#### Gragry Bitondo, as Administrator, etc., of Rocco Bitondo, Deceased, Appellant, *v.*New York Central and Hudson River Railroad Company, Respondent.

Third Department,

September 23, 1914.

Railroads—negligence—injury to employee engaged in interstate commerce — effect of failure of defendant to plead Federal statute — erroneous nonsuit — recovery under Federal statute.

Where, in an action against a railroad company to recover for the death of an employee, brought in the courts of this State, the defendant affirmatively alleges that at the time of his death the decedent was engaged in interstate commerce, the Federal Employers’ Liability Act, as amended, furnishes the only ground for recovery.

But where the plaintiff in such action sues under the statute of this State, and the answer does not allege that the decedent was engaged in interstate commerce, and the case is tried throughout as one brought under the State statute, except that at the close of the evidence the defendant moves for a nonsuit .upon the ground that the Federal statute applies, it is error for the court to grant the defendant’s motion. This, because the defendant’s answer should have raised the issue that the case was governed by the Federal statute, so that the plaintiff shall not be taken by surprise.

*It seems,*that as the decedent, a laborer, sent a portion of his monthly wages to a sister residing in a foreign country, she was dependent upon him, so as to authorize a recovery under the Federal statute, although he left no descendant, wife, father or mother surviving.

Lion, J., and Smith, P. J., dissented, with opinion.

Appeal by the plaintiff, Gragry Bitondo, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 4th day of April, 1914, upon the dismissal of the complaint by direction of the court at the close of the case on a trial before the court and a jury at the Schenectady Trial Term.

*824*Homer J. Borst [Andrew J. Nellis*of counsel], for the appellant.

*Visscher, Whalen & Austin [Robert E. Whalen*of counsel], for the respondent.

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 *825of 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. (P*edersen*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 *826month 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,

Lyon, J. (dissenting):

Plaintiff’s intestate, who was a trackhand in the employ of the defendant, was struck and killed by one of defendant’s trains at Schenectady, N. Y., while engaged in repairing one of defendant’s main tracks over which ran the Twentieth Century Limited, the Lake Shore Limited running from New York to Chicago, and the Southwestern Limited running from New York to St. Louis. He was, therefore, at the time of his death employed by the respondent in interstate commerce. *(Pedersen*v. *D., L. & W. Railroad,*229 U. S. 146, 152; *Second Employers’ Liability Cases,*223 id. 1, 51; *San Pedro, L. A. & S. L. R. R. Co.*v. *Davide,*210 Fed. Rep. 870; *Eng*v. *Southern Pac. Co.,*Id. 92; *Barlow*v. *Lehigh Valley R. R. Co.,*158 App. Div. 768.)

*827The proofs upon the trial were sufficient to warrant the submission to a jury of the issues of negligence and contributory negligence. At the close of the evidence the court granted a nonsuit upon the ground that the intestate left him surviving no persons entitled to recover under the Federal Employers’ Liability Act as being next of kin dependent upon the decedent for support. (See 35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143.) Ooncededly the intestate left neither father, mother, wife or children, and his next of kin were two brothers and two sisters (the latter residing in Italy), each of whom was upwards of twenty-one years of age. No claim is made that the decedent ever contributed any sum whatever toward the support of either of his brothers or of his unmarried sister, or that either was in any way dependent upon him for support. The decedent did, however, more or less frequently, send money to the older sister in Italy. The testimony upon the subject was given by a companion of decedent, and is as follows: “ Q. And did you ever write letters through Rocco [decedent] to her? A. Yes. Q. And what was there about sending money ? A. Yes, we send money every month. Q. How much money each month? A. Well, according. Sometimes five or six dollars every month. Q. And was the sister married, and did she have children ? A. Yes. Q. Her husband dead ? A. Yes, dead between three or four years.”

Decedent was about nineteen years of age and the sister about forty. It can hardly be said in the absence of all’ other evidence relating to the subject that this testimony furnished evidence of the sister’s dependence upon decedent sufficient to warrant the submission of that question to the jury. For aught that appears, the decedent may have sent the money as a mere gratuity, or, as is often the case with foreigners, especially those contemplating returning to their own country, for deposit, or to' the sister of much more mature years than he to care for for him. The testimony appears to have been introduced for the purpose of showing the frugality of the decedent rather than for the purpose of proving that the sister was dependent upon the brother for support, the burden of establishing which was upon the appellant, for nowhere in the record is there to be found any sugges*828tion upon the part of the appellant’s counsel that the sister was dependent for support upon decedent. That the appellant made no claim that the sister was thus dependent, or that the evidence was sufficient to warrant the submission of that question to the jury, but claimed that the sister was not dependent, is also manifest from the discussion between the respective counsel and the court at the close of the evidence, the respondent having at that time moved to dismiss the complaint upon the grounds, among others, that the decedent was employed by the respondent in interstate commerce at the time of his death; that the Federal Employers’ Liability Act was exclusive, and that it affirmatively appeared that the decedent left no next of kin dependent upon him. This discussion occurred upon reassembling the following morning: The court: “ The motion is to dismiss. * * * Now, the United States courts have uniformly held that it is exclusive, that it takes the place of all other remedies in that field, and where the Federal Act applies then there is no other. You say it does not apply here because there is no dependent, but the difficulty with that is, it seems to me, it does not go to the question of whether or not the Federal Act applies to the facts of this case. It does apply to the facts of the case, but there is no one here who can enforce the facts.” Appellant’s counsel: “The State statute provides a cause of action for the next of kin. The Federal statute also provides a remedy for dependent next of kin. Bemember this is a mere incident that the man died.” The court: “ But they do not make any such distinction. They say it is exclusive.” Appellant’s counsel: “I know, but it is exclusive, Judge, only to those who have the remedy.” Thereupon the court in connection with other statements,, suggested the withdrawing by appellant of a juror. Appellant’s counsel: “Would your Honor permit me to amend the complaint to allege squarely in the complaint, so that the thing can be beyond cavil, that the next of kin are brothers and sisters of the deceased ? ” The court: “ I will permit you to do that, so that you can have your record complete.” Appellant’s counsel: “ We do not ask to withdraw a juror. We will take your Honor’s ruling.” Thereupon the court granted a nonsuit, to which exception was duly taken. Thus appellant’s counsel, who were fully competent to care for the rights of *829appellant, not only did not ask to amend the complaint by alleging the dependency of the sister, or to recall the companion of decedent through whom the money was sent, or to recall the appellant who was the brother of decedent, both of whom were present at the trial and testified as witnesses for the appellant, but without asking to go to the jury, or making the claim that the sister was dependent, the appellant elected to amend his complaint by alleging that the next of kin were the brothers and sisters of decedent, and to stand upon appellant’s alleged right to recover for their benefit. Furthermore, appellant’s counsel make no claim in their brief before this court that the sister was dependent upon the decedent for support, or that under the evidence that question was one which should have been submitted to the jury, or that there was a mistrial. Appellant’s position at the trial and upon this appeal constitutes practically a concession that no dependency existed. The appellant stands here, as upon the trial, upon the broad proposition that the statutory right of action given in this State* for the benefit, in this case, of the brothers and sisters as next of kin, has not been superseded by the right of action given by the Federal statute to such only, if any, of the brothers and sisters as might be legally dependent upon the decedent; and that it was not the intent of the Federal statute to take away a right of action which a person had under the State statute, unless such person was given a right of action under the Federal statute. That the Federal statute was paramount and exclusive, superseding the State statute, has been repeatedly held by the United States Supreme Court. *(Southern Railway Co.*v. *Reid,*222 U. S. 424, 436; *St. Louis & San Francisco Railway*v. *Seale,*229 id. 156; *North Carolina R. R. Co.*v. *Zachary,*232 id. 248; *Seaboard Air Line*v. *Horton,*233 id. 492.)

In the latter case it was said: “But it is settled that since Congress, by the act of 1908, took possession of the field of the employer’s liability to employes in interstate transportation by rail, *all*State laws upon the subjeet are superseded.”

The fact that the complaint alleges, and the answer admits, *830,that the respondent is a domestic corporation engaged in the business of running and managing a railway from Buffalo to New York does not prevent the respondent claiming that the Federal statute was applicable to its operation. Even though a domestic corporation, its track which the intestate was engaged in repairing at the time he was killed, was used for the purposes of interstate as well as intrastate commerce. The evidence that the track which was being repaired was so used was admitted without objection.

The only question of fact which appellant’s counsel in their brief claim should have been submitted to the jury was as to whether decedent was engaged in interstate commerce at the time of his death. This under the conceded facts was a question of law.

In view of all the facts, no good reason can be given why the parties should be put to the expense and delay of a retrial. As the questions which the appellant desires to have determined are clearly presented by the present record, the appellant should be allowed to prosecute his appeal without a retrial of the action.

The judgment appealed from should be affirmed.

Smith, P. J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.

*

 See Code Oiv. Proc. § 1903 *et seq.*— [Rep.