Schradin v. New York Central & Hudson River Railroad

This action was brought to recover the damages sustained by the next of kin of the plaintiff’s intestate caused by his death while in the employ of the defendant. The complaint alleges that on the 16th of September, 1906, plaintiff’s intestate was in the employ of the defendant as an electrical worker on the tracks of the defendant at 107th street and Park avenue in the city of New York; that while so engaged the said deceased was run into and upon by locomotives with the cars thereto attached, which cars and locomotives were in the exclusive control and operation of the defendant;_ that the said collision was caused by the careless, negligent, and unlawful acts and omissions of the defendant, its agents and servants, and without any fault on the part of the said deceased which contributed thereto; that, in consequence thereof, the deceased sustained injuries which resulted in his death; and that plaintiff has caused to be served upon the defendant notice of the time, place, and cause of the injuries resulting in the immediate death of the deceased, pursuant to the provisions of the Employer’s Liability Act of 1902, Laws 1902, p. 1748, c. 600.

Upon the trial, plaintiff’s counsel stated that his complaint was drawn on the broad ground of negligence; that the plaintiff elected to try his case as a cause of action for common-law negligence, supported by an amendment to the railroad law, chapter 657, p. 1682, of the Laws of 1906. The defendant objected to any claim under that statute, on

The plaintiff’s evidence tended to show that the deceased, with a fellow workman, was at work upon track No. 4 of the defendant’s railroad. At this point on the defendant’s road there were four tracks; two for north-bound, and t-wo for south-bound, trains. The northbound trains used the west tracks. An employé working with the deceased left track No. 4 to go on track No. 3, and, on turning around

It is clear that but for the act of 1906 there would be no cause of action. The deceased was employed to work upon a track upon which trains were constantly passing. The danger of working upon such a track was apparent, and he was liable to be fun over by passing trains if he remained constantly on the track without watching. To protect him, the defendant provided a watchman whose duty it was to give notice of the approach of trains. The deceased had a helper who could easily have watched for trains while the deceased was at work; but at the time of this accident he was engaged in catching the string of a kite and not attending to his duties. The watchman whose duty it was to give notice of the approach of trains appears to have been on duty at the time and in his proper place, and the defendant thus performed its duty to the deceased in providing a proper watchman to give notice of the approach of trains. There was, therefore, no evidence of the defendant’s negligence, unless an additional liability is imposed by the provisions of this act of 1906.

The first question presented, therefore, is whether, to sustain a recovery under the provisions of this amendment of 1906, it is necessary to allege a cause of action under it in the complaint. The charge in the complaint is a general charge of negligence, and the liability charged against the defendant is based upon a collision caused by the negligent, careless, and unlawful acts and omissions of the defendant, its agents and servants. Section 42a of the Railroad Law, Laws 1890, p. 1082, c. 565, as amended by chapter 657, p. 1682, of the Laws of 1906, provides:

“In all actions against a railroad! corporation * * * for personal injury to or death resulting from personal injury of any person, while in the employment of such corporation, or receiver, arising from the negligence of such corporation or of any of its or his officers or employees, every employee, or his legal representatives, shall have the same rights and remedies for an injury, or for death, suffered by him, from the act or omission of such corporation or receiver or of its or his officers or employees, as are now allowed by law, and in addition to the liability now existing by law, it shall be held in such actions that persons engaged in the service of any railroad corporation, foreign or domestic, doing business in this state, or in the. service of a re

If this act applies, I think there is a cause of action, as the man •employed to give signals of the approach of trains would be a person in the employ of the defendant who had the “control or direction oi a movement of a signal.” He would be the person placed by the defendant in control of a signal to give notice to its employés of the approach of trains, and the lives of the employés upon the track would depend upon the careful performance of this duty. But for the provisions of this section, the watchman was a fellow workman -of the deceased, and for his negligence the defendant would not be liable, and if the engineer was at fault, he also would be a fellow workman. The question of the liability of the defendant depends upon whether this statute gives a new cause of action which must be pleaded. The statute, in terms, imposes an additional or enlarged liability. It provides that in all actions against a railroad corporation' for personal injuries to an employé, such employé shall have “the same rights and remedies for an injury, or for death, suffered by liim, from the act or omission of such corporation or receiver or of its or his officers or employés, as are now allowed by law, and, in addition to the liability now existing by law, it shall be held in such actions” that certain persons specified are not fellow servants of the injured or deceased employé. But the liability which is imposed is not to be enforced by a separate action, but that, “in addition to the liability now existing by law, it shall be held in such actions"—namely, in actions brought to enforce the liability of a railroad corporation to its employé who has been injured or killed while in the service of the railroad corporation. There is no notice required to be given to the employer of an intention to hold the employer liable under this provision of the statute as there is in the employer’s liability act •of 1902. It seems to me that the effect of this provision is that a ■certain rule of law by which certain employés of an employer were deemed fellow servants should not be applicable to railroad corporations, but such employés should be what the statute calls “vice principals,” or employés for whose negligence the master should be liable. The employer’s liability act (chapter 600, p. 1748, of the Laws of 1902). expressly provides that no action for a recovery under the act could be maintained unless notice of the time, place, and cause of the injury is given to the employer. In Gmaehle v. Rosenberg, 178 N. Y. 147 , 70 N. E. 411 , the Court of Appeals held that the employer’s liability act gave an additional cause of action in that it prescribes that the master should be liable for the negligence of a superintendent or any person acting as such. But as no notice is required to be given to maintain an action to enforce a liability, created by the act ■of 1906—as the facts alleged in this complaint are sufficient to bring the plaintiff within the liability created by that act, and as it is a

The judgment and order should therefore be affirmed, with costs.

PATTERSON, P. J., and SCOTT, J., concur.

The recovery is sought to be sustained under chapter 657, p. 1682, of the Laws of 1906, but, as I construe the complaint, that is not the cause of action alleged, nor is it the theory upon which the action was tried and submitted to the jury. There is not a reference in the complaint to chapter 657, p. 1682, of the Laws of 1906, or any facts set forth indicating that the action is brought under that statute, and at the beginning of the trial the plaintiff’s attorney elected to try the action as one td recover under the common law, and the case was submitted to the jury upon this theory.

In Gmaehle v. Rosenberg, 178 N. Y. 147 , 70 N. E. 411 , the court held that the employer’s liability act (chapter 600, p. 1748, Laws 1902) gave an additional cause of action, in that it prescribed that the master should be liable for the negligence of a superintendent or a person acting as such. The act of 1906 gave an additional cause of action by extending the liability of the master beyond that imposed at common law and by the employer’s liability act. The act expressly recites that it creates a liability for certain acts “in addition to the liability now existing by law,” and declares that persons who are intrusted with the authority of superintendence, control, or command of other persons, or who have, as a part of their duty, physical control or direction of the movement of a signal, switch, locomotive, engine, car, train, or telegraph office, are vice principals, and are not fellow servants of the injured or deceased employé. By this act two classes of employés are declared to represent the master: (a) Those who exercise superintendence or have authority to direct or con

Where a recovery is sought under the employer’s liability act (chapter 600, p. 1748, Laws 1902), the .complaint must show, by appropriate allegations, that the action is brought under that statute (Sutherland v. Ammann, 112 App. Div. 332 , 98 N. Y. Supp. 574 ) ; and the same is true where a recovery is sought under chapter 657, p. 1682, of the Laws of 1906. Where the right to maintain an action depends upon a statute, the plaintiff must, by an appropriate pleading, bring the action within the terms and conditions of the statute (Lewis v. Howe, 174 N. Y. 340 , 66 N. E. 975 , 1101) ; in other words, the complaint must clearly and unmistakably indicate, either by a reference to the statute itself or by alleging certain facts, that the action is brought under the statute. The purpose of a complaint is to notify the person against whom a recovery is sought of the precise ground upon which that recovery is claimed. This purpose would be thwarted if a party could allege one cause of action and then recover upon another, or set forth general allegations entitling one to recover at common law and then recover under a statute. It is true a pleading is to be liberally construed, but this presupposes, in case of a complaint, that the plaintiff has complied with the statute by setting forth in his complaint a plain and concise statement of the facts constituting his cause of action, and, if a material statement is susceptible of two meanings, the one most unfavorable to the pleader must be taken. Clark v. Dillon, 97 N. Y. 370 . It is no answer to these suggestions, as it seems to me, to say that if the defendant wished to know which fellow servant had been negligent it should have applied for a bill of particulars or. to make the complaint more definite and certain. It had a right to assume, inasmuch as no reference was made to the act of 1906, or any facts pleaded indicating that a recovery was claimed under that act, that the action was not brought to recover under that statute.

For these reasons, I am unable to concur in the opinion of Mr. Justice INGRAHAM. I am of the opinion the judgment and order appealed from should be reversed, and a new trial ordered.

CLARICE, J., concurs.