Appeal from Trial Term, Westchester County.
Action by Leonardo Inglese against the New York, New Haven & Hartford Railroad Company. From a judgment dismissing the complaint, and an order denying a motion for a new trial, plaintiff appeals. Reversed, and new trial granted.
Under Laws 1906, p. 1682, c. 657, the company would be liable for negligence of a track foreman, who controlled and commanded members of a repair gang, in failing to warn them to leave the track in time.
[117 N.Y.S. 393] William S. Beers, for appellant.
Charles M. Sheafe, Jr., for respondent.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and MILLER, JJ.
Plaintiff was employed by the defendant to assist in repairing its tracks. On the 9th day of July, 1907, he was engaged in working on the east-bound track near Pelham, taking up old ties and putting down new ones. Caneo Sabio belonged to the same gang of track repairers. It was the custom of the foreman of the gang to give warning to the workmen of the approach of a train by saying " Look out!" He instructed the men not to leave the track until he warned them, and not to leave any tools upon the track. The penalty for disobedience was discharge. On the day in question the plaintiff and Sabio were working side by side. Sabio had an iron bar under the rail and was sitting upon it, trying to loosen the rail. Plaintiff had his back turned toward the direction from which the train was coming. A train approached, and the foreman cried, " Look out!" Plaintiff stepped from the track, but before Sabio had done so the engine struck the iron bar and pushed it " against his belly." Simultaneously something struck the plaintiff, and he was thrown down and rendered unconscious. Sabio was killed. There was evidence from which the jury might have found that the train was so close to the men before a warning was given that Sabio did not have time to release the bar and step aside before being struck. Upon this evidence [117 N.Y.S. 394] the plaintiff was nonsuited, and from the judgment entered thereon this appeal was taken.
So far as the defendant's negligence is concerned, two questions are presented: First. Was the failure of the foreman to warn the workmen of the approaching train until it was so close at hand that Sabio was unable to extricate the tool with which he was working and get out of the way before being struck an act of negligence for which the defendant is responsible? Second. If so, was it the proximate cause of the injury to the plaintiff? No evidence was given of an express rule of the defendant requiring the foreman to give warning of approaching trains under circumstances similar to these. The fact that such warning was always given would justify the jury in believing in the existence of such a rule. If there was such a rule, then the violation of it was some evidence of negligence. Whittaker v. D. & H. C. Co., 126 N.Y. 544, 27 N.E. 1042.If the act of the foreman was a negligent act, is the defendant responsible for it? At common law his negligence, being that of a fellow servant of the plaintiff, would not impose any liability on the common master. The complaint in this action alleges the service of a notice under the provisions of the employer's liability act (Laws 1902, p. 1748, c. 600). Upon the trial the only proof given was by way of an admission that notice of the accident was served. There was no proof of its contents, nor as to the date of the service. The proof was, therefore, insufficient to establish liability under that act.
But the common-law rule above referred to has been changed by the provisions of Laws 1906, p. 1682, c. 657, which is an amendment to the railroad law. It provides as follows:
" In all actions against a railroad corporation *** doing business in this state, *** for personal injury to *** any person, while in the employment of such corporation, *** arising from the negligence of such corporation *** or of any of its *** officers or employes, every employe *** shall have the same rights and remedies for an injury *** suffered by him, from the act or omission of such corporation *** or of its *** officers or employes, 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,*** doing business in this state, *** who are intrusted by such corporation *** with the authority of superintendence, control or command of other persons in the employment of such corporation, *** or with the authority to direct or control any other employe 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 *** employe."
This act makes no provision for the serving of any notice as a condition precedent either to the establishment of a cause of action or the right to sue. It is not necessary to plead this statute to enable the plaintiff to receive the benefit of it, and the statute is not subject to attack upon constitutional grounds. Schradin v. N.Y. C. & H. R. R. R. Co., 124 A.D. 705, 109 N.Y.Supp. 428, affirmed 87 N.E. 1126.The foreman controlled and commanded the members of the repair gang when to leave the track and when not to do so. If he performed this duty negligently, the defendant is responsible therefor.
[117 N.Y.S. 395] Upon the question of the proximate cause of the injury, we think, also, that it was for the jury to say whether the blow which struck the plaintiff to the ground and rendered him unconscious was not inflicted by Sabio's body or the iron bar which was struck by the engine. It is true that the plaintiff says he does not know what struck him. He became unconscious, and when he recovered consciousness he was in the hospital. Some foreign body came in contact with his person with great force. The position which the men occupied, only three feet apart, the violence of the blow inflicted upon the bar and upon Sabio, the fact that almost simultaneously therewith the plaintiff was struck and fell to the ground, and the fact that there is no evidence of anything else which could have struck the plaintiff, make it highly probable that the cause of the injury may be found here. While it is true that to prove a fact by circumstances the circumstances must be shown, and the inference sought to be drawn therefrom to establish the fact be the only one which can fairly and reasonably be drawn from the circumstances ( Ruppert v. Brooklyn Heights R. R. Co., 154 N.Y. 90, 47 N.E. 971), it is not necessary for plaintiff to exclude all other possible hypotheses ( Smith v. Brooklyn Heights R. R. Co., 82 A.D. 531, 81 N.Y.Supp. 838; Brand v. Borden's Condensed Milk Co., 89 A.D. 188, 85 N.Y.Supp. 755; Id., 95 A.D. 64, 88 N.Y.Supp. 460).
In the Ruppert Case plaintiff's intestate was killed by being thrown from his wagon, because it came in contact with a granite paving stone lying in the street. It was south to hold defendant liable by proof that the defendant was paving between its rails and carting stone for that purpose. It appeared, however, that the stone which caused the accident was not the same kind of stone which the defendant was using but that other parties who were paving streets in the neighborhood were using granite blocks and were carting the same over the street in question. The court say:
" But it appears that, while the defendant was so engaged in moving the paving stone, it was not using or moving any stone of this character, and that other parties were. Hence the reasoning process is defective, since it is at least as reasonable to suppose that the stone in question was left in the street by the careless act of the ...