Tallon v. . Interborough Rapid Transit Co.

Crane, J. James P. Tallón was in the employ of the defendant as a guard on one of its trains. On the 21st day of October, 1919, he was on his way to work, being in full uniform, riding in one of the defendant’s passenger trains, having gained entrance thereto by means of a pass which he had received at the time of his employment. He lived at 469 East One Hundred and Forty-sixth street in the borough of Manhattan, city of New York, *412 and it was his duty to report for work at the defendant’s station at One Hundred and Seventy-seventh street and Third avenue at 6.43 a. m. and to start out as guard on a train leaving that station at 6.53 a. m. At One Hundred and Seventy-fifth street a collision occurred in which Tallón was killed. His wife, the plaintiff and administratrix, brought this action to recover damages for the negligence causing his death, claiming that the deceased was a passenger upon the defendant’s train and not an employee within the meaning of the Workmen’s Compensation Law. The defendant insisted by its answer and on the trial that Tallón was injured in an accident arising out of and in the course of his employment and that this action could not be maintained. The trial judge ruled as a matter of law that the deceased was a passenger and, the negligence being admitted, left to the jury solely the question of damages. The judgment for the plaintiff entered upon the verdict of the jury has been reversed by the Appellate Division and the complaint dismissed on the ground that the only relief for the plaintiff and her children is under the Workmen’s Compensation Law, as Tallón at the time of the accident was within the terms and provisions of the law, i. e., that he was injured in an accident arising out of and in the course of his employment. Two of the justices of the Appellate Division dissented from this view. Tallón was riding to his work. His actual employment did not begin until he had arrived at One Hundred and Seventy-seventh street and- Third avenue. His time for reporting was 6.43 a. m., and his pay did not begin until then. At 6.30 a. m. he was killed at One Hundred and Seventy-fifth street, two blocks away from the place where he was to report for work, and thirteen minutes before his reporting time. Under ordinary conditions and circumstances, Tallon’s actual employment did not commence until he had reported at the place where he was to commence work. The defendant claims that *413 Tallon’s employment commenced when he boarded .its passenger train on his way to go to work and that the collision, occurring while he was thus riding, was an accident arising out of and in the course of his employment. The point, if any, of this claim of the defendant is the fact that Tallón had received a pass upon which he was riding and had not paid a cash fare. The passenger trains of the defendant were public conveyances. Anybody and everybody had a right to ride in them upon paying the fare. Tallón was not obliged to use these trains in going to his work under any agreement with the defendant. He could have traveled by any other conveyance or could have walked. I take it that if he had entered the train as other passengers and paid his five-cent fare, the defendant would not claim that his employment had commenced. What change in relationship is created by the alleged agreement that the pass was part of the compensation paid to Tallón for his services? It was not part of his compensation for riding to his work. It at most would be compensation for doing his work after he had arrived at One Hundred and Seventy-seventh street and Third avenue. Suppose that the defendant instead of issuing a pass had paid to Tallón extra compensation of ten cents a day for his carfare. Would this have caused the employment to commence when he boarded a car to go to work if it were a car or vehicle belonging to a stranger? If not" what difference would it make that the train or car taken by Tallón belonged to the defendant? The cardinal underlying fact is that Tallon’s employment did not actually begin until he reported for work at One Hundred and Seventy-seventh street and Third avenue. He had to get there, and get there on time, and to facilitate his arriving on time the defendant gave him the right to ride in its passenger trains free of charge, but I cannot see how this in any way changes the reality, the existing fact, that the employment commenced at One Hundred and Seventy- *414 seventh street and Third avenue at the time of reporting. It would cause no such change, had Tallón paid his fare on defendant’s train or had ridden in another conveyance, the defendant paying his fare. The pass alone, even though it be part of his compensation, cannot create a fictitious relationship. Now this case differs materially from those cases where the employer in order to get his employees to and from their work, provides conveyances exclusively for their use which in no sense are public conveyances and in' which the employees undertake to ride as part of their contract of employment in going to and from their work. Such a case was Matter of Littler v. Fuller Co. (223 N. Y. 369, 371). In the opinion it was said: “ The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. * * * The day’s work began when he (this employee) entered the automobile truck in the morning and ended when he left it in the evening. * * * The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck.” Matter of Kowalek v. N. F. Cons. R. R. Co. (229 N.Y. 489, 492) is in accordance with the principles here expressed. In that case the deceased was permitted to ride to and from his work upon the cars or trains of the defendant without charge. Such fact, however, was not a controlling incident. It was but an incident of the case. The controlling element in the case was the point whether or not the deceased at the time he fell from the platform was actually in the employ of the railroad company or had ceased and terminated his work for the night. Judge Collin there said in reference to the pass: “ In enjoying or exercising the permission he adopted his own will and choice and served his own convenience. The company was indifferent as to the way or means by which he reached the place where the day’s work began. It did not *415 contract that he should ride to and from work or pay him for the time through which he was riding. The transportation was not an incident of the employment. The employment continues throughout the transportation in case the parties by their contract of hiring-positively or inferentially so stipulate. If they do not so stipulate, the employee when he enters into the process of the transportation is not under the hiring or control or in the employment of the employer and is not the employee.” In line with the ruling which we are here making, I also find the cases of Pierson v. Interborough Rapid Transit Co. (184 App. Div. 678; affd., 227 N. Y. 666); Matter of McInerney v. Buffalo & S. R. R. Corp. (225 N. Y. 130); Matter of Schultz v. Champion W. & Mfg. Co. (230 N. Y. 309); Langley v. Boston Elevated Ry. Co. (223 Mass. 492); Stewart & Son v. Longhurst (Law Reports, 1917, A. C. 249). I am, therefore, of the opinion that the accident which resulted in Tallón’s death did not arise out of and in the course of his employment within the meaning of the Workmen’s Compensation Law, and that the plaintiff, therefore, has no remedy under its provisions. The judgment of the Appellate Division must be reversed and that of the trial court affirmed, with costs in this court and in the Appellate Division.