131 N.E. 737 | NY | 1921
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *69 The action is for personal injuries resulting in death. *70
The Erie and the Lehigh Valley railroads maintain and jointly operate at Buffalo a terminal road and switching yard known as the Buffalo Creek. Its function is the interchange of cars between the railroads that enter Buffalo, and between such roads and neighboring plants. Plaintiff's intestate, Cott, was a conductor in the service of the Lehigh Valley. His engine, while moving along the terminal tracks, was derailed by an open switch, and he was thrown to the ground and killed. This action is brought by his administratrix against the Lehigh Valley and the Erie railroad companies. The Lehigh Valley was the employer. It is sued under the Federal Employers' Liability Law, upon the claim that the movement of the engine was in interstate or foreign commerce. The Erie, though not the employer, was a joint operator of the terminal. It is sued at common law for breach of duty toward one who was there at its invitation, in the business of the common enterprise.
(1) We find no error in the ruling, complained of by the Lehigh Valley, but accepted by the Erie, that Cott was in foreign commerce when his engine was derailed.
Three carloads of beef were in course of transit from Buffalo to Montreal, and thence to England. The beef, until placed upon the cars, had been stored by its owner, the Jacob Dold Packing Company, with the Buffalo Cold Storage Company, whose plant connected with the terminal. The owner telephoned instructions to the storage company to ship the beef for export, stating the route and destination. The storage company, upon receipt of these instructions, attended to the shipment. The beef was loaded upon Lehigh Valley cars, transported along the terminal tracks, and delivered to the New York Central, which carried it in the same cars to Montreal. The Lehigh Valley is not shown to have been notified, in advance, of the point of ultimate destination, but it knew that its cars were to be surrendered to another carrier, to be hauled to any point which that carrier *71 might name. Upon receipt of the beef, it delivered to the shipper a document known as an "interline switching waybill," a waybill, in other words, that called for switching between lines. This document named the Buffalo Cold Storage Company as the shipper; the agent of the New York Central railroad as the consignee; and the destination as "East Buffalo, New York Central Railroad, via Buffalo Creek." The charge (described as a switching charge) was fixed at $7.60. The New York Central, on the arrival of the cars, paid or assumed this charge, collecting later from its own customer, and issued its own bills of lading in the name of the Jacob Dold Packing Company as consignor, the destination being stated as Montreal, and an indorsement giving notice that the shipments were for export.
We think the movement in foreign commerce was single and continuous (Louisiana R.R. Comm. v. Texas Pac. Ry. Co.,
We are told that the preliminary movement, if part of a larger movement and thus part of foreign commerce as *72
between shipper and consignee, is to be considered by itself and thus viewed as merely local in determining the relation between shipper and carrier, or between carrier and servant. We think it shares, in these relations also, the character and quality of the movement that succeeds it. A terminal road, which switches indiscriminately for foreign and domestic cars, is itself an instrumentality of interstate or foreign commerce (U.S. v.Brooklyn Eastern Dist. Terminal,
We have said that the employer had notice from the very function of the terminal that foreign and local carriers, indiscriminately, would make use of its facilities. Confusion of thought is inevitable if service which is incidental, like interchange or switching, is viewed as one with service which is intended to be ultimate. This is not a case like Gulf, Colorado Santa Fe Ry. Co. v. Texas (
Precedents will be misleading if separated from the statutes they interpret. Opinions get their color and significance from the subject of the controversy. There *74
is no attempt to charge this carrier under the Bill of Lading Act (Act of March 4, 1915, ch. 176, and August 9, 1916, ch. 301; Compiled Statutes, 8604a) for lost or damaged shipments upon some theory that by issuing a switching waybill it became responsible throughout the transit (Pere Marquette Ry. Co. v. J.F. French Co.,
(2) The appeal brings up other questions less intricate and doubtful.
a. The Erie contends that the effect of the federal statute in giving a remedy against the employer is to cut off and prohibit a remedy against any one else. We find no trace of such a purpose. The statutory remedy, in so far as it fixes the liability of the employer, is, indeed, exclusive as to him (Taylor v. Taylor,
b. We find no error in the charge that the defendants "are presumptively responsible for the condition of the switch unless it affirmatively appears to the contrary."
The switch was in their joint control. The settled practice of the terminal required it to be closed unless presently in use. By some one's blunder it was left open without light or other warning. The situation charged the defendants with a duty to explain (Van Inwegen v. Erie R.R. Co.,
c. Other rulings complained of have been considered, but no error has been found in them.
The judgments should be affirmed with costs.
Dissenting Opinion
I dissent from so much of the prevailing opinion as refers to the Lehigh Valley Railroad Company.
It is true that a terminal road that switches indiscriminately foreign and domestic cars is itself an instrument of interstate commerce; it is true that its acts *76 in so far as they do or may affect interstate commerce are subject to regulations by Congress; it is true that when actually engaged in interstate commerce its employees are protected by federal legislation. This is far from requiring the conclusion that each movement of freight over its road is also a movement in interstate commerce.
Whether it is so or not depends upon the circumstances of each particular shipment. If, in fact, it is interstate, then knowledge or notice on the part of the carrier is immaterial. But if that fact is in dispute, what the carrier knew or should have known when the contract of carriage was made may become important.
I accept the tests proposed as to whether the particular shipment with which we have to do was inter- or intrastate. Was the movement from the cold storage warehouse to Montreal single and continuous; did one exercise of will, a purpose preconceived and preannounced, determine the course of shipment from the beginning to the close; was the delivery to the agent of the New York Central Railroad Company an end in itself or merely a step in a larger process; was there continuity of movement, combined with unity of plan; in reality was the switching of the cars but one part of an entire interstate movement, reasonably to be anticipated by the parties, a recognized step to a destination outside the state? Undoubtedly, if these questions are answered in favor of the plaintiff then nothing more is to be said. But can they be so answered under the circumstances before us as a matter of law?
When the Lehigh Valley Railroad Company received an order from the Buffalo Cold Storage Company to move those cars to East Buffalo and deliver them to the New York Central Railroad Company's agent and proceeded to carry out this order, it may or it may not have been engaged in interstate commerce. What later actually happened to these cars; what was the secret intention of the owner of their contents is not decisive. *77
The real question is, did the parties who initiated the movement initiate it as a step in a larger process, or did they intend it to be an end in itself, something separate and distinct from later movements which might be begun when delivery was made to the consignee. As to this, I think, the relations between shipper and carrier, what each knew or reasonably should have anticipated, and the contract between them as interpreted in the light of these circumstances, are the matters for consideration. (Gulf, Col. S.F. Ry. Co. v. Texas,
In its switching work, the Lehigh did engage in interstate commerce. The New York Central was an interstate road. Cars delivered to it were often carried over the state line. All this was known. On the other hand, the cold storage company was obviously acting for some undisclosed principal; the consignee was not engaged in commerce of any kind; if the cars were to be forwarded from East Buffalo a new contract would be required between the shipper and the New York Central Company; the switching charges were not part of a through transportation rate, they were a distinct charge for a distinct service; of a like character was the contract of the Lehigh; and the Lehigh was ignorant of the truth.
I do not say that these facts should require us to hold as a matter of law that this shipment was intrastate. All we need hold is that whether this particular transaction was or was not a final and distinct piece of work depends upon the intention of the parties when the shipment was made. If they chose they might make it so. Whether they did or not is a question of fact. The judgment against this defendant should, therefore, be reversed and a new trial should be ordered.
CHASE, HOGAN and CRANE, JJ., concur with CARDOZO, J.; HISCOCK, Ch. J., and McLAUGHLIN, J., concur with ANDREWS, J.
Judgments affirmed. *78