(202 N.Y.S.)

no evidence from which a proper inference could be made as to whether or not the repairs had been sufficiently and adequately carried out. We think it was error to exclude this proof, and that, in so far as the owners are concerned, proof of the nature pointed out by the questions which were excluded would have made a prima facie case in behalf of the plaintiff.

As to the defendant Douglas Robinson-Charles S. Brown Company, since there is no proof of its concurrence in the negligence as active agent, and since its connection with the other defendants was merely that of an agent, operating the tenement house for them as owners, we think the dismissal in respect to it was proper, and in that respect the judgment should be affirmed, with costs to said defendant. In so far as the judgment dismissed the complaint as to the owner, Alfred Victor Barnes, it should be reversed, and the action severed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment affirmed, with costs, as to defendant Douglas RobinsonCharles S. Brown Company; judgment reversed as to defendants Barnes and Newberry, and the action severed and a new trial ordered as to said defendants, with costs to appellant to abide the event. Order filed. All concur, except MARTÍN, J., dissenting, and voting for affirmance of the judgment.

(Supreme Court, Appellate Division, First Department. December 14, 1923.) 1. Street railroads 117(5, 19)—Negligence and contributory negligence held for jury.

In an action for injuries to one working in a trench under the tracks, from being struck by a street car, contradictory evidence as to the negligence of plaintiff and of defendant's motorman held to present an issue for the jury.

2. Street railroads 113(1)-Evidence of master's negligence in protecting servant, injured by street car, held incompetent.

In an action against a street railroad for injuries to a workman not in its employ, evidence that it was the duty of a flagman employed by plaintiff's employers to warn the workmen of an approaching car, and that the flagman failed to give the warning, was improperly admitted. 3. Negligence 15-Joint tort-feasor not excusable.

The negligence of one tort-feasor does not excuse the negligence of the other.

4. Negligence 89(1)-Doctrine of imputed negligence not recognized. The doctrine of imputed negligence is not adhered to in New York. 5. Street railroads 113(6)—Rule as to maximum speed inadmissible to prove rate of speed.

A rule of a street railroad as to the maximum speed of its cars is inadmissible to prove that a car was not negligently operated at a greater speed.

Appeal from Supreme Court, New York County.

Action by Frank Anastasio against Job E. Hedges, as receiver of the New York Railways Company. From a judgment on a verdict in. favor of defendant, after trial before a jury, and from an order denying a motion to set aside the verdict, plaintiff appeals. Reversed, and new trial ordered.

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Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ.

La Guardia, Sapinsky & Amster, of New York City (Simon M. Sapinsky, of New York City, of counsel), for appellant.

Winthrop & Stimson, of New York City (B. H. Ames, of New York City, of counsel), for respondent.

MCAVOY, J. The suit was for damages caused by plaintiff being struck by one of defendant's cars as he was emerging from a trench under the north-bound track of the defendant company, which extended beyond the easterly rail of the track. Plaintiff was the foreman of the men working in the trench. He was employed by Booth & Flinn, Limited, who were engaged in subway construction in Union Square West, just north of Fourteenth street in the borough of Manhattan, city of New York. The accident happened on Saturday. March 26, 1921, about 8 o'clock in the morning. As the plaintiff was leaving the cut to get some tools, he claims to have looked both ways and not to have seen anything coming, and then to have looked again and seen a car approaching. At that time he raised his hands and called out, "Stop! stop!" to the motorman. No gong or sound indicating the approach of the car was heard by him before he started to leave the trench. He was unable to bend away from the approaching car, and he fell on his back to avoid it; but the car caught him and crushed him against the side of the embankment of the cut. When he raised his hands and called out to stop, the car was between 8 and 13 feet away; and at that time the motorman was not looking at him at all, but was looking towards the west. The distance from the rail to the easterly side of the embankment was from 12 feet to 212 feet, and when one stood up in the trench his body would be about 2 feet above the surface of the roadway.

Plaintiff is corroborated by two witnesses as to his crying out "Stop! stop!" before the car passed, and as to the failure of the motorman to ring any gong. One witness stated that he ran after the car to stop it, and told the motorman that he had run over a man, and the motorman said to him, "Where?" Then he told the motorman it was back further. This witness also stated that he saw the motorman looking west as he came around the curve from Fourteenth street into Union Square West, and he further gave testimony that at the time of the collision the car was going at a speed of from 20 to 25 miles an hour. The motorman said the first thing that drew his attention to the accident was that his power gave way and he heard a yell, and then he put on his brake and stopped, and locked around and saw people running, and that he afterwards learned that a man had been crushed there by the bottom of the car, or by the side of the car. The motorman claimed that at the time he was going only 4 miles an hour; that he rang his bell; that he saw no one, and heard no one call out "Stop! stop!" that so far as he could see everything was clear; and that he was looking straight ahead on the tracks.

The conductor and two passengers testified that they did not actually see this happening, but their attention was drawn to the opening of the doors of the car, which shut off the power, and a lot of screaming

(203 N.Y.S.)

from the outside, and a lot of people running around; that the gong was ringing, and the car was traveling slowly, or about 4 miles an hour, and not fast; and none of these persons heard the cry of "Stop! stop!" prior to the accident.

[1-3] On this record of the testimony by each side, a, jury question was presented only, and the judgment for defendant would be affirmed, but for errors of law which were committed, and which seriously prejudiced the proper decision of this fact. The errors which we think affected the finding are two: First, that evidence was allowed to be given relating to a flagman employed by Booth & Flinn, Limited, which described his duties, and what he was supposed to do for the protection of his fellow employees working in the trench, and what it is. alleged he did on the occasion in question; and, second, that evidence. respecting the rules of the street car company with reference to the speed with which the street cars should approach the curve at which the accident happened, and should operate over the tracks at the point of the accident, while the Booth & Flinn work was going on, was improperly admitted.

The reason for excluding the testimony with respect to the conduct of the Booth & Flinn. Limited, the employer is that, when an injury is the result of two concurring causes, the party responsible for one of these causes is not exempt from liability because his joint actor in the matter may be concurrently liable. The negligence of one tort-feasor does not excuse the negligence of the other. The master's negligence in protecting his servant, even if concurrently the cause of the injury which happens to the servant, does not relieve the third party, who is also an active wrongdoer against the servant.

It is claimed that the Booth & Flinn, Limited, flagman was supposed to whistle to the workmen when a car was approaching, in order to warn them of its approach, and that on the occasion in question this flagman failed to whistle, and failed to stop the car from proceeding. While this may have been concurrently the cause of injury to the plaintiff, it was not competent evidence to relieve the defendant from liability, if the jury believed that the motorman was operating the car over the cut at a high rate of speed, and failed to give warning of his approach thereto by sounding his gong, and was not looking ahead on the tracks, but was looking in a westerly direction, and failed, because of his neglect in observing the condition of the tracks ahead, to heed the warning of the plaintiff to stop his car, and in fact did not know that he had struck the plaintiff until after he had passed over the cut and beyond it, as the plaintiff's witnesses contend; nor does it tend to establish the defense which was presented, as against the defendant's claim, that the motorman was approaching at a slow rate of speed, at about 4 miles an hour; that he was sounding his gong and was looking ahead.

Its sole effect in this controversy was to introduce an alien question, wholly outside the issue; that is, whether Booth & Flinn, Limited, properly protected its employees, which was wholly beside the question as to whether, assuming that it did not, the defendant's negligence was a concurring cause of the injury, so as to make it a joint

tort-feasor. There are many instances of the application of such a rule to the effect that a defendant cannot successfully defend a charge of negligence on the ground that the negligence of another contributed to the injury; but one will suffice to show the tendency of the courts. In Jerome v. New York Rys. Co., 190 App. Div. 311, 179 N. Y. Supp. 777, Mr. Justice Laughlin, for this court, stated the rule to be:

"The question of fact, therefore, with respect to the liability of the defendant, was whether or not her injuries were caused or contributed to by any negligence on the part of the defendant, for, if they were, it is wholly immaterial whether or not there was concurrent negligence on the part of another or others, because joint tort-feasors are liable both jointly and severally, and neither, in circumstances such as are here presented, has a right of contribution against the other, and therefore one is not entitled to have the others joined."

[4] The doctrine of imputation to one party of the negligence of another is not adhered to in this state, and as early as the decision in the case of Webster v. Hudson River Co., 38 N. Y. 260, we find the principle announced:

"The 'imputation' to the plaintiff of the negligence of another is based upon no sound principle. The fact that the Boston road was also guilty of negligence furnishes, in law or morals, no excuse for the negligence of the Hudson River Company, and no reason why they should not respond in damages."

It seems to us that the error of admitting this evidence was of substantial prejudice to the plaintiff.

[5] However, besides this admission of proof of the negligence of the joint tort-feasor, the court admitted defendant's rules in support of the claim that it was free from negligence, because there was a scheduled or fixed speed for operation of cars going over this work at Fourteenth street bulletined in the offices of the company. There was a conflict here as to the speed of the car. One witness said it was going from 20 to 25 miles an hour, and the motorman and conductor stated that it was proceeding about 4 miles an hour, and other witnesses stated it was going slowly, or not fast. In additional proof, it was sought to bolster this claim of the defendant by an introduction of its rules concerning the maximum speed at which its cars were allowed to go over the work in question, which the rules fixed at 4 miles an hour. Whether or not the command of the rules was observed by the regulation of the speed of the car at their prescribed limit, if rules there were, was the primary question; and under no authority which is admitted in this state to be sound is a rule admitted in evidence to show that because of its existence it necessarily must have been followed, and through such proof absolve a person from negligence on the theory of his observation of a rule laid down for his guidance.

For these reasons, we think the judgment, and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Order filed. All concur.

(207 App. Div, 375)

(202 N.Y.S.)

JAMISON et al. v. LAMBORN et al.

(Supreme Court, Appellate Division, First Department. December 14, 1923.) Principal and agent 189(1)-Complaint alleging facts under which either of two defendants would be liable held sufficient.

Under Civil Practice Act, § 213, providing that plaintiff may join two or more persons as defendants, when he is in doubt as to the one from whom he is entitled to redress, a complaint alleging that plaintiff, relying on the representations of one assuming to act as agent for a disclosed principal, contracted with the agent to sell sugar to the principal, which was thereafter repudiated by the principal, was sufficient, in an action in which agent and principal were joined as defendants, to permit recovery against either defendant, without specifically pleading that the agent did or did not have authority to represent his principal.

Appeal from Supreme Court, New York County.

Action by William A. Jamison and others against Arthur H. Lamborn and others. From an order denying a motion to dismiss the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, and denying their application to dismiss the complaint under Civil Practice Rules, rule 107, on the ground that there is an existing final judgment of a court of competent jurisdiction, rendered on the merits, determining the same cause of action between the plaintiffs and defendants, defendants appeal. Affirmed. Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ.

Van Doren, Conklin & McNevin, of New York City (Alfred C. B. McNevin, of New York City, of counsel, and Louis O. Van Doren, of New York City, and Edward S. Bentley, of Lawrence, on the brief), for appellants.

Cullen & Dykman, of Brooklyn (Edward J. Byrne, of Brooklyn, of counsel), for respondents.

DOWLING, J. The complaint herein alleges that on or about June 25, 1921, defendants Lamborn & Co., "assuming to act as broker and agent on behalf of the defendant S. M. Flickinger Company, Inc., entered into an agreement with these plaintiffs whereby the plaintiffs agreed to sell 60,000 pounds of sugar f. o. b. New York, to the defendant S. M. Flickinger Company, Inc., delivery to be made on or before July 31, 1920, for which the defendant S. M. Flickinger Company, Inc., agreed to pay the sum of $14,240," which was the reasonable value of the said sugar. The complaint further alleges that Lamborn & Co. "represented to the plaintiffs that they were duly authorized and empowered by the said defendant S. M. Flickinger Company, Inc., to so enter into the aforementioned agreement on its behalf," and that, relying upon said representation and said supposed authority of Lamborn & Co., the plaintiffs, pursuant to said agreement, on or about July 20, 1920, shipped the said 60,000 pounds of sugar, and delivery thereof was tendered to defendant S. M. Flickinger Company, Inc., at Jamestown, N. Y. The complaint then alleges:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 N.Y.S.-8