
    VINCINZO MELE, Appellant v. THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.
    
      Demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.
    
    The absence of contributory negligence on plaintiff’s part need not be alleged in the complaint; that fact is involved in the allegation of defendant’s negligence. Prima facie, all servants of a common carrier employed in the railway service, are fellow servants, and neither has a cause of action against the master for the negligence of another. 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 employed in the same general business, although in different grades or departments of business, and are fellow servants who take the risk of each other’s negligence. The rulings of courts in other states, drawing a distinetion between the grades or departments of service under a common master, and giving a remedy to a laborer or clerk in jured by an engineer, etc., have never been approved by the courts of this state, and are contrary to their decisions.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 4, 1891.
    The complaint alleges that on or about July 21st, 1888, the plaintiff, a workman in the employ of the defendant, was crossing a bridge over which the 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 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 signaling was made while defendant’s train was at a distance of about five hundred feet from the plaintiff, and 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, attorneys, and Myndert A. Vosburgh of counsel, for appellant, argued:—
    I. The absence of contributory negligence on plaintiff’s part need not be alleged in the complaint; that fact is involved in the allegation that the injury was caused by defendant’s negligence. Lee v. Troy, etc., Co., 20 N. Y. Weekly Dig. 413; Robinson v. N. Y. Cent. R. R., 65 Barb. 146; 66 N. Y. 11; Urquhart v. City of Ogdensburg, 23 Hun, 75. In Urquhart v. City of Ogdensburg, the court says: “Although in action to recover damages alleged to have been caused by defendant’s negligence the burden of proof is on the plaintiff to show on the trial, by competent proof, that his negligence did not contribute in any degree to the injury complained of, yet it is not necessary for him to specifically allege these facts in the complaint. The averment that the negligence of the defendant was the cause of the injury is equivalent to an averment that it was the sole cause.” When the question of contributory negligence is put in issue by the answer, then it may become necessary for plaintiff to prove the absence of contributory negligence. Until it is so placed in issue it is immaterial. Hale v. Smith, 78 N. Y. 480.
    II. The complaint does not state facts which show that the plaintiff was a “fellow servant” of the engineer within the rule exempting a master from liability, nor is it a necessary inference from the fact stated in the complaint, that plaintiff was “ a workman in employ of the defendant,” that he was also a “ fellow servant ” within the rule. It is a well-settled rule of law, upon which this court needs no citation of authorities, that if the court can construe a cause of action out of a complaint it is its duty to do so, and the rule applies to the case at bar, and if the court can conceive of a case where a “ workman in the employ of the defendant ” would not be a “ fellow sevant ” within the rule, the judgment must be reversed and the demurrer must be overruled. The general rule exempting a master from liability in these cases is : The master is not liable for injuries personally suffered by his servant through negligence of a fellow servant acting as such while engaged in the same common employment. 1 Sherman & Redf. on Negligence, ed. 1888, 180. To relieve the master from liability under the rule three elements must concur: (1) Plaintiff must be a “ fellow servant ” within the rule. (2) He must be acting as such. (3) He must be engaged in the same common employment. It is submitted on the first point that a simple, practical test of common service is laid down as a safe rule to follow in Vallez v. R R. Co., 85 Ill. 500, where the court says it is a safe rule to hold those to be fellow servants whose negligence is likely to inflict injury on another.
    III. If plaintiff was not a fellow servant- within the rule he was either a licensee or a trespasser, in either of which cases the defendant is liable. The duties and obligations of an engineer towards trespassers on a railroad track are stated in Patterson on R. R. Accident Law, at page 197. Following this general rule the courts hold that where railway servants in charge of the train see on the line a trespasser whom they know to be incapacitated from hearing signals it is their duty to stop the train, and they must make every effort to do so. 62 Tex. 252 ; 19 Am. & Eng. R. R. Cas. 21. Also, where they see a trespasser who is prevented from escaping by having his foot caught. 19 Am. & Eng. R. R. Cas. 25 ; 16 Neb. 332 ; Memphis Co. v. Sanders, 43 Ark. 225; Bailley v. Chicago R,. R, 4 Bist. 430. Also it is very culpable negligence in the railroad company for the lookout to fail to see a person on the track who is plainly visible. E. Tram Co. v. White, 5 Lea. 540. In New York the Court of Appeals in Chrystal v. Troy Co., 105 N. Y. 164, lay down the rule that an engineer of a railroad train is not bound to stop his train the moment he sees some living thing upon the track.
    
      
      Edwin Young, attorney and of counsel, for respondent, argued:—
    I. The complaint does not state facts sufficient to constitute a cause of action. To constitute a cause of action the burden is upon plaintiff to allege and prove affirmatively, first, absence of contributory negligence of plaintiff; and second, negligence of defendant. Powell v. N. Y. C. R. R. Co., 14 N. Y. St. Rep. 74; Held v. N. Y. C. R. R. Co., 12 Wk. Dig. 163 ; Kelsey v. Jewett, 15 Ib. 457 ; Wilds v. N. Y. C., 24 N. Y. 449; Button v. H. R. R. Co., 18 Ib. 248.
    II. Contributory negligence of plaintiff, {a) There is no allegation of the absence of contributory negligence on the part of plaintiff. As this is an absolutely essential part of plaintiff’s case, the omission of such an allegation is absolutely fatal to his cause of action, (b) If plaintiff’s claim is correct that his statement of facts amounts to such an allegation, he is nevertheless confined to the exact facts stated in the complaint, and, in the absence of a general allegation of the absence of contributory negligence, he cannot prove any other fact bearing upon that subject than those actually stated in his complaint. Those facts thus stated are simply as follows : “ The plaintiff above named, a workman in employ of defendant, was crossing a bridge over which defendant’s trains passed, at or about the place known as Maryland, in the county of Otsego and state of New York, on his way to work, in common with other employees.” Assuming these facts to be true, they do not show the absence of contributory negligence as matter of law, for they fail to show any right or license to be upon the bridge, or any excuse therefor, whether an employee or trespasser, and he is prohibited from proving any other facts to establish such right, license or excuse, in the absence of a general allegation of the absence of contributory negligence. In the Urquhart Case, 28 Hun, 75, it was held, that no specific averment of absence of contributory negligence is necessary, where the complaint avers negligence of defendant. “ The averment that the negligence of the defendant was the cause of the injury, is equivalent to an averment that it was the sole cause.” But in the case at bar there is no averment of any negligence on the part of defendant. The only negligence alleged is that of the engineer, who was a co-employee of plaintiff, and whose negligent act was, therefore, not the negligent act of defendant. It has been directly held in the following cases, that a person walking upon a railroad bridge, trestle, or track, in the absence of proof of a license or right to be there, was guilty of contributory negligence. McCarty v. D. & H. C. Co., 17 Hun, 74; Tennenbrock v. S. P. R. R. Co., 59 Cal. 269; Mason v. M. P. R. R. Co., 27 Kan. 83 ; U. P. R. R. Co. v. Rollins, 5 Ib. 167; C. B. & Q. v. Olson, 12 Bradwell (Ill.) 245; Carter v. C. & G. R. R. Co., 19 So. Car. 20 ; 1ll. Cent. R. R. Co. v. Hall, 72 Ill. 222; 1ll. Cent. R. R. Co. v. Godfrey, 71 Ib. 500.
    III. Negligence of defendant. The complaint fails to allege any negligence of defendant. The only act of negligence alleged, is the negligence of the engineer, “ A,” in failing to signal, and “ B,” in failing to stop in time to avert the accident. As matter of law, neither of these acts constitute negligence, under the circumstances alleged in the complaint, whether plaintiff was a trespasser or employee; even assuming the negligence of the engineer was that of defendant. The old statutory obligation to give signals under the general railroad act, has been repealed by chapter 593 of the Laws of 1886, § 29. In Harty v. C. R. R. of N. J., 42 N. Y. 472, Earl, Ch. J., says : “Railroad companies are not required by this law to ring the bell nor sound the whistle, when the highway passed along the railroad, nor when it passed at an elevation over or under it; nor are they required to take these precautions for the protection of persons walking along upon the railroad. I conclude, therefore, that the intestate was not within the protection of the law, and that the railroad company owed him no duty, under the law, to ring the bell or sound the whistle.” Byrne v. N. Y. C. and H. R. R. R. Co., 94 N. Y. 12; Griffin v. N. Y. C. and H. R. R. R. Co., 40 Ib. 34. The question of signals under the allegations of the complaint, moreover, becomes entirely immaterial, in view of the fact that the approaching train was actually seen by plaintiff and all of his comrades when five hundred feet from the point of accident. As signals are only given for the purpose of notifying persons of the approach of the train, so long as they are actually notified in ample time the question of signals becomes entirely immaterial. The allegations of the complaint fail to establish a prima facie case of negligence of the engineer, in failing to stop the train. If plaintiff “ slipped and fell ” when defendant’s train was 500 feet from him, the engineer had a right to assume that he would get up and get off the track before the train reached him, and was not obliged to stop his train at that point, nor to make any effort to do so, until he saw there was reasonable ground for supposing he was not going to succeed in doing so. Plaintiff was a full grown man, and the engineer had a right to assume that he would make a reasonable effort to get off the track, as the rest of his comrades seem to have done, and as he must have had ample time to have done, as the train was five hundred feet away. As said by Peckham, J., in Chrystal v. T. and B. R. R. Co., 105 N. Y. 170; "that the engineer willfully or recklessly ran upon him after he discovered that he was in peril is inconceivable, and certainly cannot be assumed. An engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. He could not know, when he first saw the plaintiff, that he was too young to be conscious of the danger to which he was exposed, and without the imputation bf negligence he could run on until he discovered that he was heedless of the danger. Reasonable care in the management of trains, which must first make their time between stations and have the right of way, does not require more.” Matze v. N. Y. C. and H. R. R. R. Co., 1 Hun, 417; C. R. I. and P. v. Austin, 69 1ll. 426; T. H. and I. R; R. Co. v. Graham, 12 Am. and Eng. R. R. Cases, 77; Mason v. M. P. R. R. Co., 27 Kan. 83; The Lake Shore R. R. v. Miller, 25 Mich. 279.
    IV. The complaint alleges only a negligent act of a co-employee for which defendant is not responsible. • It directly alleges that the plaintiff “is an employee of defendant,” and was “on his way to work with other employees.” It must, therefore, be assumed that the plaintiff and the engineer were co-employees employed by the same master. The plaintiff admits this, as we understand him, but contends that while in the act of going to his work, he must be regarded as a trespasser, and cannot be regarded as a co-employee of the engineer while in the performance of that act. But the Court of Appeals in this state has directly held to the contrary. Boldt v. N. Y. C. R. R. Co., 18 N. Y. 432 ; Gillshannon v. Stonybrook R. R. Co., 10 Cush. 228; Vick v. N. Y. C. and H. R. R. R. Co., 95 N. Y. 267; Ross v. N. Y. C. and H. R. R. R. Co., 5 Hun, 488; Russell v. N. Y. C. and H. R. R. R. Co., 17 N. Y. 134; Seaver v. B. and M. R. R. Co., 14 Gray, 476. Nor does it matter whether plaintiff was a laborer, survey- or, machinist or attorney of the road, so long as he was performing the act of going to his work he was a co-employee, and cannot recover. This proposition was directly passed in the case Ross v. N. Y. C. and H. R. R. R. Co., 5 Hun, 488. See, also, Russell v. H. R. R. R., 17 N. Y. 134; Wharton on Negligence, paragraphs 229-235; Albro v. The Agawam Canal Co., 6 Cush. 75; Coon v. The S. and U. R. R., 5 N. Y. 492; Sherman v. R. and S. R. R., 17 Ib. 153; Warner v. R. R. Co., 39 Ib. 468; Tinney v. R. R. Co., 52 Ib. 632; Baulec v. R. R. Co., 59 Ib. 356.
   By the Court.—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. City of Ogdensburg, 23 Hun, 75; Robinson v. N. Y. C. & H. R. R. Co., 65 Barb. 146, aff’d in 66 N. Y. 11; Lee v. Troy Co., 20 Week. Dig. 413; Hackford v. N. Y. C. R. R. Co., 6 Lans. 381, aff’d, 53 N. Y. 654; Hale v. Smith, 78 N. Y. 480; Lee v. Troy C. G. L. Co., 98 N. Y. 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 master of both. To sustain this proposition he cites Bolt v. N. Y. C. R. R. Co., 18 N. Y. 432; Malone v. Hathaway, 64 Ib. 5; Vick v. N. Y. C. & H. R. R. Co., 95 Ib. 267. These cases, particularly Bolt v. N. Y. C. 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-employee of the engineer for whose negligence the company was not liable. (See also Gillshannon v. Stonybrook 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 R. R. Co. v. O’Keefe, 47 Ill. 110; Ryan v. Chicago R. R. Co., 60 Ib. 170 ; Vallez v. R. R. Co., 85 Ib. 500; O’Donnell v. Alleghany 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 Bolt v. N. Y. C. 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., concurred.  