79 F. 561 | U.S. Circuit Court for the District of Southern Ohio | 1897
(after stating the facts). It seems to be well settled that an express messenger, though carried in a special car, when carried under a contract with a railroad company made by the express company for the transportation of express matter in his charge, is a passenger for hire. Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597; Blair v. Railroad Co., 66 N. Y. 313; Brewer v. Railroad Co., 124 N. Y. 59,26 N. E. 324; Kenney v. Railroad Co., 125 N. Y. 422, 26 N. E. 626; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Railroad Co. v. Thomas, 79 Ky. 169; Jones v. Railway Co., 125 Mo. 666, 28 S.W. 883; Yeomans v. Navigation Co., 44 Cal. 71; Railway Co. v. Ketcham, 133 Ind. 346, 33 N. E. 116; Chamberlain v. Railroad Co., 11 Wis. 238; Railway Co. v. Wilson, 79 Tex. 371, 15 S. W. 280. Postal clerks, whose relation to the railroad company is analogous to that of the express messenger, are also accorded the same rights as passengers for hire. Seybolt v. Railroad Co., 95 N. Y. 562; Nolton v. Railroad Co., 15 N. Y. 444; Magoffin v. Railway Co., 102 Mo. 540, 15 S. W. 76; Mellor v. Railway Co., 105 Mo. 455-460, 16 S. W. 849; Jones v. Railway Co., 125 Mo. 666, 28 S. W. 883; Hammond v. Railroad Co., 6 S. C. 130; Libby v. Railroad Co., 85 Me. 34, 26 Atl. 943; Railroad Co. v. Kingman (Ky.) 35 S. W. 265; Baltimore & O. R. Co. v. State, 72 Md. 36, 18 Atl. 1107; Railway Co. v. Wilson, 79 Tex. 371, 15 S. W. 280; Railway Co. v. Ketcham, 133 Ind. 346, 33 N. E. 116; Railroad Co. v. Shott (Va.) 22 S. E. 811; Collett v. Railroad Co., 16 Adol. & E.
The argument of defendant’s counsel against the demurrer may be stated thus: The rule of public policy which renders invalid a stipulation by a common carrier, restricting its liability for loss caused by its negligence or that of its servants, applies only to those duties which it is bound to perform as a common carrier. Whenever that which it engages to do is something which it is not under obligation as a common carrier to do, it has the same freedom of contraed: as a private carrier for hire, and may therefore exempt itself by stipulation from liability for its own negligence or that of its servants. In the ease at bar, the defendant company w'as not under any common-law obligation to furnish express facilities to the express company whose employé the plaintiff was. If, then, the express business is not performed by the railroad company as a common carrier, but under special contract, it must be done by it as a private carrier. Hence the conclusion is said to follow that the messenger was carried by the railroad company as a private carrier, under a special contract with the express company, under which the railroad company might lawfully exempt itself from liability arising from negligence of itself
If, then, a railroad company in carrying an express messenger for ah express company is a common or public carrier of a passenger for hire, the railroad company cannot, by restricting its liability for injury to the messenger, change its character as a common carrier.
In Railroad Co. v. Lockwood, Mr. Justice Bradley, in delivering the opinion of the supreme court, used this language:
“It is argued that a common carrier, by entering into a special contract with a party for carrying Ms goods or person on modified terms, drops Ms character, and becomes an ordinary bailee for hire, and therefore may make any contract he pleases; that is, he may make any contract whatever because he is a.n ordinary bailee, and he is an ordinary bailee because he has made the contract. We are unable to see the soundness of this reasoning. It seems to, us more accurate to say that common carriers are such by virtue of their occupation, not by virtue of the responsibilities under which they rest. Those responsibilities may vary in different countries, and at different times, without changing the character of the employment. The common law subjects the common carrier to insurance of the goods carried, except as against the act of God or public enemies. The ’ civil law excepts also losses by means of any superior force and any inevitable accident. Yet the employment is the same in both cases. And if by special agreement the carrier is exempted from still other responsibilities, it does not follow that his employment is changed, but only that his responsibilities are changed. The theory occasionally announced, That a special contract as to the terms and responsibilities of carriage changes the nature of the employment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of an ordinary bailee for hire, while the nature of his business renders him a common carrier still. Is there any good sense in holding that a railroad company, whose only business is to carry passengers and goods, and which was created and established for that purpose alone, is changed to a private carrier for hire by a mere contract with a customer, whereby the latter assumes the risk of inevitable accidents in the carriage of his goods? Suppose the contract relates to a single crate of glass or crockery, while at the same time the carrier receives from the same person twenty other parcels, respecting which no such contract is made, is the company a public carrier as to the twenty parcels, and a private carrier as to the one? On this point there are several authorities which support our view, some of which3 are noted, in the margin. A. common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry. For example, if a carrier of produce, running a truck boat between New York City and Norfolk, should be requested to carry a keg of*566 specie, or a load of éxpensive furniture, which he could justly refuse to take, such agreement might he made in reference to his taking and carrying che same as the parties chose to make, not involving any stipulation contrary to law or public policy. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that currier ho a corporation created for the purpose of the carrying trade, and the. carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character.”
It is quite true that the railroad company is not obliged to furnish a special car for the express messenger, but when it does so then it assumes the relation of a common carrier to the messenger carried, because he is one of the public whom the railroad company is hound to carry in some kind of a car. There is no such difference in the risk of carrying the express messenger and the ordinary passenger in the same train as there is between the risk to the owner of a truck boat in carrying a keg of specie or a load of expensive furniture and that involved in carrying the produce which he holds himself out to transport. In Bates v. Railroad Co., 147 Mass. 255, 17 N. E. 633, it was held that an express messenger who was riding on.a ticket in the baggage car providing that, in consideration of being allowed to ride in the baggage car, the messenger would assume all risks of accident and injuries received by him while so riding, was a valid contract, exempting the railroad company from an injury received by the messenger through the negligence of the company; and a similar ruling was made in the case of Hosmer v. Bailroad Co., 156 Mass. 506, 31 N. E. 652. The conclusion of the court was based on the fact that the place where the plaintiff was riding was one in which the defendant was not under obligation to carry him. The contract gave him the privilege- which he sought for his own convenience. I think that the Bates Case and the Hosmer Case are not in accord with the decisions of the supreme court of the United States. First, the contracts did not expressly exempt the railroad company from accidents occurring through its own negligence,, and yet they were given that effect, which is in conflict with the decision of the supreme court in the case of New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 383. Secondly, the cases cannot be reconciled with the decision in Railroad Co. v. Lockwood, in which the plaintiff, a drover, was allowed to ride upon a freight train, a much more dangerous place than the passenger train, to which the railway company might have compelled him to resort had it seen fit to do so, and yet he was still treated as a passenger for hire, who on grounds of public policy was not permitted to barter away his right to the care of the railway company in his transportation. There is a class of cases upon which defendant’s counsel rely, known as the “Circus Cases,” the first of which is Coup v. Railway Co., 56 Mich. 111, 22 N. W. 215. This is followed in Railroad Co. v. Wallace, 14 C. C. A. 257, 66 Fed. 506, and Robertson v. Railway Co., 156 Mass. 525, 31 N. E. 650. In these cases the railroad company agreed to haul over its road the train of cars belonging to the circus proprietor, and containing the animals and the company of persons
The demurrer to the second defense of the answer is sustained, and the case will stand for trial on the issues made by the other defenses.