It is a familiar principle that, as between the defendant and strangers, the defendant is responsible for the negligent acts of its servants while in the discharge of the duties of their employment. This is elementary. (2 Kent’s Com., 259, 260.) It is now equally well settled that the master who has used proper care in the selection of his servants, is not liable to one servant for the negligence of another servant while engaged in the same common employment. (Sherman and Redfield on Negligence, sec. 86, and authorities there cited.) The reasons for this rule are well stated by Chief-Justice Shaw in Farwell v. Boston and W. R. R. Co. (4 Metc., 57), that the servant enters upon the performance of the duties he assumes with full knowledge of 'all the risks, and adjusts his com*476pensation accordingly; that he is as lively to know those risks and as well able to guard against them as the master, and can quit the service when he is no longer willing to face the perils of the occupation. He further says, at page sixty, that the “ implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself.”
While this rule is admitted fully in this State, much difficulty exists as to its application, and the books contain many cases upon that subject. In this case the learned judge before whom it was tried evidently did not think the doctrine had any application, for he held as matter of law that Dana, plaintiff’s intestate, was not a co-employe with Keiffer, the telegraph operator, whose negligence caused the injury. He instructs the jury that the first question for their consideration was whether “ the peremptory order given to the wildcat train to proceed from Auburn to Cayuga regardless of No. 50, without detaining No. 50 at Cayuga, or otherwise securing its safety, was a negligent act on the part of the defendant,” and if they do so find, the defendant’s negligence is made out. This charge is clearly correct if Dana and Kieffer were not co-employes, for in that case the defendant is directly responsible for the negligent act of Kieffer and all its consequences to Dana. As there was no question but that the negligent act of Kieffer was the cause of the collision and there was no question of contributory negligence on the part of Dana, the plaintiff, under the charge, was entitled to a verdict as a matter of course. The consideration of the question whether Dana and Kieffer were co-employes was taken entirely from the jury by the direct charge that they were not so, and the determination as to the correctness of this portion of the charge necessarily includes the several requests to charge in regard to that relation and the refusals of the court to do so, which were excepted to by defendant. The practice of running extra or wildcat trains over the Auburn branch of the defendant’s railroad was of long standing, was well understood by Dana and all its employes engaged in running trains. As such extra trains would necessarily interfere to some extent with the movement of regular trains over the road, the movements of all trains which may be affected by such extra trains are directed by telegraphic dispatches sent from the superintendent’s office at Rochester. To insure safety and guard *477against collision of trains tlie defendant adopted rules, of which each conductor and engineer of trains on the road was furnished with printed copies. Dana was in possession of a copy of those rules. These rules peremptorily required, amongst other directions to insure safety of the trains, that when an operator receives an order to hold a train, he must obey it strictly and conductors and engine men must respect such orders and comply with them in all cases. It is a very clear proposition that such compliance is absolutely necessary to insure the safety of persons and property upon trains subject to movements by such orders, and the failure of Keiffer to obey his positive instructions was the only cause of the collision which resulted in the death of Dana. Telegraph operators, at the several points upon the railroad where extra trains must pass, are as absolutely necessary to enable the defendant to run trains by telegraph as are conductors or engineers, and it is difficult to see why they are not co-employes with such conductors and engineers engaged in the same occupation of running trains by telegraph. Doth are the instruments of the controlling power of the corporation to accomplish a common purpose, the successful accomplishment of which depends upon the diligence and care of each in obedience to orders, which care should be in proportion to the dangers to be avoided. It is not necessary that both employes should be engaged in the same sort of services under a common employer. In Farwell v. Boston and W. R. R. Co. (4 Met., 49), before cited, it was held that a switch tender and the conductor of a passenger train were co-employes, and that the latter could not recover from the company for the negligence of the former. In Gillshannon v. Stony Brook R. R. Co. (10 Cush., 228), a common laborer, in repairing the track and who rode morning and evening several miles to the place he worked, on the gravel train of the defendant, was held to be a co-employe of the person in charge of the gravel train. The case of Russell v. The Hudson River R. R. Co. (17 N. Y., 134) is like the one in the 10 Cushing, before cited, in all respects; Besel v. N. Y. C. and H. R. R. R. Co. (70 N. Y., 171.)
The risk which resulted in the death of Dana, in view of these authorities, we think must be held to be one which entered into the contemplation of Dana when he entered upon his work, and the *478charge of tbe judge that he was not a co-employe with Keiffer was erroneous. If the evidence upon the point was at all doubtful, the question should, have been left to the jury to say whether they were co-employes or not.
The judgment and order should be reversed and a new trial ordered, costs to abide event.
Talcott, P. J., and Hardin, J., concurred.Order and judgment reversed and new trial ordered, costs to abide event.