Opinion
March, 1904.
William H. Wood, for the appellant.
Walter C. Anthony, for the respondent.
The plaintiff's intestate, a brakeman in the employ of the defendant, was killed while at work upon one of its trains in the State of Connecticut. His death occurred while the person in charge of the train was endeavoring to couple two freight cars belonging to the Baltimore and Ohio Railroad Company. The brake at which the deceased was stationed was at the end of one of these cars, so that he had to stand between the cars to operate it. Along the top of each car was a running board. These boards projected over the roofs of the cars, so that when they came together there was a space of but four inches between the ends of the boards. The plaintiff's intestate was caught between these ends as the cars came together, and sustained injuries from the effect of which he died.
The complaint was dismissed at the close of the plaintiff's case upon three grounds: (1) Because the statute of Connecticut permitting a recovery for negligently causing the death of a person was deemed to be essentially different from the statute on the same subject in this State; (2) because the proof was regarded as insufficient to charge the defendant with negligence; and (3) because the evidence showed that the cars came together at the rate of six or seven miles an hour, indicating negligence on the part of the operator of the train, a fellow-servant of the deceased.
The dismissal of the complaint cannot be sustained on any of these grounds. It is true that the Connecticut statute set out in the record is not exactly like ours. It provides that actions for injury to the person, whether the same do or do not instantaneously or otherwise result in death, shall survive to the executor or administrator of the person killed. (General Statutes of Conn. [Revision of 1887], chap. 73, tit. 18, § 1008.) Our statute, on the other hand, confers upon the executor or administrator a right to maintain a suit for wrongfully or negligently causing the death of the decedent, without the use of any language indicating that the cause of action is a survival of that which the injured party might have had if the injury had not been fatal. (Code Civ. Proc. § 1902.) This difference, however, does not prevent the case from falling within the doctrine of Wooden v. W.N.Y. P.R.R. Co. ( 126 N.Y. 10), to the effect that an action for an injury to the person in another State dependent upon a statute may be maintained here on proof that the statute of the State in which the injury occurred is similar to our own. In Leonard v. Columbia Steam Navigation Co. ( 84 N.Y. 48) the plaintiff's intestate was killed by a boiler explosion in Connecticut, and the Connecticut statute in force at the time of the accident there under consideration appears to have been essentially the same as it is now in respect to the maintenance of an action for negligently causing death. The Court of Appeals there held that it was not necessary that the statutes should be precisely alike, saying, per MILLER, J.: "The statute in this State is certainly of the same nature, and the similarity is such as to authorize the conclusion that it is founded upon the same principle and possesses the same general attributes as the statutes of Connecticut which have been cited. The same remedy was to be accomplished, and an examination of the different provisions evinces an agreement in both of the statutes as to their main features, and that they are substantially alike and to the same effect as to the survivorship of the action. In fact, when there are similar statutes instead of the common law, the right to recover damages stands precisely the same as if the common law in both States relating to the subject prevailed."
Upon the sufficiency of the proof to make out a prima facie case of negligence against the defendant, notwithstanding the fact that the cars the use of which occasioned the accident belonged to another corporation, it is necessary only to cite Gottlieb v. N.Y., L.E. W.R.R. Co. ( 100 N.Y. 462).
The proposition that the defendant is absolved from liability because the person in charge of the train operated it carelessly by allowing the cars to come together when moving at too rapid a rate, ignores the rule that where the proof establishes negligence on the part of the master the fact that the injury was partly due to the negligence of a fellow-servant does not bar a recovery against the master. ( Ellis v. N.Y., L.E. W.R.R. Co., 95 N.Y. 546; Stringham v. Stewart, 100 id. 516.)
I think there was enough evidence to take this case to the jury, and that it was error to dismiss the complaint.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.