In the opinion of Mr. Justice. Thomas two questions are considered : First, whether the motorman is to be regarded, as the vice-principal of the railroad company with respect to'the conductor by virtue of section 42a of the Railroad. Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657);and secondly, whether that law is applicable to street railways. I concur in the opinion so far as it relates to the second question considered, but cannot concur as to the first. I do not think. a motorman could possibly be considered the vice-principal of the railroad with respect to tile conductor inasmuch as the mies of the company require the motorman to be at all times under- the orders and direction of the conductor. But the question does not appear to have been raised'in this case at the trial. When the case was tried the law was deemed settled by the decision' in Schradin v. N.Y. C. & H. R. R. R. Co. (194 N.Y. 534; Id., 565), the decision in Halloclc v. N.Y., 0. & W. R. Co. (197 id. 450) not having then been made. So this case was tried by counsel and court upon the theory that the motorman was the vice-principal, and that the defendant- was liable to the plaintiff for the motorman’s negligence. The counsel for the defendant *41took special pains to leave that question out of the case. At the close of plaintiff’s case he moved to dismiss the complaint on the ground that the plain tiff had failed to prove .a cause of action. Whereupon • the trial court asked him : “What point do you make it on? On the point that he has not shown a cause of action under 42-A, or do you also raise the constitutional question? ” To which the defendant’s counsel answered : “ Yes, I raise it upon the ground that 42-A of the Railroad Law does not apply to a street railway company; that, if if does apply, it is in violation of the Constitution and discriminatory— on the 14th amendment to the United States Constitution.” At the close of the whole case the motion to dismiss was renewed “ upon the same grounds stated upon the motion made at the close of the plaintiff’s case.”
Woodward, J., concurred.
Judgment and order unanimously affirmed, with costs.