242 Pa. 304 | Pa. | 1913
Opinion by
The general rule that no contract, condition, or limitation will relieve a carrier from liability to a passenger for the consequence of its own negligence or the negligence of its servants, is not open to question, and we need not delay to cite cases in which such contracts have been held to be void as offending against public policy. The contention on part of the appellant is, that the rule does not apply, for the reason that the plaintiff’s husband did not stand in the relation of passenger to the defendant company, and that, as to him, defendant was not a common carrier. The doctrine here asserted is not without high judicial sanction. It has prevailed .in many jurisdictions in actions between railroad companies and employees of express and news companies, and in other jurisdictions, not so many perhaps, in actions between railroad companies and employees. of
If we allow the word “passenger” to mean no more than it ordinarily imports as now used, especially by carriers in the course of their business, then it is quite true that plaintiff’s husband was not a passenger on defendant’s train when the accident occurred. So much must be admitted. But then neither was he an employee; nor yet was he a trespasser. It is not easy to define the exact relation in which, he stood to the defendant. We do not know that it has been attempted except in the negative way above indicated. One thing is clear, he was in a place he had a right to be; and this being so, it may'be that we shall be able with less difficulty to define- the exact relation in which the defendant company stood towards Mm, which after all must be the governing consideration. If as a common carrier it was rendering this particular service of personal transportation, it will of course be admitted that no contract would avail to exempt it from liability for negligence. The contention of appellant is that though a common carrier as to the general public, yet, because of the contract between the defendant company and the Pullman company to the provisions of wMch the husband voluntarily subjected himself, the defendant company became a private carrier as to him, inasmuch as the service contracted for and rendered was such as at common law the defendant could not have been compelled to render.
It may be conceded that the defendant company, aside from its contract, was under no duty to render the service it contracted for with the Pullman company. It is important, however, to inquire on what ground a refusal to render the service would have been justified. Had the demand been simply for the transportation of a car or cars of the Pullman, company, sufficient in construction, with certain of the employees of the Pullman com
“The railroad company, defendant, on the 28th October, 1854, entered into a contract with the International Express Company, giving to the latter for three years the exclusive right of the railroad for all express purposes, at the various stations on the road, or so far as the said company controlled the matter, and shall continue to control the same...... In pursuance of this contract the superintendent of the railroad company, on the 30th October, 1854, gave to Howard & Co., an express company, written notice that ‘an arrangement had been made with the International Express Company which gives to that company the exclusive right of this road for all express purposes; that the company takes the route on Monday, November 6th, and that this railroad .company will not carry the express matter or messengers of any other persons or company after Saturday, November 4th.’
“The substance to be found in the answer and in the evidence show that the railroad company is willing to carry all express matter of Howard & Co. in their freight ■trains, which go at less speed than their passenger trains, but that its purpose is to give to the International Express Company the exclusive privilege of transportation in their passenger trains. The railroad corporation has no right to do this. The power to regulate the transportation on the road does not carry with it the right to exclude any particular individuals, or to grant exclusive privileges to others. Competition is the best protection to the public, and it is against the policy of the law to destroy it by creating a monopoly of any ■branch of business. It cannot be done except by the clearly expressed will of the legislative power. Limited ■importance may, perhaps limit the amount of business done by a railroad company, but it can never furnish ;an excuse for appropriating a.ll its energies for any particular individuals. If it possessed this power it*315 might build up one set of men and destroy others, advance one kind of business and break down another; and might make even religion and politics as the tests in the distribution of its efforts. Such a power in a railroad corporation might produce evils of the most alarming character. The rights of the people are not subject to any such corporate control. Like the customers of the grist mill, they have a right to be served, all things equal, in the order of their applications. A regulation, to be valid must operate on all alike. If it deprives any persons of the benefits of the road or grants exclusive privileges to others, it is against law and void.”
That a railroad company chartered for the convenience of the public in conveyance and transportation may privately contract, and so limit its liability with respect to matters distinct from the actual conveyance of persons and the transportation of property, is not to be disputed; it may buy, it may build and it may do many things in the way of supplying itself with the equipment necessary for the conduct of its business. These things it does by virtue of its corporate power as incidental to its business, but not as a common carrier. Before referring to our own cases bearing on the question we think it quite appropriate to direct attention to the opinion of Mr. Justice Bradley, in the case of Railroad Company v. Lockwood, 84 U. S. 357, not merely because the doctrine we have advanced is there sanctioned, but because it is there so fully vindicated on reason and settled principles that it would be idle to attempt anything further in its support.
“A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry. For example, if a carrier of produce running a truck boat between New York City and Norfolk should be requested to cary a keg of specie or a lot of expensive furniture, which he could justly refuse to take, such agree
However much the doctrine of this case has, by inference, been modified, or repudiated in the more recent case of B. & O. S. W. Ry. Co. v. Voigt, supra, nothing can be found in our own decisions indicating the slightest departure from it. That it is the doctrine that has prevailed with us the following cases aptly illustrate. In Lockhart v. Lichtenthaler, 46 Pa. 151, the party for whose death, through negligence, damages were claimed, was employed as brakeman upon certain cars belonging to a private firm which were being run over the defendant company’s road by a locomotive belonging to the company and in charge of the company’s engineer- and conductor. A recovery was sustained. The full significance of this ruling is better understood in the light of what the same judge who wrote the opinion says of it in the later case of Lackawanna & Bloomsburg R. R. Co. v. Chenewith, 52 Pa. 382. He (Thomson, J.,) there says:
“In Lockhart v. Lichtenthaler, 10 Wright (46 Pa.) 151, we held that a person in charge of a private car and acting on it as a brakeman, was not a servant of the company so as to preclude his widow from recovering for the loss of his life by the negligence of the servants of the road. Strictly a passenger he was not, nor was he a servant of the company, neither earning wages from it nor bound to obey its orders, excepting in regard to the property especially in his charge. We held him entitled to the rights of a passenger, so far as injury to him*317 was concerned, and that case rules the present in this particular.”
The case in which that was cited is still more directly in point. There, at the request of an owner of a freight car, the railroad company through its officers, at the request of the owner, attached his car to a passenger train, contrary to the instructions and rules of the company, the owner agreeing in consideration for the unusual services, that he himself would run all risks. Here we have a clear case in which the railroad company was rendering a service which it was under no common law duty to perform and which it could have refused without liability on its part, because in violation of its own reasonable rules and regulations. As the train proceeded it encountered an obstruction; collision resulted ; the freight car was thrown from the track, and the owner severely injured in the wreck. The action was by the owner of the freight car to recover damages for his personal injury and the loss of his goods, alleging negligence of the defendant company as the approximate cause. One ground the defendant urged was the agreement plaintiff had made Avith the defendant’s agents that if this special accommodation were allowed him he would assume all risks. Referring to this feature of the case, the opinion proceeds as follows:
“The arrangement was made with the parties having full power over the special matter, and to them the plaintiff was authorized to look and was required to look to no other. When, therefore, they consented to hitch on his cars to the passenger train, even at his urgent solicitation, — and we ha,ve not a particle of evidence that other inducements to do the act were held out, excepting freedom from responsibility as a consequence of the attachment, — we must presume that it was done with a view to the compensation to be paid, on the one hand, and the usual care to be exercised on the other. The argument, however, is that the plaintiff was guilty of such a wrong in asking for a permit for his car to*318 be attached, that whether the act contributed to the disaster or not, he is to be treated as a trespasser and not entitled to any compensation for injuries not wilfully done him. This we think is not the law, unless in a case where the will of the agent is controlled and subverted by improper influences, he is induced to do that which is manifestly beyond the scope of his powers. That there was a regulation against running freight cars with passenger trains, might be admitted, although it was not properly proven; yet that neither proved that it might not be safely done, nor that if the company undertook to do it, they might lay aside the duty of care and commit such case to the guardianship of chance. See Powell v. Penna. R. R. Co., 8 Casey (32 Pa.) 414. The great overstatement of the efforts made to induce the defendants to take the plaintiff’s cars, is the main pillar upon which the argument against this portion of the charge is constructed. Fairly stated, the facts were that the plaintiff and another were desirous to go to Carlisle by a certain date and urged to be taken on the train by the company, as they had missed connecting with the freight train. The conductor and freight agent considered of the matter, inquired into the capacity of the cars to run with passenger cars; made up their minds to take them on their train on a promise not to be held answerable for any injury resulting from the arrangement. Was the plaintiff put outside the jurisdiction of the law because he trusted to their judgment to do an act within their power to do, and especially when the act itself is not at all implicated in the disaster?...... The voluntary presence of the traveler, if not wrongful, is so much a matter of individual choice that its propriety is never an element to be inquired into in claiming or raising damages for injury. People have a right to travel when they please, and will be compensated for injuries if occasioned by the negligence of those engaged in transporting them, if they have not contributed -to the immediate disaster by their own negligence, whatever*319 might be said, against the propriety of their journeying. It is no answer to plaintiff’s claim, therefore, to argue that if he had not had his cars attached and been present, he would not have been injured. This was manifestly not the proximate cause of the injury, and not to be considered unless it can be shown that he was a trespasser in being on the train at the time. This he was not; for he was there by permission and under the contract of parties competent to give him authority to be there. His right to damages, therefore, could only be rested upon an inquiry into the question of whose was the immediate, not the remote cause of the injury.”
On principle it is impossible to distinguish this case from the one at bar. It stands unchallenged to this day as an authority that in every case where one, not employee or trespasser, is carried on a railroad, the undertaking on the part of the railroad company is as common carrier, and the party though he be not a passenger in the ordinary meaning of that word, is yet entitled to the rights of a passenger so far as his safe transportation is concerned. In that case the railroad company was rendering a service 'which it was not bound to render either at common law or by statute but under an agreement with the party for exemption from liability for negligence. The service was fully within the scope of the power of the company notwithstanding its unusual character, and notwithstanding it was in violation of its own rules and regulations we yet held it to be a common carrier with respect to that service. Considerations of public policy demand the strict enforcement of this rule as much now, and perhaps more, than when it was first declared.
So far we have concerned ourselves with common law: principles. It is to be added that the provisions of our State Constitution have a significance in this connection which, if there were nothing more, would require us to hold our own jurisprudence unaffected by the current of authority which seems to sustain the doctrine that a
We are reminded that in several of our cases we have ruled that persons employed on trains, as was this plaintiff’s husband, are not passengers. It is only necessary to say in reply that in each of the cases referred to the question before the court was as to what the word “passenger,” as used in the proviso of the Act of April 4, 1868, P. L. 58, included. Iia this proviso “passengers” were exempted from the operation of the statute which had expressly included “persons lawfully engaged or employed in or about any train or car of the railroad company.” What we held and all that we hold in any of these cases, was that this class having’been specifically included in the general provisions of the act, it was not the legislative intent by the proviso to exclude them: Penna. R. R. Co. v. Price, 96. Pa. 256.
■ It being conceded that plaintiff’s husband was rightfully where he was when the accident occurred, and that he was not an .employee of the defendant company, the