139 Mich. 590 | Mich. | 1905
This writ of error is prosecuted to reverse a judgment of the circuit court of Gratiot county in favor of the plaintiff, as administratrix of the estate of John H.
Plaintiff’s decedent, John H. Weaver, was, at the time •of the accident causing his death, being transported on a freight train of defendant, which ,was at said time standing within what are known as “yard limits”of the station at Ashley, a village on the line of the defendant railroad. He was in the caboose at the rear of said , train, which was a south-bound train, known as “-No. 33.” The accident occurred shortly before midnight on the 29th of January, 1904. The accident was caused by another .south-bound freight train of defendant, known as “ No. 41,” coming into the yard or station limits at Ashley, and running into the caboose in which plaintiff was, wrecking that car, and causing a hay car in front of it to be derailed and upset upon plaintiff’s body, injuring him so severely that he died within a short time thereafter. The accident was due to the negligence of the engineer of train No. 41 in failing to keep his train under control when coming into yard or station limits, as required by a rule of the ■company.
The declaration avers that plaintiff’s intestate was being transported as a passenger for hire. In proof of this allegation there was offered in evidence of the right of said Weaver as a passenger on defendant’s train a paper
The contract contained, among others, the following provisions:
“That the said shipper is, at his own sole risk and expense, to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * *
“That said shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of said stock, and said carrier or any connecting carrier shall not be liaable on account of the escape of any of said stock from said car or cars. * * *
“That no claim for damages which .may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, etc. * * *
“ And it is further agreed by said shipper that, in consideration of the premises and* of the carriage of a person or persons in charge of said stock upon a freight train of' said carrier or its connecting carriers without charge other than the sum paid o’r to be paid for the transportation of the live stock in charge of which he is, the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims, liabilities, and de*593 mands of every kind, nature, and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the sáme be caused by the negligence of said carrier or any connecting carrier, or any of its or their employés, or otherwise. * * *
“And Altenburg & Van Buskirk does hereby acknowledge that he had the option of shipping the above described live stock at a higher rate, of freight according to the official tariffs, classifications, and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad, and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned.
“ Ann Arbor Railroad Company,
“By E. W. Angell, Station Agent.
“ Witness my hand,
“ Altenburg & Van Buskirk, Shipper.
“By-= — =—, Shipper’s Agent.
“E. W. Angell, Witness.
“ (See back for release for man in charge.)”
Upon the back of the contract appeared the following:
“ Form 258. Live stock contract:
“From Ithaca, Mich., to Black Rock, N. Y., viaM. C. R. R.
“ Date Jany 29th, ’04. Shipper,,-Altenburg & Van B.; consignee, do., ac Bun. W. B. Nos. M. C. 31 and M. C. 32; car Nos. M. C. 7991, T. C. S. D. 20836.
“Parties actually in charge of and accompanying within named stock are required to write their own names in ink here.
“John Weaver.
“Men in charge have written their own names above.
“E. W. Angell; Forwarding Agent.
“Ithaca, Mich., Station.
“ Note — Agents will permit only the signature of owners or bona fide employes, who accompany the stock, to be entered on back of contract, without regard to passes allowed by number of cars, and run a pen through the remaining lines.
“John Weaver.
.“I hereby sign my name as a means of identifying myself as original signer of this contract.
“ John Weaver.
*594 “ Agents will fill in the blank spaces in face of contract in accordance with rates, weights, and conditions, as provided in tariffs and classifications, or such instructions as may be issued from time to time.
“ The names of persons who are actually entitled to pass free with stock must be entered on the waybill, and which, when certified to by the agent, is the authority for the conductor to pass them.
“No return passes will be given.
“ Agents will permit only the names of owners, or bona fide employés who accompany the stock, to be entered on waybill, without regard to passage allowed by number of cars.
“Agents are expected to adhere strictly to the rules in regard to the loading of mixed cars of stock, checking of shipments, examination of cars and doors, and the affording of proper facilities for the care of stock to parties in charge of same.
. “This contract must be signed in duplicate in all cases; the shipper to
“Release for man or men in charge.
“In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers 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 I am in charge, the undersigned do hereby voluntarily assume all risk of accidents or damage to his person or property, and do hereby release and discharge the said carrier or carriers from every and all claims, liabilities, and demands of every kind,' nature, and description, for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers, or any of its or their employés, or otherwise.
“John H. Weaver,
“Signature of man in charge.
“E. W. Angell, Witness.”
Defendant contends that:
“ John Weaver was not a passenger for hire, as claimed by plaintiff. In fact and law he was really a trespasser, to whom defendant owed no duty except to abstain from injuring him by wanton or willful acts. * * *
*595 “The contract offered by plaintiff as the evidence of his right to be carried as a passenger contained, in the very paragraph signed by Weaver, a provision that it was intended only for bona fide employés. And in this paragraph, as well as in the release signed by him, the validity of which we shall discuss further on, he, in effect, represents and certifies that he is a bona fide employé of the shippers, in charge of their stock. That such was not the fact was well known to him and the shippers. It was not known to the railway company’s agent. And, if it had been, the contract, on its face, shows that the agent was authorized to issue the pass only to bona fide employés of the shippers. In fact, the whole transaction was a fraud on the company. The privilege of sending a ‘ man in charge ’ was abused by sending instead a man who was not in charge of the stock, and had no connection with it or the shippers. Weaver was, for the purpose of getting a ride for nothing, pretending (with the connivance of the shippers) to be what he was not — a bona fide employé of the shippers, in charge of their stock. Under these circumstances he had no right to the transportation. He ' was therefore wrongfully on the train. In other words, he was a trespasser. And, irrespective of the release signed by him, the company is not .liable.”
We do not think the trial judge erred in refusing to direct a verdict for defendant on the ground that Weaver was a trespasser. The contract relied upon was between Altenburg & Yan Buskirk as shippers, and the railroad company as carrier, and intended to be signed by both parties. It was signed by the carrier, and by its station agent, and purported to have been signed by the shippers, although Mr. Altenburg testified that he never signed it, and had never read it, and there was no evidence, so far as the record shows, who did sign the shippers’ names. The contract between the shippers and the carrier was all set forth upon the face of the. paper, appears to be complete, and contains no reference to anything upon the back'thereof. There is no provision in this contract, as signed, requiring that the person accompanying the stock shall be a “ bona fide employé ” of the shippers. It gave them the right to select whomsoever they chose, and send
The provisions with reference to “ bona fide employes ” are all upon the back of the agreement, not included in the agreement signed by the shippers, either explicitly or by reference, and are, in form, directions or instructions to the carrier’s agent,. Although one of these clauses was apparently signed by John Weaver, an inspection of the original in the return to the writ shows that it was not contemplated that it should be signed by him. Evidently the only clauses which it was intended that Weaver should sign were the two clauses reading as follows:
“ Parties actually in charge of and accompanying within-named stock are required to write their own names in ink here. * * *
“ I hereby sign my name as a means of identifying myself as original signer of this contract.”
These instructions to the carrier’s agent seem to be designed for the protection of the company by insuring that the person who received a pass should be the person actually in charge of and accompanying the stock. The words “bona fide employés,” as used in the instructions to the agent, mean the same thing as the expression, “Parties actually in charge of and accompanying within-named stock.” The word “ employe ” has a variety of meanings, according to the context, subject-matter, and circumstances in which it is used. According to Webster, an employe is “one who is employed.” According to the text of the 11 Am. & Eng. Enc. Law (2d Ed.), p. 1:
“Toemploy means to engage in one’s service; to use as an agent or substitute in transacting business; to commission and intrust with the management of one’s affairs; when used passively, it sometimes has a reflexive meaning, signifying only to be engaged in. To select; to designate. ”
In the case of Reg. v. Foulkes, L. R. 2 C. C. R. 150, the prisoner’s father was clerk to a local board, and held other appointments. The prisoner lived with his father, and assisted him in his office and in the business of the board. In his father’s absence, the prisoner acted for him at the meetings of the board, and when present he assisted him. The prisoner was not appointed or paid by the board, and there was no evidence that he received any salary from his father. The board having occasion to raise a loan on mortgage, the prisoner managed the business for his father, and at his father’s office received the money from the mortgagees, and appropriated a part of it to his own use. Held, that there was evidence that the prisoner was a clerk or servant, or employed as a clerk or servant, and was guilty of embezzlement.
It was not necessary in this case that Weaver should have been employed before the occasion in question; nor was it necessary that there should have been any compensation in money provided for. It was sufficient if he was actually put in charge of the stock with the understanding that he should render such services as should become necessary in consideration of the transportation furnished to him. If this was substantially the transaction between Weaver and the shippers, then he was a bona fide employé in the sense in which those words are used on the back of the contract.
Defendant’s counsel regarded this inquiry as foreclosed by the testimony of Altenburg, who was called as a witness by plaintiff, and testified that Weaver was not in his employ' or the employ of Altenburg & Van Buskirk at any time during his lifetime; that Weaver came to him a perfect stranger, and told him he wanted to get a pass to Buffalo; that on learning he was the son of Dan Weaver,
But, in any event, defendant’s counsel contend: That the company is not liable because the release signed by plaintiff’s intestate was a valid and binding contract, and absolved the company from liability. That, whatever the law may be in other States, it is the settled law in Michi
Plaintiff’s counsel does not claim, in support of the judgment in this case, that the defendant was a common carrier of live stock, but contends that, as to the plaintiff’s intestate, defendant was a common carrier of passengers, and therefore, upon grounds of public policy, it could not lawfully stipulate for exemption from responsibility for its own negligence.
In our opinion, the contention'of plaintiff’s counsel must be sustained. This precise question was exhaustively considered and discussed by Mr. Justice Bradley in the case of Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357. In an opinion of great force and clearness of reasoning, concurred in by the entire court, it was held that the plaintiff, riding upon a stock drover’s pass, as in the pres
“It is said, however, that in Illinois a carrier may by contract limit its liability for all negligence except gross negligence. This rule has been laid down in some cases in reference to the shipment and carriage of property, but does not apply when a carrier intends to limit its liability for personal injury to a passenger paying fare. Where a passenger was traveling in the cars of a railroad company upon a free pass given him by the company, and received injuries to his person, it has been held that a contract exempting it from liability for any other-species or degree of negligence than gross negligence was valid. Illinois Cent. R. Co. v. Read, 37 Ill. 484; Toledo, etc., R. Co. v. Beggs, 85 Ill. 80. But in the present case it cannot be said that the deceased intestate was riding upon a free pass.
“‘A person who is traveling, with the consent of the railroad company, upon a freight train, in charge of stock or goods carried by the company for him, is a passenger. Indianapolis, etc., R. Co. v. Beaver, 41 Ind. 493; Lawson v. Railway Co., 64 Wis. 447. Even where such a person is traveling in charge of cattle on a drover’s pass, he is a passenger for hire. The consideration of his passage is the service he renders in taking care of the cattle, or the charge made against him or his employer for shipping the cattle. Railroad Co. v. Lockwood, 17 Wall. (U S.) 357; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 291; Cleveland, etc., R Co. v. Curran, 19 Ohio St. 1; 3 Am. & Eng. Enc. Law. p. 16, and cases cited in notes; Lake Shore, etc., R. Co. v. Brown, 123 Ill. 162; New York, etc., R. Co. v. Blumenthai, 160 Ill 40.’ ”
Many authorities are cited in support of the doctrine in plaintiff’s briefs, and we are satisfied that it has in its support the great weight of reason and authority.
The cases of Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, and Russell v. Railway Co., 157 Ind. 305 (55 L. R. A. 253), upon which defendant’s counsel strongly rely, are, in our opinion, fatal to his contention. The case of Baltimore, etc., R. Co. v. Voigt distinctly recognizes and approves of the Lockwood Case, and distinguishes
“ A stipulation that the carrier shall not be bound to the exercise of care and diligence is, in effect, an agreement to absolve him from one of the essential duties of his employment, and it would be subversive of the very object of the law to permit the carrier to exempt himself from liability by a stipulation in his contract with a passenger that the latter should take the risk of the negligence of the carrier or of his servants. The law will not allow the carrier thus to abandon his obligation to the public, and hence all. stipulations which amount to a. denial or repudiation of duties which are of the very essence of his employment will be regarded as unreasonable, contrary to public policy, and tixerefore void.”
But the principal case under cqnsideration now distin
We find no errors in the rulings of the trial judge, and the judgment is affirmed.