Cott v. . Erie R.R. Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The action is for personal injuries resulting in death.

The Erie and the Lehigh Valley railroads maintain and jointly operate at Buffalo a terminal road and switching yard known as the Buffalo Creek. Its function is the interchange of cars between the railroads that enter Buffalo, and between such roads and neighboring plants. Plaintiff's intestate, Cott, was a conductor in the service of the Lehigh Valley. His engine, while moving along the terminal tracks, was derailed by an open switch, and he was thrown to the ground and killed. This action is brought by his administratrix against the Lehigh Valley and the Erie railroad companies. The Lehigh Valley was the employer. It is sued under the Federal Employers' Liability Law, upon the claim that the movement of the engine was in interstate or foreign commerce. The Erie, though not the employer, was a joint operator of the terminal. It is sued at common law for breach of duty toward one who was there at its invitation, in the business of the common enterprise.

(1) We find no error in the ruling, complained of by the Lehigh Valley, but accepted by the Erie, that Cott was in foreign commerce when his engine was derailed.

Three carloads of beef were in course of transit from Buffalo to Montreal, and thence to England. The beef, until placed upon the cars, had been stored by its owner, the Jacob Dold Packing Company, with the Buffalo Cold Storage Company, whose plant connected with the terminal. The owner telephoned instructions to the storage company to ship the beef for export, stating the route and destination. The storage company, upon receipt of these instructions, attended to the shipment. The beef was loaded upon Lehigh Valley cars, transported along the terminal tracks, and delivered to the New York Central, which carried it in the same cars to Montreal. The Lehigh Valley is not shown to have been notified, in advance, of the point of ultimate destination, but it knew that its cars were to be surrendered to another carrier, to be hauled to any point which that carrier might name. Upon receipt of the beef, it delivered to the shipper a document known as an "interline switching waybill," a waybill, in other words, that called for switching between lines. This document named the Buffalo Cold Storage Company as the shipper; the agent of the New York Central railroad as the consignee; and the destination as "East Buffalo, New York Central Railroad, via Buffalo Creek." The charge (described as a switching charge) was fixed at $7.60. The New York Central, on the arrival of the cars, paid or assumed this charge, collecting later from its own customer, and issued its own bills of lading in the name of the Jacob Dold Packing Company as consignor, the destination being stated as Montreal, and an indorsement giving notice that the shipments were for export.

We think the movement in foreign commerce was single and continuous (Louisiana R.R. Comm. v. Texas Pac. Ry. Co.,229 U.S. 336; Texas N.O.R.R. Co. v. Sabine Tram Co.,227 U.S. 111). One exercise of will, a purpose preconceived and preannounced, determined the course of shipment from the beginning to the close. The switching at the terminal was not an end in itself. In origin and execution, it was a step in a larger process (Phila. R. Ry. Co. v. Hancock, 253 U.S. 284). In such circumstances, the character of the transaction is not determined by the multitude of bills of lading or other documents of title (U.S. v. Union Stockyards, 226 U.S. 286; LouisianaR.R. Comm. v. Texas Pac. Ry. Co.; Texas N.O.R.R. Co. v.Sabine Tram Co., supra). Its character is determined by continuity of movement combined with unity of plan. Thus viewed, the switching at the terminal was not a finality, but an incident. The cause that Cott was serving when he died was the cause of foreign commerce (Phila. R. Ry. Co. v. Hancock,supra).

We are told that the preliminary movement, if part of a larger movement and thus part of foreign commerce as between shipper and consignee, is to be considered by itself and thus viewed as merely local in determining the relation between shipper and carrier, or between carrier and servant. We think it shares, in these relations also, the character and quality of the movement that succeeds it. A terminal road, which switches indiscriminately for foreign and domestic cars, is itself an instrumentality of interstate or foreign commerce (U.S. v.Brooklyn Eastern Dist. Terminal, 249 U.S. 296, 304, 305; U.S. v. Atlanta Terminal Co., 260 Fed. Rep. 779; certiorari denied,251 U.S. 559; U.S. v. Union Stockyards, 226 U.S. 286, 304,306). It is subject at all times to the Safety Appliance Act of Congress (U.S. v. Atlanta Terminal Co., supra; U.S. v.Northern Pac. Ry. Co., 254 U.S. 251; 41 Sup. Ct. Rep. 101, Dec. 6, 1920), and to the act to regulate the hours of service (U.S. v. Brooklyn Eastern Dist. Terminal, supra). Those acts must be obeyed by interstate carriers even in intrastate transactions (Ward v. Erie R.R. Co., 230 N.Y. 230, 232; Texas P. Ry.Co. v. Rigsby, 241 U.S. 33). It is subject in addition to the Employers' Liability Act of Congress (35 Stat. at Large, 65) when its employees do the things from which it gets its interstate or foreign character, i.e., when they are switching or interchanging interstate or foreign cars (Erie R.R. Co. v.Collins, 253 U.S. 77; Erie R.R. Co. v. Szary, 253 U.S. 86;Ill. Cent. R.R. Co. v. Behrens, 233 U.S. 473). To this limitation, the defendant would add another. Not only, it says, must the cars be interstate or foreign; the road which interchanges or switches them must in each instance know them to be such. The fact is not enough unless accompanied by knowledge. Neither in statute nor in decision do we find this limitation upon the rights of injured workmen (Federal Employers' Liability Law, 35 Stat. at Large, 65, sec. 1). The only knowledge to be proved is knowledge that the facilities of the terminal are to be utilized indiscriminately by foreign and domestic cars in foreign and domestic commerce (U.S. v. Brooklyn Eastern Dist. Terminal; U.S. v.Atlanta Terminal Co.; Erie R.R. Co. v. Collins, supra). Consent, with such knowledge, to interchange and switch without inquiry, is consent to participate in commerce of one order or the other as one or the other is in fact promoted by the movement. The business varies in the instance with the cause which it advances (Erie R.R. Co. v. Collins; Erie R.R. Co. v.Szary, supra; N.Y.C. H.R.R.R. Co. v. Carr, 238 U.S. 260;Smith v. Payne, 269 Fed. Rep. 1; Roush v. B. O.R.R.Co., 243 Fed. Rep. 712).

We have said that the employer had notice from the very function of the terminal that foreign and local carriers, indiscriminately, would make use of its facilities. Confusion of thought is inevitable if service which is incidental, like interchange or switching, is viewed as one with service which is intended to be ultimate. This is not a case like Gulf, Colorado Santa Fe Ry. Co. v. Texas (204 U.S. 403) where transportation, in fact preliminary, was reasonably understood by the carrier to be complete and independent. The narrow bounds of that decision are indicated in later judgments (Ohio R.R. Comm. v. Worthington, 225 U.S. 101, 109; So. Pac. Terminal Co. v.Interstate Commerce Comm., 219 U.S. 498; Texas N.O.R.R. Co. v. Sabine Tram Co., supra; Louisiana R.R. Comm. v. Texas P.R. Co., supra; Bracht v. San Antonio A.P. Ry.,254 U.S. 489; 41 S.C. Rep. 150). This is a case where the service was known from the beginning to be a step or link or incident in a movement that was to follow. The cars were switched between lines with the understanding and expectation that they would go forward on their journey. The service was in aid of foreign or domestic commerce as the event might fix its nature.

Precedents will be misleading if separated from the statutes they interpret. Opinions get their color and significance from the subject of the controversy. There is no attempt to charge this carrier under the Bill of Lading Act (Act of March 4, 1915, ch. 176, and August 9, 1916, ch. 301; Compiled Statutes, 8604a) for lost or damaged shipments upon some theory that by issuing a switching waybill it became responsible throughout the transit (Pere Marquette Ry. Co. v. J.F. French Co., 254 U.S. 538; 41 S.C. Rep. 195, 197, Jan. 17, 1921). We do not say that terminal service is carriage or transportation within the meaning of that statute (Pere Marquette Ry. Co. v.J.F. French Co., supra). There is no attempt to charge the carrier with penalties for the exaction of excessive rates or the concession of illicit privileges (Gulf, Colorado Santa Fe Ry.Co. v. Texas, supra; Bracht v. San Antonio A.P. Ry.,254 U.S. 489; 41 S.C. Rep. 150). We do not say that the purpose of the shipper is sufficient in such circumstances, unless shared by the carrier, to fix the nature of the shipment. What we are to determine now is the meaning of a statute which assures a remedy for negligence to every employee of interstate or foreign carriers when injury is suffered in the promotion of interstate or foreign business. This employer undertook to do business of that order indifferently and indiscriminately with business that was local. It became by its own choice an interstate or foreign carrier (U.S. v. Atlanta Terminal Co., supra, and cases there cited). Its employee met his death while aiding an interstate or foreign movement. The personal representative has the benefit of the statutory remedy.

(2) The appeal brings up other questions less intricate and doubtful.

a. The Erie contends that the effect of the federal statute in giving a remedy against the employer is to cut off and prohibit a remedy against any one else. We find no trace of such a purpose. The statutory remedy, in so far as it fixes the liability of the employer, is, indeed, exclusive as to him (Taylor v. Taylor,232 U.S. 363; N.Y. Central H.R.R.R. Co. v. Tonsellito, 244 U.S. 360). It does not touch the liability of other parties to the wrong (Lee v. Central Georgia Ry. Co., 252 U.S. 109,110). "The Federal Employers' Liability Act does not modify in any respect rights of employees against one another existing at common law" (Lee v. Central Georgia Ry. Co., supra). We are warned of possible complications in the apportionment of damages. Those are problems of the future. The record does not suggest them.

b. We find no error in the charge that the defendants "are presumptively responsible for the condition of the switch unless it affirmatively appears to the contrary."

The switch was in their joint control. The settled practice of the terminal required it to be closed unless presently in use. By some one's blunder it was left open without light or other warning. The situation charged the defendants with a duty to explain (Van Inwegen v. Erie R.R. Co., 126 App. Div. 297;194 N.Y. 534; Marceau v. Rutland R.R. Co., 211 N.Y. 203, 209). There is some suggestion that the duty does not arise where the act to be explained is the act of fellow-servants. Employees of the Erie were not fellow-servants, for the Erie was not the master. Employees of the Lehigh Valley, if fellow-servants, might still involve their master in liability for negligence, for the fellow-servant rule has been abolished in cases subject to the federal statute (Central Vermont Ry. Co. v. White,238 U.S. 507; Southern Ry. Co. v. Derr, 240 Fed. Rep. 75).

c. Other rulings complained of have been considered, but no error has been found in them.

The judgments should be affirmed with costs.