Hall v. . New York Telephone Co.

Collin, J. Under the record here a single question merits discussion. It is: Is section 202-a of the Labor Law (Cons. Laws, ch. 31, amd. L. 1910, ch. 352) applicable in an action at common law brought by an employee against his employer to recover damages for negligence arising out of and in the course of the employment. The language of the section is: “ On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant. ” The language is unmistakably clear and intelligible. We find nothing in its context or in its incorporation in the article of the Labor Law which relates to employers’ liability which obscures or changes the legislative intention it directly and unequivocally expresses. Our decision in Collelli v. Turner (215 N. Y. 675) that section 202 of the Labor Law, relating to the assumption of risk, did not apply to actions at common law, was based upon the restrictive language of that section. The language of section 202a is general and means, as it says, that on the trial of any action of the prescribed character, contributory negligence of the injured employee. *301 shall be a defense to be so pleaded and proved by the defendant. The trial justice, therefore, did not err in charging that the burden of proving the plaintiff guilty of contributory negligence was upon the defendant. The judgment should be affirmed, with costs. Hiscock, Oh. J., Hogan, Oardozo, Pound, McLaughlin and Crane, JJ., concur. Judgment affirmed.