Burnett v. Pennsylvania Railroad
34 A. 972
Pa.
1896
Check Treatment

Opinion by

Mr. Justice Fell,

The refusal of the court to charge that “ as the contract for transportation was made in New Jersey it will be enforced in this state as in that, and as the defendant was released from responsibility by. the free pass the verdict must be for the defendant,” raises the only question to be considered. The plaintiff was employed by the defendant as a flagman at Trenton, N. J. He applied for and was granted free transportation for himself, his wife and daughter to Elmira, N. Y. He received two passes— one from Trenton to Philadelphia, the terms of which do not appear in evidence; the other an employee’s trip pass from Philadelphia to Elmira, by the terms of which he assumed all risks of accident. He was injured at Harrisburg, Pa., through the admitted negligence of the defendant’s employees.

It was proved at the trial that under the laws of New Jersey the contract by which the plaintiff in consideration of free transportation assumed the risk of accident was valid, and that in *48that state he could not recover; and it is conceded that in Pennsylvania the decisions are otherwise, and that such a contract will not relieve a common carrier from responsibility for negligence: Goldey v. Penna. R. R. Co., 30 Pa. 242; Penna. R. R. Co. v. Henderson, 51 Pa. 315; Penna. R. R. Co. v. Butler, 57 Pa. 335; Buffalo, Pittsburg & Western R. R. Co. v. O’Hara, 12 W. N. C. 473. The question then is: By the laws of which state is the responsibility of the defendant to be determined ?

The defendant is a corporation of the state of Pennsylvania. The injury occurred in the operation of its road in this state. The passes, although issued and delivered in New Jersey, were for transportation from the station in Trenton directly across the Delaware river into tins state. The service was to be rendered here; this was the place of performance.

Generally as to its formalities and its interpretation, obligation and effect, a contract is governed by the laws of the place where it is made, and if it is valid there it is valid everywhere; but when it is made in one state or country to be performed in another state or country its validity and effect are to be determined by the laws of the place of performance. It is to be presumed that parties enter into a contract with reference to the laws of the place of performance, and unless it appears that the intention was otherwise those laws determine the mode of fulfillment and obligation and the measure of liability for its breach: Daniel on Negotiable Instruments, 658; Byles on Bills, 586; 2 Kent’s Commentaries, 620; Wharton on the Conflict of Laws, sec. 401; Story on the Conflict of Laws, sec. 280 ; Scudder v. Union National Bank, 91 U. S. 406; Brown v. C. & A. R. R. Co., 83 Pa. 316; Waverly Bank v. Hall, 150 Pa. 466. The decision in Brown v. C. & A. R. R. Co. (supra) seems to be conclusive of this case. In that case a ticket was issued in Philadelphia by a New Jersey corporation operating a railroad in that state, and the plaintiff’s trunk was delivered to the defendant in Philadelphia, and it did not appear where it had been lost. The liability being admitted, the question was whether the laws of Pennsylvania limiting the amount of liability applied. It was held that as the service was to be rendered by a New Jersey corporation in New Jersey the laws of the place of performance controlled. It was said in the opinion by Shajjs'WOOD, J.: “ The negligence of which the defend*49ants are presumed to have been guilty was in the course of the exercise of their franchises as a New Jersey corporation, and the extent of their liability is therefore to be determined by the laws of that state.”

The judgment is affirmed.