108 N.Y.S. 691 | N.Y. App. Div. | 1908
This is a statutory action
Our attention.was drawn by the points of one of the appellants, to the case of Bamberg v. International Railway Company (121 App. Div. 1), and it is claimed upon the authority of that decision that the reversal as to one of these defendants requires a.reversal.as to all. If so, of course it is immaterial whether or not errors were coznmitted pi'ejudicial to the appellants in-this record.. In the Bamberg case, the plaintiff charged that he sustained personal injuries
' The action is not brought under the Employers’ Liability Act.
We are of opinion also that there must be a reversal as to the construction company. 'Where, as here, three different.defendants are joined in an action in which each of them is charged with separate acts of negligence, the facts relating to which are somewhat intricate and complicated, it is important that the jury should be-clearly instructed with respect to the facts' upon which the liability of each depends. The learned trial justice apparently realized this and endeavored to present the case to the jury so that they would understand the nature of the charge against each defendant, but the case presents so many phases that he overlooked some very material considerations. ■ If the conductor and engineer were in tlie employ of the Interborough Company and the train was. being operated by it then, manifestly, the construction company would not be liable for their negligence in operating the train with respect to speed, signals or keeping a proper lookout, and if,, on the other hand, the tram was being operated by the construction company the engineer and the conductor would be coemployees of the decedent. for whose negligence it would not be liable. ¡Neither of these matters was specifically alluded to m the main charge, but at request of counsel for appellants the court did instruct the jury that if - the train was being operated by the construction company, the engineer and conductor would be coemployees of the decedent. If, as testified to by two witnesses for the construction company, the employees of the cable company were notified that the tram was to be sent through, and were directed to remove~obstructions that they had
It follows that the judgment and order'should be reversed and a new trial granted, with one bill of costs to appellants to abide the event. ■
Patterson, P. J., Ingraham, McLaughlin and Houghton, J J. concurred.
. Judgment and order reversed, new trial ordered, costs to appellants to abide event.
See Code Civ. Proc. § 1902 et seq.—;[Rep.
Laws of 1902, chap. 600.— [Bep.