
    Vincenzo Mele, App’lt, v. The Delaware & Hudson Canal Company, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    
      1. Master and servant—Negligence of master—Allegations in complaint.
    It is not necessary to affirmatively allege in a complaint for damages for . personal injuries that no negligence on the part of the plaintiff contributed to the disaster.
    2. Same—Master not liable for negligence of fellow servant.
    The plaintiff, a laborer in the employ of the defendant, a railroad company, while crossing the tracks was struck by one of the company’s trains through the negligence of the engineer. Held, that the plaintiff was a co-employee of the engineer for whose negligence the company was not liable.
    The complaint alleges that on or about July 21, 1888, the plaintiff, a workman in the employ of the defendant, was crossing a bridge over which defendant’s trains pass, at or near the place known as Maryland, Otsego Co., N. Y., on his way to his work, in common with other employees; that in attempting to avoid an approaching train of defendant’s, plaintiff slipped and fell; that other workmen in company with plaintiff signalled the train to stop; that the engineer in charge negligently and without due or proper warning, caused the train to pass over the plaintiff before he could rise and avoid the same. That the signalling was made while defendant’s train was at a distance of about five hundred feet from the plaintiff. That in consequence of the negligence the plaintiff sustained bodily injury, so that both his arms were amputated, to his damage $25,000. The defendant demurred to the complaint on two grounds.
    
      First That the complaint does not state facts sufficient to constitute a cause of action.
    
      Second. That there is no such corporation as that named as defendant. The court below sustained the demurrer and from the interlocutory judgment entered thereon in favor of the defendant the plaintiff appeals.
    
      Smith & Vosburgh, for app’lt; Edwin Young, for resp’t.
   McAdam, J.

—The learned judge in the court below properly held that there was no force in the objection that plaintiff has not, in his complaint, affirmatively alleged that no negligence on his part contributed to the disaster, and that the allegation that the negligence of the defendant caused the injury carries with it the inference that such negligence alone was the cause. Urquhart v. Ogdensburgh, 23 Hun, 75; Robinson v. N. Y. C. & H. R. R. R. Co., 65 Barb., 146, aff’d, in 66 N. Y., 11; Lee v. Troy C. G. Co., 20 Wk. Dig., 413; Hackford v. N. Y. C. R. R. Co., 6 Lans., 381, aff’d, 53 N. Y., 654; Hale v. Smith, 78 id., 480; Lee v. Troy C. G. L. Co., 98 id., 115.

The judge put his decision on the ground that the plaintiff, though not a trespasser, was a fellow servant in a common employment with the engineer, and that no action would lie against the matter of both. To sustain this proposition he cites Boldt v. R. R. Co., 18 N. Y., 432; Malone v. Hathaway, 64 id., 5; Vick v. R. R. Co., 95 id., 267.

These cases, particularly Boldt v. R. R. Co., supra, seem to be decisive of the question involved. In that case plaintiff was a track laborer, who was struck by a train while walking on the track on his way to his work. The court held that while doing this particular act he was a co-employe of the engineer, for whose negligence the company was not liable. See, also, Gillshannon v. Stony Brook R. R. Co., 10 Cush., 228. The rule is that all who serve the same master work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants who take the risk of each other’s negligence.

Prima facie, all servants of a common master employed in the railway service are fellow servants, and neither has a cause of action for the negligence of another.

The rulings in other states, drawing a distinction between the grades of service and giving a remedy to a laborer or clerk injured by an engineer, Chicago & A. R. R. Co. v. Keefe, 47 Ill., 110; Ryan v. Chicago & N. R. R. Co., 60 id., 171; Valtez v. R. R. Co., 85 id., 500; O'Donnell v. Allegheny R. R. Co., 59 Pa. St., 239, have never been approved in this state and are contrary to its policy. We have endeavored to distinguish this case from Boldt v. R. R. Co., supra, but cannot.

The fact that the plaintiff slipped and fell, and was helpless upon the track when the warning was given by his co-laborers, only adds to the degree of negligence on the part of the engineer and tends to establish more clearly freedom from fault upon the part of the plaintiff. It does not reach the underlying principle, too firmly established to be now questioned, that the plaintiff cannot recover for the negligence of a fellow servant, no matter how gross, and that the engineer guilty of the wrong came within that relation. For these reasons, and without seriously considering the second ground of demurrer, which seems to be without merit, the order and interlocutory judgment entered upon it must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.  