Borelli v. Int'l Ry. Co.

• Decision Date: 03 March 1925
• Citation: 147 N.E. 356,240 N.Y. 54
• Parties: BORELLI v. INTERNATIONAL RY. CO.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 54

147 N.E. 356

BORELLI

v.INTERNATIONAL RY. CO.

Court of Appeals of New York.

March 3, 1925.

Action by Giorgio Borelli, as administrator, etc., of Giorgio Bovenzi, deceased, against the International Railway Company. From the judgment of the Appellate Division (208 App. Div. 514, 203 N. Y. S. 704), reversing a judgment of nonsuit and granting a new trial, defendant appeals.

Order of Appellate Division reversed, and that of Trial Term affirmed.

Pound and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Olin T. Nye, of Buffalo, for appellant.

C. Oishei, of Buffalo, for respondent.

ANDREWS, J.

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 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 enter the station and buys a roundtrip 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.

[1] 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, §§ 8657-8665), which gives a remedy to the personal 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 (Consol. Laws, c. 67). 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.

[2] Is the defendant a common carrier by railroad within the meaning of the act? The words used in section 8657, U. S. Comp. St., 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 Interestate 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 Street Ry. v. Interstate Commerce Commission, 230 U. S. 324, 33 S. Ct. 890, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385;United States v. Village of Hubbard, 266 U. S. 474, 45 S. Ct. 160, 69 L. Ed. 389, October term, 1924, Supreme Court. They are ‘not guilty of the mischief sought to be corrected.’ So here, viewing as a whole the various acts dealing with interstate carriers and their employees, it will be seen that Congress had in mind steam and interurban electric roads. It is true that in an action similar to this in commenting on a like contention it was said that the Omaha Case is of negligible value in determining the construction of the federal Employers' Liability Act. Washington v. Scala, 244 U. S. 630, 37 S. Ct. 654, 61 L. Ed. 1360. The statement was a dictum, for Scala was injured on what was clearly an interurban road, to which under the decisions the act as clearly applied, and none of the cases cited have any bearing on the question before us. Other courts have construed the two acts together. United States v. Geddes (D. C.) 180 F. 480; Id., 65 C. C. A. 320, 131 F. 452. And in Kansas City Ry. Co. v. McAdow, 240 U. S. 51, 36 S. Ct. 252, 60 L. Ed. 520, an action under the same Liability Act, the distinction made in the Omaha Case is referred to without disapproval and it is intimated that, if the road had been an urban one, the act would have had no application. The Safety Appliance Act (Comp. St. § 8605), also speaks of ‘any common carrier engaged in interstate commerce by railroad.’ Never, so far as we can find, has this act been applied to urban street railroads, although it has to interurban lines. Spokane & Inland Empire R. Co. v. United States, 241 U. S. 344, 36 S. Ct. 668, 60 L. Ed. 1037.

[3] In 1903 this act was amended (U. S. Comp. St. §§ 8613-8615) to exclude expressly cars used on street railways, but we are of the opinion that this amendment in this respect was declaratory and in effect construed and applied the original statute (Johnson v. Southern Pacific Co., 196 U. S. 1, 21, 25 S. Ct. 158, 49 L. Ed. 363), for the amendment was intended to enlarge not to restrict the scope of the act (Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 506, 36 S. Ct. 683, 60 L. Ed. 1125). The Arbitration Act (U. S. Comp. St. § 8666) contains similar language as does the Hours of Service Act (U. S. Comp. St. § 8677). Neither have so far been held to affect street railroads, although the one statute expressly excepts them and the other does not. Some weight also may be given to the consideration that certain of the acts quoted impose a penalty for disobedience to their rules. They should not be given an undue extension, although they are not to be construed so strictly as to defeat the obvious intent of Congress. Our conclusion is that the defendant in operating the Ferry street line is not ‘a common carrier by railroad.’

[4] 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...