Northern Pac. Ry. Co. v. Adams

• Decision Date: 19 May 1902
• Docket Number: 707.
• Citation: 116 F. 324
• Parties: NORTHERN PAC. RY. CO. v. ADAMS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 324

NORTHERN PAC. RY. CO. v. ADAMS et al.

No. 707.

United States Court of Appeals, Ninth Circuit.

May 19, 1902

Will H Thompson and Stephens & Bunn (C. W. Bunn, of counsel), for plaintiff in error.

C. S Voorhees and Reese H. Voorhees, for defendants in error.

In Error to the Circuit Court of the United States for the District of Washington.

This was an action to recover damages from the plaintiff in error for the loss sustained through the alleged negligent killing of Jay H. Adams, the husband and father of the defendants in error. A verdict was obtained in the lower court in favor of the defendants in error in the sum of $14,000, and judgment entered for that amount. The case is now before this court upon writ of error to reverse that judgment. See 95 F. 938.

It appears that the deceased, Jay H. Adams, was an attorney at law residing at Spokane, Wash., frequently having occasion to travel over the lines of railroad in that section of the country. On November 13, 1898, the deceased, in company with a friend, took the east-bound overland train of the Northern Pacific Railway Company at Spokane about 8 a.m., and continued to ride thereon until the town of Hope, Idaho, was reached, at which point they left the train. They remained in Hope several hours, taking the regular west-bound overland train of the same company for Spokane at 4:15 p.m. of the same day, this train being some three hours and ten minutes late in arriving at Hope. The train consisted of an engine and eight cars, placed in the following order: Engine, mail baggage, express, smoking car, day coach, tourist sleeper, dining car, and standard Pullman sleeper. These cars were vestibuled, with the exception of the tourist sleeper, which was not only not vestibuled, but had no device whatever for inclosing its platforms or guarding persons who might be upon the same. The deceased, with his friend, boarded the train at either the rear end of the smoking car or the front platform of the adjoining first-class day coach, and proceeded immediately forward into the smoking car, where they took seats. Very shortly after the train left Hope the deceased left the smoking car to go to the dining car for the purpose of getting some cigars. He did go to the dining car, purchased the cigars, and left the dining car again, going in the direction of the smoking car. He did not return to the smoking car, and was not again seen alive. His body, in a somewhat mutilated condition, was found the next day opposite a six degree curve in the railroad track, and between the track and the waters of Pend d'Orielle Lake, at a point about six and a half miles west from the town of Hope.

The complaint charges the railway company with negligence in leaving an opening at the side of the platform of one of the cars of its train unguarded while the train was in motion, and in running its train at a high and dangerous rate of speed around a sharp curve of the track; that by reason of this negligence the deceased was thrown from said train and killed; and that the plaintiffs are damaged because of said death in the sum of $100,424.

These charges are denied in the answer, and as matter of affirmative defense it is alleged that the negligence and carelessness of the deceased contributed to and caused his death; that he was perfectly familiar with the trains running on said line, and knew of the unvestibuled car upon said train; that he well knew the nature of the country through which the said train was about to run, and that the track had many sharp curves, and well knew the rate of speed at which the train would run; also that he well knew there would be great risk and danger of being thrown from the train if attempting to pass from one car to another while the train was passing through said country. For a further affirmative defense it was alleged that the deceased was not a passenger for hire, but was a purely gratuitous passenger upon the terms and conditions and subject to the provisions of a free ticket, which terms and conditions were printed on the back of said ticket, and were accepted and agreed to and signed by the deceased before boarding said train. These conditions were as follows: 'This free ticket is not transferable, and, if presented by another person than the individual named thereon, or if any alteration, addition, or erasure is made upon it, it is forfeited, and the conductor will take it up and collect full fare. ' 'The person accepting this free ticket agrees that the Northern Pacific Railway Company shall not be liable under any circumstances, whether of negligence of agents or otherwise, for any injury, to the person, or for any loss or damage to the property of the passenger using the same. ' 'I accept the above conditions.' It was alleged that under this contract and agreement the railway company owed the decedent no duty whatever as a common carrier toward a passenger for hire, and was therefore not liable for any loss or damage that might have occurred to the plaintiffs by reason of the death of the said Jay H. Adams under the circumstances related. The court sustained a demurrer to this last affirmative defense, holding that as the plaintiffs did not base their demands upon any contract, but complained of a wrong resulting in an injury to them by deprivation of the support, protection, society, and comfort of their husband and father, the question was to the validity of the contract under which the defendant claimed exemption from liability was immaterial. The case proceeded to trial upon the question of negligence, resulting in a verdict against the railway company.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

MORROW Circuit Judge (after stating the facts as above).

The errors assigned are the sustaining of the demurrer to the affirmative defense contained in the answer, the admission of certain testimony at the trial, and the giving of certain instructions to the jury, and refusing to give certain other instructions. The first question, then, for consideration is, what effect, if any, did the contract between the deceased and the railway company have upon the plaintiffs' right of action?

It will be observed that the terms of the contract provided for the exemption of the railroad company from liability 'for any injury to the person, or for any loss or damage to the property,' of the passenger using the free ticket, caused by the negligence of agents or otherwise. Can this language be construed to relieve the railroad company from liability for the death of the person using such ticket, if such death is caused by the negligence of the carrier or its servants? In the first place, if such meaning could be given to the language of the contract, the contract would be void as against public policy. A man's life is not his own, to be disposed of by contract. 'A man may not barter away his life or his freedom or his substantial rights. ' Insurance Co. v. Morse, 20 Wall. 445, 451, 22 L.Ed. 365. The state has an interest in securing the safety and preserving the lives of its citizens. By both the common and the statute law, the state has provided the greatest safeguards for the protection of the lives of its citizens. Negligent killing was man-slaughter at the common law and indictable. In many of our states it is similarly regarded, and severe penalties imposed therefor. The expressed permission by the deceased, therefore, that the railroad company might negligently take his life without consequent liability, would have been in violation of both the common and statute law, and a void contract. But the contract in question, in our opinion, does not extend to the death of the party contracting; it is limited to injury to the person and loss to the property of that person. 'Injury to the person' and 'death of the person' are not synonymous terms. The one presumes a continuation of life, though in an impaired state; the other, the destruction or ending of life. The law will permit a person to contract with reference to the liability of a carrier which affects the person contracting solely, but will not permit him to contract with reference to the statutory liability of the carrier to others, in case of his death through the negligence of the carrier. Clark v. Geer, 86 F. 447, 32 C.C.A. 295.

What, then, is the statutory liability of the defendant herein to the representatives of the deceased, if liable at all? By the statute of Idaho, in which state the deceased met with the fatal accident, action for death by wrongful act or neglect is permitted, as follows:

'When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. or, if such person be employed by another person who is responsible for his conduct, then, also, against such other person. In every action under this and the preceding section, such damages may be given as, under all the circumstances of the case, may be just. ' Rev. St. Idaho, Sec. 4100.

And by the statute of Washington, in which state this action was brought, it is provided that:

'When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. * * * In every such action the jury may give such

...