238 F. 449 | 6th Cir. | 1917
Everett A. Tripp brought an action in the court below against the Michigan Central Railroad Company to recover damages for personal injuries claimed to have been sustained by him through negligence of the railroad, and obtained a verdict and judgment in his favor. Eater, upon motion of the railroad, the judgment was set aside and a new trial granted. This ruling was based on the decision in Charleston & West. Car. Ry. v. Thompson, 234 U. S. 576, 34 Sup. Ct. 964, 8 L. Ed. 1476, which had been rendered meanwhile. Thereafter, April 22, 1915, under stipulation of counsel, the evidence and record of the former trial were submitted to the court and jury, and, upon motion of the railroad and solely on the authority of. the decision in the Thompson Case, the court directed verdict and entered judgment in favor of the railroad. The writ of error is prosecuted to reverse this action of the trial court.
According to the substantial tendency of the proofs taken at the first trial, Tripp, who was a horse dealer,.on February 12, 1913, arranged at Chicago with Moses Wilcove to accompany as attendant a carload of horses owned and ready for shipment by Wilcove from Chicago to Utica, N. Y. The shipment was made under a form of instrument which the railroad company had used for some eight years, called a “Uniform Rive Stock Contract”; and this was executed by Wilcove and the railroad company. There is indorsed on this contract, and seemingly as part of the contract, a form of release which in terms absolves the railroad company from all damages that might happen to the attendant through the company’s negligence. One of the regulations contained in the company’s official classification required the person accompanying the live stock to sign this release. Before starting with the shipment, Tripp signed the release and received from the railroad company a duplicate of the contract including the release; and upon this duplicate he was expected and permitted to accompany the carload of horses as the attendant. The injuries for which recovery was allowed at the first trial occurred in the night of February 14th, on a switch at Welland, Ontario, in the regular course of the shipment and through collision between a train of defendant and the way-car, or caboose, in which Tripp was -rightfully sitting.
In N. Y. Central R. Co. v. Lockwood, 84 U. S. (17 Wall.) 357, 359, 21 L. Ed. 627, a live stock contract was involved which was much like the present one; though it is to be noted that it was not there provided as it is here that the fare of the live stock attendant (the owner in that instance) was included in the rate charged for the carriage of the live stock. The agreement in the Rockwood Case stated its consideration to be the carrying of the plaintiff’s cattle at less than tariff rates; the shipper was required to care for his cattle while in transit and also to attend to the loading and unloading of them; and he assumed all risk of injury to the stock and of personal injury to himself or to any attendant who might go with the cattle. The shipper received a drover’s pass which certified that the person to whom it was issued had shipped sufficient stock to entitle him to free passage and stated that the acceptance of the pass was to be considered a waiver of all claims for injuries that might be received by the holder while on the train. Mr. Justice Bradley said of this contract and pass:
“It may be assumed in limine that the case was one of carriage for hire; for, though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle. The question is, therefore, distinctly raised, whether a railroad company carrying passengers for hire can lawfully stipulate not to be answerable for their own or their servants’ negligence in reference to such carriage.”
Again, among the conclusions there reached, the fourth one was (84 U. S. [17 Wall.] 384, 21 L. Ed. 627);
*454 “That a drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.”
In Baltimore & Ohio, etc., Railway v. Voigt, 176 U. S. 498, 505, 20 Sup. Ct. 385, 387 (44 L. Ed. 560), it was said of the Rockwood decision:
“This case has been frequently followed, and it may be regarded as establishing a settled rule of policy.”
True, the answer to the question certified in that case negatived Voigt’s right of recovery. The contract required an express company to hold the railroad harmless from liability for injuries sustained by the express company’s employés through negligence of the railway. Voigt in turn agreed both to indemnify the express company against any liability it might incur under its indemnity to the railroad company, and also to release the railroad from liability for injuries sustained by him while being transported on the express cars; and in consideration of this agreement of Voigt he was employed as an express messenger. This agreement between the two corporations, the railroad company and the express company, respecting their joint transportation business presented a question manifestly different from the one arising between a carrier and a shipper or passenger for hire; in the former the railroad company is acting outside of, while in the latter it is acting within, the scope of its duty as a common carrier. This distinction is further illustrated in the more recent case of Santa Fé Railway v. Grant Bros., 228 U. S. 177, 184, 185, 33 Sup. Ct. 474, 477 (57 L. Ed. 787), where an agreement similar in principle to that of the express company just mentioned was upheld; but the court distinguished and sanctioned the doctrine of Railway Co..v. Rockwood, Mr. Justice Hltghes saying in that connection:
“For these reasons, the common carrier in the prosecution of its business as such is not permitted to drop its character and transmute itself by contract into a mere bailee with right to stipulate against the consequences of its negligence.”
And in Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 283, 35 Sup. Ct. 351, 353 (59 L. Ed. 576) while sustaining .a shipping contract which limited recovery in case of loss or damage to an agreed valuation of the freight shipped, the court again recognized the rule of the Rockwood Case preventing a carrier from limiting its liability for loss through its negligence; Mr. Justice Day saying:
“That contracts for limited liability, when fairly made, do not contravene the settled principles of the common law preventing the carrier from contracting against its liability for loss by negligence (Railroad Co. v. Lockwood, 17 Wall. 357, 375), was settled by this court in what is known as the Hart Case (Hart v. Pennsylvania R. R., 112 U. S. 331 [5 Sup. Ct. 151, 28 L. Ed. 717]).”
Thus it would seem safe to say that, so far as it is not in conflict with the interstate commerce law, the rule of the Rockwood Case still prevails as respects the right of an attendant of live stock who travels upon a pass issued in connection with a contract like the one there involved, to be treated, not as a gratuitous passenger, but as
It is to be remembered that there is one important difference between the contract involved in the Rockwood Case and the contract here in issue. .The Rockwood contract did not, while the present contract does, provide in express terms that the carriage of the attendant was to be “without charge, other than the sum paid * * * for the transportation of the live stock.” In passing upon language like this in Rowdin v. Pennsylvania R. Co., 208 Pa. 628, 57 Atl. 1126, supra, it was held:
“The contract and the release show that the consideration for the transportation of the plaintiff was included in ‘the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract.’ ”
The same conclusion respecting similar language was reached in Heyward v. Boston & Albany Railroad, supra, 169 Mass. 469, 48
“With one, two or three ears of horses or mules, the owner or his agent will he carried free on the same train to take care of the animals. * * * ”
And yet the contract, as before pointed out, provides:
“Shipments of horses must in all cases be accompanied by an attendant to destination.”
Considering these provisions together, it is plain that the presence of an attendant is exacted; and the portion of the first of these provisions which states that “the owner or his agent will be carried free” may be, and possibly under some other form of contract is, given literal effect by actually carrying the owner or his agent “free”; but this does not militate against the present contract, which in effect provides, as we have said, for payment of the attendant’s fare in money.
“As it is absolutely necessary, in carrying stock, that the persons who have charge of them should be carried by the company, the price paid for the freight includes the cost of transporting the drover, who is not therefore a gratuitous but a paying passenger, and the word ‘free’ is therefore only true so far as that the conductor is not entitled to charge him. separately for his passage.”
“The impossibility of traveling -without the accompaniment of a certain ouantity of luggage for the personal comfort and convenience of. the traveler has led from the earliest times to the practice on the part of carriers of passengers for hire of carrying, as a matter of course, a reasonable amount of luggage for the accommodation of the passenger, and of considering the remuneration for the carriage of such luggage» as comprehended in the fare paid for the conveyance of the passenger.”
See Saunders v. Southern Ry. Co., 128 Fed. 15, 19, 62 C. C. A. 523 (C. C. A. 6); National Baggage Committee v. A. T. & S. F. Ry. Co., 32 Interst. Com. R. 152; C. & R. I. R. R. Co. v. Fahey, 52 Ill. 81, 83, 4 Am. Rep. 587; Wood v. M. C. R. R. Co., 98 Me. 98, 100, 56 Atl. 457, 99 Am. St. Rep. 339; Penna. R. R. Co. v. Knight, 58 N. J. Raw, 287, 288, 33 Atl. 845; 3 Hutchinson on Carriers, § 1241.
The judgment is reversed, with costs, and the cause remanded with direction to award a new trial.
(1) The shipper was to pay freight at the “lower published tariff rate,’subject to condition that the carrier’s liability on the horses should be restricted to an agreed valuation of not exceeding $100 each or $1200 for the carload,
(2) The shipper was required to inspect and satisfy himself of the sufficiency and safety of the body of the car in which the stock was to be transported; also, at his sole risk and expense, to load and care for the horses, to feed and water them in course of transportation, whether delayed in transit or otherwise, and to unload them; he was to see that all doors and openings of the cars were at all times so closed and fastened as to prevent escape of the stock in the course of transit; and th'e carrier and connecting carriers were alike exempted from all liability or damages touching the subjects of the duties so imposed upon the shipper.
(3) “Shipments of horses must in-all cases be accompanied by an attendant to destination.” And “in consideration of the premises and of the carriage of a person * * * in charge of said stock upon d freight train * * * without charge other than the sum paid or to be paid for the transportation of the live stock in charge of” the attendant, the shipper in terms bound himself to indemnify the carrier against and save it harmless from all liability “by reason of personal injury sustained” by the attendant, “whether the same be caused by the negligence” of the carrier or any connecting carrier or otherwise. The release provides: “In consideration of the carriage of the undersigned (the attendant) upon a. freight train of the carrier * * * named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract, of which live stock he is in charge, the undersigned does hereby voluntarily assume all risk of accidents or damage to his person * * * and does hereby release and discharge the said carrier * * * from every and all claims, * * * for or on account of any personal injury * * * sustained by the undersigned, * * * whether the same be caused by the negligence” of the carrier or otherwise.
It is to be observed, however, that in the opinion in the Willcox Case attention is called (page 99 of 162 App. Div., page 360 of 147 N. Y. Supp.), to the settled law of New York, that a person riding on a “drover’s pass” is a gratuitous passenger; and see remarks of Mr. Justice Bradley on the New York doctrine in his opinion in the Lockwood Case, 84 U. S. at page 363, et seq., 21 L. Ed. 627.
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