Dowdell v. Commercial Stevedoring Co.

Judgment reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event. A common-law cause of action is alleged by plaintiff in her complaint. The case was tried and submitted to the jury upon the common-law theory. Clearly, negligence, if any, was the negligence of decedent’s fellow-servant or servants. This was not the assignment of negligence in the complaint, because upon it plaintiff could not recover, and plaintiff failed to establish any element of negligence pleaded by her. A new trial is granted to permit plaintiff to establish defendant’s liability under the so-called Jones Act,* which is not *751pleaded in the present complaint, if any such liability exists. Lazansky, P. J., Hagarty, Seeger and Carswell, JJ., concur; Scudder, J., dissents.