Bitondo v. New York Central & Hudson River Railroad

163 A.D. 823, 149 N.Y.S. 339, 1914 N.Y. App. Div. LEXIS 7682

Opinions

Kellogg, J.:

The complaint alleged in paragraph 1 that at all the times stated the defendant was a domestic corporation engaged in the business of running and managing a railway from Buffalo to New York, and which railway .and the tracks thereof passed through the city of Schenectady. In paragraph 2 it alleged, among other things, that the intestate was employed by the defendant as a trackhand engaged in repairing defendant’s railroad tracks in Schenectady, and that the defendant’s train ran over him while he was engaged in that work. The answer expressly admitted paragraph 1 of the complaint; it also denied the other allegations of the complaint, and alleged that the injury occurred by the intestate’s own negligence and that he assumed the risk. The plaintiff proved, without objection, that the intestate left no wife, father or mother surviving him, but two brothers and two sisters; one sister, a widow with two children, lived in Italy, and the intestate sent her five or six dollars a month.

At the close of the plaintiff’s case defendant moved for a nonsuit upon the ground that no negligence was shown, and that it appeared that the intestate was guilty of contributory negligence, which motion was denied. Thereupon the defendant introduced evidence, and it appeared, among other things, that at the time of his death the intestate was engaged in taking out and replacing ties at track No. 2, and that the Twentieth Century Limited, the Southwestern Limited and the Lake Shore Limited ran, one to St. Louis, and the other two to Chicago, over track No. 2, although none of these trains caused the death. At the close of its evidence the defendant made a motion for nonsuit upon the same grounds as before and upon the additional ground that the intestate was engaged in interstate commerce, and that the Federal Employers’ Liability Act, so called, of April 22, 1908, as amended by the act of April 5, 1910,

* furnished the only ground of recovery. The court felt constrained to grant the motion upon the latter ground. The plaintiff asked liberty to amend the complaint by alleging that the next of kin of the deceased were his brothers and sisters, which the court permitted, saying the proof already showed it, and that he left no father, mother, widow or children.

We may assume, without further consideration, if the defense had been properly raised that the intestate was engaged in interstate commerce at the time of his death, that the Federal act referred to would have furnished the only ground for recovery. (Pedersen v. D., L. & W. Railroad, 229 U. S. 146.) Until the motion was made at the end of the case the issues were being tried as ones under the laws of this State. The admission in the pleadings that the defendant is a domestic corporation, engaged in running a railroad from Buffalo to New York and that the accident occurred upon its tracks at Schenectady, and the course of the trial apparently excluded the idea that the intestate was at the time employed in interstate commerce. If the defendant had so contended it should not have made the admission without an allegation showing the nature of its defense. The judgment must stand upon the proofs and the allegations; and the defendant was not at liberty to rely upon the Federal statute as a defense under the issues being tried. To avail itself of that defense it should have amended its answer so that the issue might be presented and tried. The evidence was admitted without objection, but apparently merely as a detail of the facts and without any suggestion that the defendant was proving a fact entirely outside of the pleadings. The complaint does not allege that there was a dependent sister, although evidence was introduced without objection tending to prove that fact. A laboring man, nineteen years old, earning one dollar and seventy-five cents per day, sends five or six dollars of his wages each month to his widowed sister in Italy who has two children. Those facts are some evidence that the sister was dependent upon him. Certainly his death deprived the sister of five or six dollars a month which she was receiving regularly at that time. If the sister was dependent upon the decedent then a case was established under the Federal act, and it was error to nonsuit the plaintiff. Evidently the plaintiff was taken by surprise and may not have pointed out to the court his rights as clearly as he might have done. To prevent such surprise is the very reason why pleadings are required to state the claim of the respective parties. If we disregard the pleadings and treat the proper amendments as made then the plaintiff was entitled to go to the jury and claim a recovery on account of the dependent sister. If pleadings are still necessary the case' should have been decided upon the issue tried, namely, whether a cause of action was shown assuming that the intestate was engaged in intrastate commerce. It is the more orderly course to consider that there was a mistrial and that the question decided was not properly in the case. If the defendant chooses to change the issue it should make proper application to the court for the necessary amendment. If such amendment is made the plaintiff may if he choose amend the complaint.

• The judgment «should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Lyon, J., dissenting in an opinion in which Smith, P. J., concurred.

See 35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143.— ptaP,