This was an action by the appellant, Ambrose Russell, against the- appellee, The Pittsburgh, Cincinnati, Chicago- and St. Louis Railway Company, for an injury sustained by appellant while acting as a porter upon a Pullman sleeping car attached to appellee’s passenger train. The complaint alleged that on the 21st day of August, 1898, appellee operated a railway line through this State; that near the town of Cementville, Indiana, a sidetrack ran parallel to-, and a few feet from, the side of the main track o-f appellee’s line, and was used by the appellee in switching and operating cars; that on the said date appellant was employed as a porter on a Pullman coach attached to and constituting a part of a certain passenger train operated by the appellee; that as said passenger train was moving rapidly over the main tracks near the town of Cementville, and passing by another train of the appellee upon the side-track, the appellant, who was at the time seated near a window of the Pullman coach, was suddenly struck by a door or other obstacle which the appellee had carelessly allowed to pro j ect from the train of cars upon the side-track, or from its right of way at that point; that the said projection entered the window of the car in which-the appellant was seated, and struck him upon the arm and
To the complaint, the appellee filed answers in three paragraphs, the first being a general denial, which was after-wards withdrawn. The second paragraph alleged that a written, contract had been entered into between the appellee and the'Pullman Palace Car Company, by which the latter company agreed to furnish sleeping cars to be used for the transportation of passengers over the road of appellee; that said Pullman Car Company was, by said agreement, entitled to and did'сollect revenue from all passengers using its cars; that it furnished one or more employes upon each of such" cars, who were, by the said contract, carried free of charge over the road of the appellee. It was further stipulated in said agreement that, in the event of any liability arising against the said railroad company, - over whose railroad said-.cajs .-were to be run, for personal injury, death, or otherwise, of any employe of said Pullman Palace Car Company, the said railroad company should be indemnified for said liability, and the same paid by said Pullman Palace Car Company. The answer then alleged that the appellant, at the time of the accident, was an employe of the Pullman Company, in charge of one of that company’s sleeping cars, and was being hauled in said car in compliance with the contract above referred to; that he had neither paid, tendered, nor agreed to pay, any fare for his passage; that he had, prior to the injury complained of, agreed in writing with said Pullman Company as follows: “Eourth: In consideration of said employment and wages, I undertake and bind myself to assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby for myself; my heirs, executors, administrators, or legal representatives, forever
The third paragraph of answer states substantially the same facts as the second, except that no mention is made of the ■written contract between the appellee and the- Pullman Company for indemnity by the latter for liabilities for the injury or death of its employes.
To these two paragraphs of answer the appellant filed separate demurrers upon the ground that neither paragraph stated facts sufficient to constitute a defense to appellant’s complaint; which demurrers were overruled and exceptions reserved. On appellant’s refusal to plead further, judgment was rendered in favor of the appellee. The appellant assigns for error the overruling of the separate demurrers to the second and third paragraphs of answer. Counsel have discussed both these rulings as involving the same questions, and we shall so treat them.
The principal question here presented is, whether a con
The decisions of this State firmly establish that a common carrier of goods or passengers cannot contract with a customer for a release of the carrier from liability resulting from the latter’s negligence. Wright v. Gaff,
The grounds upon which this prohibition rests are variously stated by the court. It has been said that such exemptions are against public policy; that the public is interested in 'the exercise of care and diligence on the part of the carrier; that it is unreasonable for any person or corporation to contract for the privilege of being negligent, and that the public is concerned with the life and security of every citizen. The fundamental reason, however, for holding common carriers, such as the appellee, liable for the results of their negligence, notwithstanding contracts exempting them therefrom, is that the State has granted them privileges which they exercise for the benefit of the public; in return for these, the common carrier impliedly undertakes to use due care and diligence in the transportation of both goods and passengers. This being a main inducement for the grant of its spеcial rights, the carrier cannot by any special contract rid itself of the burden of responsibility, which is one of the conditions of its creation. Were it permitted to escape liability by entering into exonerating agreements, its position of advantage over
In Cleveland, etc., R. Co. v. Curran,
Again, in New York, etc., R. Co. v. Lockwood,
The inquiry remains, is the present contract of exemption invalid as being within the theory of the rule above explained ? If it is, it must be by virtue of some positive statute, or because of the fact that it is an abandonment by the carrier of a public duty.
No statute applies, for the recent act of the legislature, Acts 1901, p.’ 515, which may possibly include similar agreements, was enaсted after the present suit was instituted, and expressly excepts pending litigation from its operation.
In determining whether this contract is invalid, we lay out of the case all consideration of the question whether the appellant was being carried gratuitously or for hire. The law is well settled that mere non-payment of fare, or gratuitous carriage, will not of itself deprive a traveler of his right of action for the results of negligence of the carrier. Ohio, etc., R. Co. v. Selby,
It may be that tbe appellant should be considered not as a licensee carried gratuitously, but as a pеrson, tbe compensation for whose carriage was paid by the Pullman Company when it entered into an agreement with the appellee for furnishing employes upon sleeping cars. See Cleveland, etc., R. Co. v. Ketcham,
On the other hand, the fact that compensation has been paid by, or on behalf of, one who is being carried on a railway car does not necessarily give him a right of action, even for injuries caused by the carrier’s negligence. If his carriage is not in the performance of a duty imposed upon the carrier by law, then it will depend upon the terms of his рarticular contract with the railroad company whether or not there is any liability. As said in the case of Baltimore, etc., R. Co. v. Voigt,
In the case of Louisville, etc., R. Co. v. Keefer,
In the case of Pittsburgh, etc., R. Co. v. Mahoney,
In the case of Baltimore, etc., R. Co. v. Voigt,
In no sense was the appellee bound to accept the appellant upon its trains, solely because he accompanied a palace car tendered by the Pullman Company, for the obvious reason that the carrier was under no legal obligation to accept and haul the sleeping car itself. Counsel for appellant urge the argument that it is customary for sleeping cars, to be attached to railway trains, thus affording a great convenience to travelers, and hence the carrier is not proceeding outside of its regular business in accepting such coaches. But counsel fail to distinguish between a departure from the legitimate business of a carrier, and the doing of an act which, though within the general scope of its powers, is not imposed upon it as a duty. It would be no ground for an action of quo warranto against a railroad corporation that it has transported circus cars or express cars over its lines, or that a street car company has received for carriage a bag of specie. But no one would seriously contend that these acts are such as the carrier must perform. He may perform them, but if he refuse, he cannot be proceeded against as for a violation of his common law duty. If he does agree to perform them he may stipulate, specially, how far his liability for negligence shall extend. Coup v. Wabash, etc., R. Co.,
Counsel for appellant have refеrred ns to no ease holding that railroad carriers must receive sleeping ears for transportation over their lines in connection with the railroad passenger trains. The case of Pullman, etc.. Car Co. v. Missouri, etc., R. Co.,
But appellant contends that, inasmuch as appellee was not a party to the contract exempting transportation companies from liability for negligence, it cannot take advantage of its terms. The contract referred generally to transportation' compаnies over whose lines the Pullman Company should run its cars. This comprehended the appellee, and, as the contract was prima facie for the benefit of the appellee, it will be presumed to have accepted its provisions, and it may now claim its advantages, as one in whose interest the agreement was executed. There was sufficient privity shown between the appellant and the appellee. Ransdel v. Moore,
We conclude, therefore: (1) That the appellee was under no legal duty to receive either the appellant or the car upon which he rode, since the appellant was not, and did not, purport to be a passenger, but occupied the sleeping car under a special contract between the Pullman Company
Appellant next argues that, even if a contract for exemption from liability were valid, this particular contract is void, because the word “negligence” is not used in the exonerating clause. The language employed is: “I hereby -x- * * release, acquit, and discharge any and all such transportation companies from all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me while traveling over such lines, in said employment and service.”
This provision is broad enough to include injuries resulting from the negligence of the appellee. As we have said, contracts made under the circumstances of the present case are not void as against public policy, and the same rules of construction should apply to them as to ordinary, valid stipulations. Pittsburgh, etc., R. Co. v. Mahoney,
In the following cases, the language exempting the company from liability was not so strong as in the contract we are considering, yet it was held to include negligence by necessary implicаtion. Illinois, etc., R. Co. v. Read,
The cases cited by appellant, when carefully examined, are not inconsistent with this interpretation. In New Jersey, etc., Co. v. Merchants Bank,
The following cases from the Eew York court, of appeals are also relied upon by appellant as establishing the necessity for a rule of strict construction in the case at bar. Wells v. Steam Nav. Co.,
The law in Eew York has long been that contracts containing exemptions from liability for negligence are valid, though made with shippers or passengers. As a reaction against a rule which the courts of that state regard as unfortunate, and which does not prevail in Indiana, the counter doctrine has been introduced that, unless liability for negligence is expressly included, it will not be implied. As the rule does not obtain in this State, the eases involving the exception are irrelevant. See Pittsburgh, etc., R. Co. v. Mahoney,
The learned counsel for appellant cite the case of Jones v. St. Louis, etc., R. Co.,
There being no error in the action of the lower court in overruling the separate demurrers to the second and third paragraphs of answer, the judgment is affirmed.