Carr v. Shields

125 F. 827, 1903 U.S. App. LEXIS 5136

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 29, 1903
• Status: Published

Opinion

WALLACE, Circuit Judge.

The complaint does not allege that the personal injuries of the plaintiff were caused by “any defect in the condition of the ways, works, or machinery connected with or used in the business” of his employer, or by reason of the negligence of any superintendent, regular or temporary, of his employer, but it sets forth in detail all the facts which enter into the cause of the action. From this detailed statement it is manifest that the plaintiff was injured by the lowering of a “scale” while he was beneath it by two of his co-employés, and because one of them (the signalman) did not give notice to him of the descending scale.

Plainly, the statute of New York of 1902 (Laws 1902, p. 1748, c. 600), to “extend and regulate the liability of employers to make compensation for personal injuries suffered by employés,” does not give a cause of action to the plaintiff; and it is equally plain that for an injury so received, occurring by reason of the negligence of a fellow servant, he has no cause of action at common law ¡unless his employer had not exercised reasonable care of selection—a fact not alleged in this case.

The demurrer is well taken, unless a general statement made after the particular statement of facts is to be read as alleging some additional act of negligence. This statement is that the injuries aforesaid were caused to plaintiff “without fault, neglect, or want of due care on his part, but solely and only through the fault and neglect of the defendant, his agents, servants, and employés.”

It would give this statement a strained and unreasonable meaning to interpret it as is urged in behalf of the plaintiff.

The demurrer is sustained, with costs.