On Jаnuary 6, 1919, plaintiff, who was in the employ of the then Director-General of Railroads, was working on the tracks of the New York Central railroad, between One Hundred and Thirty-eighth and One Hundred and Thirty-ninth streets, in the city of New York, and while so working a fellow-employee, by name of Sokolowsky, employed in. the same gang and doing the same work as the plaintiff, came to plaintiff, and (as plaintiff testified) put his hand upon plaintiff’s shoulder and asked him to shake hands. The plaintiff shook hands with him and Sokolowsky then walked аway. Thereafter Sokolowsky returned and without saying anything to the plaintiff “ grabbed ” plaintiff’s cap and pulled it down over his face, saying, “ How are you? ” At about the samе time the plaintiff heard a- whistle and thought that a train was coming. He attempted to pull his cap up and while doing so his feet slipped into a hole, as the tie wаs wet and covered with ice, and he fell or sat down upon one of the rails, receiving a fracture of the end of the spine, necessitating an operаtion for the removal of the broken piece of the coccyx.
This action is brought under the Federal Employers’ Liability Act, the sections with which we are cоncerned being as follows:
Section 1. “ Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or betweеn any of the States and Territories, or between the District of,Columbia and any of the States or Territories, or between the District of Columbia or any of the States оr Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in cаse of the death of such employee, to his .or her personal representative, for the benefit of the surviving widow or husband and children of such employeе; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury, or death resulting in whole or
Section 3. “ In all actions hereafter brought against any suсh common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or whеre such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the sаfety of employees contributed to the injury or death of such employee.” (35 U. S. Stat. at Large, 65, chap. 149, § 1; Id. 66, chap. 149, § 3.)
•In order to bring the case within the purview of that act, two things are necessary: First, the defendant carrier must be, at the time the injury is sustained, engaged in interstate commerce; and the employee must be so employed when he is injured; second, the injury must have resulted in whole or in part from the negligence of some officer, agent or employee of such carrier, or by reason of some defect or insufficiency due to its negligence in its cars, appliances, track or equipment.
It is conceded that the first requisite was present in this case. The only question remaining is whether the injury was the result of negligence of an employee of the defendant carrier.
I think it is clear that Sokolowsky at the time of his acts complained of, was not' engaged in the prosecution of any business of his master. The question is to be tested by the decisions of the Federal сourts.
In Southern R. Co. v. Gray (
The general rule is thus laid down in Boberts on Federal Liabilities of Carriers (Vol. 1, § 537) under the topic “ Injuries to Interstate Emрloyes; Negligence Under Federal Act,” as follows:
“ § 537. Negligent Act Must have been Committed while Employe was Acting within Scope of Employment. A carrier is not liable fоr every act of negligence causing injury to one employe by another. The negligent act causing the injury must have been'
In Jackson v. Chicago, R. I. & P. R. Co. (
In Davis v. Green (
The cases under the New York State Workmen’s Compensation Law have no bearing upon the question at issue. Under that law, compensation for injury is a necessary incident, irrespective of any question of negligence upon the part of the employer. Under the Federal statute, this is not the case, but negligence upon the part of the employer must be proved as required thereby. Thus in dealing ■ with the State statute, Judge Cardozo said in Matter of Leonbruno v. Champlain Silk Mills (
In the case now before us the actions of Sokolowsky in indulging in “skylarking” "with plaintiff, whatever his motive or intent, have absolutely no relation to his duty to his emplоyer and were not done in the course of such duty, and these voluntary, willful and purely personal performances of his could not impute negligence to the еmployer, rendering the latter liable under the Federal statute for the consequences thereof.
The judgment and order appealed from should, therefore, be reversed, with costs to appellant, and the complaint dismissed, with costs.
Clarke, P. J., Finch, McAvoy and Martin, JJ., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.