141 A. 811 | N.J. | 1928
The plaintiff was injured while riding on defendant's railroad train as the result of a collision between that train and the train of another railroad company because of the negligence of defendant's servants. The appeal is from a judgment upon a verdict rendered by a jury against the defendant for the resultant damages. The plaintiff was a driver of an express wagon in Jersey City belonging to the American Railway Express Company, which was his employer, and at the time of the accident he was riding from his home at Carlstadt on the defendant's train to Jersey City in order to go to work on his express wagon. His work had nothing to do with the operation of defendant's railroad, nor with any service of his employer, the American Railway Express Company, on such railroad. For some reason not made clear by the testimony, the plaintiff regularly each month made requisition to the American Railway Express Company, as one of its employes, for an order on the defendant company entitling the plaintiff to receive a commutation ticket from Carlstadt to New York City upon payment of one-half of the regular commutation fare for such ticket. This procedure had gone on for several years, and at the beginning of the month in question the plaintiff received such an order, presented it to the defendant railroad company, paid one-half the regular commutation fare, and received a pass or half-fare ticket, the back of which contained a release of all damages which might be suffered by the plaintiff as the result of the negligence of defendant's servants while the plaintiff was traveling on defendant's railroad upon such half-fare ticket or pass.
The learned trial judge held the release to be void as *624 against public policy, and the correctness of this ruling is the one question raised by this appeal.
It is well established in this state that a passenger "not for hire" (namely, riding on a "free pass") is bound by a contract or condition, to which he is party, releasing a common carrier from liability for injury resulting from negligence. Kenney et al.
v. Central Railroad Co. of New Jersey,
This reasoning seems to have been approved by Chief Justice Magie, speaking for the Supreme Court, in Trenton PassengerRailway Co. v. Guarantors Liability Indemnity Co.,
On the other hand, "It is settled with practical uniformity of decisions that a common carrier of passengers cannot, by antecedent contract or release, exempt itself from liability to *625
a passenger for hire, for its own negligence, or that of its servants, no matter in what way the hire or compensation has been paid or is to be paid." Buckley v. Bangor, c., Railroad Co.,
The reason for the doctrine of these latter cases would seem to me to be that as a common carrier is a quasi-public agency enjoying a franchise, and generally a monopoly, to serve the public for, and in consideration of, the carrier's own profit, the latter, as a matter of public policy, will not be permitted, while receiving the profit, to escape the service. One of the elements of that service in the case of a common carrier of passengers for hire, is that it and its servants shall use a high degree of care for the safety of the passengers. The public, which grants the profit-privilege, is naturally interested in the performance of the reciprocal service. It is therefore a matter of true public policy which renders void any attempt to contract out of existence the right of the traveling public to have its safety properly conserved at the hands of those instrumentalities which, in consideration of such conservation, it has created and authorized to serve it and to take toll for so doing.
Obviously, servants of such a carrier or of allied utilities operating on the carrier's trains and helping render a part *626
of the public service carried on thereon, while traveling upon the carrier's cars in the performance of the carrier's public duties, do not fall within the classification of the general traveling public in whose rights the public has a jealous interest. Naturally they occupy a special position with relation to the carrier, and, in the absence of proper legislative regulations, may contract with it as they see fit. Dodd v.Central Railroad Co. of New Jersey,
The question here involved, therefore, seems to resolve itself into the simple one — if a person who rides upon a free pass which he receives as a pure gratuity can lawfully contract away his passenger rights to damages suffered because of injuries arising from the negligence of the servants of the common carrier, and if a regular passenger paying full regular fare cannot so contract, how about one who rides upon a pass issued for one-half, or any other fractional part of the regular fare? For the reasons hereinbefore pointed out, we think that a release by such a partial-fare passenger is just as much against public policy, and consequently void, as is such a release by a full-fare passenger. Each of them falls within that class of passengers which the carrier, because of the fundamental essence of its franchises or privilege to take toll from them, and the exercise of that privilege, has become bound as a public duty to carry them with a high degree of care. Morris v. West Jerseyand Seashore Railroad Co.,
The judgment is affirmed. *627 For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 16.
For reversal — None.