I admit that the Workmen's Compensation Law of this state (Chapter 67 of the Consolidated Laws) is not an exclusive means of obtaining compensation for injuries sustained or deaths incurred by employees engaged in interstate commerce. I also admit that it is not exclusive as against other Federal statutes expressly authorizing an action in behalf of an employee of an interstate carrier.
In New York Central Hudson R.R.R. Co. v. Tonsellito (244 U.S. 360, 362), referring to the Federal Employers' Liability Act, the court say: "Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the state." The "specified class" is common carrier by railroad in interstate or foreign commerce. As the plaintiff was not engaged at the time of the accident in interstate or foreign commerce the Federal Employers' Liability Act (U.S. Compiled Statutes of 1918, sections 8657 to 8665) is not applicable to his case.
The Workmen's Compensation Law of this state provides for compensation for injuries sustained or death incurred by employees engaged in specified hazardous employments. Among such specified hazardous employments is included the operation of railways. (Sec. 2, Group 1.) The act further provides: "The liability of an employer prescribed by the last preceding section *Page 236 shall be exclusive and in place of any other liability whatsoever, to such employee, * * * at common law or otherwise on account of such injury * * * except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured employee, * * * may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; * * *." (Sec. 11.)
The employer "prescribed by the last preceding section" of said act as mentioned in said section 11, is, "A person, partnership, association or corporation, employing workmen in hazardous employments." (Sec. 3, subd. 3.)
No claim is made in this case that the defendant has not secured the payment of compensation for its injured employees and their dependents as provided by section 50 of the Workmen's Compensation Law. The provisions of the Workmen's Compensation Law quoted are constitutional (New York State Constitution, art. 1, sec. 19; Matter of Jensen v. Southern Pacific Co.,215 N.Y. 514; reversed, because only of interference with admiralty and maritime jurisdiction under the United States Constitution and Federal statutes, South. Pacific Co. v. Jensen,244 U.S. 205; Matter of White v. N.Y.C. H.R.R.R. Co., 216 N.Y. 653; affd., N.Y.C.R.R. Co. v. White, 243 U.S. 188.)
The remedy provided in the Workmen's Compensation Law (except as hereinbefore admitted) is exclusive and in full substitution for an action for damages. (New York State Constitution, art. 1, sec. 19; Shanahan v. American Engineering Co., 219 N.Y. 469.) The plaintiff, therefore, must look to the Workmen's Compensation Law for compensation for his injuries unless he can sustain an action because of the provisions of the Federal Safety Appliance Act. That act prescribes certain duties and requirements and subjects a company which fails to *Page 237 obey such requirements to a penalty, but does not in terms give a right of action to one who suffers a personal injury because of non-observance of such requirements.
It is said in Texas Pacific Rway. Co. v. Rigsby (241 U.S. 33, 39): "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Comyn's Dig. title `Action upon Statute' (F) in these words: `So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.'"
Where a right of action is not given against a carrier by Federal statute the "carrier exercising his calling within a particular state, although engaged in the business of interstate commerce, is answerable according to the laws of the state for acts of non-feasance or misfeasance committed within its limits. * * * But for the provisions on the subject found in the local law of each state, there would be no legal obligation on the part of the carrier, whether ex contractu or ex delicto, to those who employ him. * * * If the law of the particular state does not govern that relation, and prescribes the rights and duties which it implies, then there is and can be no law that does until Congress expressly supplies it, or it is held by implication to have supplied it, in cases within its jurisdiction over foreign and interstate commerce. The failure of Congress to legislate can be construed only as an intention not to disturb what already exists, and is the mode by which it adopts, for cases within the scope of its power, the rule of the state law, which until displaced covers the subject." (Smith v. Alabama,124 U.S. 465, 476.)
The Federal Safety Appliance Act does not in terms *Page 238 provide that a private action of any kind may be maintained to recover damages because of a failure to comply with its provisions. The right to maintain an action to recover damages arising because of a failure to comply with its provisions is found, if at all, in the local law of each state as stated inSmith v. Alabama (supra). The provisions of the statute providing that an employee injured by reason of an act contrary to the statute shall not be deemed to have assumed the risk or that the penalty shall not be construed to relieve the carrier from liability are to be observed when an action can be maintained by virtue of local laws. Such provisions do not in themselves show an intention in the act to authorize the maintenance of an action to recover for injuries arising from a disobedience of its provisions.
The common-law right of action as between servant and master in this state is included in or swallowed up by the constitutional provisions of the Workmen's Compensation Law. Its provisions are expressly substituted for and made exclusive of the common-law remedy. I am the more inclined to hold that it was not the intention of the Federal Safety Appliance Act to give a cause of action apart from local laws because of the serious consequences in the practical working of the Workmen's Compensation Law of permitting a right of action in every case of injury or death of an employee engaged by an interstate carrier if the injury results from a violation of the provisions now included in the Federal Safety Appliance Act or which may hereafter be included therein. The plaintiff should not be permitted to sustain a cause of action in this state as one at common law or pursuant to existing Federal statute.
The judgment should be affirmed, with costs.
POUND, CRANE and ANDREWS, JJ., concur with CARDOZO, J.; HISCOCK, Ch. J., and McLAUGHLIN, J., concur with CHASE, J.
Judgment reversed, etc. *Page 239