Tommaso Isola, an Infant, by Giovanni Yannucci, His Guardian ad Litem, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant

Tommaso Isola, an Infant, by Giovanni Yannucci, His Guardian ad Litem, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant. Second Department, October 18, 1909. Railroad — negligence — failure to furnish, competent fellow-servants. Where a foreman employed by a railroad to superintend the unloading of cars at-a quarry directed an ignorant and incompetent laborer to loosen the brake of a car so that it ran down a grade and collided with other cars, to the injury of a fellow-servant, the railroad may be found negligent in failing to furnish competent and skillful fellow-servants. Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of December, 1908, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. F. W. Thomson, for the appellant. Rosario Maggio, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The plaintiff was seriously injured by the collision of freight cars on which he was working while in the defendant’s employ and the allegation of negligence against the defendant is the failure to select a competent and skillful coworker. The work in progress was the unloading of stones from certain freight cars in a quarry belonging to the defendant. Three of the cars were standing upon a track about twenty-five feet apart. While the plaintiff was between two of them, the foreman in charge of the work directed a laborer named Manconi to loosen the brake of the third one, and on his doing so lie lost control of the car, so that it collided with one of the other two, causing them to come together, and the plaintiff, caught between them, lost his arm. There is sufficient evidence to justify the finding of the jury that Manconi at the time was incompetent to manage the car; that he was not employed for that purpose, and that he was physically incapable of preventing the impact after he had started the car by loosening the brake. While the question is not entirely free from doubt, it would seem to be controlled by the decision in Mann v. President, etc., D. & H. C. Co. (91 N. Y. 495, 499). In that case the accident was caused by the conductor selecting an incompetent person to flag the intestate’s train. The court said (p. 500): “ It is claimed by the defendant that assuming the incompetency of Townsend, his selection for the duty of flagging the intestate’s train, was the negligent act of Benedict, the conductor, and that the defendant having furnished other competent and experienced bralcemen, who might have been selected by Benedict, the company is not liable. We think this claim cannot be supported, in view of the doctrine now firmly settled in this State, that no duty belonging to the master to perform for the safety and protection of his servants can be delegated to any servant of any grade, so as to exonerate the master from responsibility to a co-servant who has been injured by its non-performance. The duty to use due care in the selection of competent servants is one of the master’s duties. The duty of selection, in case of corporations, must be delegated. But any negligent act or omission in its performance is the act or omission of "the master.” (See, also, Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368, 372; Brennan v. Gordon, 118 id. 489.) The judgment and order should be affirmed, with costs. Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ. Judgment and order unanimously affirmed, with costs.