
    John Henry Allen, Respondent, v. Lowell M. Palmer Appellant.
    
      Pleading—what is an, admission that an engine causing a collision was at the time-being used by the defendant.
    
    Where the complaint in an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a. collision which occurred-' in a freight yard near North Sixth street and the Bast River, in the borough ofi Brooklyn, between an engine drawing two cars and a car which the. plaintiff was engaged in unloading, alleges that “ at all the times hereinafter mentioned the defendant was the lessee or owner, and in possession of certain cars, engines and.tracks, together with the appurtenances thereunto belonging and used by him in the conduct of his business at or near North Sixth street and ' East River, in the Borough of Brooklyn, City of New York, County of Kings and State of New York,” and this allegation is expressly admitted by the answer, the fair import of the admission thus made is that the cars and engines in the freight yard at the time when the plaintiff was injured were being used' by the defendant in the conduct of his business, and it is not necessary for the plaintiff to prove that the particular engine responsible for the collision was being operated.by the,defendants servants.
    Appeal by the defendant, Lowell M. Palmer, 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 19th day of January, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Notman [Lewis H. Freedman with him on the brief], for the appellant.
    
      Meier Steinbrink, [ William P. Pickett with him on the brief], for the respondent.
   Willard Bartlett, J.:

On the 1st day of April, 1902, the plaintiff, a truck driver in the employ of John A. Dowd & Sons, dealers in cider and vinegar, was engaged in behalf of that firm in unloading cider from a railroad car in a freight yard near Forth Sixth street and the East river in the borough of Brooklyn. While he was-thus occupied an engine drawing two cars collided with the car which the ' plaintiff was unloading, inflicting upon him personal injuries for which he has recovered $2,000 in this-action, on the theory that the person in charge of the engine, whose negligence caused the collision, was the servant of the defendant.

Upon this appeal it is contended that the plaintiff absolutely failed to connect the defendant with the accident, and that no evidence was offered tending to establish that the engineer was in the defendant’s employ.

The compláint alleged that “ at all the times hereinafter mentioned the defendant was the lessee or owner, and in possession of certain cars, engines and tracks, together with the appurtenances thereunto belonging and used by him in the couduct of his businéss at or near North Sixth street and East River, in the Borough of Brooklyn, City of New York, County of Kings and State of New York.”

This allegation was expressly admitted in the answer. The only time mentioned in the complaint was the 1st day of April, 1902, on which the accident occurred. There was no question on the trial but that the defendant occupied and used the premises thus described as a freight yard. The learned trial judge charged the jury that the plaintiff says that he went into the yard of the defendant, which the defendant admits, a yard there in which engines and cars were located, used practically for the purpose of a freight yard.” No exception was taken to this statement by counsel for the defendant, nor was the court asked in any manner to qualify it. I think the fair import of the language which I have quoted from the complaint was to allege that the cars and engines in the inclosure at the time when the plaintiff sustained his in juries were being used by the defendant in the conduct of his business, and that the admission of that allegation in the answer renders it unnecessary for the plaintiff to prove that the particular engine responsible for the collision was being operated by the defendant’s servants.

The plaintiff testified that this. engine “ came in from the Erie station, in through the tunnel like,” and the contention of the appellant is that the accident might have been caused by an engine of the Erie Railroad Company, for the management of which the defendant could not be held liable. It was probably with this view in mind that counsel asked'the court to charge “ that the mere fact that the plaintiff saw additional cars or an engine ■ some distance away is not sufficient proof to justify the jury in finding that the person in charge of that engine was an employee of Mr. Palmer’s, the defendant; ” to which request the learned judge responded, I will leave it to the jury to say whether it is or not sufficient.” This disposition of the request would have been a serious error if there had been any issue in the case as to the control of the engine; but if the view taken of the effect of the pleadings is correct there really was not any "such issue. As already indicated, I think ttiat-the.-admission that the engine and cars in that yard were used by the defendant on that-day in the conduct of,.his business was a, concession that; they were . then.-arid there controlled and operated, by ¿the ’defendant’s- representatives.: •. :• ’ ......

The. appeal- presents, no other question which- requires discussion. I advise an affirmance. ■ ' " ■ o ■

■ ! Present—Hieschberg, P. J., Bartlett, Jenks and Hooker, JJ..

Judgment, and order unanimously affirmed, with costs.  