129 N.Y.S. 378 | N.Y. App. Div. | 1911
On August 5, 1910, one Howard Taylor, a resident of Orange county in this State, while engaged as a locomotive fireman by the Erie Railroad Company, a corporation of this State, met with an accident which caused his death. The accident happened through a collision between the locomotive of .a train of cars and some rock and earth which had fallen upon the track. The train was at that time engaged in a trip from Port Jervis, in this State, to Jersey City, in the. State of Hew Jersey, and the accident occurred within this State. Taylor left him surviving no children nor descendants, but only a widow and a father. The widow was appointed as administratrix of the estate of the decedent by the Surrogate’s Court of Orange county. She brought an action as administratrix against the railroad company in the Supreme Court in Orange county to recover damages for the death of her husband. The defendant in that action thereupon made a written offer of judgment against it in the sum of $5,000. The plaintiff applied to the Surrogate’s Court for its approval of the offer of compromise or judgment, and, such approval being granted, she accepted the offer and judgment was duly entered against the defendant in her favor, and the amount thereof was paid over to her in satisfaction. The decedent’s father thereupon moved at Special Term in this court for an order directing the plaintiff in that action to pay over to him one-half of the net proceeds of the judgment, in accordance with our Statute of Distributions. This motion was denied, and an order was entered determining that the plaintiff, as widow of the decedent, was entitled to receive and retain for her own use all of the net proceeds of said judgment. . From that order the decedent’s father,.Sextus E. Taylor, now appeals.
Actions by the personal representatives of deceased persons to recover damages for the death of the decedent through the wrongful act, negligence or default of another person, or of a corporation, are regulated in this State by sections 1902, 1903, 1904 and 1905 of the.Code,of Civil Procedure. These sections, define the circumstances under which such actions may be brought, the extent of the recovery and the method of distribution of the damages recovered. In section 1903 (as amd. by
Sections 1902 to 1905 of the Code of Civil Procedure are. but re-enactments of chapter 450 of the Laws of 1841, as amended by chapter 256 of the Laws of 1849 and chapter 18 of the Laws of 1810. In all of these acts the damages recoverable in the action authorized by them are set apart for the exclusive benefit of the husband or widow and next of kin of. the decedent, to be distributed as. if they constituted the net unbequeathed assets of the decedent’s estate.
Section 18 of article 1 of .our State Constitution provides that “The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.” The “right of action ” so referred to was the right of action given under the statute of 1841, as amended, and was a right of action given for -the benefit of the husband or widow and next of kin of the decedent, and it was thus placed beyond any interference by the Legislature as to its essential elements: Yet. all these provisions of our statutes and of our Constitution
The act of 1908 was further amended hy the act of 1910 by adding a new section, section 9, as follows: “ Sec.' 9. That any right of action given hy this Act to a person suffering injury shall Survive to his or her personal representative, for the benefit" of the surviving widow or husband and children of such employee, and, if none, then of- such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall he only one recovery for the same injury.” (36 U. S. Stat. at Large, 291, chap. 143, § 2, adding to 35 id. 66, chap. 149, § 9.)
Turning to the complaint in the action in our court in which the plaintiff set forth a cause of action for damages, we see that she alleges as follows: (1) That the defendant is a domestic corporation; (2) her appointment as administratrix of the decedent; (3) his employment as a locomotive ' fireman hy the defendant; (4) the decedent’s death from an injury while working on one of defendant’s trains at a place called Howells, in Orange county, in the State of New York, through a collision between the locomotive and a large quantity of rock which had fallen or slid upon the track; (5) that the collision was caused by the “ negligence and carelessness of defendant and of its agents, servants and employees in that each of them violated the duty imposed upon them hy the Act of Congress hereinafter referred to; ” (6) that the decedent was free from contributory negligence; that the widow of the decedent was the only person dependent upon him for support; (7) that the train in question was engaged in interstate commerce at the time of the accident and that the action was brought pursuant to an act of Congress approved April 22, 1908.
The question now before this court is quite different from that presented to the Supreme Court of Connecticut in Hoxie v. N. Y., N. H. & H. R. R. Co. (82 Conn. 352). There it was held that the courts of that State should decline jurisdiction of an action brought under this act of Congress to recover damages for the death of a decedent caused by an accident happening in the Commonwealth of Massachusetts.
Here, in the case at bar, our courts did assume jurisdiction without question by the defendant, and judgment was entered on consent and satisfied. Whether our courts should assume jurisdiction of an action resting entirely upon this act of Congress, is a question to be determined when it is raised by some corporation which resists its application, and not in a case like the present one. For,, here, it must be noted and kept in mind that the complaint on which the administratrix of the decedent came into our courts set forth facts which constituted a cause of action under the laws of this State. The collision described in the complaint must have happened necessarily from either one of two causes, or from a combination of both. ' If the .defendant was negligent in failing to keep its track reasonably safe, then it was liable to its servants at common law. (Kuhn v. Delaware, L. & W. R. R. Co., 92 Hun, 74; 153 N. Y. 683; True v. Niagara Gorge R. R. Co., 70 App. Div. 383; 175 N. Y. 487.)
If the proximate cause of the accident was the negligence of the engineer in charge of the train in running ‘ the locomotive into an open obstruction, then the defendant was liable under section 64 of our present Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), which revised section 42a of our former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], added by Laws of 1906, chap. 657), for, under that statute, the engineer was a vice-principal. The complaint alleges further that there was no contributory negligence of the decedent, and such must be assumed to be the case. Therefore, the plaintiff had a complete right of action under our laws without resort to the act of Congress. Whether this act of Congress is. a valid exercise of ‘the Federal power to regulate interstate commerce has not been determined at this
We think that the order appealed from should be reversed,
Jenks, P. J., Hirsóhberg and Burr, JJ., concurred; Thomas, J., not voting.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the Surrogate’s Court of Orange county, to be disposed of as provided in section 1903 of the Code of Civil Procedure.
See Code Civ. Proc. § 1903, as amd. by Laws of 1904, chap. 515. See, also, Laws of 1911, chap. 122, which took effect September 1, 1911.—[Rep.