147 N.E. 356 | NY | 1925
Lead Opinion
The International Railway Company, apparently through merger or otherwise, owns all the street railways in the city of Buffalo. It also has an interurban line running through Main street and thence *57 to Niagara Falls, N.Y. Here it has a connecting line crossing the Niagara river by bridge and running through Ontario to Queenstown. One of these urban street railways is known as the Ferry street line. Its tracks reach the Niagara Falls line at Court street where the rails of the two lines are physically connected by a switch, but no Ferry street car goes further. The passenger who wishes to continue his journey must alight and transfer to the car on Main street. The only witness who describes what actually occurs says that on paying his local fare on Ferry street the passenger receives a transfer ticket enabling him to ride over intersecting urban roads and also over the Niagara Falls road to the city line. At Court street he enters the station and buys a round-trip coupon ticket to Queenstown. He pays only for so much of the outward trip as is not within the city. This distance is represented by his transfer. Riding to Niagara Falls he there is transferred again to a bridge car and continues to Queenstown. On his return the process is reversed. When he uses the coupon on this return ticket "Buffalo City Line to Buffalo" he may demand a transfer, get on the Ferry street car, or on the car of any other intersecting line, and so reach his starting point. The coupon tickets that are before us indicate that this is not the only process. They may be bought in advance. When this is done the lower coupon is good for any urban line in Buffalo and the remaining coupons together with the transfer ticket carry the passenger to the end of his route. While this is possible it does not appear whether it is actually done frequently or infrequently.
It is claimed that the plaintiff's intestate was killed because of the negligence of the defendant while he was repairing the track of the Ferry street line. This action was brought for the resulting damages under the Federal Employers' Liability Act (U.S. Compiled Statutes, 1916, sec. 8657, etc.), which gives a remedy to the personal *58 representatives of an employee of a common carrier by railroad engaged in interstate commerce killed while employed in such commerce by the negligence of his master. Unless entitled to bring such an action the remedy of the next of kin of the deceased should be sought under our Workmen's Compensation Law. Three conditions precedent, therefore, must appear before the plaintiff may recover. The master must be a common carrier by railroad; he must be engaged in interstate commerce, and the servant at the time of the accident must be likewise so employed. None of these conditions exist in the case before us.
In discussing the questions involved we regard the fact that the defendant owned both the Ferry street and the Niagara Falls lines as immaterial, except in so far as it may tend to qualify the methods adopted in the operation of the roads or to indicate the possibility that these methods show an attempt to evade the statute. The fact that a railroad operates one line engaged in interstate commerce does not result in the conclusion that all other lines owned by it are so engaged. They may be used as separate and independent units. If that be so here, there is no more connection between the two lines than if they were owned by two corporations which had between themselves some transfer and accounting system. It is not what business the defendant may have elsewhere but what it does on Ferry street that is important.
Is the defendant a common carrier by railroad within the meaning of the act? The words used in section 8657 are similar to those used in section 8563: "any common carrier engaged in the transportation of passengers * * * wholly by railroad" from one State to another, found in the act creating and defining the powers of the Interstate Commerce Commission. Yet it has been held that while the motive power used is immaterial, while an interstate interurban line comes within this description, a purely urban line does not. (Omaha *59 Street Ry. v. Interstate Commerce Commission,
Assuming the contrary, however, is it engaged in foreign commerce? It does utilize to some extent its local lines for Canadian traffic. Passengers returning from Queenstown by obtaining a transfer when the Buffalo coupon is collected, may certainly ride over it to reach their ultimate destination. So passengers, possessing a through ticket, boarding a local car and surrendering the same coupon, may obtain a transfer which will carry them to the Buffalo line, on their way to Canada. But this is an incidental matter. It is not sufficient of itself to render the local car in which they ride an instrumentality of foreign commerce. The break of the journey at Court street is not decisive. A railroad whose real business is foreign may not so avoid the statute. But it is to be considered in relation to the other evidence before us. The mere fact that there is some connection, however remote, with interstate commerce is not enough. What is the substantial business of the road? Does the transportation to and from Canada in truth begin and end at the Niagara Falls line, as its system of tickets and transfers might indicate? Is that part of the journey in effect a separate transaction? Remembering, as the Supreme Court has said in another connection, that the statute speaks of interstate commerce not in a technical but in a practical sense (Shanks v.D., L. W.R.R. Co.,
Again assuming, however, that the defendant as to this Ferry street line is a common carrier by railroad and as to any particular car carrying a Queenstown passenger *62
is engaged in foreign commerce and that the conductor of that particular car is also so engaged, still the plaintiff's intestate was not, while he was repairing the track of that line. Concededly if the railroad as a whole has become an instrumentality of foreign commerce or is part of a general system so engaged then he might recover in this action. (NewYork Central R.R. Co. v. Porter,
The order of the Appellate Division must be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
Dissenting Opinion
I dissent on the ground that the system of transportation between New York and Canada adopted by appellant brings it under the provisions of the Federal Employers' Liability Act which contains no pertinent exceptions applicable to street railways *63
engaged in interstate or foreign commerce. (Spokane I.E.R.R.Co. v. Campbell,
HISCOCK, Ch. J., CRANE and LEHMAN, JJ., concur with ANDREWS, J.; POUND, J., dissents in memorandum, in which CARDOZO, J., concurs; McLAUGHLIN, J., absent.
Order reversed, etc.