OTIS ELEVATOR CO. v. CLIFF, 200 F. 922

CAREAND, Circuit Judge (after stating the facts as above). The undisputed facts dearly show that the negligence, if any, which caused Cliff’s injury, was that of a fellow servant. For this kind of negligence the Elevator Company was not liable at common law. We must turn, therefore, to the legislation of the state of Colorado for the purpose of determining whether this rule of the common law had been changed on April 15, 1910. We do not consider Session Laws Colo. 1911, c. 113, repealing Sess.

Laws Colo. 1893, p. 129, c. 77, and Sess; i.aws Colo. 1901, p. 61, c. 67, as it was passed subsequent to the date of the injury. The, act of 1893 provided that an employer should be liable to an employé for personal injury in three classes of cases:

(1) By reason of any negligent defect in the condition of the ways, works, or machinery connected with or used in the business of the employer; (2) by reason of the negligence of any person in the service of the employer intrusted with or whose principal duty is that of exercising superintendence; (3) by reason of the negligence of any person in the service of the employer who has charge of the control of any switch, signal, locomotive engine or train upon a railroad.

The cases specified in which the liability'- of the master exists for the negligence of a fellow servant probably, do not extend to a case like the one before us. The act of 1901, however, in general terms affirms the doctrine of the liability of the employer to the employé for the former’s negligence or omission of duty, and, in addition thereto, entirely abrogates the fellow servant doctrine, and provides that the employer shall be liable in all cases to the same extent as though the negligence of a co-em-ployé was that of the employer himself. The act last mentioned would include cases like the one at bar.

The act of 1893 provided that no action for the recovery of compensation for any injury within the terms of the act should be maintained unless written notice of the time, place, and cause of the injury should be given to the employer within 60 days after the occurrence of the accident. The act of 1901 contained this provision: “That this act shall not he construed to repeal or change the existing iaws relating to the right of the person injured * * * to maintain an action against the employer.” In Lange v. Union Pacific R. Co., 126 Fed. 338, 62 C. C.

A. 48, this court held that the act of 1901 did not repeal the act of 1893.

It was there said that: “The conditions, limitations and procedure of the act of 1893 are in tlieir nature applicable to like causes arising under the act of 1901, which in effect is merely an extension and enlargement of the field of operation.” It is true that in the Lange Case the negligence alleged came within oné of the provisions of the act of 1893, but the holding of the court that the act of 1901 in no way repealed the act of 1893 would leave the conditions upon which the liability of the master depended under the act of 1893 in full force as to the liability provided in the act of 1901.

In other words, the court held that the two acts must stand together,, the latter act simply enlarging the liability of the master. It was also held in the Lange Case that the failure to give the notice required by the act of 1893 was fatal to the case, because the liability of the master was conditioned upon the giving of the notice. In Simerson v. St. Louis & S. F. R. Co., 173 Fed. 612, 97 C. C.

A. 618, this court held that a general statute of Kansas which made railroad companies liable for injuries to or the death of employés through the negligence of fellow servants, and provided that a notice in writing that an injury had been sustained, stating the time and place thereof, should be given by or on behalf of the person injured to such railroad company within eight months after the occurrence of the injury, created a new liability and conferred a new right not before existing, both conditioned on the giving of the stated notice.

The court also held in the case last cited that the contention that the defendant could not avail itself of the want of notice without a special plea setting it up was untenable. It was said: “Tlie motion for a directed verdict at tlie close of the proof, on whatever ground it may hare been argued, raised a question of law whether giving full force and effect to all the facts proven a cause of action had been made out under the law.” In Denver & R. G. R. Co. v. Wagner, 167 Fed. 75, 92 C. C.

A. 527, a case in this court, it was held that a petition for death of a passenger under the statutes of New Mexico giving a right of action to the surviving widow of a person killed by wrongful act which failed to allege notice to the carrier served within the territory, as required by Laws of New Mexico 1903, p. 51, c. 33, amending the statute under which the action was brought, was fatally defective.

It was also held in this case that a motion for a directed verdict would effectually raise this question for the reason that the request for a directed verdict suggests that, under the law and undisputed evidence applied thereto, the plaintiff is not entitled to recover.

Under the authority of the cases cited, we are of the opinion that the motion for a directed verdict raised the question of the right of the plaintiff to recover, and that for a failure to give the notice required by the statute the verdict should have been directed for the defendant. !t results that the judgment of the court below must be reversed, and a new trial ordered.