117 N.Y.S. 720 | N.Y. Sup. Ct. | 1909
The jury rendered a verdict in favor of the plaintiff for personal injuries, claimed to have been received by him while alighting from one of defendant’s street oars, caused by the sudden starting of the car, by which it is alleged he was thrown to the pavement.
It appears from the evidence on behalf of the plaintiff that, for several days prior to the accident, he had been employed by the defendant as a laborer, engaged with others in constructing tracks in a neighboring street near the place of the accident; that he received one dollar and seventy-five cents a day for his labor, and was given in addition tickets entitling him to transportation to and from his home to his place of labor; that, on the morning in question, he boarded one of the defendant’s cars to go to his place of labor, and used one of the tickets in question, and that, in attempting to alight at his destination, he met with the accident for which this action was brought.
The defendant contends that, if there was any negligence on the part of the motorman or conductor in charge of the car in question, it was the negligence of coemployees, and the plaintiff cannot recover.
Unless the provisions of chapter 565 of the Laws of 1890, amending the general Railroad Law of the State, and commonly known as the Barnes Act, have altered the law as it previously existed, the defendant’s contention is correct; for,
Chapter 565 of the Laws of 1890, as amended,
If, therefore, this act relates to and governs street surface railways as well as steam commercial roads, then it follows that the rule of law formerly existing which precluded a recovery in a case like the one now under consideration has been modified by the statute, and the conductor and motorman in charge of the operation of the car from which the plaintiff fell ceased to be coemployees, and stand in the relation of a vice-principal to the plaintiff, and the plaintiff may recover notwithstanding.
In the recent case of Forton v. International Railway Company, 63 Misc. Rep. 237, we had occasion to pass upon this question, and held that the act in question applied to
We, therefore, concluded that the amendment in question was intended to apply to and deal with street railways. We see no occasion for changing the view there expressed, and in this case hold that the act in question applies to the situation developed in this case, and that those in charge of the operation of the car from which the plaintiff was thrown when alighting are not to be deemed coemployees of the plaintiff, and that the rule of law stated in Vick v. N. Y. Central, 95 N. Y. 267, has been changed by the statute in question.
The defendant’s motion for a new trial is, therefore, denied.
Motion denied.
Section 42a, added by L. 1906, eh. 657.