defective and such defects contributed to this accident, she proved the failure of decedent himself to properly perform the duties imposed upon him by law.
As to the necessity for a signalman or watchman, here again the decedent was the person whose duty it was to provide such signalman or watchman if one was necessary. He was in complete charge and control of this construction with the power and duty to employ and direct such help as was necessary. (Highway Law, § 140, subd. 4.) He was personally directing the manner of the operation of the track and the performance of the work. He it was who should say whether a signalman or watchman was necessary and when he failed to provide one here, his representative cannot recover because of this fact.
*491Aside from all this, his act in stepping ahead of the backing truck on the side opposite the driver and out of his sight, was negligence. He knew where the driver was and that he was out of the driver’s sight. It was decedent’s stepping in the path of this moving truck, out of the driver’s sight, and then stumbling, which caused his death. The trial court correctly held the plaintiff’s intestate guilty of contributory negligence as matter of law, and that no negligence chargeable to the town was proven.
The order and judgment should be affirmed.
Ckapsee, J., concurs.
Order and judgment reversed on the law and the facts, with costs, and verdict reinstated.