Kelly v. New York City Railway Co.

119 A.D. 223, 104 N.Y.S. 561, 1907 N.Y. App. Div. LEXIS 3913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1907
• Status: Published

Opinions

Lambert, J.:

Subdivision ,8 of section 4 of the Bailroad Law (as amd. by Laws of 1-892, chap. 676) provides that a corporation .shall have power “ to regulate the time and manner in which passengers and property-'shall-be transported, and the .compensation, to be paid therefor.” This power must be exercised in subordination to the law and- within reasonable limitations;- There came a time in the history of the transportation facilities-'of the State when it was deemed wise and' beneficial to the public to permit of the consolidation of street surface railroads, by lease Or. otherwise, and to preserve the rights of 'the public, tinder the increased power's of these corporations, it was provided by section 104 of the Bailroad Law (as amd.)'-as follows: “ § 104. Contracting corporations to carry for One fare ; penalty.— Every such corporation entering into such contract shall" carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to malte one continuous-trip, between such points-for one single fare, not higher" than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall Upon demand, and ■with.out extra charge, give to each passenger paying one single fare a transfer, entitling shell passenger to one continuous trip" to’any point or portion of ahy railroad embraced' in such contract,' to. the .end that the-public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. .For every refusal to comply . with the requirements of this section the corporation so refusing shall-forfeit fifty dollars to the aggrieved party. - The provisions of this section-shall only apply to railroads wholly within the' limits of any one incorporated city or village.”

The law reads into all statutes and all contracts the element of good faith. (Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215, 225, 226.) It was conceded upon the argument that there is no controlling decision upon the exact question here presented.. We are, therefore, to determine by the application- of known rules, the proper construction of the statute, and -the limitations - which it imposes upon the defendant in the case now before us. The law-making power had in contemplation in-the passage of the act in question the practical efficiency of the means of transportation'. The design was to permit a passenger to proceed along the line of connecting surface railroads, so that he might reach his point of destination with the greatest practical ease and economy. ■ It ivas “ to the end that the public convenience may be promoted ” that this provision was inserted, and the public convenience requires of all street surface railroads, not only that they shall deliver each passenger at the termination of his journey, no matter how circuí- ' tous the route may be, but that such passenger shall be carried by the most direct and practical route to the nearest point to which he desires to go, regard • being had to his purpose and convenience.. Suppose, for instance, that we are at Union Square and desire to . •go to the Fifth Avenue Hotel opposite Madison Square. The . .Broadway cars will take ns directly past the hotel'by traveling a •f few blocks, and every consideration of public convenience is served by that line. But we could take a Fourth avenue car to Forty-second street,-thence by another car to Broadway, and down Broadway to the Fifth Avenue Hotel, thus making a circuitous route. If the plaintiffs construction of the statute is right, this supposititious ease could be complicated by a great variety of transfers. This does not embrace any element of. public convenience. It would be merely an indulgence of an individual, desire to ride, rather than a puiv "pose “ to make one continuous trip between such points.” -The trip, .whatever wé'mqy say of its continuity, would be not “ between such ■points/’ but would be outside of them. It would not be ,an evidence •of' good faith on tlm part of a passenger to’which a public corporation is entitled, and tins lias been held by the courts of this State. An individual may have the time to work out and indulge in these freakish trips, but the public has no interest in them, and that was the purpose of-the Legislature in giving the right to enforce a private remedy tp the end that, the “public convenience may be-promoted by the operation of the railroads embraced in such contract .substantially as a.single railroad with-a single .rate of\fare.’’, .The public convenience, not the indulgence of individual caprice, is to-be served, and this is tp be accomplished, or “ promoted ” (to Use the language-of the statute), “by the operation of the railroads * * , *. substantially á@ -a .single railroad with á single, rate oí fare.” What, is necessary,, then, to the operation of th.ese railroads substantially as a single raih’oad ? This question'has been judicially answered ip.principle in the case, of Bennett v. N. Y. C. & H. R. R. R. Co. (69 N. Y. 594). ' In that case the plaintiff.bought á ticket from- Lo.ekp.ort. to Troy. '■ Ho route was. indicated. . The railroad t operated t-w® lines between Rochester and-Syracuse; one of-them, a direct-line Over which it habitually operated its regular through .trains,-was 81 miles, long, and the other Was. 104 miles. • The plaintiff left the through train at Rochester and took a train over the . 'older and longer route by way of Auburn, ' Aftpr leaving Auburn the conductor,demanded an extra fare, and on the plaintiff refusing. to pay-more-he was ejected.from the car, and brought his action to recover damages. He was nonsuited upon the. trial, arid the judg. ment was affirmed by the General Term (5 Hun, 599) and by the Court -of Appeals. ■ In discussing -the contract of - the carrier the court: sayIt seems to rn.e that it was a contract to carry the plain- . tiff over the Usual, through and niost, direct route,, and. nothing'more. . The defendant is restricted-to á charge of two cents a mile. It' does, not appear that the plaintiff paid any more than that sum for the eighty-one miles over the usual route. The through train from Lockport passes, over the direct'route, and the plaintiff must have. changed cars at-Rochester and taken another train. He may have supposed that the ticket- entitled him t-o go; by any road which the defendant owned, .however, indirect, and. regardless of the distance traveled. In this I think lie was mistaken. ■ The ticket was a through ticket and impliedly oyer the through route. The company were not bound to take him over any and all their roads which might terminate at the. same point. A ticket from Albany- to Buffalo would not entitle the holder to go by the way of Niagara Falls, although the company owns the road all' the way round, and I do not see why the company would not be liable -to a;- penalty for charging by the way of the Falls for a ticket to Buffalo, unless on notice.” And, continuing: “ I am of opinion that it was a contract to carry the plaintiff over the direct road and not one to carry over an unusual and roundabout way, twenty-three miles farther.”

Is there any difference in a. contract where a passenger buys a ticket between two named points, and a contract, growing out of the payment of a single fare upon a street surface-railroad pursuant. to statute ? Is not the contract implied, that the company will carry the passenger from the point where lie comes oh board to the .nearest • . practical point upon its lines, to the proposed destination of the passenger by the shortest and most direct route, and not by some fanciful, roundabout way ?. To our mind the inquiry carries its own. answer, A careful examination of the maps in evidence, in con- - nection with the scheme of transfers as it was developed upon the trial-,, shows that a passenger might by‘traveling in-the'same general direction, by means of cross-town., lines, reach within a few ■ blocks almost any point within the territory which the defendant attempts to cover, and for a single fare, and as this is all that a “ single railroad with a single rate of fare,” under the laws-of this State, is expected to do, -it. cannot be said that any purpose of section 104 of the Railroad Law. (as amd. supra) is being defeated by the rule which accomplishes the result mentioned. And it cannot be doubted that the, system of transfers now in force does operate to accomplish this purpose, or that this system is in harmony with the power to “ regulate the .time and manner in which passengers and. property shall be transported.” As was stated in Bennett v. N. Y. C. & H. R. R. R. Co. (5 Hun, 599): “ There was nothing unreasonable, therefore, in requiring him to pay more; for the reason that the defendants were rendering him more service than it was necessary for them to do in . order to fulfill .the contract .to carry him from Rochester to Troy.” In Wimmer v. Union Traction Company (12 Penn. Super. Ct. 467) the city had, in granting the franchise to the defendant, provided that “ the said railway company shall run ears over their entire line at intervals not exceeding five minutes,” and that “the rate of fare to be charged for a single continuous ride over the entire line shall not exceed the present fare,” etc. The line operated appears to have béen a loop. The plaintiff entered a car going west several blocks - distant from the turning point and paid his fare. He remained upon the car until it rounded the loop, going east, in the direction he desired to travel, and the second fare being demanded, he refused to pay and was ejected from the car, bringing an action . for damages. The plaintiff, took the. grounds^ asserted in substance by the plaintiff in the case at bar, that lie had the legal right, under the provisions-of the ordinance to enter the car at .the"terminus at Forty-first, and - Market streets, and remain therein until the car made its circuit and returned practically to its starting point. The court did not decide the precise point here under consideration,, but held that'the plaintiff was properly ejected,(and reversed the court below, which had held the.plaintiff’s view of the case. In Church v. Chicago, M. & St. P R. Co. (6 S. D. 235; 26 L. R. A. 616) the Supreme. Court, on appeal, held that it was a reasonable regulation for a company operating direct, indirect and circuitous lines of roads between two points to- require that through .passengers traveling Upon a simple contract to carry them from one point.to another should go by -the most direct route.. (See, also, 6 Oyc. 581; 28 Am. & Eng. Ency. of Law [2d ed.], 184.) This rule is so. in accord with proper ideals of-justice that it appeals at once to the judicial mind, and when we recollect the obligation of the individual to deal in good faith with those acting under the law, it becomes plain that the plaintiff -in this.action has no right to recover, ' for the defendant has not been, guilty of ...a statutory wrong against which the remedy was directed. -While the refusal of á transfer is the.overt act upon which the cause of action depends, it.is the violation of the duty to the -public which the law seeks to reach, and if -there is no violation of that duty then the defendant had a right .to refuse the transfer. : The duty of the corporation is to carry not beyond and back to. the point by a circuitous route, but “ between any- two points on the railroads or portions thereof embraced in such contract, any passenger desiring to make one continuous trip between such points,” not for the gratification or whim of the idle or curious' person, but “ to the' end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare:” The law contemplates that a passenger upon a street railroad, like a passenger upon any ordinary railroad, wants to go somewhere as a practical matter, that he has a purpose in going to some given place. The powers given to railroad- corporations and the duties which they assume are predicated upon transportation facilities as practical utilities, and when in section 104 of the Railroad Law (as amd. supra) it was provided that a passenger “ desiring to make one continuous' trip between such points,” should be permitted to do so for a single fare, it was understood that the passenger desired to make use of the means of transportation afforded, under reasonable rules and regulations, to accomplish this purpose in a practical way. • A trip is defined by the Century Dictionary, in its relation to transportation, to be the performance of service one way over a route, the performance of service both ways being a round trip,” and under the scheme of transfers provided for by the defendant, a person desiring to make a continuous trip — a.trip one way —is provided an entirely practical and efficient means of reaching any' part of the city of Sew York for a single fare of five- cents, and this is a full compliance with the purposes sought to be accomplished by section 104 of the Railroad Law (as amd. supra). The defendant, while fulfilling its duty under the statute, cannot be guilty of such a refusal of a transfer as to entail the penalty prescribed.

. The determination appealed from should be reversed, and the judgment of the trial court affirmed, with costs in all courts.

Patterson, P. J., and Houghton, J., concurred; McLaughlin and Scott, J.L, dissented. , .