Powell v. Cohoes Railway Co.

120 N.Y.S. 336 | N.Y. App. Div. | 1909

Lead Opinion

Sewell, J.:

One of. the questions presented by this appeal is whether the trial court had power to grant the application of the plaintiff to amend the complaint by setting forth the acts of negligence on the part of the United Traction Company which he claimed caused the accident. Section 723 of the Code of Civil Procedure provides that “ the court may upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding * * * by inserting an allegation material to the case. * *

The complaint clearly avers that while carefully and cautiously operating one of the cars of the Cohoes Railway Company the plaintiff was injured by the carelessness and negligence of the United Traction Company as well as the negligence of the Cohoes Railway Company, and specifies the particular negligent act on the part of the United Traction Company that one of its cars ran into and struck the car operated by the plaintiff and the plaintiff was thereby severely injured.

In Oldfield v. N. Y. & Harlem R. R. Co. (14 N. Y. 310) it was held that a general averment of negligence was sufficient to authorize evidence of the defendant’s neglect or misconduct tending to produce the injury, without á more particular statement in the pleading.

In Jackman v. Lord (56 Hun, 192) the complaint alleged that the plaintiff was injured by being hit by some object thrown by an. explosion of' gas, which explosion was caused by the negligence of the defendant, and the court held that it was sufficiently definite and certain.

In McCarthy v. N. Y. C. & H. R. R. R. Co. (24 N. Y. St. Repr. 924) the complaint alleged that while the plaintiff was in the depot waiting to take the train defendant “ carelessly and negligently ran and propelled one of its cars upon and against the plaintiff, whereby he was injured,” and the court held that the complaint stated with sufficient certainty and definiteness the negligent acts complained of.

To the same effect are Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 227); Roblee v. Town of Indian Lake (11 App. Div. 435); Murphy v. Milliken (84 id. 582), and Ellsworth v. Agricultural Society (99 id. 119).

According to the doctrine of these cases the complaint • in' the present case was sufficient as a pleading to give the plaintiff a standing • before the court .and the court the power to allow the amendment.

The question of the liability of the' Cohoes Railway Company is also presented by this appeal. It is urged by that appellant that the plaintiff should have been nonsuited because the evidence was insufficient to establish its liability for the injury to the plaintiff from the accident. '

It is not claimed nor is there anything in the evidence to show that the Cohoes Company or any of its officers, agents, or servants, except the plaintiff, had actual knowledge of the condition of the track where the' accident occurred. It does not appear that the Cohoes Company was under legal obligation to keep the tracks of the United Traction Company in a safe condition, or that it had anything to do with its tracks except to run its ears over them-. Nor is there a particle of evidence to show that the United Traction Company was not bound by contract to sand its tracks and to keep them reasonably safe for persons lawfully using them. The .burden of showing an omission of' duty in this respect was upon the plaintiff, and in the absence of any evidence to the contrary the presumption is that a proper contract was made by the defendants. (Rose v. B. & A. R. R. Co., 58 N. Y. 217.) We may also assume that such a contract was made from- the plaintiff’s own testimony that each company sanded its own tracks. The only neglect which the learned counsel for the plaintiff imputes to the Cohoes Railway Company is that it failed to discover and remedy the- defect.

It is true-that the general rule is that a master, is bound’to use reasonable care and prudence for the safety of his servants, in providing them with a safe place in which to work, and in maintaining it in a reasonably safe condition. The rule is based upon the possession and control by the master of the place where his. servants are required to work. The duty of the master flows from and is measured by his possession and control .of the place just as his liability for the acts of his servants is based upon his power to control them. It follows that this rule has no application where the place is not in the possession or control of the master, and he is ignorant of its condition. In such a case it would seem upon principle that the master may assume that the one in the possession and control of the place has properly discharged that duty, and that the place is reasonably safe and suitable for the purposes for which it is used.

It would certainly be impracticable for one railroad company to inspect the track of another company, over which it has no control, and to repeat the inspection every time a train or car passed over it, and I cannot find any reported decision in which it has been held that negligence may be imputed to a railroad company for not discovering a defect in the track of atiother company. The authorities seem pretty clearly to establish the rule that an employee cannot recover for an injury from a defective place where the place was not under the control of the master, without showing that the employer had knowledge of the defect. Any other rule would make one railroad company liable for the negligence of another. There is a plain distinction between the case at bar and one where a railroad company receives cars from another company to transport over its road. In such a case the convenience and necessities of business do not prevent the receiving company from making an inspection of the cars received. They are under the absolute control of the company transporting them — as much so as of any car owned by the company; they may be detained long enough to make inspec: tion and it is plain that they should be treated, for the time being, as the cars of such company.

I am, therefore, of the opinion that, under the circumstances of this case, the jury' was not warranted in finding that the Cohoes Railway Company was negligent, and that the judgments entered herein, and the order denying a new trial, should be reversed and a new trial granted,, with costs to appellant Cohoes Railway Company to abide the event.

All concurred,. Smith, P. J., in result, except. Cochrane, J., dissenting as to the Cohoes Railway Company, in memorandum.

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Dissenting Opinion

Cochrane, J. (dissenting, in part):

I dissent as to the reversal of the judgment against the Cohoes Railway Company. • In common with the United Traction Company the Cohoes Railway Company operated its cars through the city of Albany over the track of the former company. That track formed a continuous line with the track of the Cohoes Railway Company, and was permanently used by the latter company under some arrangement made with the other company. I do not think that a railroad Company, under such circumstances, using the track of another company, is at liberty to take absolutely no precautions for the safety of its employees and then be permitted to evade its responsibility- or its duty to such employees of furnishing them á safe place in which to work, by the argument that it had no right to inspect or repair the track of the other company. It should, by a traffic agreement with the other company, reserve to itself such right, or at least. affirmatively place such right upon the other company.

The precise' question here involved was decided in the case of Wisconsin Central Railroad Company v. Ross (142 Ill. 9), where, a brakeman was killed by reason of the defective character of the rails and ties upon the track of a railroad not owned by the defendant, but over which it operated its cars by some kind of an arrangement with the-' owner of the track. ' It was claimed that the defendant was not liable because the defective tracks did not belong to it, but it was held otherwise, the court saying: “ Where the employee of a railroad company is directed to use the road of-another company in the business, of his employer, he has the right to treat such road as the road of the company employing him, and every railroad company whose employees use the road of another company under its direction, or for -its benefit, owes it as a duty to such employees to see that such road is not in a condition which will unnecessarily endanger their lives or limbs. The rule is thus stated in Wood’s Law of Master and Servant (2d Ed.) section 357, p. 735 : ‘ A railway company running its trains over the. track of another railway is liable to its servants for defects therein, when it would be liable if the injury resulted from defects on its own tracks.’ To the same effect are Stetler v. Railway Co. (46 Wis. 497, and cases there cited); Ill. Cent. R. R. Co. v. Kanouse (39 Ill: 272); Elmer v. Locke (135 Mass. 575); Snow v. Housatonic R. R. Co. (8 Allen, 441). We are, .therefore, of the opinion that the liability of the appellant cannot be defeated upon the ground that the road in use at the time of the accident did not belong to appellant.”

In Thompson on Negligence (2d ed. § 3730) the general rule is stated as follows: “If a railroad company acquires the permission to use the tracks of another company it becomes responsible to its own servants for injuries happening to them through defects therein in like manner as it would have been if it had been its own track.” (See, also, to the same effect, § 3735.)

I think the same principle has been held in this State in the case of McGuire v. Bell Telephone Company (167 N. Y. 208). There the defendant telephone company strung its wires on the poles of another company with the permission of the latter, and which poles were also equipped with wires which were used by the owner, the poles being jointly used by the two companies. - The defendant’s lineman climbed one of the poles for the purpose of adjusting wires' when the pole broke because of its decayed condition and he was injured. The argument was there made, as in this ease, that the defendant had no right to inspect the pole of another company. The court held as follows : “ It [the defendant] was bound both as to third parties and as to its own workmen to erect and maintain a reasonably safe structure and it had no right to use for that purpose an unsafe appliance, whether its own or that of a third party. By using the pole as part of its line it adopted it as its own,” and again, “ If the license received by the defendant from the Gas & Electric Company did not permit it to properly inspect the pole to ascertain its safety * * * then the fault lay with the defendant in using a pole the contract as to which with its owner precluded defendant from seeing that it was safe.”

There is no contention here that by its contract with the United Traction Company the Cohoes Bail way Company had required the former company to sand the tracks. If such were the case á question would arise as to whether by such an agreement the Cohoes Railway Company had discharged its duty of reasonable care to its employees. That question was suggested and not answered in the case last cited, and it need not be answered here because it does not appear that such ivas the fact. It had been the custom of the traction company to sand the tracks, but the plaintiff of course did not know that such action was solely performed in the discharge of the duty which that company owed to ■ its own employees. He had a right to assume that his employer had by an agreement with that company made proper provision for his protection. In the language of the opinion in the case last cited : “It does not appear that he had any knowledge of the terms of the agreóment under which the defendant used the [track]. He is not chargeable with notice of the fact that under the agreement the defendant as is claimed by its counsel had no right to inspect the [track] or repair it, and the owner was under no obligation to do either. He cannot' be said to have assumed the risk of such a situation.”

It seems to me that this judgment against the -Cohoes Railway Company is well supported both on.principle and by authority, and that the judgment as to such defendant should be affirmed.

judgments and order reversed as per opinion, and new trial-granted, with costs to appellant to abide event.