116 F. 502 | U.S. Circuit Court for the District of Northern Iowa | 1902
In the petition filed in this case it is averred, in substance, that on and prior to the 1st day of August, 1899, one J. J. O’Brien was an employé of the American Express Company; that the express company was engaged in transacting business in the state of Iowa, and by virtue of a contract with the defendant, the Chicago & Northwestern Railway Company, the latter undertook the transportation of the express matter destined for points upon its line in the state of Iowa, by furnishing cars equipped for that work, in which the express company placed the goods and property intrusted to it, and placed in said cars in charge of the goods therein contained its employés known as “express messengers,” who were carried in such cars over and along the line of the defendant railway company; that on the 1st day of August, 1899, the said J. J. O’Brien was placed, as an express messenger and employé, in charge of an express car containing goods intrusted to the American Express Company, which formed part of a train run by the defendant company across the state of Iowa; that a short distance from the city of Boone, Iowa, the train was derailed, the ex
By the ruling of the supreme court in Railway Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, it is settled that one occupying the position of express messenger under the circumstances surrounding O’Brien at the time of his death cannot be held to be a passenger upon the train in such sense as to cast upon the railway company the high degree of care due from a common carrier for
“Tlie relation of an express messenger to the transportation company, in cases like the present one, seems to us to more nearly resemble that of an employé than that of a passenger. His position is one created by an agreement between the express company and the railroad company, adjusting the terms of a joint business,—the transportation and delivery of express matter. His duties of personal control and custody of the packages, if not performed by an express messenger, would have to be performed by one in the immediate service of the railroad company. And, of course, if his position was that of a common employé of both companies, he could not recover for injuries caused, as would appear to have been the present case, by the negligence of fellow servants.”
Under the principles of the common law, the common master is not responsible to an employé for injuries resulting from the negligence of a co-employé, but the master is responsible for the exercise of reasonable care in supplying the means and appliances necessary to be used in carrying on the business of the master. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612. The common-law exemption from liability for the negligence of co-employés is materially changed with respect to railway companies by the provisions of section 2071 of the Code of Iowa, and therefore the acts of negligence charged in the petition, if they are sustained by the evidence, are sufficient to impose liability for the result thereof—the death of O’Brien—upon the defendant, unless such liability can be evaded by reason of the provisions of the contracts entered into between O’Brien and the express company and between the express company and the defendant railway company. The provisions of these contracts and the relation of the parties thereto are substantially the same as those involved in the already cited case of Railway Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; and as the validity thereof, under the rules of the common law, was sustained by the opinion given in that case, it follows that in this case the validity thereof cannot be questioned upon common-law principles, and the point at issue is narrowed down tO' the question, whether the provisions of the statutes of Iowa render these contracts invalid and void in so far as they are intended to relieve the railway company from all liability for the results of the negligence of the company and its employés to one occupying the position of express messenger upon a train operated by the railway company within the state of Iowa.
The contract with O’Brien was entered into in Iowa, the service in which he was engaged at the time of the accident was being performed in Iowa, the acts of negligence charged against the defendant happened in Iowa, the accident and death of O’Brien occurred in Iowa, and the suit is pending in Iowa, and it is clear, therefore, that the validity of the contracts pleaded by defendants, so far as that depends upon the local law, is to be determined by the provi-
“Generally speaking, tlie right of a railroad corporation to build its road and run its locomotive engines and cars thereon, within any state, is derived from the legislature of the state; and it is within the undisputed powers of that legislature to prescribe the precautions that the corporation shall take to guard against injuries to the property of others by the running of its trains, as well as the measure of its liability in case such injuries happen. Among the most familiar instances of the exercise of this power are statutes requiring a railroad corporation to erect fences between its road and adjoining lands, and subjecting it to either single or double damages for any injury to cattle or other animals caused by its neglect so to do, * * * and statutes making a railroad corporation liable for damages to property of others from fire set by sparks from its locomotive engines, either independently of negligence on its part or in ease of such negligence only.”
If the state, for the protection of the property of its citizens, has the right to impose upon the railway companies liability for injury thereto, resulting from the operations of the railway trains, certainly it must have the right to throw a like protection around the life and limb of its citizens; and thus we are brought to a consideration of the provisions of the laws of the state upon this subject, which constitute sections 2071 and 2074 of the Code of Iowa, and chapter 49 of the Acts of the 27th General Assembly, which are as follows:
“Sec. 2071. Liability for Negligence or Wrongs of Employes: Every corporation operating a railway shall be liable for all damages sustained by any person, including employés of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employés thereof, and in consequence of the wilful wrongs, whether of commission or •omission, of such agents, engineers, or other employés, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability «hall' be legal or binding.”
“Sec. 2074. Contract or Rule Limiting Liability: No contract, receipt, rule or regulation shall exempt any railway corporation engaged in transporting persons or property from the liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into.”
Chapter 49: “That section numbered two thousand and seventy one (2071) of the Code be amended by adding at the end thereof the following: Nor shall any contract of insurance, relief, benefit, or indemnity in case of injury or death entered into prior to the injury, between the person so injured and such corporation, or any other person or association acting for such corporation, nor shall the acceptance of any such insurance, relief, benefit, or indemnity by the person injured, his widow, heirs, or legal representatives after the injury from such corporation, person, or association, constitute any bar or defense to any cause of action brought under the provisions of this section, but*508 nothing contained herein shall he construed to prevent or invalidate any settlement for damages between the parties subsequent to injuries received.”
By the provisions of section 2071, the railway companies are declared to be liable to any person, including their employés, for injuries resulting from the neglect, mismanagement, or willful wrongs of the servants or agents of the company connected with the operation of the railways. Is there any reason why express messengers are to be excepted out from the protection intended to be created by this section of the Code? The supreme court, in the Voight Case, already cited, held that such messengers were not passengers upon the railway trains, but rather occupied the position of employés of both the express and railway companies. If such is their legal position, then, being an employé of the railway company, the messenger clearly comes within the spirit as well as the language of section 2071, and the railway company is made liable to him for the consequences of the neglect or mismanagement of the employés of the company in the operations of the railway, and is certainly liable also for acts of negligence in the performance of the duties which the common law imposes upon the master, and which cannot be evaded by delegating the performance thereof to some one in his employ. But disregarding mere names with respect to the relation existing between the messenger and the railway company, what are the legal obligations imposed upon the company, growing out of the position occupied by the messenger? By virtue of the contract between the express and railway companies the latter company agrees that the messenger shall be in the express car during the time it is being transported over the line of railway, and further agrees that for the compensation to be paid by the express company it will transport the car and its contents over its line. The messenger is therefore rightfully in the car, with the knowledge of the railway company, and the company, under the general rule of the common law, is bound to use ordinary care in the transportation of the express car, because it has agreed that the messenger shall be transported in that car, and, as the car is wholly under its control and management, it owes to the messenger the duty of exercising ordinary care to protect him from injuries arising from carelessness in the transportation of the car by the railway company. In addition to the obligation imposed by the common law, section 2071 of the Code of Iowa declares that a railway company shall be liable for all damages sustained by any person resulting from the neglect or mismanagement of any servant, agent, or employé of the company in connection with the operation of the railway. In Rose v. Railway Co., 39 Iowa, 246, the state supreme court, in construing this statutory provision, held that it could not be limited to employés only, but that “the language of the enactment includes all classes of persons sustaining damages from the negligence of the employés of the railroad company.” It cannot well be doubted that it was the knowledge on part of the express and railway companies that under the rule of the common law a railway company would be liable to an express messenger receiving injuries when in the express car, caused by the negligence of the company as master,
At the request of the defendant, and to secure a full presentation of the question upon the record, the final ruling thereon will be reserved until the trial of the case upon the facts, when the record can be made upon the offer of the contracts in evidence.