Klinkenstein v. Third Ave. Ry. Co.

Decision Date22 November 1927
Citation246 N.Y. 327,158 N.E. 886
PartiesKLINKENSTEIN v. THIRD AVE. RY. CO.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Action by Max E. Klinkenstein against the Third Avenue Railway Company. From an order of the Appellate Division (216 App. Div. 187, 214 N. Y. S. 725) dismissing the complaint and reversing an order of the Appellate Term, which affirmed a judgment of the Municipal Court for plaintiff, plaintiff appeals by permission.

Order of the Appellate Division reversed, and determination of the Appellate Term affirmed.

See, also, 215 App. Div. 700, 212 N. Y. S. 846; 216 App. Div. 837, 215 N. Y. S. 873.

Appeal from Supreme Court, Appellate Division, First Department.

Isidore Cohen, of New York City, for appellant.

August P. Klein and Joseph E. Kinsley, both of New York City, for Audubon Transp. Co., amici curiae.

Alfred T. Davison, Frederic W. Frost, and Addison B. Scoville, all of New York City, for respondent.

CRANE, J.

This appeal comes up from the municipal court by permission of the Appellate Division, which has certified that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.

The plaintiff was the owner of an automobile passenger bus which was being operated for hire along New Chambers street, across Park row, in the borough of Manhattan, city of New York. While crossing, it was struck by one of the defendant's cars, running through Park row. This action was brought to recover for the damage done to the bus.

[1] The plaintiff was operating this bus line under a permit from the department of plaint and structures of the city of New York. This, however, was not sufficient to legalize the operation. The Public Service Commission had not determined that such bus route was necessary or convenient to the public, and had not given its approval to the operation, pursuant to section 53 of the Public Service Commission Law (Consol. Laws, c. 48). Neither had this common carrier, so designated by section 65 of the Transportation Corporations Law (Consol. Laws, c. 63), procured the local consent or franchise required by section 66 of that law, and sections 74 and 1458 of the Greater New York Charter (Laws 1901, c. 466, as amended). The plaintiff was therefore illegally carrying on the business of a common carrier of passengers for hire over the streets of New York. For this reason the Appellate Division determined that the plaintiff was a trespasser upon the streets, and that the defendant owed him no duty other than not to willfully and recklessly injure his property; that it was not liable for the damages caused to the bus through ordinary negligence, or the failure to exercise ordinary care.

Whether the failure of the plaintiff to obtain the proper consents and authority to operate the bus line prevents the recovery of damages for negligence depends upon whether such failure caused, or aided in causing, the accident; whether there be a connection, a logical connection, a reasonable sequence of events, between the lack of authority to operate the bus line and the collision.

Some other facts must be considered. The plaintiff's bus was not illegally in the street. The illegality did not consist in operating an automobile bus, as the vehicle had been properly licensed and the chauffeur duly authorized to operate it. The illegality consisted, not in the operation and the use of the streets, but in the carrying of passengers for hire; it was the use to which the vehicle was put, and not the vehicle itself, which was unauthorized upon the streets of New York. Therefore, if the bus had been carrying goods, or had been used for other purposes than carrying passengers, the accident would have happened just the same. Again, if the plaintiff had been running the passenger bus legally, had all the consents required by law, the accident likewise would have happened. Thus we see that there is no connection whatever between the failure to obtain the permission to carry passengers for hire and the collision dut to the negligence of the defendant's motorman. Of course, it can be said that, if the plaintiff could not have carried passengers for hire, he probably would not have operated the bus line. Of course, if the bus had not been there, it would not have been struck. It was there, it was damaged, as we must assume for this case, through the negligence of the defendant, and the question is, not what caused it to be there, but what, if anything, on the plaintiff's part contributed at the time in causing the collision. It is the accident, and not the mere presence of the bus, that we must deal with. We do not see how the failure to have a license to carry passengers has anything to do with the cause of the accident. The accident would have happened and the defendant's negligence would have been the occasion, no more and no less, if the use had been...

To continue reading

Request your trial
11 cases
  • Michelsen v. Penney
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 19, 1943
    ...to meet the statutory requirement, there is no liability. 2 Restatement Torts (1934) §§ 286, 431 (a); Klinkenstein v. Third Avenue Ry., 246 N.Y. 327, 158 N.E. 886, 54 A.L.R. 369; Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467, 46 A.L.R. 1064. This general rule has been applied in a multitude o......
  • Unger v. Travel Arrangements, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • January 25, 1966
    ...the plaintiff's loss, and the plaintiff could not recover it by virtue of the statutory violation. (See Klinkenstein v. Third Avenue Ry. Co., 246 N.Y. 327, 158 N.E. 886, 54 A.L.R. 369; New York Contracts Law, § 2306, including note 49; and see Fosdick v. Investors' Syndicate, 266 N.Y. 130, ......
  • Wheat v. Alderson
    • United States
    • Kansas Court of Appeals
    • June 19, 1939
    ... ... quashed in part; State ex rel. Isaacson v. Trimble, ... 72 S.W.2d 111, 335 Mo. 213; Klinkenstein v. Third, ... etc., 246 N.Y. 327, 158 N.E. 886; Yonkers R. Co. v ... Hume, 233 N.Y.S. 63. (b) ... ...
  • City of N.Y. v. TransportAzumah LLC
    • United States
    • New York Supreme Court — Appellate Division
    • December 11, 2012
    ...contention that it does not operate a bus route because it does not physically operate any buses ( see Klinkenstein v. Third Ave. Ry. Co., 246 N.Y. 327, 331–332, 158 N.E. 886 [1927] [“The illegality did not consist in operating an automobile bus, as the vehicle had been properly licensed an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT