
    Daniel Murtagh, Respondent, v. Adrian H. Joline and Douglas Robinson, as Receivers of the New York City Railway Company, Appellants.
    (Supreme Court, Appellate Term,
    January, 1911.)
    Master and servant — Master’s liability for injuries to servant: Fellow servants — Statutory provisions — Railroad companies —Application, whether to street or steam railroads: Actions —Pleading — Negligence on part of master.
    In an action brought by an employee of a street railway company against his employer to recover damages for personal injuries under section 42a of the Railroad Law, where the complaint contains particular specifications of negligence, none of which are proved, hut no general allegation of negligence, the plaintiff may not recover, though from the circumstances of the injury negligence on the part of the defendant might be inferred.
    Whether section 42a of the Railroad Law applies to street railways, qnwre.
    
    
      Appeal by the defendants from a judgment of the City Court of the city of blew York, entered in favor of the plaintiff, after a trial before the court and a jury, and from an order denying defendants’ motion for a new trial.
    Dexter, Osborne & Fleming (Bayard H. Ames and John Montgomery, of counsel), for appellants.
    James E. Duross, for respondent.
   Page, J.

This is an action brought by an employee to recover damages for the alleged negligence of the defendants. At the beginning of the trial the plaintiff’s counsel stated that he “ desired to proceed against the defendants on their liability as the same is extended by section 42a of the Railroad Law.” Defendants’ counsel objected to the case being tried under a different theory than that set forth in the complaint. The objection being overruled, he moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action under section 42a of the Railroad Law. This motion was denied and an exception duly taken. The necessary motions were also made, at the close of the plaintiff’s case and after both sides had rested, to save the defendants’ rights.

The plaintiff was a conductor in defendants’ employ, on one of their Twenty-third street crosstown oars; and, while said car was traveling in a westerly direction, another of defendants’ cars traveling in a northerly direction along Eighth avenue ran into the crosstown car throwing the plaintiff to 'the pavement. There is no general allegation of negligence in the complaint. Th,e fifth subdivision of the complaint alleges that the said collision and accident occurred through the negligence of -the defendants, their agents and employees, in failing and neglecting to provide competent and skillful fellow servants, and in negligently and carelessly employing and allowing the motorman in charge of the Eighth avenue car to run and operate the same, although the said motorman was unskilled and unpracticed in using and operating the car ánd in operating the motor and brakes thereon; and that lie was incompetent and unfit) and that defendants, their agents and superintendents knew of said motorman’s unfitness and lack of skill and training, hut the plaintiff was wholly ignorant thereof; and -that the said collision and accident occurred through the negligence and carelessness of the defendants, their agents and employees, in failing to provide proper and suitable motors and motor-boxes and brakes on the Eighth avenue car, and through the use of defective, unsuitable and improper motors, motor-boxes and brakes on said car, and through failure to keep the same in repair; and that the condition of said motors, etc., had continued for a long time prior to said accident, known to the defendants, hut that plaintiff was ignorant thereof. Wot a single one of these allegations was proved upon the trial, and respondent contends that these allegations may be treated as surplusage. Had plaintiff proved one of these allegations of negligence, then the allegations of other acts of negligence not proved at the trial might have . been treated as surplusage (Acardo v. New York Cont. & T. Co., 116 App. Div. 793); but we cannot treat all of the allegations of negligence in a complaint as surplusage. The plaintiff relies upon the fourth subdivision of the complaint as setting forth his cause of action; hut that subdivision merely states the fact of the collision, without any allegation of negligence on the part of the defendants, or any fact that would show by whose negligence the result was brought about. The plaintiff relies on the case of Schradin v. N. Y. C. & H. R. R. R. Co., 124 App. Div. 705., as an authority for his procedure in this case. This case, however, will not bear the construction he seeks to put upon it. The court says (p. 709) : “ 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.” The first sentence above quoted does not mean, as respondent seems to contend that, in order to recover under section 42a, it is not necessary to allege -a cause of action in the complaint; hut, as the court later explains (p. 711), “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 public statute which does not have to be pleaded, I cannot see why it is necessary to allege that the defendant is liable under its provisions. All that is required is that the complaint should contain a concise statement of the facts constituting the cause of action, and this complaint certainly complies with this provision.” Section 42a of the Railroad Law imposes an additional and enlarged liability against a railroad company for personal injuries to employees, hut it has not abolished pleadings, nor abrogated the maxim secundum allegata et probata. We have treated this case upon the supposition that section 42a of the Railroad Law applies to street surface- railroads, because the result we have reached did not require hs to determine that question; and upon it we express no opinion. Hot one of the facts alleged in the complaint tending to show liability w-as proved. There is no general allegation of negligence and nothing alleged in the complaint otherwise to set forth a cause of action against the defendants.

Judgment reversed -and new trial ordered, with costs to appellants to abide the' event.

Seabury and Lijur, JJ., concur.

Judgment reversed.  