247 F. 1 | 6th Cir. | 1918
The plaintiffs in error, as receivers (hereinafter called defendants), through their agent, sold and issued to decedent, Barber, a ticket entitling him to transportation from Toledo, Ohio, to Columbus in that state, by way of Piqua. The ticket contained two coupons—the one for carriage from Toledo to Piqua, over the line of the Cincinnati, Hamilton & Dayton Railway Company; the other from Piqua to Columbus, by way of the Pennsylvania lines. At Piqua the receivers’ agent issued and delivered to decedent a ticket for transfer from the Cincinnati, Hamilton & Dayton depot to the Pennsylvania depot, about a mile distant. While on the inter-depot journey the automobile in which decedent was riding was, through the asserted negligence of its driver, overturned and decedent thereby killed. This action is for damages for the death. The case was tried to a jury, resulting in verdict and judgment for the plaintiff administratrix.
The primary and most important question is whether the trial judge rightly held that, upon the record as presented, the defendants’' contract of carriage included the transfer between the two depots at Piqua, or whether, as claimed by the defendants, the contract of interdepot transfer was that of an independent transfer company— the defendants, in issuing the transfer, acting merely as the transfer company’s agent. This question is rightly treated by counsel for both parties as one of law.
It may be conceded that defendants would not be liable for a negligent injury to decedent while being carried by the Pennsylvania Company from Piqua to Columbus. Auerbach v. N. Y. C. & H. R. R. Co., 89 N. Y. 281, 42 Am. Rep. 290; Pennsylvania Co. v. Loftis, 72 (Ohio St. 288, 74 N. E. 182 ; Nashville & Chattanooga R. Co. v. Sprayberry, 8 Baxt. (67 Tenn.) 341, 35 Am. Rep. 705. It may also be conceded that, had the ticket contained a coupon for transfer by the Robbins Company between the two railway stations, defendants would not be liable for the transfer company’s negligence; but the ticket would be regarded as evidencing distinct contracts of carriage with the two railway companies and the transfer company. The ticket, however, contained no coupon or other provision relating to transfer from depot to depot.
The proposition that the railroad ticket was not in fact a through ticket, but that (as affecting the matter of transfer between depots) decedent had the right to stop at Piqua, loses its force, not only, to some extent, through the fact that the carriage had to be finished the day following the issue of the ticket (which following day was that of the transfer and injury), but especially through defendants’ treatment of the ticket (at Piqua) as a through ticket, by delivering to decedent at that place an interdepot transfer ticket showing on its face that it was issued on “through ticket”; and the necessary inference from the record is that defendants’ regular practice was to furnish this inter-depot transfer on through tickets between Toledo and Columbus, and presumably decedent understood that the price of the transfer was included in the amount paid for his ticket. It must be conceded that, in the absence of contract or custom, defendants would have been under no obligation to transfer decedent to the Pennsylvania station; yet, taking into account all the elements stated, there is, to our minds, but one consideratioi. lending substantial support to defendants’ asserted freedom from responsibility, viz. that the transfer contained the -words “On account Robbins Transfer Company.” But controlling force cannot be given to these words alon£, not only because they do not clearly import an agency on defendants’ part for the transfer company, but are fully as consistent with an identification for accounting purposes only between defendants and that company, but for the further reason that it does not appear that decedent ever read the transfer or knew that it contained words of the purport stated. The natural inference is to the contrary, for defendants’ train was late, and there were but a few minutes to make the transfer to the Pennsylvania depot, and that at about 4:30 o’clock on a March morning; and the testimony is that the issue of the transfer and the taking of the automobile were hurried. The receipt of the transfer under such circumstances was not, in our opinion, enough of itself to malee a contract between decedent and the transfer company, nor to advise the former that defendants were relieved from responsibility, or were acting merely as agents for the transfer company therein. In view of the not unusual practice of railroad companies to issue, as a part of through tickets, coupons for transfer lines wholly independent of the railroads, we think decedent, upon the record presented, would naturally have regarded the interdepot transfer (not provided for by
“If the accident was directly caused by bis standing on the running hoard, the plaintiff cannot recover.”
Decedent’s contributory negligence would bar recovery, if, but not unless, it directly and proximately contributed to the injury. Toledo, etc., Ry. Co. v. Kountz (C. C. A. 6) 168 Fed. 840, 94 C. C. A. 244. “Contributed to” would have been a better expression tiran “caused.” However, the court at least twice charged, in substance, that if decedent was guilty of contributory negligence plaintiff could not recover. The court’s attention was not called to the criticism now made. Presumably, had that been done, the language would have been suitably modified. We find no reversible error in this respect. Indeed, defendants’ request on the subject of contributory negligence was faulty, in omitting the words “directly and proximately,” or their equivalents.
“Such an act on the part of a railroad company is always to be considered by the jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty of negligence.”
The Supreme Court of Ohio, however, in Schell v. Du Bois, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710, in construing this very statute, held, as stated in the syllabus, that:
“The violation of a statute passed for the protection of the public is negligence per se, and where such act of negligence by a defendant is the direct and proximate cause of an injury not directly contributed to by the injured person, the defendant is liable.”
This we think a construction of the Ohio statute, and as such binding upon the federal courts. Nor do we agree with the proposition that the opinion of the court makes it clear that the purpose of the statute was not to protect those within the machine, but only those without. Such distinction would not, in our judgment, be a reasonable one. The construction Ihus put upon the statute in question is in harmouy with the rule frequently announced by the Supreme Court of Ohio and by this court, in construing frog-blocking and other protective statutes, viz. that the breach of a statute designed for the protection of the public is negligence per se.
The judgment of the District Court is affirmed.
While a witness testified that there was attached to the ticket a “pink slip,” which was exchanged at 1 he Piqua ticket office for the transfer ticket, defendants conceded on the trial, and by brief in this court, that the ticket given decedent in Toledo consisted only of the body and the two railroad coupons.
Variety, etc., Co. v. Poak, 89 Ohio St. 297, 306, 106 N. E. 24; Krause v. Morgan, 53 Ohio St. 26, 43, 40 N. 13. 886; Toledo, etc., Ry. Co. v. Kountz, 168 Fed. 838, 94 C. C. A. 244; Cooper v. B. & O. Ry. Co., 159 Fed. 82, 86, 86 C. C. A. 272, 16 L. R. A. (N. S.) 715, 14 Ann. Cas. 693; Sterling Paper Co. v. Hamel, 207 Fed. 300, 302, 125 C. C. A. 44; Crucible Steel Forge Co. v. Moir, 219 Fed. 151, 154, 135 C. C. A. 49.