
    William Schradin, as Administrator, etc., of Hermann Schradin, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    March 13, 1908.
    Railroad — death of employee — section 42a of Railroad Law construed — servants as vice-principals — pleading — statute available though not mentioned in complaint— contributory negligence.
    Chapter 657 of the Laws of 1906, which added section 42a to the Railroad Law, providing that .in actions against railroad corporations to recover for personal injuries or death of employees, certain coemployees, having physical control or direction of the movements of a signal, switch, locomotive, train or telegraph office, etc., are vice principals of the corporation and not fellow-servants, creates a new rule of law by which the railroad becomes liable for the negligence of said persons. As said statute does not require a notice to be given ás a prerequisite to action-to enforce the liability so created, and is .a public statute, a plaintiff need not. allege that the action is brought under said statute in.order to recover for injuries received by the negligence of the persons therein enumerated. - ■
    A decedent' who was killed by a train, while employed, by a railroad cómpanjr as an: electrical worker upont its tracks at a place where a watchman was stationed to give notice of approaching trains, was entitled to rely to some ’extent upon the watchman and engineers of approaching trains to give-warning.
    Where it appears that one employed as an electrical worker on a track was killed 'by the defendant’s train which approached without warning at a place where the defendant had stationed a-watchman to.give warning of approaching trains, the decedent’s contributory negligence is ¿for the jury.
    McLaughlin an'd Olakke,, JJ., dissented, with opinion.
    Appeal by the defendant, The ¡New York Central'and Hudson Biver Bailroád Company, from a judgment of -the Supreme Court in favor' of the plaintiff, entered in tlie office of -the" clerk of the county of New York on the 16tli day of February, 1907, upon tlie verdict of a jury for $3-,'500, and also from an order entered in said clerk’s office on the 14tli day of February,, 1907¿ denying the defendant’s motion for a new trial made upon the minutes..
    
      Robert A. Kutsclibook, for the appellant.
    
      George Yvoiah Smith,.for-the. respondent. ■
   Ing-baham, J.:

. This action was brought to recover , the damagés sustained by-the next of bin of the plaintiff’s intestate caused by bis death while in the employ of the defendant. The complaint alleges that on the 15th of September, 1906, plaintiff’s intestate was in the employ of the defendant as an electrical worker on the tracks of the defendant at One Hundred and Seventh 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 ány fault on the part of the said deceased which contrib.utedlthereto; 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 Employers’ Liability Act of 1902.

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 Bailroad Law (Laws of 1890, chap. 565, § 42a, added by Laws of 1906, chap. 657). The defendant objected to any claim under that statute, on the ground that there Was no allegation in the complaint setting forth a cause of action under it, and upon the further ground that no notice had been served upon the defendant relating to a cause of action under that statute. The court then held that the plaintiff would have to elect whether he would try the case as a common-law action or whether he would try it under the Employers’ Liability Act, to which counsel for the plaintiff said that he relied upon the common-law theory. The defendant’s counsel objected to the plaintiff’s trying the case under either of the statutes, the Employers’ Liability Act of 1902 or chapter 657 of the Laws of 1906, and the court directed the counsel to proceed. 'When the plaintiff rested, defendant’s counsel moved to dismiss the complaint and objected to the claim of the plaintiff on the ground that there was no allegation in the complaint setting forth a cause, of action under chapter 657 of the Laws of 1906 ; that no notice had been served upon the defendant of plaintiff’s intention.to rely upon the cause of action given by that actj and further, upon the ground that when this objection was first raised plaintiff elected to proceed upon the theory of common-law liability, and the case having proceeded upon that theory, the plaintiff could not recall his election and invoke the aid of chapter 657 of the Laws of 1906. This objection was overruled and defendant excepted. The court then denied the. motion to dismiss the complaint, and defendant excepted. At the end of the whole case the defendant renewed its motion to dismiss the complaint on the general grounds that there was no negligence of the defendant shown, that plaintiff was not free from contributory negligence, and that no cause of action was set forth in the complaint under chapter 657 of the Laws of 1906. The court denied the motion and defendant- excepted. After the court had charged the jury, the defendant requested the court to charge that the jury could not find the defendant liable on the ground that the engineer operating the engine drawing the shop train north on track Eo. 4 was negligent, which, was declined, and to which defendant excepted. And the court'was further requested- to charge that if the accident occurred through the negligence or omission of the defendant’s engineer running the engine drawing the north-bound shop train on track Eo. 4, or from the negligence or omission of the watchman to give a signal, that was the negligence of competent fellow-servants ’of the plaintiffs intestate, and plaintiff cannot recover, which request was refused, to which defendant excepted. The request to charge that, if the jury should find that the accident was owing to the negligence or omission of the wat'chriian Connors to give a warning to plaintiff’s intestate, that was the negligence .of a fellow-servant and they must find for the defendant, was also declined, and defendant excepted.

The plaintiff’s evidence tended to show that the deceased with a fellow-workman was at. work upon track Eo. 4 of the defendant’s railroad. At this point on the defendant’s road there were four tracks, two for north-bound and two for south-bound trains. The north-bound trains used the west tracks. An employee working with the deceased testified that he left track Eo. 4 to go on track Eo. 3, and on turning around and looking at the deceased, saw an engine ten feet behind him ; that he yelled,, and the deceased looked towards the engine and then jumped ; that he had taken about three steps when the engine hit him ; that it was the duty of one of the gang of workmen of which the deceased was a member' to give signals to notify those working on the track of approaching trains, but this signal was not given ; that the deceased was engaged in what was called. “ bonding” on the third rail of track Eo. 4; that this required the heating of the fail, which was done with a torch; that it would take-the torch three to five minutes to heat the bond material before deceased could work at it; that the deceased stood with one foot upon the cast rail, watching the third rail, when this train came up behind and struck him. Another man at work, on the track just below the deceased saw the engine about four blocks out of the tunnel and saw it strike the deceased; that the whistle did not blow before the deceased was struck, nor did the watchman, whose duty it was to warn persons upon the track, give any notice of the approach of the train.

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 run 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. Sección 42a of the Eailroad-Law, added by chapter 657 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 receiver 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, of in the service of a "receiver thereof,, who are .entrusted' by such corporation or receiver with .the authority of superintendence, eon-. trol, or command of other persons in the employment of such cor•poration or. receiver, or with the authority to? direct or control any other- employee in the performance- of the -duty of such employee, or who llaveras, a part of their duty for the time, being, physical control or direction .of the'movement of asigna!, switch,.‘-locomotive engine, car, train or'telegraph office, are vice-principals of such corporation or receiver, and are not "fellow-servants of such injured or deceased employee.” •

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 of the movement of a signal.”" -He would be the person placed by "the defendant in control of a signal "to give notice to itsemployees o.f the approach bf trains,‘and the lives of the employees upon :tlie track would depend upon the careful performance of this. duty. But for the provisions of this section, the watchman1-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 the1 liability of the defendant depends upon whether this statute gives a .newpcause ©.fraction 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 employee, such employee-shall have “the same-rights and remedies for an: injury, or. for death,', sufiéred. by him, from the act or omission of such •corporation-or" receiver or of its or his officers or employees, aseare now allowed by law,iand, in,addition to .the liability.now existing by law, it shall' be 'held "in-such actions ” that'certain -persons specified are not fellowservánts-of- the injured-or deceased 'employee. 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 employee 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 anintention to hold the employer liable under this provision of the statute as there is in the Employers’ Liability Act of 1902. It seems to me that the effect of this provision is that, a certain rule of law by which certain employees of an employer were deemed fellow-servants should not be applicable to railroad corporations, but such employees should be what the statute calls “ vice-principals,” or employees for whose negligence the master should be liable. The Employers’ Liability Act (Laws of 1902, chap. 600) 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) the Court of Appeals held that the Employers’ 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 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. It seems to me that the complaint was sufficient to justify a recovery based upon the negligence of these employees of the defendant whose negligence caused the injury. If the .defendant had wished to know which fellow-servants had been negligent or what the acts of negligence were it should have applied either for a-bill of particulars or to make the complaint more definite and certain. The deceased was. not guilty of contributory negligence as a matter of law. He was entitled to rely to some extent upon the fact that a watchman had been employed to warn him of the approach of trains or that the engineer would give him some notice of his approach. He was engaged in watching his work and it was a question for the jury as to whether or not he did all that was required to protect himself. The defendant also contended that chapter 657 of the Laws of 1906 violates section 1 of the 14tli amendment to the Constitution of the United States, but I think it is clearly a matter of State control.

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

Patterson, P. L, and' Scott, J„ concurred;' McLaughlin and Clarke, JJ., dissented.

McLaughlin, J. (dissenting):

' The recovery is sought to be sustained under chapter 657 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 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 plaintiffs attorney elected to try the action as one to recover under -the common law, and the case was submitted to the jury upon this theory. '

In Gmaehle v. Rosenberg (178 N. Y. 147) the court held that the Employers’ Liability Act (Laws of 1902, chap. 600) 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 19.06 gave an additional cause of action by extend^ ing the liability of the master beyond that imposed at common law and by the Employers’ ’ 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 fp 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 employee. By this act two' classes of employees are declared to represent the master : (a) Those who exercise superintendence or have authority to direct or control any other employee; and (b) those who have physical control or direction of so.me of the appliances for the movement of cars.

Where a recovery is sought under the Employers’ Liability Act (Laws of 1902, chap. 600) the complaint must show, by appropriate allegations, that the action is brought under that statute (Sutherland v. Ammann, 112 App. Div. 332), and the same is true where a recovery is sought under chapter 657 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); 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, the precise ground upon which the 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. Itis 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 he 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. J ustice Ingraham.- I am of the opinion the judgment and order appealed from should be reversed and a new trial ordered.

Clarke, J., concurred.

Judgment and order affirmed, with costs. 
      
      
         See Code Civ. Proc. § 481.— [Rep.
     