
    Iona Strauss, as Administratrix, etc., of John Strauss, Deceased, Appellant, v. New York, New Haven and Hartford Railroad Company, Respondent.
    
      Negligence—a statute of Connecticut,, providing that a came of action for personal injuries shall survive to the executor, is substantially like the New York statute — action brought in the State of New York because of the negligent killing of plaintiff’s intestate in Connecticut—proof of negligence both of the master and of a fellow-servant.
    
    The statute of the State of Connecticut providing that actions for injuries to the person, whether the same do or do not instantaneously or otherwise result in death, shall survive to the executor or administrator of the.person killed, is substantially similar to the statute of the State of New York relating to actions for wrongfully causing death.
    An administrator, whose intestate was negligently killed in the State of Connecticut, may, - therefore, maintain an action in the State of New York, against the person whose negligence caused the intestate’s death, to recover the damages resulting therefrom.
    Where, in an action brought by an employee against his master to recover damages for personal injuries, the proof establishes negligence on the part of the master, the fact that the injury was partly due to the negligence of a fellow-servant does not bar a recovery against the master.
    Appeal by. the plaintiff, Iona Strauss, as administratrix, etc., of ■John Strauss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the -county of Dutchess on the 25th day of April, 1903, upon the dismissal of the complaint by direction, of the court after a trial at the Dutchess County Trial Term.
    
      William H. Wood, for the appellant.
    
      Walter C. Anthony, for the respondent.
   Willard Bartlett, J. :

The plaintiff’s intestate, a brakeman in the employ of the defend,-ant, was killed while at work upon one of its trains in the State of -Connecticut. His death occurred while the person in charge of the train was endeavoring to couple two freight cars belonging to the .Baltimore and Ohio Railroad Company. The brake at which the (deceased was stationed was at the end of one of these cars, so that lie had to stand between the cars to operate it. Along the top of each car was a running board. These boards' projected'over the roofs of the cars, so that when they came together there was a space of bnt four inches between the ends of the boards. The plaintiff’s intestate was caught between these ends as the cars came-together, and sustained injuries from the effect of which he died.

The complaint was dismissed at the close of the plaintiff’s case-upon three grounds : (1) Because the statute of Connecticut permitting a recovery for negligently causing the death of a person was deemed to be essentially different from the statute on the same-subject in this State; (2) because the proof was regarded as insufficient to charge the defendant with negligence; and (3) because the-evidence showed that the cars came together at the rate of six or seven miles an hour; indicating negligence on the part of the operator of the train, a fellow-servant of the deceased.

The dismissal of the complaint cannot be sustained on any of these grounds. It is true that the Connecticut statute set put in the-record is not exactly like ours. It provides that actions for injury to the person, whether the same do or do not instantaneously or otherwise result in. death, shall survive to the executor or administrator of the person killed. (General Statutes of Conn. [Revision of - lSST], chap. 13, tit. 18, § 1008.) ' Our statute, on the other hand, confers upon the executor or administrator a right to maintain a suit for wrongfully or negligently causing the death, of the decedent,,, without the use of any language indicating that the cause of action, is a survival of that which the injured party might have had-if the injury had not been fatal. (Code Civ. Proc. § 1902.) This, difference, however, does not prevent the case from falling within the doctrine of Wooden v. W. N. Y. & P. R. R. Co. (126 N. Y. 10), to the effect that an action for an injury to the person in another State dependent upon a statute may be maintained here on proof that the statute of the State in which the injury occurred is similar to our own. In Leonard v. Columbia Steam Navigation Co. (84 N. Y. 48) the plaintiff’s intestate was killed by a boiler explosion in Connecticut, and the Connecticut statute in force at the time of the accident there under consideration appears to have been essentially the same as it is ■ now in respect tó the maintenance of an action for negligently causing death. The Court of Appeals there*held that it was not necessary that the statutes should he precisely alike, saying, per Miller, J.: “.The statute in this State is certainly of the same nature, and the similarity is such as to authorize the conclusion that it is founded upon the same principle and possesses, the same general attributes as the statutes of Connecticut which, have been cited. The same remedy was to be accomplished, and an examination of the different provisions evinces an agreement in both of the statutes as to their main features, and that they are-substantially alike and to the same effect as to the survivorship of the action. In fact, when there are similar statutes instead of tha common law, the right to recover damages stands precisely the same as if the common law in both ■ States relating to the subject prevailed.”

- Upon the sufficiency of the proof to make out a prima faciecase of negligence against the defendant, notwithstanding the fact that the cars the use of which occasioned the accident belonged to-another corporation, it is necessary only to cite Gottlieb v. N. Y., L. E. & W. R. R. Co. (100 N. Y. 462).

The proposition that the. defendant is absolved from liability because the person in charge of the train operated it carelessly by allowing the cars to come together when moving at too rapid a rate,, ignores the rule that where the proof establishes negligence on the part of the master the fact that the injury was partly due to the negligence of a fellow-servant does not bar a recovery against the; master. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546 ; Stringham v. Stewart, 100 id. 516.)

I think there was enough evidence to take this casé to the jury,, and that it was error to dismiss the complaint.

All concurred.

Judgment reversed and new trial granted, costs to abide tha event.  