51 Ind. App. 572 | Ind. Ct. App. | 1912
— Appellee was injured on October 15, 1902, while a passenger on one of appellant’s trains running from the city of Indianapolis to the city of Terre Haute. The sufficiency of the complaint is not challenged, and no question is presented, either as to the extent of appellee’s injuries or as to the amount of the recovery.
The complaint was answered by denial, and by a second paragraph of answer alleging that “the plaintiff did not pay or tender any fare for passage upon the train upon which
Appellee replied to this paragraph of answer, admitting that he was traveling on a pass issued to him by appellant, but denying that the same was accepted by him as a pure gratuity; that the transportation so furnished to him by appellant was in pursuance of a contract between appellant and the Weston Paper Company, made and entered into between said company and appellant in the year 1900, whereby it was agreed between the parties that if said paper company would remove its factories from Greenfield, Indiana, to Terre Haute, Indiana, on the line of the railway of appellant, among other considerations for said removal, and the benefits to be derived by appellant from having said mill and factories located on its road at said point, that transportation should be furnished to said paper company for the use of one of its officers over the Vandalia lines, and that said contract continued and was in full force during the year 1902; that said pass was issued by appellant, as receiver for the Terre Haute and Indianapolis Railway Company, appellee having been designated as the officer of the Weston Paper Company to use said transportation, and he was using the same, as furnished under said contract, at the time the accident occurred, in pursuance of the business of said paper company.
The reply also admitted that said pass had the stipulation on the back thereof as set out in the answer, but the same was not agreed to by appellee, and the transportation so furnished said company for appellee was for the business of said company, and had no conditions attached thereto to which appellee agreed.
Appellant assigns as error and relies for reversal on the overruling of the demurrer to the reply to the second paragraph of answer, overruling the motion to direct the jury .to return a verdict in appellant’s favor, and overruling appellant’s motion for a new trial. By these specifications of error two principal questions are presented: (1) Was appellee at the time of his injury a passenger of appellant for hire? (2) If so, Was the stipulation in the contract releasing appellant from all claims for injuries one which appellant could lawfully make and enforce ?
Appellee testified upon the trial that as a part of the agreement appellant was to furnish transportation for one of the officers of the company. Mr. Kendall, the commercial agent, testified that after consultation with Mr. Taylor, the general freight agent of appellant, he made an absolute promise to secure transportation for appellee. Mr. Taylor, in his testimony, was uncertain, but admitted saying that the matter might be arranged; that the railroad company was liberal in the matter of transportation, and it was taking care of other people. Mr.' Malott, the receiver, testified that the pass was made out and forwarded to appellee after a letter was received by him from Mr. Kendall advising the issuance of the same. All the terms of the agreement were carried out by appellant, and the pass was issued before the plant was moved in 1901. A similar pass was again issued in 1902, and every year thereafter up to and including the year 1905. It is clear that there was some evidence supporting the contention of appellee, and the general verdict in his favor, by which he was found to have been a passenger for hire, must be deemed to be conclusive as a question of fact.
The reason for the rule is expressed with clearness in the case of Payne v. Terre Haute, etc., R. Co., supra, in which it is said: “Railroads, by reason of physical conditions, are natural monopolies. In most instances, the public are restricted to a choice of using a certain line or none. The corporations, created by the'State, are granted special privileges, in return for which they are held, among other things, to undertake to use due care and diligence in transporting passengers and goods. They owe this duty to the public generally. They owe the further duty, as common carriers, to transport, on equal terms of service and compensation, all who apply. The person who is practically constrained to patronize a certain road and the corporation that operates the road are not on a footing of equality in contracting. If the corporation was permitted to impose, as one of the terms of the contract, a waiver of its negligence upon one customer, it could practically upon all, and thereby, while claiming the benefits of its franchise, evade the performance of a public duty, which was one of the chief considerations of the grant. Therefore, it. is held, a contract, by which a common carrier assumes to abandon a duty it owés to the public generally, is void as being against public policy.” But if the pass was issued by appellant as a private carrier, even for a consideration, and was accepted and used by appellee, with knowledge of the conditions attached, the contract against liability was not void as being against public policy. Louisville, etc., R. Co. v. Keefer, supra; Pittsburgh, etc., R. Co. v. Mahoney (1897), 148 Ind. 196, 46 N. E. 917, 47 N. E. 462, 40 L. R. A. 101, 62 Am. St. 503; Russell v. Pittsburgh, etc., R. Co. (1901), 157 Ind. 305, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. 214.
It will hardly be contended that appellant opened negotiations and concluded a contract with appellee for any other or different purpose than that of increasing its business, not as a private carrier, but as a public carrier. It made inducements of great value, a part of which was the issuance of the pass, to secure the mill of appellee on its line of railroad, in anticipation of profits by freight tendered to it as a public carrier, and which it was bound to accept and transport when tendered. The pass' could not be deemed to be anything less than an incident to the increased business accruing to appellant as a common carrier by virtue of the agreement.
In the case of Ohio, etc., R. Co. v. Selby, supra, the injured person was riding on a pass known as a drover’s pass,
In Ohio, etc., R. Co. v. Nickless, supra, the injured person was also using a stock pass, with the usual stipulation exempting the railroad company from liability on account of negligence. At page 275 the court said: “Taking the allegations of the complaint and answer together, it may be gathered that the plaintiff paid nothing as for his own fare, but that a free pass was given him in consideration of the freight which he paid on his cattle. Under these circumstances, it is clear that the defendant is liable to the plaintiff for the injury done him, charged in the complaint.”
In the case of Lake Shore, etc., R. Co. v. Teeters (1906), 166 Ind. 335, 77 N. E. 599, 5 L. R. A. (N. S.) 425, the court, at page 344, said: “Many years ago this court held, in Ohio, etc., R. Co. v. Selby, supra, following the forceful decision of New York, etc., R. Co. v. Lockwood, supra [ (1873), 17 Wall. 357, 21 L. Ed. 627], that a drover in charge of cattle which were being shipped under contract was a passenger for hire, and that it was not competent for the carrier by contract to exempt itself from the consequences of its negligence in the transportation of such a passenger. These holdings have come to express rules of law in this State which are thoroughly established.”
The case of New York, etc., R. Co. v. Lockwood, supra, was one where the injured person was riding on a stock pass, with the usual waiver of liability for negligence. The court held that a common carrier could not lawfully stipulate for exemption from responsibility, when such exemption was
Grand Trunk R. Co. v. Stevens (1877), 5 Otto 655, 24 L. Ed. 535, is a leading case, and follows the principle announced in the foregoing eases, although the party injured was not traveling on a stock pass. The plaintiff, who resided at Portland, Maine, was the owner of a patented carcoupling, and was negotiating with the railroad company for its adoption and use. He was requested to go to Montreal to see an officer of the company in relation to the matter, the company offering to pay his expenses. He was furnished a pass to Montreal, having on its back a stipulation relieving the company from liability on account of any injuries received. While en route from Portland to Montreal the train was thrown from the track by reason of a defective rail, and the plaintiff was injured. Suit was brought for damages in the United States Circuit Court, where the plaintiff recovered judgment. Upon appeal to the United States Supreme Court, Mr. Justice Bradley delivered the opinion of the court, and said: “It is evident that the court below regarded this case as one of carriage for hire, and not as one of gratuitous carriage, and that no sufficient evidence to go to the jury was adduced to show the contrary; and, hence, that under the ruling of this court in Railroad Co. v. Lockwood [1873], 17 Wall. 357, it was a case in which the defendant, as a common carrier of passengers, could not lawfully stipulate for exemption from liability for the negligence of its servants. In taking this view, we think the court was correct. The transportation of the plaintiff in the defendant’s cars, though not paid for by him in money, was not a matter of charity, nor of gratuity in any sense. It was by virtue of an agreement, in which the mutual interest of the parties was consulted. It was part of the consideration
In Whitney v. New York, etc., R. Co. (1900), 102 Fed. 850, 43 C. C. A. 19, 50 L. R. A. 615, plaintiff was employed by defendant, a railroad company. He changed to a new employment, still with defendant, stipulating for an increase of wages, and for free transportation to Boston from the city where he was to be employed, for his own convenience and not in connection Avith going to and from his
The judgment is affirmed.
Note. — Reported in 98 N. E. 127. See, also, under (1) 6 Oyc. 544; (2) 3 Cyc. 348; (4) 6 Cyc. 578, 579; (5) 6 Cyc. 578; (6) 38 Cyc. 1G12. As to the right of carriers to limit their liability to passengers, see 82 Am. Dec. 290. As to the duty and liability of a carrier to persons riding on a free pass, see 61 Am. St. 88; 21 L. Ed. U. S. G27. As to the rights of a person riding on pass or contract for free passage, see 22 L. R. A. 794. As to the validity and effect of stipulation in free pass releasing earner from liability for ¡negligence, see 48 D. Ed. U. S. 742 ; 4 Ann. Cas. 557; 12 Ann. Gas. 584. As to the liability of a carrier to passengers traveling on passes or contracts contrary to provisions of statute or Constitution, see 14 L. R. A. (N. S.) 526.