151 Ga. 308 | Ga. | 1921
The Court of Appeals certified the following questions : '' T. F, Cato sued the Southern Eailway Company, alleging, in part, that he was in the employment of the Pullman Company as conductor; that 'he, as said Pullman conductor, had no responsibility for the running of defendant’s train, but only looked after the passengers in the Pullman car; and the plaintiff alleges that the defendant, under these circumstances, owed him the duty of extraordinary care;’ that he was injured by a collision between two trains at Beids, on the line of said railway company between Jacksonville, Florida, and Atlanta, Georgia; that he was permanently injured; and the railway company was negligent in several particulars specified; and he prayed fop damages. Plaintiff amended his petition, and attached thereto, as Exhibit A, a copy of an agreement signed by him and the Pullman Company, and prayed that ' the said instrument, in so far as the same may purport to relieve any corporation of its liability to plaintiff for its negligence, shall be declared by this court to be null and void.’
" The material portions of the contract, Exhibit A., signed by T. F. Cato, are as follows:
' Atlanta, Ga., July 6, 1907. Be it known, that I, the undersigned, hereby accept employment by, and enter into or continue from this date in the service of, the Pullman Company, upon the following express terms, conditions, and agreements, which, in consideration of such employment and the wages thereof, I do hereby make with the Pullman Company, to wit:
' First: So long as I shall remain in said employment and service, I will fully comply with all regulations, rules, and orders of said company or its agents, issued for the government of its employees, go wherever I may be required in said service, and well, faithfully, and honestly perform all duties assigned to me.
' Second: My wages shall at all times be calculated and paid at the monthly rate per day for the number of days I shall have been actually employed, and I may quit or resign, or may be suspended or*310 discharged from such employment, at any time, or at any place, without previous notice.
‘Fourth: I assume all risks of accidents or casualties, by railway travel, or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators, or legal representatives, forever release, acquit, and discharge the Pullman Company, and its officers or employees, from any and all claims for liability of any nature or character whatsoever, on account of any personal injury or death in such employment or service.
e Fifth: I am aware that the said Pullman Company secures the operation of its cars upon lines of railroad; hence my opportunity of employment, by means of contracts wherein said the Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employees of said the Pullman Company in cases provided for in such contracts; and I do hereby ratify all such contracts made or to be made by said the Pullman Company, and do agree to protect, indemnify, and hold harmless said the Pullman Company with respect to any and all sums of money it may be compelled, or liability it may be subject to, under any such contract, in consequence of any injury or death happening to me; and this agreement may be assigned 'to any such corporation or person and used in its defense.
‘ Sixth: I will obey all rules and regulations made or to be made for the government of their emplees by the corporation or persons over whose lines of railroad the cars of said the Pullman Company may be operating while I am traveling over said lines in the employment or services of said the Pullman Company; and I expressly declare that while so traveling I shall not have the right of a passenger with reference to such corporations, or persons, which rights I do expressly renounce; and I hereby, for myself, my heirs, executors, administrators, or legal representatives, forever release and acquit or discharge any and all such corporations and persons from all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me while in said employment or service.’
"To the petition as amended a demurrer was filed; and upon a hearing thereof the following order was passed: ‘ Demurrer sustained, and the plaintiff’s petition dismissed.’ To this order the*311 plaintiff excepted. Copies of all the pleadings are in the record. The Court of Appeals wishes to know:
“ 1. "Under the contract, a copy of which is attached to the amended petition and marked Exhibit A: (a) What relation did the Pullman conductor sustain to the railway company? (5) What diligence did the railway company owe the Pullman conductor ?.
“2; Is the said contract ‘in its essence a contract between master and servant ’ ?
“ 3. Is the contract ‘ in effect a contract by which the carrier undertakes to relieve itself from the consequences of the negligence of itself and servants ’ ?
“ 4. Is said contract null and void, or is it a bar to the plaintiff’s .. right to recover, under all of the allegations in the petition ?
“ 5. Did the court err in sustaining the demurrer and dismissing the plaintiff’s petition? ”