177 A.D. 433 | N.Y. App. Div. | 1917
Lead Opinion
This is an appeal from an order directing discovery of books and papers, granted in a negligence action brought under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143).
Defendant owns and operates an intrastate railroad, with its termini at Kingston and Oneonta. On June 16, 1916, plaintiff’s testate was in defendant’s employ as a fireman upon one of its engines. On that day his engine first assisted in moving a freight and coal train from Oneonta to Grand Hotel station. It then returned as far as Arkville and assisted in moving a milk train from Arkville up the grade to Grand Hotel station. It was then ordered to return to Arkville to meet and assist in moving defendant’s passenger train, running extra. Reaching Arkville the engineer and conductor received orders to proceed with the engine to Roxbury to meet the extra passenger train there. When the engine had proceeded as far as the lower end of the Arkville yard it came into collision with the engine of the passenger train and plaintiff’s testate was killed.
The order appealed from directed, as to the freight and coal and milk trains, that an inspection be given plaintiff of the bills of lading and manifests showing the points from which and to which the freight, coal, milk and other merchandise carried thereon were consigned. As to the said passenger train and the engine upon which plaintiff’s testate was employed, the order directed that an inspection be given the plaintiff of the orders given the engineers and conductors of both engines.
The portion of the order directing an inspection of the bills of lading and manifests was clearly unwarranted. The purpose doubtless was to show that portions of the shipments were interstate. Assuming such to have been the case, estab
The decisions are uniform that in order to bring a case within the terms of the Federal Employers’ Liability Act, the defendant must have been, at the time of the occurrence, engaged as a common carrier in interstate commerce, and the injured employees must have been employed by such carrier in
However, we think that the portion of the order appealed from which directed that an inspection be allowed the plaintiff of the orders given the conductors and engineers of the passenger engine and of the engine upon which plaintiff’s testate was employed known as No. 29, was warranted. The petition states that the passenger engine was running extra, and that the train which had left Oneonta that afternoon, evidently on its way to Kingston, was conveying a number of defendant’s agents, officers and employees on a tour of inspection of defendant’s railroad when the collision occurred.
Apparently the action is based upon the collision having resulted from the defendant having given improper and, perhaps inconsistent orders, to the conductors and engineers in charge of the two engines. The orders are, therefore, material and will be competent and necessary evidence upon the trial. The petition alleged that neither .the original orders nor copies thereof are within plaintiff’s possession or under her control; that she has no personal knowledge thereof, and that her information regarding the same is mere hearsay. The relation which existed between the defendant and plaintiff’s testate was that of master and servant, and we think the plaintiff is entitled to know under what orders of the master the engine upon which her testate was employed, as well as the other engine, was being operated. The order for inspection was granted under section 803 of the Code of Civil Procedure, and rule 14 of the General Rules of Practice, subdivision 3 of which rule reads: “Either party may be compelled to make discovery of any book, document, record, article or property in his possession or under his control, or in the possession of his agent or attorney, upon its appearing to the satisfaction of the court that such book, document, record, article or property is material to the decision of the action or special proceeding, or some motion or application therein, or is competent evidence in the case, or an. inspection thereof is necessary to enable a party to prepare for trial.”
Whether the act of officials of an intrastate railroad in inspecting its track over which it is alleged that at times interstate commerce passed, and the presence of plaintiff’s testate as fireman upon the engine on his way to assist the passenger train up the grade, constituted his being engaged in interstate commerce, is not now before us for consideration. In fact, perhaps, plaintiff’s counsel may not rely upon this circumstance as establishing the right of the plaintiff to claim that her testate met his death while engaged in interstate commerce.
The order appealed from should be affirmed in respect of the orders to the conductors and engineers of the colliding engines, and in other respects reversed, without costs to either party.
All concurred, except Kellogg, P. J., who wrote for affirmance, with whom Woodward, J., concurred.
Dissenting Opinion
It is a mistake to assume that this action is brought under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143). The summons was served without a complaint. Attached to the summons was a notice that the plaintiff would take judgment for $35,000 damages on account of the defendant’s negligence under the Federal Employers’ Liability Act.
There is no place for such a notice in a negligence action under sections 419 and 420 of the Code of Civil Procedure.
However, if the notice was properly given it does not prevent the plaintiff from serving a complaint for any other cause of action. (Sharp v. Clapp, 15 App. Div. 445; Johnstone v. Weibel, 131 id. 166.)
It does not appear that the defendant is a self-insurer, or has obtained insurance for its employees under the Workmen’s Compensation Law of this State. Apparently, therefore, the plaintiff may, if the case does not fall within the Federal Employers’ Liability Act, elect under section 52 of the Work
The plaintiff, therefore, is at liberty to frame her complaint according to the facts as she may ascertain them to be. She has lost her husband; she is not sure of the circumstances causing his death, but has reason to believe that the investigation sought will enable her to frame a complaint alleging a cause of action therefor. We cannot try the merits upon this application. The practice is very liberal, and, under the circumstances, it is reasonable that she should have an opportunity to obtain what information she can from the defendant as to the circumstances causing the death. I, therefore, favor an affirmance of the order.
Woodward, J., concurred.
Order appealed from affirmed in respect of the orders to the conductors and engineers of the colliding engines, and in other respects reversed, without costs to either party.