Chesapeake & Ohio Railway Co. v. Patton, 23 App. D.C. 113

Chesapeake & Ohio Railway Co. v. Patton

23 App. D.C. 113 | D.C. Cir. | 1904

Mr. Justice Morris

delivered the opinion of the Court:

There is no bill of exceptions in this case to bring up any ruling of the court at the trial. So far as we are advised, the trial ivas fair and just and according to law; and there is no complaint of it, or of the verdict and judgment which were the result of it. The contention of the appellant is that there should have been no trial, and that there was no liability whatever on the part of the appellant. The case has been brought up merely upon the two demurrers in the case which were decided adversely to the appellant, and which the appellant claims the right to bring here for review under § 1533 of the Code of law for the District of Columbia, that went into effect on and after January 1, 1902, several months after the determination of these demurrers by the trial court.

This section of the Code provides that, “in all cases, civil or 'criminal, in which any or either party shall demur to any indictment, declaration, or other pleading of the adverse party, and said demurrer shall be overruled, the party demurring shall have the right to plead over by traverse or otherwise, without waiving his said demurrer; and upon appeal shall have the right to insist upon his demurrer and have the benefit thereof as fully .as if he had not pleaded over.”

This provision of the Code, it may be noted, applies in terms to demurrers that have been overruled, not to demurrers that have been sustained. It may well be that the Code intended to distinguish between the two cases. There would be reason for such distinction. But this point we deem it unnecessary to decide. Nor do we deem it necessary to decide whether the Code was intended, or could have been validly intended, to authorize appeals in pending cases upon demurrers interposed and disposed of before the Code went into effect. Assuming that these demurrers are properly before us for consideration, of which we have grave doubt, yet the ruling of the trial court in regard to *120both of them was in our opinion so plainly proper, that it is wholly unnecessary to consider the question of practice involved, and the right of appeal in such case to this court.

The second plea of the defendant, to which the plaintiff interposed the second demurrer in the case, was so palpably insufficient as a plea, that it has not been sought in any manner to defend it in the argument before us. The matters of fact set forth in it, if we can regard any such matters as having been there set forth, were provable under the general issue already tendered by the first plea, and the question sought to be i*aised' whether the defendant was required to exercise the highest skill and care toward the plaintiff, or only ordinary skill and care, was so palpably frivolous at that stage of the case that the court would have been justified, on the motion of the plaintiff, in striking the plea from the record. The sole use now sought to be made of this plea is that, however insufficient, frivolous, and inconsequential it may be, yet the plaintiff’s demurrer to it opened up and searched the whole record, and reached the supposed deficiency of the declaration. But this had already been accomplished by the first demurrer, that interposed by the defendant to the plaintiff’s declaration; and both demurrers are equally before us, or equally beyond the scope of our jurisdiction. Assuming that we may pass upon them, we find the contention of the appellant to be this:

That the appellee’s declaration is one in contract, and not in tort; that the appellee is not entitled to maintain a suit in contract, since the only contract set up is one not between himself and the appellant, but between the appellant and the United States, to which the appellee was not a party; that, even if the declaration be regarded as one in tort, yet the appellee is not entitled to maintain the suit, since the contract is the gravamen, as claimed, of the transaction, and the appellant is not liable to the appellee for any breach of duty arising out of such contract; that the appellee was not a passenger to whom the appellant owed any duty; and lastly that, even if there was any duty owing from the appellant to the appellee, it was only that of the exercise of ordinary skill and care.

*121Argument, in our opinion, would be utterly useless to show that the declaration in this case is one in tort, and not upon contract. The matter is too plain for argument. There is, it is true, a contract stated as existing between the United States and the appellant, whereby the appellee was entitled to be transported with the mails on the mail car of the appellant’s train; but this is only stated to show that the appellee was lawfully on the appellant’s train, and entitled to be transported safely by the appellant. The charge of the declaration is that the appellee was injured by the appellant’s negligence in contravention of the duty which the appellant owed to the appellee in consequence of the contract aforesaid. This is plainly the statement of an action on tort, and not of an action on contract. The statement of the contract is only by way of inducement.

The substantial question in the case, if at this day it can be called substantial, or could ever at any time have been reasonably so considered, is whether the appellant owed any duty to the appellee, such as it owed to the ordinary passenger whom it contracts to transport for hire; and what the degree of that duty is, if it does owe any. The question has long since been decided adversely to the contention of the appellant by the Supremo Court of the United States, and by numerous other tribunals, as well as by this court. Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Philadelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. ed. 502; Collett v. London & N. W. R. Co. 16 Q. B. 984, 20 L. J. Q. B. N. S. 411, 15 Jur. 1053; Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436; Baltimore & O. R. Co. v. State, 72 Md. 36, 6 L. R. A. 706, 20 Am. St. Rep. 454, 18 Atl. 1107; Seyboldt v. New York, L. E. & W. R. Co. 95 N. Y. 562, 47 Am. Rep. 75; Nolton v. Western R. Corp. 15 N. Y. 444, 69 Am. Dec. 623; Libby v. Maine C. R. Co. 85 Me. 34, 20 L. R. A. 812, 26 Atl. 943; Cleveland, C. C. & St. L. R. Co. v. Ketcham, 133 Ind. 346, 19 L. R. A. 339, 36 Am. St Rep. 550, 33 N. E. 116; Arrowsmith v. Nashville & D. R. Co. 57 Fed. 165.

It is said that in several of these cases it was assumed that a postal clerk was a passenger in the ordinary sense, and that the *122question here raised was not made. But the answer to this is that, if the question was not made, it was because the point was •so plain that there could be no reasonable question about it. 'That there may be risks which a postal clerk must assume, different from those of the ordinary passenger, may well be admitted; but those risks do not include acts of negligence of the railroad company in the management and operation of its road. Except under exceptional circumstances, and with due regard to the duties which he is required to perform, a postal clerk upon a railroad train is as much a passenger and entitled to all the rights and immunities of passengers as any person on the train transported under the ordinary contract for hire.

The ease of Hughson v. Richmond & D. R. Co. 2 App. D. C. 98, and other similar cases cited, are not applicable. They were all cases of fellow servants injured by the negligence of their coemployees, engaged in the work of management of the trains of the railroad company. A postal clerk is in no sense .an employee of the railroad company. He has no function whatever in the management of the train or of the railroad. He is to all intents and purposes, with such exceptions as have been indicated, in the place of a passenger for hire, and as such entitled to safe transportation and reasonable guaranty against the negligence of the employees of the railroad company.

We are of the opinion that the rulings of the trial court in the premises were entirely correct, and that its judgment should be affirmed. It is accordingly affirmed, with costs. And it is so ordered. Affirmed.