McLaughlin v. Interurban Street Railway Co.

91 N.Y.S. 883 | N.Y. App. Div. | 1905

Hirschberg, P. J. :

The plaintiff was seriously injured on December 1?,. 1902, while riding on one of the defendant’s horse cars on Avenue A, in the vicinity -of Second street, in the borough of Manhattan; He was a conductor in the defendant’s employ, but had been laid off a few ■days before because of illness, but had received on the day of the accident a physician’s certificate, required by the defendant’s rules, Attesting that he would be able to resume his duties - on December ■eighteenth. He boarded one of the defendant’s cars on the day of the accident and was allowed to ride free because he was wearing the uniform of a conductor and was regarded as being in the •defendant’s employment. The conductor of the ear required him . to ride on the front platform, and while he was there the driver ■suddenly loosened the brake, and the resulting movement of the car threw him off and inflicted the very serious injury of which he complains. The complaint is framed under the act commonly known as the Employers’ Liability Act (Laws of 1902, chap. 600), and proof ¡was given of the service of the notice required by section 2 of that statute.

Conceding that the plaintiff was free from negligence which contributed to his accident, and that the act of the driver in suddenly releasing the brake constituted negligence, I am of opinion that the plaintiff cannot maintain this action because the negligence was that, ■of a co-employee. The plaintiff must be regarded as in the defendAnt’s service, under the circumstances of the case, notwithstanding the fact that he was-temporarily relieved from active duty by reason -of his sickness. He understood that he was traveling free because ■of his uniform and because of his employment. He testified: “ On the strength of my uniform and the badge I had on I had not paid ¡any fare when I went into the car. I intended to take a seat when — I had not paid any fare at this time. I got on at 14th street, and stood on the front platform and paid no fare. The reason I •did that was because I had my badge on and uniform.” That an •employee of a common carrier, riding free because of his employment, cannot recover for injuries sustained by reason of the negligence of a fellow-servant is settled law in this State. (Ross v. N. Y. C. & H. R. R. R. Co., 5 Hun, 488; affd., 74 N. Y. 617; Vick v. N. Y. C. & H. R. R. R. Co., 95 id. 267.)

The provisions of the Employers’ Liability Act (supra) extend the liability of the employer to a case in which the injury results from the negligence of a co-employee only where the negligent person is “ in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent, of such employer.” The learned counsel for the appellant insists that the duties of a conductor embrace superintendence, and that it was negligence on the part of the conductor having charge of the car to compel the plaintiff to occupy a d'angerous position upon the front platform. It is true that in a general sense the duties both óf a. Car conductor and of a car driver require the exercise of superintendence to'the extent that- intelligent watchfulness is- essential to-the c’aref-ul performance of their work, but the superintendence, referred to in the statute is something* more than this, and is intended, to relate to that class of servants who are generally known as superintendents, and whose sole or principal duty is to oversee the work, of others.

The technical point is made on the appellant’s behalf that his tes- ' timony was to the effect that iri December, 1902, he was employed by the Metropolitan Street Railway Company, and that there is no-evidence that that company and the defendant are identical.. This-point is destroyed by the notice of the accident hereinbefore referred to, signed and served by the plaintiff, which,is addressed to the-defendant, the Interurban Street Railway Company, in which the-plaintiff states, referring to the date of the accident, “ that at that-time-1 was on your employment list of conductors.”

The judgment should be affirmed.

Present—Hirschberg-, P.. J-., Woodward, Jerks and Hooker, JJ..

Judgment unanimously affirmed, with costs: