Bates v. Old Colony Railroad

| Mass. | Jun 20, 1888

W. Allen, J.

The rules of the defendant prohibited passengers from riding in baggage cars, and the plaintiff had no right as a passenger to ride where he was riding at the time he was injured. He was there under a special contract, by which, in consideration that the defendant would allow him to ride in the baggage cars, he assumed all risk of accident and injuries resulting therefrom, and agreed to hold the defendant free and-discharged from all claims and demands growing out of any injury received by him while so riding. The parties plainly intended to include injuries resulting from the negligence of the defendant’s servants.

We need not consider whether the contract would be construed or held to include injuries to which riding in the baggage car did not contribute. There was evidence tending to show that the plaintiff would not have been injured had he been in a passenger car, and that his presence in the baggage car direetly contributed to tbe injury. The ruling of the court ordering a verdict for the plaintiff was a ruling that the plaintiff was entitled to recover for an injury caused by the negligence of the defendant’s servants, although his riding in the baggage car contributed to the injury. In considering the correctness of this ruling, the contract of the plaintiff must be taken to have been, that he would assume the risk of injury from the negligence of the defendant’s servants to which his riding in the baggage car under the permission given by the defendant should contribute. The objection is, that the contract is void, as without consideration, as unreasonable, and as against public policy. We see no objection to the contract as construed and applied in this case.

It was the duty of the defendant as a carrier of passengers to transport persons over its road on their paying the established fare, and to see that its servants used due care to secure the safety of its passengers. It was its duty to give to persons paying the established rates tickets which would be evidence of their right to carriage, and of the defendant’s obligation to carry them with due care. The defendant was ready to do this, and did sell to the plaintiff a season ticket which gave to him all the rights of a passenger. The contract in question was made to give him a right which did not belong to him as a passenger. The plaintiff, having the rights of a passenger, desired to ride in the baggage car. The regulations of the defendant, as well as personal prudence, forbade him to ride there, and, if he had attempted to do so, he not only would have assumed all the risks of injuries resulting therefrom, but would have been liable to be expelled from the car by the defendant.

It is difficult to see upon what ground it can be contended that an agreement of the plaintiff, that, in consideration that the defendant would permit him to ride in the baggage car, he would assume all risk of injuries resulting therefrom, is unreasonable or illegal. The defendant was under no obligation to give the permission, and the effect of the plaintiff’s agreement was only that the liability of the defendant should not be increased by the permission that the plaintiff, if he should be injured in consequence of being in the baggage car, should not be entitled to recover damages of the defendant, on the ground that he was there by its permission. The contract did not diminish the liability of the defendant. It left the risk assumed by the plaintiff in riding in the baggage car what it would have been without the contract; it only secured him against being ejected from the car.

The question of the right of carriers to limit their liability for negligence in the discharge of their duty as carriers by contracts with their customers or passengers in regard to such duties, does not arise under this contract as construed in this case. See Railroad Co. v. Lockwood, 17 Wall. 357" court="SCOTUS" date_filed="1873-10-20" href="https://app.midpage.ai/document/railroad-co-v-lockwood-88745?utm_source=webapp" opinion_id="88745">17 Wall. 357; Griswold v. New York & New England Railroad, 53 Conn. 371" court="Conn." date_filed="1885-12-14" href="https://app.midpage.ai/document/griswold-v-new-york--new-england-railroad-6581925?utm_source=webapp" opinion_id="6581925">53 Conn. 371. It was not a contract for carriage over the road, but for the use of a particular car. The consideration of the plaintiff’s agreement was not the performance of anything by the defendant which it was under any obligation to do, or which the plaintiff had any right to have done. It was a privilege granted to the plaintiff. . The plaintiff was not compelled to enter into the contract in order to obtain the rights of a passenger. Having these rights, he sought something more. The contract by which he obtained what he sought did not impair his rights as a passenger, and he was under no compulsion to enter into it.

It is contended that the plaintiff, as the servant of the express company, had a right by statute to ride in the baggage car, and that therefore the case comes within the decisions that it is unreasonable and against public policy for a person, as a condition of his becoming a passenger on a railroad, to agree that he will take the risk of the negligence of the servants of the railroad in transporting- him. The express company is a common carrier, and it is not contended that a railroad corporation is bound to transport in the baggage cars of its passenger trains the merchandise and servants of another common carrier, unless required to do so by some statute. See Sargent v. Boston & Lowell Railroad, 115 Mass. 416" court="Mass." date_filed="1874-09-04" href="https://app.midpage.ai/document/sargent-v-boston--lowell-railroad-6417739?utm_source=webapp" opinion_id="6417739">115 Mass. 416; Express Cases, 117 U.S. 1" court="SCOTUS" date_filed="1886-03-01" href="https://app.midpage.ai/document/st-louis-iron-mountain--southern-railway-co-v-southern-express-co-91580?utm_source=webapp" opinion_id="91580">117 U. S. 1.

The statute relied on is c. 112, § 188, of the Public Statutes, which is in these words: “ Every railroad corporation shall give to all persons or companies reasonable and equal terms, facilities, and accommodations for the'transportation of themselves, their agents and servants, and of any merchandise and other property upon its railroad, and for the use of its depot and other buildings and- grounds; and, at any point where its railroad connects with another railroad, reasonable and equal terms and facilities of interchange.” The statute cannot be construed to require railroad corporations to discriminate in favor of express companies, ' and to carry their merchandise and messengers in the baggage cars of passenger trains on reasonable terms, equally favorable to all express companies. If that were the meaning of the statute, no questions as to the equality of the terms given to the plaintiff or the company he represented would arise. The same contract was required of all other express messengers who rode in baggage cars. The only question that would arise is whether the terms granted were reasonable.

The fact that the plaintiff was riding in the baggage car as an express messenger in charge of merchandise which was being transported there, shows more clearly that the contract by the express company and the plaintiff was not unreasonable or against public policy. He was there as a servant engaged with the servants of the railroad corporation in the service of transportation on the road. His duties were substantially the same as those of the baggage-master in the same car; the latter relating to merchandise carried for passengers, and the former to merchandise carried for the express company. His actual relations to the other servants of the railroad corporation engaged in the transportation were substantially the same as those of the baggage-master, and would have been the same had he been paid by the corporation instead of by the express company. Had the railroad done the express business, the messenger would have been held by law to have assumed the risk of the negligence of the servants of the railroad.

It does not seem that a contract between the express company and the plaintiff on the one hand, and the defendant on the other, that the express messenger in performing his duties should take the same risk of injury from the negligence of the servants of the railroad engaged in the transportation that he would take if employed by the railroad to perform the same duties, would be void as unreasonable or as against public policy. When we add the considerations, that the plaintiff was a passenger whose rights as such were not impaired by the agreement, and that the agreement was to assume the risk of injuries resulting from Ms riding in baggage cars, in consideration of being permitted to ride there to conduct the express business, it seems clear that the contract is a valid and sufficient defence to an action against the defendant for injuries resulting from the negligence of the defendant’s servants, to which the fact that the plaintiff was riding in the baggage car under the agreement contributed.

Exceptions sustained.