92 F. 318 | 8th Cir. | 1899
This is an action against the railroad company for personal injuries sustained by Ray Lee, the defendant in error, through the derailment of a stock car of the company, in
“In consideration of free transportation for one person to Rock Isld., hereby given by said railway company, such person to accompany the stock, it is agreed that the cars containing the stock of said Lee & Sons are in the sole charge of such person or liis agents for the purpose of attention and protection ro the stock while in transit, and the company assumes no responsibility for safety to stock in charge of shipper or his agents, whether from theft, heat, jumping from car, injury in loading or unloading, injury or damage which stock may do to themselves or which may arise from the reasonable delay of trains, or from any other cause or accident or Injury, except those occurring by reason of gross negligence of the company. It is also agreed in all cases that the liability of the company for damage to valuable or common live stock shall not exceed one hundred dollars for each animal, except by special agreement; and, further, that the persons who receive free transportation in charge of said stock, in consideration of the receipt of the same, agree to assume all risk of personal injury frum any cause whatever, except injuries arising from gross carelessness of the railway company.”
The company furnished the car at Joliet, Ill., for the transportation of the mare. She was put into it with the sulky, blanket, and harness, and the defendant in error climbed in to take charge of and care for her. On the railroad of the Rock Island Company it was customary for men in charge of fine animals to ride with them in the cars which carried them. The car in question passed through the charge of two conductors between Joliet and Happy Hollow, in the state of Iowa, where the accident occurred, one east and the other west of Rock Island. These conductors knew that the defendant in error was riding in the car with the mare, but neither of them objected or •warned him to go elsewhere. The rules of the company forbade pas
Under this state of facts, the unusual speed, the reverse curves, and the derailment of the car furnished sufficient evidence of negligence on the part of the company for the consideration of the jury, if the defendant in error was a passenger. The questions are, was he a passenger? and was it contributory negligence for him to ride in the stock car rather than in the caboose? The presumption, in the absence of countervailing evidence, is that one who- rides in a baggage car, an express car, a stock car, or on a freight train is not a passenger on it, and, even if he is, since he is riding out of the place provided by the company for passengers, that he has assumed the increased risk resulting from riding there, and is therefore guilty of contributory negligence. Bryant v. Railway Co., 4 C. C. A. 146, 147, 53 Fed. 997, 998, 12 U. S. App. 115, 123; Player v. Railway Co., 62 Iowa, 727, 16 N. W. 347; Jenkins v. Railway Co., 41 Wis. 112, 121; Railway Co. v. Miles, 40 Ark. 298; Gardner v. Northampton Co., 51 Conn. 143, 152; Powers v. Railroad Co., 153 Mass. 188, 190, 26 N. E. 446; Eaton v. Railroad Co., 57 N. Y. 382; Files v. Railroad Co., 149 Mass. 204, 21 N. E. 311; Hoar v. Railroad Co., 70 Me. 65, 72, 73; Graham v. Railroad Co., 23 U. C. C. P. 541; Sheerman v. Railway Co., 34 U. C. Q. B. 451; Railroad Co. v. Michie, 83 Ill. 427; Railway Co. v. Lee, 22 C. C. A. 132, 76 Fed. 212, 40 U. S. App. 298. But the agreement of carriage is nothing, after all, but a contract, and a railroad company may lawfully stipulate to carry a passenger in a baggage car, in an express ear, a stock car, or on a freight train generally. If it makes such a contract, it is required to exercise ordinary care in the performance of it. What was the meaning of the agreement of the parties in this case? Their contract must, like other agreements, be read and construed in the light of the circumstances surrounding them when they made it; and when it is considered that it was customary for the men in charge of fine animals to ride in the cars with them on this railroad; that the car in which the defendant in error was riding was furnished at Joliet for the transportation of the mare; that the company knew that the defendant in error was to go in charge of her; that he climbed into the car at Joliet, and rode there until he was injured; that the two conductors through whose charge he passed knew that he was riding-in that car before the accident occurred, and made no objection; and that the written contract expressly provided that the car con-
The fact that the defendant in error had not paid his fare from Rock Island to Junction City was immaterial, inasmuch as the conductor had not asked for it, and, if the defendant had undertaken to carry him without the payment of fare, it was bound to exercise all due care in the performance of the nbligalmn thus "voluntarily assumed, Bryant v. Railway Co. 4 C. A. 3 146, 147, 53 Fed. 997, 998, 12 U. S. App. 115, 123 Railway Co. v. Derby, 14 How. 468; The New World v. King, 16 How.; Waterbury v. Railway Co.. 17 Fed. 671, 673.
The stipulation in the contract that the person who receives free transportation under it agrees to assume all risk of personal injury from any caus.fe whatever, except from injuries arising from the gross carelessness of the railroad company, is entitled to no consideration, because the AAndant in error was a minor, and because this stipulation was, jno! bis contract, but the agreement of his father, A. D. Lee.
As, ih«' errors assigned which have not been considered were ex-prri,,ii>;, waived by the counsel for the plaintiff in error, the judgment Tbdrw must be affirmed; and it is so ordered. -