Powell v. Cohoes Railway Co.

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 [208] 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 [209] 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 [210] 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.