227 F. 127 | W.D.N.Y. | 1915
The plaintiff sued to recover damages for personal.injuries. The jury awarded him $3,500. This is a motion to sfet that verdict aside and grant a new trial.
The facts involve.the liability of an interstate railway carrier under the anti-pass provisions of the Hepburn Act for personal injuries sustained, through the carrier’s negligence, by a plaintiff who was injured while traveling on a drover’s pass in the care of live stock. The jurisdiction of this court is founded on diversity of citizenship; the plaintiff being a resident and citizen of the state of New York, and the defendant a Canadian corporation, doing business in this district and operating lines of railway in Canada, New York, and New England.
The injuries were sustained at or near Ridgeway, in Canada, on one of the defendant’s lines, in a head-on collision between two trains being run in opposite directions on the same track while under the care, management, and control of the defendant’s servants and agents; the plaintiff being, at the time of the collision, in tire caboose of one of the colliding trains, in charge of a car of live stock which had been shipped from Bad Axe, in the state of Michigan, on the line of the Pere Marquette Railroad, to Buffalo, over the defendant’s railway as a connecting line, and forming with its connecting lines an interstate railway route.
The plaintiff’s transportation was furnished on a drover’s pass issued in Michigan, by the Pere Marquette railroad, where the carriage was begun and the shipment was received. At the time of the shipment, . the Pere Marquette Railroad issued a through bill of lading, which was signed by the plaintiff and the agent of that railroad company in which the plaintiff was furnished transportation from Bad Axe to. Buffalo as a necessary caretaker of the live stock included in the bill of lading; the plaintiff at the same time purporting to release the railroads over which he was tó travel from any liability for personal injuries sustained by the former through the latter’s negligence.
Has Congress, by the Hepburn Act, so called, regulated the invalidity of such a release as is this, to the exclusion of the law of the state? In my judgment it has not. The release does not offend either the letter or spirit of the interstate commerce legislation of Congress. The fourth paragraph of section 1 of the “Act to regulate commerce,” as amended June 29, 1906, and in effect January 1, 1907 (chapter 3591, 34 Stat. 584, 585), especially excepts from the anti-pass provisions of the law “necessary caretakers of live stock,” and this provision is not varied or affected by the subsequent amendments of April 13, 1908 (chapter 143, 35 Stat. 60, 61), and June 18, 1910 (chapter 309, 36 Stat. 546). This view of the statute is confirmed by a very recent decision of the Circuit Court of Appeals for the Fourth Circuit in Norfolk Southern R. Co. v. Chatman, 222 Fed. 802, -— C. C. A.-, supra. That case involved substantially the same facts as exist here, in which it was held that a caretaker of live stock, who was transported on his shipping contract, did not come within the statute in qfiestion, but was a passenger for hire, and that a release similar to the one herein issued was invalid.
This view of the law dispenses with any consideration of the Canadian law, which has been discussed at length by counsel.
The motion to set aside the verdict is denied.
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