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with an interstate car. In violation of the Federal Safety Appliance Act, the interstate car had no drawhead or end sill. Because of this defect the collision smashed the brakeman's leg. The brakeman brought an action for failure to observe the Federal Safety Appliance Act. The trial court gave him damages but the Appellate Division, Third Department, one justice dissenting, reversed the judgment and dismissed the complaint upon ground that the Workmen's Compensation Law of New York had abolished the sole remedy under the Safety Appliance Act. The majority and minority opinions in the case are as follows:

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WARD V. ERIE R. R. Co., 172 N. Y. Supp. 691, Nov. 18, 1918. HENRY T. KELLOGG, J.: The plaintiff was a switchman in the railroad yard of the defendant at Elmira. At the time of the accident he was engaged in moving two empty cars, which were neither beginning nor ending a railroad journey, from one track to another in the yard. He was riding the end car, with his foot over the forward end, and was injured through its collision with a third car standing upon a switch track, along which the two cars were being backed. The cars which plaintiff was engaged in moving were intrastate cars. The car with which one of them collided was an interstate

The injury of the plaintiff was due to the fact that the interstate car was without a drawhead or end sill, so that the bodies of the cars came together in the collision, smashing the plaintiff's leg. As the plaintiff was engaged in moving intrastate cars merely, he was not employed in the furtherance of interstate commerce, and no liability arose therefrom under the federal Employers' Liability Act (Act Cong, April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, $8 8657-8665]). Illinois Central Railway Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L, Ed. 1051 Ann. Cas, 1914C, 163.

Since the plaintiff did not fall within the protection of this act, which regulated interstate commerce, it would seem clear that his only remedy was under the Workmen's Compensation Act of the state of New York (Consol. Laws, c. 67). Nevertheless, the argument is made that the plaintiff has & cause of action under the Federal Safety Appliance Act of 1893 (Act of Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1916, $$ $605-S612]), as amended by the federal Safety Appliance Act of 1903 (Act Cong. March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. 1916, $8 8613-8615]). It was shown that the interstate car, with which the car ridden by the plaintiff col. lided, was not equipped as provided by that act. That this defendant was negligent in reference to the defective car, and that such negligence was the cause of the accident, has support in authority. Texas & Pacific Railway 1. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874.

However, the Federal Safety Appliance Act, while it requires all cars used by railroads engaged in interstate commerce to be equipped in a particular manner, fails to provide that an employee injured through such failure shall. have a cause of action. When, therefore, a suitor, as in the case of Texas & Pacific Railway V. Rigsby, supra, brings an action to recover damages for

negligence, assigning a violation of the federal Safety Appliance Act as a ground of negligence, he makes use of the common law of one of the states to provide him with a remedy, and uses a federal statute to provide him with & wrong, and without the common law he is as incapable of success, as he is without the statute. It is manifest that the common law of the state is subject to amendment, modification, and withdrawal in any particular which does not offend a constitutional prohibition. That the Workmen's Compensation Law of the state of New York does not so offend has been established. That law abolished the common law of the state in so far as it regulated the liability of employer to employee, and substituted a statutory liability in its place, together with a statutory court for the enforcement of the liability. The plaintiff, therefore, though he may have suffered a wrong, has no remedy by an action at law, for the common law, which might have given it in the particular instance, is nonexistent.

The judgment should be reversed, and the complaint dismissed. All concur, except

John IL KELLOGG, P. J. (dissenting): At the time of, and long before, the passage of the so-called Safety Appliance Law, it was the general law that if a statute required a thing to be done which was not done, and the failure to do it caused an injury to another, he may recover his damages from the party in default. The federal statute imposed a penalty of $100 for failure to comply with it. But the act was passed with knowledge of the general law that a failure to observe a statutory duty made the company liable for damages resulting therefrom. Congress had in view, not the local law of any state, but this general law, which may be treated as a part of the act. It was unnecessary to state the liability which the general law recognized. Congress well assumed that, if the local law in some particular state did not recognize such liability, the general law, the spirit of which entered into the legislation, would control. Central Vt. Ry. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; B. a 0. Railroad v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772.

Again, according to the decisions of this court, it is not open to doubt that the responsibility of a railroad company to ts employees is a matter of general law. B. & 0. Ry. v. Baugh, supra, 149 U. S. 374, 375, 13 Sup. Ct. 916, 37 L. Ed. 772.

It cannot be that in passing this law Congress intended that in some localities there should be a liability for damages for a noncompliance with it, and in other localities no liability. It intended to make a uniform law, effective through the United States.

The eighth section of the act provides that an employee, injured by a locomotive, car, or train in use contrary to the provisions of the act shall not be deemed to have assumed the risk, although he continues in the employment after the unlawful use was brought to his knowledge. This section is meaningless, unless Congress intended to permit an injured employee to maintain an action for damages caused by the unlawful act. Clearly a state cannot pass an act providing that continuance in the employment, with knowledge of the defect, shall be an assumption of such risk; neither could it provide that an employee, injured by such violation of the act, shall have no action for damages. Neither can it create some new liability, enforceable outside of the

courts, and provide that the action for damages, which the statute clearly contemplated, shall not be available.

I therefore favor an affirmance.

5. BURDEN OF PROOF THAT ACCIDENT HAS OCCURRED IN INTER

STATE COMMERCE The employer must prove that the accident has arisen out of interstate commerce. The Commission has awarded compensation because such proof was not forthcoming in Carney v. Lehigh Valley R. R. Co., S. D. R., vol. 17, p. 647, Bul., vol. 4, p. 25, Oct. 15, 1918.

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Q. ADMIRALTY OR MARITIME JURISDICTION The United States Supreme Court decisions in Jensen v. Southern Pacific Co. and Walker v. Clyde Steamship Co. held that the laws of the United States, as they existed at the time of the accidents to Jensen and Walker, especially the United States Judiciary Code, SS 24 and 256, did not admit of the application of state workmen's compensation remedies to cases of accident occurring upon waters subject to federal jurisdiction. Applying these United States Supreme Court decisions, the New York court reversed awards in certain accident cases occurring upon New York waters, notably in Doey v. Howland Co., Anderson v. Johnson Lighterage Co., and Keator v. Rock Plaster Mfg. Co. Application for a writ of certiorari in these cases was denied by the United States Supreme Court, October 29, 1918.

Meantime, to make state compensation remedies applicable to maritime accidents, Congress amended United States Judiciary Code, SS 24 and 256, by a law which took effect October 6, 1917. The New York legislature thereupon re-enacted Workmen's Compensation Law, § 2, grs. 8 and 10, relative to maritime accidents, by a law which took effect April 17, 1918. Such in outline is the development of the question till July, 1918. Full history of such development, including the texts of the court decisions and the amendments to the laws, has been given in Special Bulletin No. 87, Part 1, pages 320–379. Development subsequent to July, 1918, is presented here.

1. ACCIDENTS OCCURRING PRIOR TO OCTOBER 6, 1917 In addition to the reversals noticed in Bulletin 87, Part 1, the Appellate Division, upon authority of the decisions of the Court of Appeals in the Doey, Anderson and Keator cases, has later reversed awards in the following nine cases, unanimously and without opinion: Brown v. Brevoort, 186 App. Div. 929, Nov. 18, 1918; McCracken v. Eastern Gravel Corp., S. D. R., vol. 14, p. 659, Bul., vol. 3, p. 55, Oct. 11, 1917; 186 App. Div. 932, Nov. 22, 1918; McLaughlin v. Boyer & Sons, 136 App. Div. 929, Nov. 18, 1918; McPartland v. International Grain Elevating Co., 186 App. Div. 929, Nov. 18, 1918; Moran v. International Elevating Co., S. D. R., vol. 14, p. 623, Bul., vol. 5,

p. 14, Sept. 11, 1917; 186 App. Div. 929, Nov. 18, 1918; Pauline v. Hogan & Sons, Death Case No. 25317, Dec. 21 1917; 185 App. Div. 900, July 2, 1918; Santona v. McQuade Stevedoring Co., Case Vo. 33919, Oct. 23, 1917; 185 App. Div. 900, July 2, 1918; Touhey v. International Elevating Co., 186 App. Div. 930, Nov. 18, 1918; and Vandrey v. Tracy, 186 App. Div. 930, Nov. 18, 1918.

The Appellate Division also reversed its own previous affirmation and vacated the award in Van Wie v. Wright & Cobb Lighterage Co. (187 App. Div. 911, Jan. 8, 1919), the facts of which have been outlined in Bulletin No. 87, Part 1, pages 208 and 209.

The awards in a number of unappealed cases of maritime accidents occurring prior to October 6, 1917, have been rescinded by the Commission. An illustration is Baxter v. Waller Lighterage Co., S. D. R., vol. 15, p. 607, Feb. 25, 1918. The carrier had stopped payments in this case October 2, 1917; the Commission rescinded its award November 17, 1918. Compare also Oberle v. Atlantic Transport Line, S. D. R., vol. 15, p. 581, Jan. 14, 1918. 2. RESORT TO COMMON LAW OR ADMIRALTY REMEDY UPON DIS

CONTINUANCE OF COMPENSATION PAYMENTS Breaking of a bolt caused some ship’s tackle to fall upon and mortally injure a stevedore's employee. An insurance carrier paid compensation to his widow under an award but discont nued payments when the Supreme Court of the United States held such awards to be in conflict with admiralty law. Thereupon the widow brought and won a suit for damages against both the stevedore and the steamship company. The defendants argued that her previous election of the compensation remedy had estopped her from maintaining this action at common law. In refusing to set aside the verdict, the court said:

LIVERANI V. CLARK & Son, 176 N. Y. Supp. 726, Mar. 31, 1919. in part.*

As to the second contention whilst it is true that the plaintiff as well as the insurance carrier both proceeded upon the assumption that the remedy provided by the Workmen's Compensation Law was available, and that pursuant thereto an award and part payment had actually been made, the insurance carrier ceased to make further pyments upon the rendition of the decisions in the Jensen and Walker Cases, supra. There was no estoppel by

* Full text of the opinion appears below, page 257.

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