Opinion
Argued October 7, 1927
Decided November 22, 1927
Appeal from the Supreme Court, Appellate Division, First Department.
Isidore Cohen for appellant.
August P. Klein and Joseph E. Kinsley for Audubon Transportation Company, amicus curiae. Alfred T. Davison, Frederic W. Frost and Addison B. Scoville for respondent.
This appeal comes up from the Municipal Court by permission of the Appellate Division, which has certified that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.
The plaintiff was the owner of an automobile passenger bus which was being operated for hire along New Chambers street, across Park row, in the borough of Manhattan, city of New York. While crossing it was struck by one of the defendant's cars, running through Park row. This action was brought to recover for the damage done to the bus.
The plaintiff was operating this bus line under a permit from the Department of Plant and Structures of the city of New York. This, however, was not sufficient to legalize the operation. The Public Service Commission had not determined that such bus route was necessary or convenient to the public, and had not given its approval to the operation, pursuant to section 53 of the Public Service Commission Law (Cons. Laws, ch. 48). Neither had this common carrier, so designated by section 65 of the Transportation Corporations Law (Cons. Laws, ch. 63), procured the local consent or franchise required by section 66 of that law, and sections 74 and 1458 of the Greater New York charter. The plaintiff was, therefore, illegally carrying on the business of a common carrier of passengers for hire over the streets of New York. For this reason the Appellate Division determined that the plaintiff was a trespasser upon the streets, and that the defendant owed him no duty other than not to willfully and recklessly injure his property; that it was not liable for the damages caused to the bus through ordinary negligence, or the failure to exercise ordinary care.
Whether the failure of the plaintiff to obtain the proper consents and authority to operate the bus line prevents the recovery of damages for negligence depends upon whether such failure caused or aided in causing the accident; whether there be a connection, a logical connection, a reasonable sequence of events between the lack of authority to operate the bus line and the collision.
Some other facts must be considered. The plaintiff's bus was not illegally in the street. The illegality did not consist in operating an automobile bus, as the vehicle had been properly licensed and the chauffeur duly authorized to operate it. The illegality consisted not in the operation and the use of the streets, but in the carrying of passengers for hire; it was the use to which the vehicle was put and not the vehicle itself which was unauthorized upon the streets of New York. Therefore, if the bus had been carrying goods or had been used for other purposes than carrying passengers, the accident would have happened just the same. Again, if the plaintiff had been running the passenger bus legally, had all the consents required by law, the accident likewise would have happened. Thus we see that there is no connection whatever between the failure to obtain the permission to carry passengers for hire and the collision due to the negligence of the defendant's motorman. Of course it can be said that if the plaintiff could not have carried passengers for hire, he probably would not have operated the bus line. Of course if the bus had not been there, it would not have been struck. It was there, it was damaged, as we must assume for this case, through the negligence of the defendant, and the question is not what caused it to be there, but what, if anything, on the plaintiff's part, contributed at the time in causing the collision. It is the accident, and not the mere presence of the bus that we must deal with. We do not see how the failure to have a license to carry passengers has anything to do with the cause of the accident. The accident would have happened and the defendant's negligence would have been the occasion — no more and no less, if the use had been licensed or the bus had been carrying articles of merchandise.
The Public Service Commission Law, in section 56, provides what shall happen in case of the failure to comply with any of its provisions. The public carrier shall forfeit a sum not to exceed $5,000 for each offense, and the person who procures or aids the common carrier in the violation shall be guilty of a misdemeanor. These penalties have been prescribed by the Legislature; the courts must not add others. It is only in the case where a violation of a statute or an ordinance has such a direct connection with the injury which has been received as to form and be a part of the act causing the injury that the law goes further and may in a proper case bar recovery for the injury done. ( Corbett v. Scott, 243 N.Y. 66; Brown v. Shyne, 242 N.Y. 176.) As we frequently express it in legal phraseology, the provisions of the Public Service Commission Law and of the Greater New York charter, above referred to, relating to franchises for common carriers were passed in the interest of the public, and not for the direct safety and welfare of the person on the street, like the defendant or the defendant's motorman.
This application of the law has likewise been made in other States. ( Spencer v. Phillips Taylor, 219 Mich. 353; Armstead v. Lounsberry, 129 Minn. 34; Derr v. Chicago, M. St. P. Ry. Co., 163 Wis. 234; Cobb v. Cumberland County Power Light Co., 117 Me. 455; Muller v. West Jersey S.R.R. Co., 99 N.J. 186; Wolford v. City of Grinnell, 179 Ia. 689; Marquis v. Messier, 39 R.I. 563; Gilman v. Central Vermont Ry. Co., 93 Vt. 340; Switzer v. Sherwood, 80 Wn. 19.)
We do not think that section 1530 of the Penal Law, upon which some emphasis has been laid in the courts below, applies to this situation. It cannot be said that the bus, within the meaning of that section, became a public nuisance, was interfering with and obstructing the streets when it was legally on the street, although used for an unauthorized purpose.
For these reasons the order of the Appellate Division should be reversed and the determination of the Appellate Term affirmed, with costs in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly.