103 N.Y.S. 73 | N.Y. Sup. Ct. | 1907
Upon the objections of defendant, the plaintiff elected to try this suit on the theory of a common-law action for negligence, and not under the provisions of the employer’s liability act of 1903. It was objected that the allegations of plaintiff’s complaint and the form of notice served were insufficient to sustain his cause of action under the said statute of 1903. The complaint sets forth a complete common-law action. The notice of claim pleaded and served may be treated as surplusage. An inartistic pleading is not necessarily insufficient or fatal. The plaintiff invoked the benefit and aid of chapter 657, p. 1683, Laws of 1906, which became a law and went into effect May 39, 1906, amending the general railroad law (chapter 565, p. 1083, Laws of 1890), by adding thereto section 43a, providing that:
“In all actions against a railroad corporation * * * doing business in this state * * * for personal injury to or death resulting from personal injury while in the employment of such corporation * * * arising from the negligence of such, corporation * 15 * or any of its officers or employés, every employé or his legal representative shall have the same rights and remedies for an injury or for death * * * from the act or omission of such corporation * * * or of its * * * officers or employés as are now allowed by law, and in addition to the. liability now existing by law it shall be held in such actions that persons engaged in the service of any railroad corporation * * * who are intrusted by such corporation with the authority to direct or control any other employs in the performance of the duty of such employe, or who have as a part of their duty for the.time being physical control or direction of the movement of a signal, switch, locomotive engine, car, train or telegraph office, are vice principals of such corporation * * * and are not fellow servants-of such injured or deceased employés.”
This action was commenced subsequent to the enactment of the foregoing statute. The complaint states that plaintiff’s intestate, was in the employ of the defendant engaged at work on its tracks with other employés; that he was run into and crashed to death by a locomotive, with car attached, exclusively controlled and operated by defendant; and that such collision was caused by the negligence of the defendant, its agents and servants, without any contributory carelessness of the decedent. The defendant denied all liability, and there was a sharp conflict on the controverted facts (except that the death of Herman Schradin resulted from the collision, which was conceded), and particularly as to whether the bell was rung or the whistle blown by the fireman, of the megaphone signal by the watchman was given of the approaching locomotive, warning the deceased of danger. The engineer, the fireman, and the watchman were all employés of the defendant for the time being, and in physical control, respectively, of the locomotive, whistle, and megaphone. At the close of the trial the de
The defendant’s contention that chapter 657, p. 1682, Laws of 1906, was unconstitutional, is unsupported by any authoritative decision. Similar statutes in other states have been attacked on the same ground and held valid. It is competent for the Legislature, in the exercise of its police power, to take steps for the protection of the lives and limbs of employés who may be exposed to dangerous agencies in the control of others. Indianapolis Union R. R. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787. A corporation is subject to the general statutes of the state, as well as to the reserve power of the Legislature to amend the general laws, and also to alter the charter of the corporation by subsequent enactment prescribing new conditions to the continued enjoyment of its franchise. Hinckley v. Schwarzschild & S. Co., 107 App. Div. 470, 95 N. Y. Supp. 357.
It is urged that because the plaintiff failed to plead the new section of the law, and omitted to serve notice of claim, he thereby forfeited the benefit of the act of 1906. It is never necessary, in pleading, to state matters which the court is supposed to know and take notice of, viz.-, the statutes of the state. Shaw v. Tobias, 3 N. Y. 189; Swinnerton v. Columbia Ins. Co., 37 N. Y. 190, 93 Am. Dec. 560; 1 Nichols, N. Y. Practice, 832; O’Brien v. Kursheedt (Sup.) 29 N. Y. Supp. 973. Statutes may be read in evidence. Code Civ. Proc. § 932. No notice of claim or action is required pursuant to section 42a or in a common-law action for negligence. Section 42a does not create a new cause of action. It merely declares what may be regarded as prima facie evidence. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, the power of the Legislature is practically unrestricted. Cooley on Constitutional Limitations (7th Ed.) p. 526. There can be no doubt of the right of the Legislature to change the rules of evidence and declare what shall be prima facie proof. Howard v. Moot, 64 N. Y. 262; People, etc., v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668; Com’r of Excise v. Merchant, 103 N. Y. 143, 8 N. E. 484.
It follows that the motion to set aside the verdict and for a new trial must be denied.