157 Ind. 616 | Ind. | 1902
Lead Opinion
By sustaining appellee’s petition for an order of transfer, this court has vacated the decision of the Appellate Court and has brought the cause here for final determination.
Appellant began this action to recover damages for personal injuries received by him through the negligence of appellee’s servants while he was being carried as a passenger on one of appellee’s regular passenger trains. Appellee answered that appellant paid no fare, but was traveling on a free pass, which was issued to him as a pure gratuity, and which contained a stipulation, agreed to by appellant, that “by its acceptance and use any and all claims for injures to person or for loss or damage to baggage that might accrue to [appellant] are released”. The court overruled appellant’s demurrer to this answer. On appellant’s refusal to
Appellant is prosecuting this action in the face of his agreement not to do SO'. No allegations appearing to the contrary, presumably he was of sufficient capacity to malm a binding contract. His contention, therefore, is that no one can lawfully make such a contract and be bound thereby. One who seeks- to put a restraint upon the freedom of contracts must make it plainly and obviously clear that the contract in question is void. Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196, 40 L. R. A. 101, 62 Am. St. 503; Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560.
The only claim that this contract is void is that it is against public policy.
It is thoroughly established in this State, and generally elsewhere, that railroad corporations-, as common earners, are not permitted, by contracts with their customers, to exempt themselves from the consequences of their own negligence. Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., R. Co. v. Nickless, 71 Ind. 271; Louisville, etc., R. Co. v. Faylor, 126 Ind. 126; Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 38 L. R. A. 93, 58 Am. St. 348; Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196; Russell v. Pittsburgh, etc., R. Co., 157 Ind. 305; New York, etc., R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498.
The main underlying reasons are briefly these: 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 trans
In the Selby, Nickless, and Eaylor cases, supra, the plaintiffs were traveling on passes which purported to release the companies from damages through their negligence, and the stipulations were held void. But the passes were “stock-drovers’ passes”, issued in connection with bills of lading for the shipment of live-stock which the plaintiffs were to accompany and care for. The usual rates were paid, and the court properly decided that tire transaction was an entirety, that plaintiffs had paid for transportation of their persons as well as their stock, that the companies stood in the relation of common carriers- for hire to plaintiffs as part of the general public, and that therefore the rule which forbade the companies to abandon a duty owing to the general public rendered the waiver void. But the statements in these cases to the effect that such a waiver in a free pass is unenforceable, were unnecessary to the proper decision of the issues presented, and are therefore not authoritative.
The precise question raised by this appeal has not heretofore been presented to this court, but the principles announced -in the Keefer, Mahoney, and Russell cases, supra, are controlling. In these cases it is expressly declared to be a well-established rale that railroad companies, though public or common carriers, may contract as private carriers for the transportation of persons whom they are not bound as common carriers to receive. In the Keefer and Mahoney
The following eases are directly in point: Griswold v. New York, etc., R. Co., 53 Conn. 371, 55 Am. Rep. 115, 26 Am. & Eng. R. Cas. 280; Rogers v. Kennebec, etc., Co., 86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491; Quimby
By analogy, the proposition that whoever for his own advantage or profit accepts free transportation must abide the conditions on which it is issued, is supported by the holding that one who purely for his own convenience uses a railroad track or yard for a passageway must take the license on the terms of risk with which it is granted. Cannon v. Cleveland, etc., R. Co., post, 682.
Not only is no principle of public policy subverted by denying the holder of a free pass the right to repudiate his contract, but there is sound public policy in holding him to it. The expenses of operating railroads are borne by the general public, — that is, by the patrons who pay. In so far as persons stand aloof from the general public they increase the burden or at least postpone the day of lower rates. If the pass-takers, in addition, were allowed to recover judgments for personal injuries by disavowing their agreements, they would be making a positive increase of disbursements, to be borne ultimately by the general public.
And if it were held to be against public policy for railroad companies to issue free passes, of course the recipients who used them to secure carnage would have no standing to sue as passengers.
Judgment affirmed.
Concurrence Opinion
While I concur, with some doubts, in the judgment of affirmance, still I do not concur in all of the reasons and arguments contained in the opinion of the court.
