
    Arthur E. Forton, Plaintiff, v. The Crosstown Street Railway Company, Defendant.
    (Supreme Court, Erie Special Term,
    April, 1909.)
    Waster and servant — Master’s liability for injuries to servant: Tools, machinery and places to work — Railroad locomotives and cars: Actions — Presumptions and burden of proof — Defect in car.
    The provision of section 42a of the Railroad Law, that in all actions against a railroad corporation the existence of defects in the condition of any car, etc., shall be prima facie evidence of negligence on the part of such corporation, is applicable to electric street railways.
    Where an electric street railroad company fails to provide proper hangers so that a curtain may be hung at the window of the car between the vestibule, in which the motorman stands, and that part of the car used by passengers, and, owing to the absence of the curtain, the vestibule is flooded with light, which prevents the motorman from seeing ahead of the car into the darkness any considerable distance and, in consequence thereof, he runs his car into an oil tank wagon, moving on the track ahead of him, with sufficient force to break the vestibule and injure himself, in an action brought by the motorman against the company to recover damages for the injury he has sustained, it is not error for the court to instruct the jury that the absence of the curtain is prima facie evidence of negligence on the part of the company.
    Motion for new trial on the court’s minutes.
    John T. Ryan, for plaintiff.
    Dana L. Spring, for defendant.
   Wheeler, J.

The plaintiff recovered a verdict in this action for injuries received by him while acting as motorman on one of the defendant’s electric cars. The accident happened on a stormy, rainy night. The plaintiff claims that, owing to the absence of proper hangers, he was unable to hang a curtain at the window of the car which was between the vestibule in which he stood and that part of the car used by passengers; that, owing to the absence of this curtain, the vestibule was flooded with light and prevented him from seeing ahead of the car into the darkness any considerable distance, which he otherwise would have been able to have done had the curtain been in place. Under these circumstances, he ran his car into an oil tank wagon, moving on the track ahead of him, with sufficient force to break the vestibule and more or less seriously injure himself.

The court hesitated on the trial as to whether the evidence of the defendant’s alleged negligence was sufficient to warrant the submission of the case to the jury.

It also entertained doubts as to whether, from the plaintiff’s own testimony, he was not chargeable with contributory negligence, under the circumstances, in not leaving the window of the vestibule ahead of him fully open, so he could better look ahead — it appearing that the glass was covered by rain, and the opening actually left by him was only two and a half inches wide.

After careful consideration of all the facts, while the mind of the court still entertains doubts as to the correctness of the verdict, nevertheless, the questions of fact involved were properly submitted to the jury for their determination.

Upon the submission of the case to the jury, the court was requested by plaintiff’s counsel to charge, and did charge, in the language of chapter 657 of the Laws of 1906, that the absence of the curtain complained of was prima, facie evidence of negligence on the part of the defendant.

It is claimed this was error, and that the provisions of this chapter have no application to" street electric railways, such as the defendant operated in this case.

We are not prepared to say that the charge in this respect is not correct, independent of the statute. But we do not rest our decision on that ground, but on the ground that the statute in question applies to street surface railroads as well as to other railroads.

The statute reads:

“ Section 1. Chapter five hundred and sixty-five of the laws of eighteen hundred and ninety, entitled ‘An act in relation to railroads, constituting chapter thirty-nine of the general laws, and known as the railroad law,’ is hereby amended by adding thereto a new section, to he known as section forty-two-a, as follows:

“ § 42-a. In all actions against a railroad corporation, foreign or domestic, doing business in this state, or against a receiver thereof, 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, or in the service of a receiver thereof, who are entrusted by such corporation or receiver, with the authority of superintendence, control or command of other persons in the employment of such corporation or receiver, or with the authority to direct or control any other employee in the performance of the duty of such employee, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a signal, switch, locomotive engine, ear, train or telegraph office, are vice-principals of such corporation or receiver,- and are not fellow-servants of such injured or deceased employee. If an employee engaged in the service of any such railroad corporation, or of a receiver thereof, shall receive any injury by reason of any defect in the condition of the ways, works, machinery, plant, tools or implements, or of any car, train, locomotive or attachment thereto belonging, owned or operated, or being run and operated by such corporation or receiver, when such defect could have been discovered by such corporation or receiver, by reasonable and proper care, tests or inspection, such corporation or receiver shall be deemed to have had knowledge of such defect before and at the time such injury is sustained; and when the fact of such defect shall be proved upon the trial of any action in the courts of this State, brought by such employee or his legal representatives, against any such railroad corporation or receiver, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation or receiver. This section shall not affect actions or causes of action now existing; and no contract, receipt, rule or regulation, between an employee and a railroad corporation or receiver, shall exempt or limit the liability of such corporation or receiver from the provisions of this section.

§ 2. This act shall take effect immediately.”

We are not aware of any decision of the courts of this State passing on the question here raised.

In other States there are decisions holding that statutes, substantially like the one under consideration, apply only to steam roads. Such are the cases of Funk v. St. Paul City R. Co., 61 Minn. 435; 29 L. R. A. 208; 52 Am. St. Rep. 608; Lundquist v. Duluth St. R. Co., 65 Minn. 387; Sams v. St. L. & M. R. R. Co., 174 Mo. 53; 61 L. R. A. 475; Stocks v. St. Louis Trans. Co., 106 Mo. App. 129; Godfrey v. St. Louis Trans. Co., 107 id. 193; McLeod v. Chicago & N. W. R. Co., 125 Iowa, 270; Riley v. Galveston C. R. Co., 13 Tex. App. 247.

If the statute in question were an independent enactment, standing alone by itself, we should be inclined to follow the decisions of the courts of sister States. The act in question, however, forms a part of the general Railroad Law. It is made an added section to that act. It is “section J$-a/J Street electric railway companies may incorporate under this general act. Article II of the Railroad Law, embracing sections 30 to 59, inclusive, relates to the "construction, operation and mamagement ” of railroad companies. Section 42 provides that “Any railroad corporation may employ any inhabitant of the State, of the age of twenty-one years, not addicted to the use of intoxicating liquors, as a car driver, conductor, motorman, or grip-man, or in any other capacity, if fit and competent therefor. All applicants for positions as motor-men or gripmen on any street surface railroad in this State shall be subjected to a thorough examination by the officers of the corporation as to their habits, physical ability and intelligence,” etc.

It clearly appears, - therefore, that the general Railroad Law is made by its very terms to apply to and deal with street surface railways, as well as to steam commercial roads. When, therefore, the Legislature added a new section to the general act by way of amendment, which immediately follows the section quoted, in which it is provided that “ In all actions against a railroad corporation" the presence of defects "shall be prima facie evidence of negligence on the part of mch corporation,” etc., it is fair to assume that it was the intention of the Legislature to make section 42-a apply to all railroads — street surface railways as well as ordinary commercial steam roads — 'and we so hold.

Host, if not all, of the eases of other States above cited, may be distinguished from the case at bar.

In the case of Funk v. St. Paul City R. R. Co., 29 L. R. A. 208 (Minn.), the Employers’ Liability Act of Minnesota (General Laws of 1887, chap. 13) provides that “ every railroad corporation owning and operating a railroad * * * shall be liable for damages sustained by an agent or servant by reason of negligence of any other agent or servant,” etc.

It was held not applicable to a street (cable) railroad corporation, the court (Buck, J.) saying that, as there were no cable or electric railroads in the State of Minnesota when the law was passed, the Legislature could not have intended to apply the law to such corporations, although the opinion goes further and argues that the law should not apply to street railroads anyway, because street cars are more readily managed and controlled than long steam railroad trains, carry no freight, etc., and are operated with less hazard and danger of personal injury, etc.

Lundquist v. Duluth St. R. Co., 65 Minn. 387, follows the Funk case.

Sams v. St. Louis & M. R. R. R. Co., 61 L. R. A. 475 (Mo.).

Act approved February 9, 1897 (R. S. 1899, § 2873) provides: “ That every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad-by reason of the negligence of any other agent or servant thereof;” etc.

This is article 2 of chapter 12, Revised Statutes 1899, and is followed immediately by article 3, which relates to street railroads.

The court, in the prevailing opinion, says (p. 482) : “Running through all our statutes on the subject, there is an obvious distinction shown between railroads and street railroads. Mo one can read article 2 of chapter 12, Rev. Stat. 1899, and gather the idea that it has any reference to street railroads. Then follows article 3, which relates to street railroads only.”

Gantt, J., dissenting, argues ably that the act covers street, as well as steam, railroads, citing many cases in different States and referring to the fact that the Minnesota statute, cited in the prevailing opinion, was passed before the operation of cable or electric railroads in that State. McLoud v. C. & N. W. R. Co., 125 Iowa, 270.

This case holds that Code section 2071 (Employers’ Liability Act), which applies in terms to “every corporation operating a railway,” in its broadest and most general sense, is sufficient to include a street railway corporation; still, in ordinary parlance, the word “ railway ” or “ railroad ” has special reference to the larger, more expensive and more permanent lines or systems extending from town to town, accommodating a heavier and more miscellaneous traffic, and requiring larger forces of employees who are exposed to greater risks than is the case with street car lines.

Street railway corporations in Iowa seem to come under separate statutes or sections of the Code. See sections 2051, 2075, 2122. The latter section is the first section of Chapter 7. Of the Regulation of Carriers by Railway,” and reads as follows:

“ § 2122. To what applicable.— The provisions of this chapter shall apply to the transportation of passengers and property, and to the receiving, delivering, storing and handling of property wholly within this state, and shall apply to all railroad corporations, express companies, sleeping ear companies, freight or freight line companies, and to any common carrier engaged in this state in the transportation of passengers or property by railroad therein, -x- * etc. The term 1 railroad ’ and railway ’ as used in this chapter shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation, receiver, trustee or other person operating a railroad, whether owned or operated under contract, agreement, lease or otherwise; and the term ‘transportation ’ shall include all instrumentalities of shipment or carriage; and the term railway corporation ’ shall mean all corporations, companies or individuals owning or operating any railroad in whole or in part in this state, and the provisions of this chapter shall apply to all persons, firms, and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the' lines of railway in this state, street railiuays excepted, the same as to railroad corporations herein mentioned.”

As bearing upon this idea, notice that the act creating the State Board of Railroad Commissioners (section 2112) provides that said board “ shall have general supervision of all railroads in the state operated by steam * * * and any common carrier engaged in the transportation of passengers or freight by railroad, street railroads excepted ” etc.

In view, therefore, of the relation which section 42-a of the general Railroad Law sustains to the other sections of the act, and in view of the distinctions which.are possible in the statutes of sister States, we are of the opinion that the section in question must be held to apply to street surface railroads.

This leads to the conclusion that the charge excepted to was correct, and the motion for a new trial is denied.

Ordered accordingly.  