Paolo De Santes, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant

Paolo De Santes, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant. Second Department, April 19, 1907. Negligence — injury to employee by backing engine—negligence of fellow-servant. The negligence of an engineer in backing his engine against work cars upon which an employee was seated, whereby he was injured, is that of a fellow-servant, and the employee cannot recover. Appeal by the defendant, .The 'New York, New Haven and Hartford Railroad Company, from, a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 9th day of February, 1906, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office' on the 5th day of February, 1906, denying the defendant’s motion for a new trial made upon the minutes. ; Walter O. Anthony, for the appellant. Ely)ah T. Russell [(7. Morschauser with him on the brief], for . the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The defendant was distributing rails along its track with a gang of men of whom the plaintiff was one — unloading them from a train of platform cars, which were enclosed by low sidings and ends, howeve'r. As the train was about to be started, the men got aboard the cars. The plaintiff sat on the end of one of the cars with his feet on the floor. The rails were shorter than the car, and lacked a foot or eighteen inches of reaching the end where he sat. The . engineer backed his engine up against the train with such violence when he went to couple it that the rails shoved or skidded along the floor and caught the plaintiff’s leg and broke it. The case was sent to the jury under a charge that pointed out no negligence that could be attributed to the defendant; the jury ■ were left to do as they pleased. The negligence of the engineer . was concededly that of a fellow, workman, and that is all there is of the case. • The judgment should be reversed, • , Woodward, Jenks and JRioh, JJ., concurred. Jtidgihent and order of the County Court of Dutchess county reversed and new trial ordered, costs to abide the event.