Ward v. Erie R. Co.

• Decision Date: 11 January 1921
• Citation: 129 N.E. 886,230 N.Y. 230
• Parties: WARD v. ERIE R. CO.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 230

129 N.E. 886

WARD

v.ERIE R. CO.

Court of Appeals of New York.

Jan. 11, 1921.

Action by Fred D. Ward against the Erie Railroad Company. From a judgment on an order of the Appellate Division, Third Judicial Department (185 App. Div. 841,172 N. Y. Supp. 691), reversing a judgment in favor of the plaintiff entered upon a verdict and directing a dismissal of the complaint, plaintiff appeals.

Reversed, and judgment of the Trial Term affirmed.

Chase, J., Hiscock, C. J., and McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Mortimer L. Sullivan, of Elmira, for appellant.

Halsey Sayles, of Elmira, for respondent.

CARDOZO, J.

[1][2][3] The plaintiff, a switchman in the defendant's service, suffered injuries while switching cars on a side track in the Elmira yard. The car on which he was standing came in contact with another which had no drawhead or end sill, and he was caught between the roofs. The switching of the cars was not in aid of any interstate movement. There is no remedy, therefore, under the Employers' Liability Act of Congress (U. S. Comp. St. §§ 8657-8665 which limits its protection to employees engaged in interstate commence when injury is suffered. Ill. Central R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163;Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319. But the absence of the drawhead or end sill was a violation of another statute. The defendant, being an interstate carrier, was subject to the provisions of the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. L. 532 [U. S. Comp. St. §§ 8605-8612]; amendatory Act March 2, 1903, c. 976, 32 Stat. L. 943 [U. S. Comp. St. §§ 8613-8615]; supplementary Act April 14, 1910, c. 160, 36 Stat. 299 [U. S. Comp. St. §§ 8617-8619, 8621-8623]), which gives protection to travelers and employees, whether the transit at the moment of the injury is interstate of local. Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874. The plaintiff has a remedy under that act, unless the Workmen's Compensation Act of New York (Consol. Laws, c. 67) has taken it away from him. The defendant concedes that this could not be done if the remedy as well as the right was the creation of the federal statute. N. Y. Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139;N. Y. Central & H. R. R. R. Co. v. Tonsellito, 244 U. S. 360, 37 Sup. Ct. 620, 61 L. Ed. 1194; So. Pac. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas 1917E, 900;Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834. The argument is, however, that all that Congress did was to clothe the employee with a right and the carrier with a duty, leaving the remedy, in case of infringement, to the law of the locality. It is a rule of the common law that a member of the class for whose benefit a statute has been enacted has a right of action against the offender for the damages sustained. Texas & Pac. Ry. Co. v. Rigsby, supra, 241 U. S. at page 39, 36 Sup. Ct. 482, 60 L. Ed. 874, citing 1 Comyn Dig. tit. Action upon Statute, F; Martin v. Herzog, 228 N. Y. 164, 168, 126 N. E. 814. The remedy for violation of the federal statute is given, it is said, not by the statute, but by the common law of the locality, and what the locality has given the locality may change. This argument, rejected by the trial court, was sustained at the Appellate Division, and the complaint dismissed.

[4] We reach a different conclusion. We find the inference irresistible that the plaintiff's remedy, like his right, has a statutory origin. That was the ruling of the Circuit Court of Appeals for the Seventh Circuit in Ross v. Schooley, 257 Fed. 290, 168 C. C. A. 374, certiorari denied, 249 U. S. 615, 39 Sup. Ct. 390, 63 L. Ed. 803, where the same question was presented. We may assume that, if the purpose of the statute was merely to impose a duty, without creating or preserving a right of action for the damages, the states could abrogate the right of action that would attach at common law. Whether the assumption is a sound one, we need not now determine. If the purpose was, however, not merely to impose a duty, but also to create or to preserve a right of action for the damages, the right of action so established is immune from impairment except by act of Congress. N. Y. Central R. R. Co. v. Winfield; So. Pac. Co. v. Jensen; Knickerbocker Ice Co. v. Stewart, supra. The creation or preservation of a remedy may, of course, result from implication as well as from express words, if the intention is apparent. Smith v. Alabama, 124 U. S. 465, 477, 8 Sup. Ct. 564, 31 L. Ed. 508. The question is simply one of statutory construction-of the purpose of the lawmakers.

[5] Here there are two provisions that unmistakably reveal the purpose to give to the right of action for damages then attaching at common law a statutory confirmation and a statutory sanction. The act provides (27 Stat. 532, Act March 2, 1893, ch. 196, § 8) that any employee injured by any locomotive, car, or train in use contrary to the statute ‘shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.’ This provision assumes the existence of a remedy and limits the available defenses. The regulation of the remedy is equivalent to a declaration that a remedy there shall be. The states were without power, with that statute on the books, to make assumption of risk through continuance in employment an answer to a suit. Congress did not mean that they should have the power to destroy the right of action which they were powerless to impair. The supplementary act of 1910 (36 Stat. L. 299) reinforces this conclusion. It provides that the penalty of $100 for each violation of its provisions shall not be construed ‘to relieve such carrier from liability in any remedial action for the death or injury of any railway employee.’ The Supreme Court, referring to these two provisions in Texas & Pac. Ry. Co. v. Rigsby, supra, at page 40 of 241 U. S., at page 484 of 36 Sup. Ct. (60 L. Ed. 874), said of them that ‘the inference of a private right of action’ was thereby ‘rendered irresistible.’

We build the right of action on the statute. We look to the common law in determining the implications of the statute, the things assumed and held for granted. Murray v. Chicago & N. W. Ry. Co. (C. C.) 62 Fed. 24, 31. That is the background in which its language finds a setting. Congress knew the ancient rule which gives a remedy in these circumstances for violation of a duty. With that knowledge, it left to allusion and suggestion the things that allusion and suggestion were sufficient to supply. The only question is whether it left the gaps so wide that in the process of filling them interpretation fades into conjecture. We think our reading of the act is not subject to that reproach. The statute in scheme and framework is instinct with plan and purpose to maintain a remedy and fortify it. The will of Congress is expressed in abbreviated signs and symbols, but none the less it is expressed. Enough is there to forbid the imputation of a willingness that an act, described in its title as one to promote the safety of employees and travelers, should be dependent for its efficacy upon the pleasure of the states. It is written there in substance: Any one for whose benefit this statute is enacted shall have, in case of violation, a right of action for his damages, and it shall no longer be a defense that there was service with knowledge of the risk.

The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

CHASE, J. (dissenting).

I admit that the Workmen's Compensation Law of this state (chapter 67 of the Consolidated Laws) is not an exclusive means of obtaining compensation for injuries sustained or deaths incurred by employees engaged in interstate commerce. I also admit that it is not exclusive as against other federal statutes expressly authorizing an action in behalf of an employee of an interstate carrier.

In New York Central & Hudson R. R. R. Co. v. Tonsellito, 244 U. S. 360, 362, 37 Sup. Ct. 620, 621 (61 L. Ed. 1194), referring to the federal Employers's Liability Act, the court say:

‘Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the state.’

The ‘specified class' is common carrier by railroad in interstate or foreign commerce. As the plaintiff was not engaged at the time of the accident in interstate or foreign commerce, the federal Employers' Liability Act (U. S. Compiled Statutes, §§ 8657 to 8665) is not applicable to his case.

The Workmen's Compensation Law of this state provides for compensation for injuries sustained or death incurred by employees engaged in specified hazardous employments. Among such specified hazardous employments is included the operation of railways. Section 2, group 1. The act further provides:

‘The liability of an employer prescribed by the last preceding section shall...