The injury sustained by the plaintiff’s intestate, which caused his death, was not to be attributed to the’defendant. The general rule is that an employe assumes the risk of the employment, and that he has no right of action which is based solely upon the negligence of a co-employe. In the present case a train pulled apart. Assuming that the separation was ,due to a defective appliance unknown to deceased, the injury did not result :from it. The deceased was engaged in repairing the defect upon the portion .of the train which was stationary, and, while the deceased was engaged in .remedying the defect, the engine and forward- part of the train were driven «back upon him by an engineer, and he was killed. So far as can be seen from -the evidence, the0blame is to be solely attributed to the engineer, who backed his part of the train upon him without due care. The accident must be established to be the act of the company, and this is not made out by proving a disabled car or train alone. The risk of attaching the train in its disabled condition was one of the risks of the employment. MoCosker v. Railroad Co,, 84 N. Y. 77. The judgment should therefore be affirmed, with costs.
Pratt, J., concurs.