The plaintiff was a switchman in the railroad yard of the defendant at Elmira. At the time of the accident he was engaged in moving two empty cars, which were neither beginning nor ending a railroad journey, from one track to another in the yard. He was riding the end car, with his *842foot over the forward end, and was injured through its collision with a third car standing upon a switch track, along which the two cars were being backed. The cars which plaintiff was engaged in moving were intrastate cars. The car with which one of them collided was an interstate car. The injury of the plaintiff was due to the fact that the interstate car was without a drawhead or end sill, so that the bodies of the cars came together in the collision, smashing the plaintiff’s leg. .As the plaintiff was engaged in moving intrastate cars merely he was not employed in the furtherance of interstate commerce, and no liability arose therefrom under the Federal Employers’ Liability Act. (Illinois Central Railroad v. Behrens, 233 U. S. 473.) Since the plaintiff did not fall within the protection of this act which regulated interstate commerce, it would seem clear that his only remedy was under the Workmen’s Compensation Law of the State of New York. However, the argument is made that the plaintiff has a cause of action under the Federal Safety Appliance Act of 1893, as amended by the Federal Safety Appliance Act of 1903 (27 U. S. Stat. at Large, 531, chap. 196, as amd. by 32 id. 943, chap. 976). It was shown that the interstate car with which the car ridden by the plaintiff collided was not equipped as provided by that act. That this defendant was negligent in reference to the defective car, and that such negligence was the cause of the accident has support in authority. (Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33.) However, the Federal Safety Appliance Act, while it required all cars used by railroads engaged in interstate commerce to be equipped in a particular manner, failed to provide that an employee injured through such failure should have a cause of action. When, therefore, a suitor, as in the case of Texas & Pacific R. Co. v. Rigsby (supra), brings an action to recover damages for negligence, assigning a violation of the Federal Safety Appliance Act as a ground of negligence, he makes use of the common law of one of the States to provide him with a remedy, and uses a Federal statute to provide him with a wrong; and without the common law he is as incapable of success as he is without the statute. It is manifest that the common law of the State is subject to amendment, modification and withdrawal in any particular *843which does not offend a constitutional prohibition. That the Workmen’s Compensation Law of the State of New York does not so offend has been established. That law abolished the common law of the State in so far as it regulated the liability of employer to employee, and substituted a statutory liability in its place, together with a statutory court for the enforcement of the liability. The plaintiff, therefore, though .he may have suffered a wrong, has no remedy by an action at law, for the common law which might have given it, in the particular instance, is non-existent.
The judgment should be reversed and the complaint dismissed.
All concurred, except John M. Kellogg, P. J., dissenting, with a memorandum.