
    Philip Simons, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    December 30, 1910.
    Railroad — negligence — master and servant — section 42a of Railroad Law — application to street railway — motorman — vice-principal.
    Section 42a of the Railroad Law applies to street railways as well as to .other ■ railroads.
    Where a motorman negligently started his car without signal from his con-
    . ductor, whereby the latter was injured, his act is, under the statute, the act of a vice-principal and the railroad is liable for the injuries.
    The motorman and conductor as to each other are vice-principals of the railroad with respect to the separate duties imposed on each individually by the master.
    Hirschberg, P. J., and Woodward, J., dissented, in part, with opinion.
    Appeal by the defendant, The Brooklyn Heights 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 Kings on the 13th day of December, 1909, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 11th day of December,'1909, denying the defendant’s motion fora new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Don R. Almy [Arthur J. Levine and John M. Wellbrock with him on the brief], for the respondent.
   Thomas, J.:

The motorman started his car without signal from his conductor, whereby the latter was injured. Hence this action. The defendant gave plaintiff authority to direct the motorman in the performance of the duty of starting the car, and imposed upon the motorman the duty of physical control of the car; By section 42a of the Railroad Law, the conductor was vice-principal as to the motorman in the matter of directing him, and the motorman was vice-principal as to the conductor in directing the car. ' So, if the conductor as such vice-principal ordered the servant to start the car and the servant started it negligently and injured his vice-principal, the act of the motorman was not the act of a servant, but that of a vice-principal. I find no incongruity. The master speaks through the conductor and acts through the motorman. The negligence of either is imputed to the master and liability attaches. In the present case the conductor had given no order, and in its absence the motorman acted. The act, although negligent, was that of the master, and as it hurt .the unparticipating and passive conductor, the master is liable. The conductor was not even privy to the act, but in any case his representative capacity was quite distinct from that of his motorman. The master used two vice-principals to act in conjunction in the operation of the car, one to direct starting and stopping, and one to start and stop as the first should indicate. There is no confusion, if it be kept in mind that through each the master is performing duties that the statute in effect makes its own, and. the negligent act of either conductor or motorman, whether obedient or disobedient, puts the master in the wrong. Although the conductor directs for the master he is not the master, and when hurt by the motorman’s negligence he does not receive his injury as vice-principal, but as an- individual. The defendant’s proposition is that the motorman disobeying or obeying is the conductor’s fellow-servant. But the. conductor in discharging his duty is not a fellow-servant. So the motorman in performing his duty is not a fellow-servant of the conductor. The act has been considered valid in its application to a steam railroad (Schradin v. N. Y C. & H. R. R. R. Co., 194 N.Y. 534; Id. 565), and no reason appears for doubting its constitutionality in respect to a street railway. But it is urged that it was not intended to affect railways of the latter class.

The Railroad Law, of which "section 42a is a.part, is applicable to street railways, unless a. contrary intention is expressed or is infer-able. (Vail v. Railroad Co., 147 N.Y. 377.) Although the act of 1850 (Laws of 1850, chap. 140, as amd.),has primary reference to steam railroads, it has been found convenient to use it, when its appropriation for such purpose is suitable, for the formation, and operation of street railways. Reason for or against applicability aids the ascertainment. The language used influences, and, may be, compels decision. The change from horses to electric. motors assimilates street railways to steam railroads in Operation. The agency for propulsion is used in both instances. The effective power, the rapidity of motion, the momentum acquired, the possible abruptness of starting and stopping, have converted the slow and halting, horse car info an energized vehicle, of transportation, menacing to safety unless operated with correspondingly increased care, and approximating in such respects the steam railroad and its-accompanying dangers. .The street cars have the additional burden o'f more frequent interruption in their course with of tener occurring maneenvering at terminals, where employees often- collect. Hence appears propriety in applying the statute to street cars as well as to steam cars. The terms of the section indicate intention to include street cars. It is true that the words “signal,” switch,” “ locomotive engine,” “ train,” “ telegraph office,” indicate a steam railroad, but the word “car” is used, and switches are not foreign to street railways. But as the Railroad Law is used for both classes of railways, a section may-well have terms,-some or m®st of which are peculiar to a single class and some common to both. So the meaning of the .word “ car ” would not be inferred from its.association. The “physical control or direction of the movement of a * * * car ” is common on both kinds of rail-, way, and without data for comparison it is evident that the number of cars operated upon street railways is quite sufficient to demand the statute. There are several judicial suggestions or directions for determining whether a section of the act has dual application. The. court in Vail v. Railroad Co. (supra) held that the statute was broad enough to cover a street railway, but that the legislative intention was otherwise. This intention was found in the absence upon street railways of the peril of riding oh the platform of a car, the use in section 46 of the terms “ train,” “ baggage, wood, or freight car,” terms peculiar to steam cars, and the requirement that a notice was required to he posted in cars “ then in the train,” and the known use and permission to passengers by the carriers to use the platform of street cars. Without multiplying citations, the Vail case indicates the means of construction employable. It shows that the terms used maybe used; that conditions when the section was enacted may be consulted; that existing and permitted practices may reveal the legislative understanding of the need of the law. If a statute make an employer liable for the acts of his servants “in charge of a locomotive;engine or train upon a railroad,” the very words may exclude an electric car on a street railway, as decided in Fallon v. West End Street R. Co. (171 Mass. 249). A street car is neither a locomotive engine nor train. The peculiar, terms can embrace only the single class. An examination of the several sections of the Railroad Law shows (1) that many on their face show from the subject-matter whether they apply to one or both classes ; (2) that certain sections are expressly limited to one class; (3) that certain sections are expressly extended to both classes. But the Railroad Law has been, so far as applicable, and except as to parts thereof expressly withheld, or inapplicable in subject-matter, appropriated to the formation, operation and conduct of street railways. Hence there is presumed intendment of such application (Matter of Stillwater & M. St. R. Co., 171 N.Y. 589), where it is said : “ The Legislature in undertaking a revision of the railroad laws attempted so far as possible to establish a complete system under which all kinds of railroads could be operated and the public interest subserved.” Moreover, the further matter in the section indicates the generality of the Legislature ; for it provides for evidence and the probative force thereof in the case of an employee in the service of “ any such railroad corporation ” or of a receiver thereof, injured “by reason of any defect in the condition of the ways,-works, machinery, plant, tools or implements, or of any car, train, locomotive or attachment thereto belonging.” It is .considered that the Legislature did not intend to make such defects presumptively known to the employer and to predicate his negligence thereon in the case of a steam railroad company and to deny the rule where a street railway company

is concerned, nor did it intend to unite-this matter common to both classes with á provision excluding one of them. The industry of counsel has presented decisions in foreign tribunals supporting their several contentions, and the plaintiff has the support of the decisions in Forton v. Crosstown Street Railway Co. (63 Misc. Rep. 237) and Riccio v. International Railway Co. (Id. 588), and in the absence of-opinion' or record I am unable to verify his statement that this court in the First Department in Clark v.New York City Railway Co. (134 App. Div. 963) favors his view. The other : objections to the recovery have been considered,.and while the accident was so peculiar as to demand very careful scrutiny, it is not impossible or so improbable in view of the evidence as t-o demand a disturbance-of,.the verdict.

The judgment and order should be affirmed, with costs.

Jenks and Burr, JJ., concurred ; Hirschberg, P. J., - concurred on second ground, in separate memorandum, with whom Woodward, J., concurred.

Hirsohberg, P.- J.-(concurring):

In the opinion of Mr. Justice. Thomas two questions are considered : First, whether the motorman is to be regarded, as the vice-principal of the railroad company with respect to'the conductor by virtue of section 42a of the Railroad. Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657);and secondly, whether that law is applicable to street railways. I concur in the opinion so far as it relates to the second question considered, but cannot concur as to the first. I do not think. a motorman could possibly be considered the vice-principal of the railroad with respect to tile conductor inasmuch as the mies of the company require the motorman to be at all times under- the orders and direction of the conductor. But the question does not appear to have been raised'in this case at the trial. When the case was tried the law was deemed settled by the decision' in Schradin v. N.Y. C. & H. R. R. R. Co. (194 N.Y. 534; Id., 565), the decision in Halloclc v. N.Y., 0. & W. R. Co. (197 id. 450) not having then been made. So this case was tried by counsel and court upon the theory that the motorman was the vice-principal, and that the defendant- was liable to the plaintiff for the motorman’s negligence. The counsel for the defendant took special pains to leave that question out of the case. At the close of plaintiff’s case he moved to dismiss the complaint on the ground that the plain tiff had failed to prove .a cause of action. Whereupon • the trial court asked him : “What point do you make it on? On the point that he has not shown a cause of action under 42-A, or do you also raise the constitutional question? ” To which the defendant’s counsel answered : “ Yes, I raise it upon the ground that 42-A of the Railroad Law does not apply to a street railway company; that, if if does apply, it is in violation of the Constitution and discriminatory— on the 14th amendment to the United States Constitution.” At the close of the whole case the motion to dismiss was renewed “ upon the same grounds stated upon the motion made at the close of the plaintiff’s case.”

Woodward, J., concurred.

Judgment and order unanimously affirmed, with costs.  