Topham v. Interurban Street Railway Co.

96 A.D. 323, 89 N.Y.S. 298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1904
• Status: Published

Opinions

Hatch, J. :

This appeal comes before this court upon the allowance of án appeal by the justices of the Appellate Term. Mr. Justice Freedman, in a learned and exhaustive opinion (Topham v. Interurban Street R. Co., 42 Misc. Rep. 503), has traced the history of the statutory law of the State bearing upon the authority conferred by the Legislature upon a street surface railroad company to construct, operate and lease street surfacé railroads and to enter into traffic contracts from the inception of the right down to the present time* and reached the conclusion that the lease entered into between the defendant and the Metropolitan Street Railway Company was made and executed pursuant to the provisions of the Railroad Law as it now exists, and that section 104 of that act is not limited to traffic contracts alone, but embraces contracts of lease as well. With that conclusion we agree. The same question was . considered by this court and the same conclusion reached in Mendoza v. Metropolitan St. R. Co. (48 App. Div. 62; S. C. on motion for reargument, 51 id. 430). It was also adverted to by the Appellate Division in the second department, and the same result asserted, in Barnett v. Brooklyn Heights R. R. Co. (53 App. Div. 432). Since that decision, we have been furnished with a manuscript copy of the opinion delivered by the same court in O'Reilly v. Brooklyn Heights R. R. Co. (95 App. Div. 253), wherein that court has decisively determined that the construction of the statute in this respect was the same as had been announced by that court in its former decision and by the decisions of this court. Whatever difference of view presently exists in this court upon this subject, I do not deem it necessary to re-examine this question, as the matter has been so thoroughly discussed by the learned court below and so decisively determined in the other cases adverted to", that such question, so far as the Supreme Court is concerned, ought to be regarded as settled.

We are also of the opinion that section 104 of the statute in question authorizes the recovery of cumulative penalties in one action. The language upon such subject is, “ for every refusal.” Similar language in the Revised Statutes (1 R. S. 586, § 44) was held in Suydam v. Smith (52 N. Y. 383) to permit the recovery of cumulative penalties, and that case distinguishes Fisher v. N. Y. C. & H. R. R. R. Co. (46 id. 644). The same distinction is maintained in all the subsequent decisions upon the subject. The second department, in Suffolk County v. Shaw (21 App. Div. 146), adopted the same construction, holding that similar language in section 190 of the Public Health Law (Laws of 1893, chap. 661) was equivalent to “ each offense.”

Cox v. Paul (175 N. Y. 328) is not in conflict with this conclusion. The language of the statute in that case was: “ For any refusal * * * such corporation and the officer or agent so refusing shall each forfeit.” (Stock Corp. Law [Laws of 1892, chap. 688], § 53, as amd. by Laws of 1897, chap. 384.) The court held that from the language of the statute but one penalty could be recovered, and that the word “ any ” was not the equivalent of “ each ” or “ every.” The language in the present case is different and this is ground for the difference in conclusion.

As 1 view this ease, however, this determination of these questions in favor of the plaintiff does not suffice to show that he is necessarily entitled to a recovery in this action;' nor does it result in the affirmance of the order from which the appeal is taken. The real question which the case presents 'turns upon the construction to be given to section 104 of the Railroad Law. (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap: 676), If that section is to be construed as constituting a mandatory provision by the Legislature that the defendant shall upon demand, and without extra charge give to each passenger, paying one single fare, a transfer over its lino of railroads at any point- of intersection with a leased line, then there is an end of this case and the judgment must be affirmed. If, however, that section be construed as authorizing the defendant in the operation of its railroad to so operate the same and furnish transfers to passengers at such points upon its intersecting lines as will best serve the convenience of the traveling public by designating particular transfer points, and that such designations will accomplish the purpose of the act, then compliance therewith will have been shown. In order to~ have a clear view of this question, the provisions of the section are to be carefully scrutinized-. It reads:

“ §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 make 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 without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any 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. Eor 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 primary purpose of this section is to compel the railroad corporation to carry over the lines Of road operated by it passengers by such method as will best promote the convenience of the public who travel thereon. The learned court below assumed that the section was to be construed as mandatory provisions, requiring that a trans-" fer should be given at every intersecting point, and in disposition of the suggestion that the corporation might adopt rules or a method in carrying, the public over its lines by which transfers might be denied at some points, said (p. 505): “ The fact that there was another route embraced within the defendant’s system over which the plaintiff on each occasion might have traveled for a single fare can make no difference, and the fact that the giving of transfers at the point in question might cause undue crowding in the street and at the crossings is no excuse for not giving them, unless sanctioned by legislative action.” No further discussion of such subject was had in making disposition of the question. It is evident that if the words of the provision which we have italicized do nothing more than declare that the issuance of transfers at all intersecting points will promote the public convenience, then such language might as well have been omitted from the section, as it neither adds to nor takes from the preceding provisions of the section, as the language therein contained is clearly mandatory. Indeed, the injection of this language into the section creates in this view somewhat of ambiguity, if it is to be thus limited, as it in no wise adds to the clearness of the preceding provision. The intent of the Legislature is the cardinal rule by which statutes are to be interpreted. It was said by the presiding justice of this court in Central Trust Co. v. N. Y. Equipment Co. (74 Hun, 405): “A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which is to be regarded in its interpretation, and if these find fair expression in the statute it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some of the provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers.” And this rule is abundantly supported by authority and variously illustrated in the cases. (People ex rel. Savings Bank v. Butler, 147 N. Y. 164.) It was said by Ruger, Ch. J., in People ex rel. Collins v. Spicer (99 N. Y. 225): “ In looking for the intent of the Legislature, not only the language of the statute may be resorted to, but also the circumstances which occasioned its' enactment and the object professed in its title, and if by these aids the1 intent of the act can be clearly ascertained effect may be given to it, although no retrospective words are contained in the law.” “ When a general intention is expressed, and also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.” (People ex rel. Churchyard v. Board of Councilmen, 47 N. Y. St. Repr. 149; affd. on opinion below, 135 N. Y. 660.) In Murray v. New York Central R. R. Co. (3 Abb. Ct. App. Dec. 339) it was held that the letter of a statute would be restrained by the spirit of the enactment, even though a liability imposed thereby was without qualification. In that case the obligation imposed by the statute was to make' the railroad company liable for damages which should be sustained when fences alongside of its tracks were not in good repair. The court held that although the language was mandatory and absolute, it was intended thereby to impose a liability only in ease of negligence. The purpose herb sought to be accomplished was to procure for a single rate of fare transfers over the lines of railroad operated by the defendant by such method as would promote the public convenience in transportation. ■ The convenience of particular individuals is not the scheme or purpose of its enactment, but it is to administered, having for its object the greatest good and the largest convenience for the greatest number. If it should be admitted that the public convenience would be best subserved by rules and regulations fixing certain points where transfers should be issued and denying them at others, there can be no doubt but that .the legislative intent would be carried out, as the public convenience would be conserved thereby. If trafile would be congested and rendered dangerous by compelling compliance with the act as a mandatory provision at every intersecting point, and thereby rapid transit would be retarded, it is evident that the public convenience, instead of being promoted, would be hindered. It is asserted that such would be the fact, and if this be so, to construe the provision as mandatory, would result in nullifying the plain legislative intent ' and render nugatory the language which declares the purpose of the act. It is easy to say that the Legislature has provided a scheme, and that by following that scheme public convenience will be the result, but that is not what the statute says. Its language is, “ to the end that the public convenience may be promoted.” It is not that it “ will be,” but that it “ may be.” It is not that the railroad “ shall be ” run as a single line, but that it may be “ substantially ” run as such a line, to the end that the public convenience shall be secured. Manifestly, if transfers are provided at intersecting points, whereby the convenience of the public is secured, and it would not be so secured by transfers at all points, the intent of the statute, by adopting the former course, will have been carried out and the spirit of the statute will have been precisely applied. That some discretion has been left to the defendant in operation seems clear from the fact that the public convenience is to be secured and the safety of the passengers safeguarded, and the road still run substantially as a single line. The defendant is not required to run it as a single line, but only so far as conditions and surrounding circumstances will permit, having regard at all times to the convenience of the traveling public. It is so well known that a railroad can only be operated upon a system, the product of rules and regulations, that courts may take judicial notice of such fact. (Hunter v. N. Y., O. & W. R. R. Co., 116 N. Y. 615 ; Town of North Hempstead v. Gregory, 53 App: Div. 350.) Indeed, unless proper rules for management and operation are promulgated by railroad companies, it is an act of negligence which gives a civil remedy in damages to a person suffering injury arising out of such failure. This is the familiar rule. Ho one can have seen an assembly, of human beings awaiting transportation over the lines of public rail transportation without being painfully impressed with the necessity for rules and regulations for their government, and for much discretion in management by the carrier. It oftentimes needs a more substantial structure than rules to keep the traveling public within bounds, and thus prevent injury to others and themselves. For these purposes structures of wood and iron are the necessary concomitants of crowded public travel, rendered necessary in the promotion of the public safety and convenience. In these respects an onerous public responsibility has been imposed upon the carrier of passengers which courts rigidly enforce. Ho one can witness the congested character of many intersecting streets without being at once impressed with the necessity for the most careful system in regulation in order to make such places reasonably safe, and to add to such congestion by the diversion of traffic which now goes over other lines would only aggravate such condition and is quite likely to create, not only public inconvenience, but danger to life and limb. The court may take judicial notice of conditions which exist at the intersection of Broadway and Twenty-third street; and in addition thereto such condition and the danger attendant upon the giving of transfers at that point was established by proof upon the trial, as it was shown that if this were made a transfer point, a diversion of travel from other lines to such point would be greatly increased and the danger to passengers and others at" such point rendered hazardous. If there be under this statute no power of regulation in the issuance of transfers by the defendant, then the selection of routes rests in the volition of each individual passenger, and if transfers are required to be given at each intersecting point over all the lines of railroad operated by the defendant, then any passenger may at will ride over any and all parts of the boroughs of Manhattan and The Bronx, changing at as many intersecting points as he arrives at, for a single fare of five cents. Manifestly, the Legislature never intended such result to flow from a construction of the provision. Clearly, theright.seeured to the passenger is the right to be carried from the place where he boards the car in continuous line, as near as may be, to his point of destination; and in order to accomplish that result the defendant is burdened with the responsibility of so arranging its system of transfers as Will promote the convenience of the greatest number who travel over its line; and it is equally manifest that in order to promote such convenience and carry the people who demand transportation during the* so-called “ rush hours” of the day it must have some system in respect thereto or breed confusion and danger.

I am of opinion, therefore, that the true construction of section 104 of the Railroad Law vests somewhat of authority in the defendant to fix transfer points where the convenience of the greatest number of the traveling public will be subserved in going to and from their respective points of destination, and if this result was obtained by the transfer points which were established at the time when this action was brought, no right of action existed, even though such right was denied at the particular point. When the defendant has made provision for the issuance of transfers at intersecting points where the public convenience will be promoted, it makes compliance with the act, even though under such system it refuses transfers at some points. The right in this respect is not to be exercised arbitrarily, but reasonably, having regard to the convenience of the largest number of passengers which it carries. If it does not make reasonable compliance in this respect and provide the best means for the convenience of the traveling public, it will violate the provision and incur the penalty.

This construction of the statute, however, does not avail the defendant in the present case, as it has pleaded no such defense in its answer, nor has it proved the same upon the trial. There is not a suggestion in the answer that the defendant has at any time fixed transfer points which will promote the convenience of the traveling public. The nearest approach to it is in paragraph 10, where it is averred that at the time in question there were other lines of railway which the plaintiff might have taken to reach his point of destination as easily and equally as well as to use the lines mentioned and described in the complaint. There is, however, no averment that these lines of road were under the control of or being operated by the defendant, and while such fact can doubtless be determined by a reference to the lease which is a part of plaintiff’s proof, yet there is no averment that it issued transfers at intersecting points upon such line, or that it issued a transfer at its intersection with Eighteenth street, which would have carried the plaintiff to his destination. An examination of the testimony also fails to show that the defendant has made any compliance whatever with the provisions of section 104 of the Railroad Law, or that the plaintiff could have reached his destination by a single fare over any line operated by the defendant. The witness called to establish the fact of the issuance of the transfers failed in his recollection upon such subject and could not testify that retransfers were issued, nor does it appear that such question has been presented in such form as to be available to the defendant in any of the cases now pending before this court.

Since the foregoing was written, Mr. Justice Ingraham has considered the whole subject in an opinion handed down herewith. I concur in his opinion so far as it affects the leases made prior to May 1, 1891, for the reasons assigned by him. The provisions of section 78 of the Railroad Law (as amd. by Laws of 1893, chap. 433) expressly exclude its application to any lease in existence prior to May 1, 1891.' .The lease of the Broadway line falls within such exception, in consequence of which there was no obligation resting upon the defendant to issue transfers at Twenty-third street and Broadway.

My conclusion, therefore, is that the determination of the Appellate Term in this case should be reversed, and the judgment of the Municipal Court affirmed, with costs.

Laughlin, J., concurred ; Van Brunt, P. J., concurred in result; O’Brien, J., dissented.