Boldt v. . New York Central Railroad Company.

*433 Johnson, Ch. J. The general rule that an employer is not responsible to one employee for injury occasioned by another employee, engaged in the same general undertaking, is firmly settled in this state. (Sherman v. Rochester and Syracuse Railroad Company, 17 N. Y., 153; Russell v. Hudson River Railroad Company, id., 134, and cases there cited.) The plaintiff was employed to labor in graveling and ballasting a new track, which was on the same road-bed with and about six feet distant from the old track, and was injured by a train of cars of the defendants running on the new track, on which no train of cars had before been run. The plaintiff who suffered and the persons who caused the injury were in the service of one employer—the railroad company—the plaintiff in preparing a track and the others in running trains, but both in the common enterprise of maintaining and operating the railroad. If the plaintiff had been engaged in repairing the old track and the injury had occurred to him while digging gravel for that purpose, on the site of the new track, by the cars being thrown from the track and falling upon him, his case could not in principle have been distinguished from that of a switch tender or other person employed in the company’s service about the track, and injured in such service. Nor can I conceive that a different principle would apply in case the same accident occurred while the injured person was employed, in preparing a new track on the site of the gravel pit, instead of digging gravel to repair the old track. In each case the liability to injury would be incident to the employment. In accepting service on such a new track, in the case supposed, he must be taken to have known that his employers were engaged in running cars on the old track, and that he was therefore to incur such hazard as might be occasioned by the negligence of their employees. So in the case at bar, he must be taken to have contracted with reference to the possibility of cars being run on the *434 new track, whenever it became so nearly finished as to render such running practicable. When the plaintiff was injured he was walking on the new track from Ms house to his work. But he was in the defendants’ employment and doing that which was essential to enabling Mm to discharge his particular duty, viz., going to the spot where it was to be performed, and he was moreover going on the track where, except as the servant of the company, he had no right to be. He was there as the employee of the company, and because he was such an employee. Upon this point as well as upon the other, Gillshanon v. Stoney Brook Railroad Company (10 Cush., 228), and the cases before cited, lead to the result that the recovery was not warranted by law. Comstock, J., did not sit in the case, all the other judges •concurring, Judgment reversed and new trial ordered.