100 Neb. 237 | Neb. | 1916
Lead Opinion
Plaintiff brought this action against defendant to recover damages for personal injuries alleged to have been sustained in a rear-end collision on defendant’s line of railroad August 12, 1913. There was a verdict for $12,-500, which on motion for a new trial was reduced to $10,000, and defendant has appealed.
Defendant was, and is, a railroad company engaged in general railroad- business, both intrastate and interstate. At the date of the injury plaintiff was an employee of a circus company known as “Barnum and Bailey Shows,” but owned by Ringling Brothers, a copartnership. The day preceding the injury the circus /company gave a performance in the city of Lincoln, Nebraska, and on the evening of that day loaded its cars with its circus equip
There is practically no dispute as to the facts, but defendant denies liability, relying upon certain contracts set out at length in the pleadings. One of these is a contract between the circus company and defendant, whereby defendant undertook to transport the property of the circus company, consisting of its cars and other equipment, from point to point along its line of road, including the transportation from Lincoln, Nebraska, to Atlantic, Iowa, on special time schedules and at reduced rates. The employees of the circus company were to be conveyed in the cars of the circus company in the same train with the baggage, paraphernalia, and other equipment. This transportation was to be made by defendant furnishing to and for the use of the circus company the necessary locomotives, the fuel therefor, the engine and train
“It is expressly agreed and understood that this agreement is not made by the first party as a common carrier, but only as a hiring of said locomotives, engines and employees, and the use of its railroad to the second party, for the purpose of enabling the second party to move said train between said points; that all of the said cars, coaches and trains shall be operated under the management, directions, orders and control of the second party or its agents.
“It is expressly understood and agreed that all engineers, firemen, conductors, brakemen, train dispatchers and other operators and employees, furnished by the first party, are, in the operation and movement of said cars, coaches, and trains, exclusively the employees of the second party, but all of said cars, coaches, and trains shall be run according to the rules, regulations and time cards of the first party.
“It is expressly understood and agreed in consideration of the first party hiring the use of its railway and furnishing the motive power and employees to handle the second party’s cars, coaches, paraphernalia and employees, as aforesaid, and for less than it would receive if it handled said circus cars, paraphernalia, menagerie and employees, as regular freight and passengers upon its cars, and in consideration of the privilege of stopping over at the points hereinbefore designated, that the first party shall not be responsible or liable to the second party, or to any other person, partnership or corporation for any delay of any cars or trains, however caused, and whether or not arising in any way from any one’s fault or negligence, of or for any loss, damage or injury to the property or person of the second party or of any one employed.by the second party, or being upon any trains or cars, hauled under this agreement or being upon any premises of the first party or connected in any way with said circus,*240 caravan or menagerie, or with the business of the second party, or for any loss of or damage or injury to the property or person of any one else, or of any partnership or corporation whatsoever, whether or not any such loss, damage or injury arises in any way from, or is in any degree attributable to, any fault or negligence of the first party or any of its officers, agents or employees, in or about the performance of this agreement, or the performance of the first party’s general business or in connection with the railroad or property or any duty whatsoever of the first party.
“The second party further agrees and undertakes, as a further consideration hereof, that in case of delay, loss, damage or injury, to the person or property, either of the second party or any other persons, association of persons or corporation, carried or to be carried upon any of the cars or trains herein specified or employed on or about or in connection with the same on the business of the second party, it, the said second party, will release and does hereby release the first party from all liability or claim therefor for loss, damage or injury to itself or its business or property, will indemnify and forever save harmless the first party from all claim, demand, actions, causes of action, costs, judgments, and expenses, including attorney’s fees, resulting from or growing out of such delays, loss, damage, or personal injury, the second party hereby assuming and agreeing to defend at its own cost all such claims, demands and actions, and to satisfy and pay the same, and the second party further undertakes and agrees to inform by personal notice, to each thereof, all of the persons permitted by the second party to be carried on any of said cars, coaches, and trains, under the terms of this agreement, and to advise and notify all such persons, and each thereof, that they are carried by the second party and not by the first party, and that the first party has not assumed, with respect to them or their baggage or other personal property, any of the duties and responsibilities of a carrier of passengers.
*241 “It is a further consideration of this agreement, and the parties hereto agree, that the second party is to have sole charge of every person and of all animals and property on any car, coach or train hauled.under said agreement, and the first party does not assume, and shall he under no responsibility for the safety of any of the cars, coaches, persons, animals or property on said cars, coaches, and trains, in charge of the second party, or of advance agents, from any cause whatever, and the second party agrees to, and does hereby, indemnify and save harmless the first party against all loss, damage or injury ■on account of strangers, tramps, or others riding on said cars, coaches or trains, and being injured or killed, or on account of strangers, tramps or other persons being injured or killed in the operation of said cars, coaches or trains, or in the handling, loading or unloading of cars, and will protect the first party from damages, and cost incident thereto, suffered by any one from wild, tamed or domesticated animals escaping from cars or custody, and protect the first party against all loss, damage and cost for and on account of the spread or transmission of any disease to persons or animals from unloading offal or otherwise, and against any fine or penalty arising therefrom, which may be imposed against the first party by any state, municipality or other competent authority.”
This contract was made in the state of Illinois, and is claimed to be valid under the laws of that state.
At the time of the injury plaintiff was an employee of the circus company, and, as such employee, was riding on this circus train without having paid, offered to pay, or intending to pay, any transportation whatever, and his right to be thereon was due to his employment, under a contract which he had with the circus company. The train was being moved and operated over the track of defendant in pursuance of the contract heretofore partially set out.
Before entering the employment of the circus company, to wit, June 9, 1913, plaintiff had entered into a'
Defendant pleads this contract, together with its contract, heretofore partially set out, with the circus company, and alleges that they are valid and binding upon plaintiff, and a full, adequate and complete defense to
Defendant further says that the engine and train crews operating the circus train on which plaintiff was riding were the employees of the circus company and not the employees of the defendants, and points out and relies on the clause of the contract between defendant and the circus company which provides: •
“The first party agrees to furnish to and for the use of the second party * * * the engineers, firemen and other employees *, * * for the transportation of said circus, menagerie, employees and equipment of the second party by train * * * from * * * Lincoln, Neb., to Atlantic, la.
“It is expressly understood and agreed that all engineers, firemen, conductors, brakemen, train dispatchers and other operators and employees, furnished by the first party, are, in the. operation and movement of said cars, coaches and trains exclusively the employees of the second party, but all of said cars, coaches, and trains shall be mn according to the rules, regulations and time cards of the first party.”
Defendant follows this with an allegation of negligence on the part of the engine crew and train crew of the circus train in failing to observe and obey rule 99 for protection against rear-end collisions such -as occurred in this case, and alleges that plaintiff’s injury is due to such negligence, and alleged that plaintiff by his contract made with the circus company had fully released both the circus company and the defendant from any liability for injuries he sustained.
The assignments of error are subdivided many times; but the real contention of defendant is that under the contracts set out defendant is relieved of liability; that the court ought to have instructed a verdict in its behalf; and that it was error for the court to submit'instruction No. 3, which, after reciting the substance of the contracts pleaded, concluded as follows:
“In this behalf you are instructed that, in. so far as the first contract herein mentioned provided that the agents, servants and employees furnished by the defendant to the circus company and engaged in the operation and movement of said train and cars in the transportation of said circus company’s property and employees, at the time referred to, were to be regarded as exclusively the employees of the circus company, except the said cars and train should be run according to the rules, regulations and time car'd of said defendant, the same may be considered by you as valid and binding between the parties, in so far as this particular action is concerned, and you may therefore assume as a fact conclusively established that the employees aforesaid were, at all times referred to, the servants and employees of the said circus company exclusively and not those of the defendant, and that therefore their acts while so employed in the management, operation and control of said circus train, would be the acts of the circus company and not those of the defendant herein, and any negligence, if any there was on the part of the said agents or employees of said circus train, will not be attributable to the defendant railway company” — and lastly that the judgment is excessive.
Contracts whereby- an employee is induced to waive or sign away his rights under the law should always be stiictly construed. Under the construction placed upon it by the trial court, plaintiff waived his rights as a passenger and consented that the train on which he rode might be considered as a private conveyance, but “that in so far as said contracts aforesaid, or either of them, undertakes to exonerate and release the defendant herein from its acts of negligence in or about the performance of the defendant’s general business in the operation of its roads and trains, and to exempt and relieve defendant from any liability for personal injury to any employee of the circus company, and particularly to the plaintiff herein, resulting from the negligence of the defendant as to the proximate cause thereof, the samé is void and of no effect.” Instruction No. 4.
The jury were told that, unless the train Crew in charge of the passenger train No. 6 were guilty of negligence in running that train into the circus train, plaintiff could not recover. It will be seen that, while the contract was not held void in toto, the court did hold, and we think properly so, that the contract did not give the defendant company the right to wantonly maim the plaintiff. He was lawfully on its right of way, if not as a passenger, he was at least a licensee.
It is the contention of the appellant that the circus train constituted an interstate shipment, and therefore these contracts must be governed by the federal law. If
“That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. * * * The rule of the common law did not limit his liability to the loss and damage due to his own negligence, or that of his servants. That rule went beyond this and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.” Adams Express Co. v. Croninger, 226 U. S. 491.
If the contracts fell within the federal statute they are void because they undertake to exempt the carrier from all liability, but this was not a contract for the transportation of a mere piece of inanimate freight. It was a contract for the transportation of a person in whose life and safety the state has an interest, and a contract which would undertake to permit his wanton destruction would be against public policy and void. It does not appear,
Having found that the federal act does not apply, and that the law of Nebraska governs, let us see what law of Nebraska applies to the facts in this case.
“Railways heretofore constructed, or that may hereafter be constructed, in this state are hereby declared public highways and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law. And the legislature may from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads in this state. The liability of railroad corporations as common carriers shall never be limited.” Const., art. XI, sec. 4.
“Every railroad corporation shall give to all persons and associations reasonable and equal terms, facilities and accomodations for the transportation of merchandise, produce, commodities and other property of every kind and description upon any railroad owned, leased or operated within the state, and reasonable, and equal terms, service, facilities and accomodations for terminal handling of all property and commodities whatsoever.” Rev. St. 1913, sec. 5978.
The Constitution declared railroads to be public highways and vested in the legislature authority to regulate
“The term ‘common carrier,’ as used herein, shall be taken to include all corporations, companies, individuals and association of individuals, their lessees or receivers, appointed by any court whatsoever, that may now or hereafter own, operate, manage or control any railroad, interurban or street railway line, operated either by steam or electricity or any other motive power, or part thereof, or any express company, car company, sleeping car company, freight and freight line company, telegraph and telephone companies and any other carrier engaged in the transmission of messages or transportation of passengers or freight for hire.”
Perhaps the defendant company might have declined to accept the shipment in the form in which it was offered, but, having accepted it and undertaken its transportation, it automatically became a common carrier under the law of this state, and it cannot by private contract exempt itself from the obligations imposed under the Constitution and statutes. Atchison & N. R. Co. v. Washburn, 5 Neb. 117.
A common carrier cannot limit his liability so as to cover his own or his servant’s negligence. Farnham v. Camden db A. R. Co., 55 Pa. St. 53.
“A railroad company operating a line of railroad in this state is a common carrier, and cannot, under the provisions of the Constitution, limit its liability as such by special agreement with a shipper.” Missouri P. R. Co. v. Vandeventer, 26 Neb. 222.
“A railroad company, in the carriage of goods, is subject to the liability of a common carrier, and must answer for all losses not occasioned by the act of God or the public enemy, and cannot in this state by special contract limit or relieve itself from this liability.” St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463. See, also, Chicago, B. & Q. R. Co. v. Curtis, 51 Neb. 442; Chicago, R. I. & P. R. Co. v. Collier, 1 Neb. (Unof.) 278; Union P. R. Co. v. Metcalf & Wood, 50 Neb. 452, and Omaha & R. V. R. Co. v. Crow, 47 Neb. 84. Under the Constitution and the statutes as construed by an unbroken line of decisions of this court, the defendant must be held to be a common carrier in the transportation of the circus train.
The question as to the validity of the contract between the circus company and plaintiff is not altogether a new one in this state. In Ault v. Nebraska Telephone Co., 82 Neb. 434, it is said that an employer “cannot by a direct contract to that effect escape liability for negligence is well settled; such contracts being against public policy. The state has an interest in the liveá and healthy vigor of its citizens, which it will not allow the master to endanger by contracting against liability for his negligently endangering them.” This case was followed and approved in Olson v. Nebraska Telephone Co., 83 Neb. 735. Guided by these cases, we are led to the conclusion that if the contract under consideration were made in this state it would be utterly void. This leads us then to inquire what effect is to be given to a contract valid where made, but contrary to the public policy of this state, although intended to be performed herein. In Chicago, B. & Q. R. Co. v. Gardiner, 51 Neb. 70, this court had before it an Illinois contract, the same state in which this contract was made, that limited the liability of the railway company, and was valid in the state where made. The court said:
*251 “The power by contract in this state to restrict the liability of a common carrier does not exist. The statement that such a restriction is illegal in this state is, therefore, a mere truism. To ask that the law of this state, on principles of comity, shall give way to the law of Illinois is to ask that the courts of this state shall sanction what by the Constitution has been declared illegal and against the public policy of this commonwealth.”
Again our court has said: “Our courts, as an exercise of comity, will not enforce a contract resulting from the transaction of business within this state violating the public policy thereof.” Henni v. Fidelity Building & Loan Ass’n, 61 Neb. 744.
In Coleman v. Pennsylvania R. Co., 242 Pa. St. 304, the supreme court of Pennsylvania had before it a contract essentially the same as the one before us, and in disposing of the case said: “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.” See, also, Davis v. Chesapeake & O. R. Co., 122 Ky. 528, 5 L. R. A. n. s. 458, and Texas & P. R. Co. v. Fenwick, 34 Tex. Civ. App. 222.
Whether plaintiff were a passenger within the common acceptation of that term or not, one thing is clear, he was in a place where he had a right to be. Defendant-was a common carrier and was rendering the service usually rendered by a common carrier in his transportation, and the contracts pleaded will not avail to exempt it from liability for its negligence.
Finally, we are asked to set aside this judgment because the verdict is excessive. Plaintiff suffered internal injuries, his abdomen being so severely crushed as to cause him to lose consciousness. He was removed to a hospital, where he was treated by defendant’s
Affirmed.
Concurrence Opinion
concurring.
The plaintiff concedes, at least for the purpose of this case, that the circus train and its attaches, including the plaintiff, were being transported by the circus company and not by the defendant, and therefore that the plaintiff was not a passenger of defendant, and that the plaintiff has the burden of proof of negligence of defendant as the proximate cause of the injury. There is no dispute between the parties as to the meaning and construction of the contract. The decision of this case depends upon the question whether the plaintiff’s contract to relieve the defendant from liability for its own gross negligence is valid and enforceable. Can a common carrier exempt itself from liability for its own neglegence? The act of congress does not allow contracts of that kind, and the conclusion of the majority opinion is therefore right, but I do not concur in all that is said in the lengthy and, to my mind, unnecessary quotation and discussion of the contract.