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into the said train of cars, and into the car in which plaintiff was then sitting, and the said car was thereby, and in consequence thereof, broken and destroyed, and the said plaintiff

, by said collision, violently thrown out of said car, badly wounded and injured, and put in imminent danger of his life; and said plaintiff was for a long time confined and unable to attend to his ordinary business, was obliged to and did pay large sums of money for doctoring and attendance, and has sustained permanent and incurable injuries, which do and will cripple him for life.

Wherefore the plaintiff demands judgment against the defendants for $5,000 damages, besides costs.

WM. ENO,

Plaintiff's Attorney.

(No. 79.)

Another form, for injury to passengers by negligence,

alleging incompetency of engineer, to the knowledge of the company.

SUPERIOR COURT-CITY OF NEW-YORK.

John Russell

agt.
The Hudson River Railroad Co.

The complaint of the abovenamed plaintiff respectfully shows unto this court:

That on or about the 20th day of December last, the abovenamed defendants were, and for some time previous thereto were, and ever since have been, a body politic and corporate, having become so by an act of the Legislature of this State, passed on the 12th day of May, in the year 1846, and entitled " An act to authorize the Construction of a Railroad from New-York to Albany,for the purpose of running and drawing, or propelling, cars and locomotive engines, and carrying passengers therein, and in other general business of a railroad, over and upon the railroad owned by them, and known as The Hudson River Railroad,from New York aforesaid to Albany aforesaid, and from and to other places on the line of said railroad ;' and they undertook the duty of carrying such passengers safely from and to such places on such line of railroad.

And plaintiff further shows, that on the said 20th day of December last, the said defendants, being engaged in their said business, and in running cars and locomotive engines as aforesaid, received this plaintiff on board of a train of cars belonging to them, and being at that time propelled or drawn on their track by a locomotive engine, for the purpose of conveying him from at or about a place on the line of their said road called Tubby Hook to NewYork aforesaid; and that while this plaintiff was on the said train as aforesaid, the said defendants, disregarding their said duty, so carelessly and negligently, by their servants, agents and workmen, conducted, managed and propelled the said train, and the steam engine thereto attached, while the same was proceeding at a very dangerous rate of speed and on curve rails, and while the said plaintiff was on said train of cars, or one of them, that the said train and engine were precipitated off the said road into a stream of water, below the level of said road, called Spuyten Duyvil creek.

Instead of the foregoing, it is usual, and no doubt sufficient, to allege, generally, that the defendant is a railroad corporation, duly incorporated under the laws of this state; and, sometimes indeed, even this allegation is not inserted. (See such a precedent, post, No. 81, 512.) The defendant's occupation as a common carrior, however, should be alleged.

That the locomotive engine attached to said train of cars, at the time of the aforesaid precipitation, was under the charge of one John Kelly, as engineer, who had not the requisite skill to manage and control said locomotive engine and train of cars, of which plaintiff is informed and believes the said defendants, previously to such accident, had notice, and who was also of an imprudent and rash disposition and habit, exhibited in conducting said cars and engine, of which plaintiff is informed and believes the said defendants also previously to said accident had notice, and such unskillfulness and rashness of said John Kelly caused such precipitation of said cars and engine off said railroad and track.

That by reason of such carelessness and negligent precipitation of said train, so as aforesaid caused by said defendants and their servants, plaintiff was thrown between two cars of said train, and very greatly injured in his body, limbs and health, by striking against hard substances, or having heavy articles thrown upon him by the shock, so that he became sick, and languished in sickness for a long time by reason of such injuries, and was confined to his home thereby for a long time, and was thereby deprived of great gains, which he might otherwise have made, and was compelled to pay divers large sums of money, and incurred large expenses for medicines and medical advice and nursing, in and about the curing and healing of such injuries; and that by reason of such injuries, he has been permanently injured in strength and health, so as not to be able to be engaged in any employment requiring his former strength.

Wherefore the plaintiff demands judgment against the said defendants for the sum of $5,000, with his costs and

expenses of suit.

JOHN T. EMMET,

Plaintiff's Attorney.

( No. 80.)

Against a railroad company for injury to a servant, caused

by the negligence of another servant, by means of the use of defective and unsafe cars, of which defendants had notice.

SUPREME COURT

COUNTY OF RENSSELAER.

Zebedee Mignault

agt. The Hudson River Railroad Company.

The abovenamed plaintiff complains against The Hudson River Railroad Company, defendants in this action,

and says:

1 The complaint in this case is drawn, and the action based upon the principle recognized in Keegan v. The Western Railroad Corporation ( 4 Selden, 175), in which the rule is laid down, that the cases holding that a principal is not liable to one agent or servant, for any injury sustained by him in consequence of the negligence of another agent or servant of the same principal, while engaged in the same general business, are only applicable when the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it happened. Hence, a railroad company, which continued in use a defective locomotive, after notice of its dangerous condition, was held liable to one of its servants, engaged in running such engine, for an injury sustained by him (without negligence on his part) in consequence of such defects.

In a recent case in the New-York Superior Court (Russell v. The Hudson River Railroad Company, 5 Duer, 39), it is held that the rule that a servant or agent cannot sustain an action against his employer, for an injury sustained by reason of the negligence of another servant or agent in the common employment, does not apply to the case of a day laborer whose contract is only from day to day, and who, by arrangement with the company, is carried to and from his work. The laborer is not then ( while on his passage ) in the disThat said defendants, before and at the time hereinafter mentioned, were, and they are still, a corporation created by and under the laws of the State of New-York.

That on or about the 17th day of June, 1854, the plaintiff was the hired servant of the defendants, under a contract between them and him, by which he was to be employed in their workshop only, and that on the day aforesaid, the defendants, in violation of said contract, wrongfully and injuriously to the plaintiff, caused and directed the plaintiff to leave said shop for the purpose of repairing certain cars of the defendants, or cars used by the defendants, which were standing on the railroad track of the defendants, near their depot in Troy; and the plaintiff, at the time aforesaid, was employed in making such repairs, standing upon said track, between two of said cars, as he was under the necessity of doing for the purpose of making such repairs.

And plaintiff alleges, that the track where said cars were standing for such repairs was an improper and unsafe place for the making of such repairs, and that the two cars between which he was so standing, as aforesaid, were improperly constructed, that is to say, they were built without such usual projections at the ends thereof as to allow a person safely or securely to go or be between

charge of any service which his contract with the employer imposes upon him; and he can recover for any injury resulting from the exclusive negligence of the engineer in charge of the train.

In the complaint in the text, notice to the company of the defect in the car which occasioned the injury is alleged, and also, that plaintiff, at the time of the injury, by direction of the company's agents, was transacting for the company a business not within the general scope of his employment; and it is supposed, within the above decisions, that the complaint is sufficient, though on the trial at the Circuit, there being a defect of proof, it was dismissed and the plaintiff nonsuited.

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