Babington v. Yellow Taxi Corp.

• Decision Date: 31 December 1928
• Citation: 164 N.E. 726,250 N.Y. 14
• Parties: BABINGTON et al. v. YELLOW TAXI CORPORATION.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 14

164 N.E. 726

BABINGTON et al.

v.YELLOW TAXI CORPORATION.

Court of Appeals of New York.

Dec. 31, 1928.

Proceeding under the Workmen's Compensation Act by Charlotte Burr Babington, widow, and others, claimants, to recover compensation for the death of William Babington, deceased, employee, opposed by the Yellow Taxi Corporation, employer and self-insurer. An award of death benefits was affirmed by the Appellate Division (224 App. Div. 794, 231 N. Y. S. 65), and the employer appeals.

Order awarding compensation affirmed.

See, also, 219 App. Div. 495, 220 N. Y. S. 420.

Kellogg, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third department.

Clarence B. Tippett, of New York City, for appellant.

Albert Ottinger, atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

CARDOZO, C. J.

Babington, employed as a chauffeur by the Yellow Taxi Corporation, met his death through accident while driving one of its cabs. All that we know of the circumstances comes from the employer's report of the injury, which has been embodied in the findings. A police officer jumped on the running board and ordered the driver to chase another car in order to arrest its occupant. Suddenly another vehicle cut across the path. The result was a collision from which death ensued. From the fact that Babington was in charge of the car at the request of the employer, the inference would follow, in the absence of evidence to the contrary,that he was in the performance of his duty at the time of the disaster. Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161;Matter of Norris v. New York Cent. R. Co., 246 N. Y. 307, 158 N. E. 879. We are to say whether that inference must be held to have been neutralized by evidence that he was chasing an escaping criminal by order of a policeman.

‘A person, who, after having been lawfully commanded to aid an officer in arresting any person, or in re-taking any person who has escaped from legal custody, or in executing any legal process, willfully neglects or refuses to aid such officer is guilty of a misdemeanor.’ Penal Law (Consol. Laws, c. 40) § 1848. The duty goes back to the days of the hue and cry. ‘The main rule we think to be this,’ say the historians of our early law (Pollock & Maitland, History of English Law, vol. 2, p. 580) ‘that felons ought to be summarily arrested and put in gaol. All true men ought to take part in this work and are punishable if they neglect it.’ Cf. Holdsworth, History of English Law, vol. 1, p. 294; vol. 3, p. 599; vol. 4, p. 521; Coyles v. Hurtin, 10 Johns. 85. The law did not limit itself to imposing upon the manhood of the country a duty to pursue. To make pursuit effective, there were statutes in those early days whereby a man was subject to a duty to provide himself with instruments sufficient for the task. A typical illustration is the Statute of Winchester, 13 Edw. I, enacted in 1285. ‘Immediately upon such Robberies and Felonies committed, fresh Suit shall be made from Town to Town, and from Country to Country.’ Every man shall ‘have in his house Harness for to keep the Peace after the Antient Assise.’ The amount is to be proportioned to the quantity of lands and goods. Thus, for fifteen pounds of lands and goods there shall be kept ‘an Hauberke [a Breastplate] of Iron, a Sword, a Knife, and an Horse.’ We may be sure that the man who failed to use his horse, and who would only go afoot, would have had to answer to the king. 2 Pollock & Maitland, History of English Law, p. 577; 1 Holdsworth, History of English Law, p. 294.

The horse has yielded to the motorcar as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver's seat. In sending Babington upon the highway, it knew or is chargeable with knowledge that man and car alike would have to answer to the call. An officer may not pause to parley about the ownership of a vehicle in the possession of another when there is need of hot pursuit. In so far as the danger of pursuit was a danger incidental to the management of the car, it was one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute. Matter of Waters v. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347.

We have preferred to place the ruling upon the broadest ground available. Others, though narrower, sustain it. Babington was in charge of the cab, and could not desert it without peril to his master's interests. The fact that, while protecting it for his master, he used it incidentally to preserve the public peace, was not such a departure from the course of duty as to constitute an abandonment of the employment, even if it be assumed that the direction of the officer was not a binding order. Riley v. Standard Oil Co. of New York, 231 N. Y. 301, 132 N. E. 97, 22 A. L. R. 1382. Cf. Young B. Smith, Frolic and Detour, 23 Col. Law Rev. 444, and cases there cited. There is no evidence that the route was any different from the one that would otherwise have been followed, and none that the speed was so changed as to aggravate the danger. Causal connection there was none so far as the record has informed us, between the collision with the trolley car and the presence of the officer on the running board in pursuit of an offender.

The question is not here whether the employer would be liable to third persons injured in the chase, and, if so, to what extent. Negligence would certainly be relative to the need and the occasion; a speed too great at other times is proper in emergencies. Conceivably the employee would be deemed to have passed out of the service of his general employer and into the service of a special one. We leave that question open, not meaning to express, even by intimation, an opinion as to the answer. The general employer is still liable under the provisions of the statute. Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992.

The order should be affirmed with costs.

O'BRIEN, J. (concurring).

The hazard which Babington encountered was only such as is incidental to an employment to drive a public vehicle for hire. The yellow Taxi Corporation operates its cabs with the presumptive knowledge that its employees, like all other persons when directed, are bound to aid in the apprehension of criminals. Penal Law, § 1848. This employee could not aid except by the use of his cab. A police officer, no less than a private citizen, is entitled to ride in this public conveyance. We may pass over many arguments raised by appellant. They do not seem to be decisive. No doubt the owner can recover the customary rate of fare for the use of the car. Whether recovery can be had for injury to the car while under the directions of the police officer need not be determined in this proceeding. No occasion now arises to consider the owner's liability or its absence...