Harmon v. Barber

Citation247 F. 1
Decision Date08 January 1918
Docket Number3037.
PartiesHARMON et al. v. BARBER.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Waite Schindel & Bayless and Herbert Shaffer, all of Cincinnati Ohio, for plaintiffs in error.

Matthews & Klein, of Cincinnati, Ohio, and Reese Blizzard and John F Laird, both of Parkersburg, W. Va., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and KILLITS, District Judge.

KNAPPEN Circuit Judge.

The plaintiffs in error, as receivers (hereinafter called defendants), through their agent, sold and issued to decedent, Barber, a ticket entitling him to transportation from Toledo, Ohio, to Columbus in that state, by way of Piqua. The ticket contained two coupons-- the one for carriage from Toledo to Piqua, over the line of the Cincinnati, Hamilton & Dayton Railway Company; the other from Piqua to Columbus, by way of the Pennsylvania lines. At Piqua the receivers' agent issued and delivered to decedent a ticket for transfer from the Cincinnati, Hamilton & Dayton depot to the Pennsylvania depot, about a mile distant. While on the interdepot journey the automobile in which decedent was riding was, through the asserted negligence of its driver, overturned and decedent thereby killed. This action is for damages for the death. The case was tried to a jury, resulting in verdict and judgment for the plaintiff administratrix.

The primary and most important question is whether the trial judge rightly held that, upon the record as presented, the defendants' contract of carriage included the transfer between the two depots at Piqua, or whether, as claimed by the defendants, the contract of interdepot transfer was that of an independent transfer company-- the defendants, in issuing the transfer, acting merely as the transfer company's agent. This question is rightly treated by counsel for both parties as one of law.

The ticket given decedent at Toledo contained the stipulation that in selling the ticket 'for passage over other lines or in checking baggage on it, this company acts only as agent and is not responsible beyond its own line. ' The automobile in which decedent was being transferred from one station to the other was operated by a concern known as the Robbins Transfer Company, engaged in running a line of automobiles, including interdepot transfers in Piqua.

It may be conceded that defendants would not be liable for a negligent injury to decedent while being carried by the Pennsylvania Company from Piqua to Columbus. Auerbach v. N.Y.C. & H.R.R. Co., 89 N.Y. 281, 42 Am.Rep. 290; Pennsylvania Co. v. Loftis, 72 Ohio St. 288, 74 N.E. 182; Nashville & Chattanooga R. Co. v. Sprayberry, 8 Baxt. (67 Tenn.) 341, 35 Am.Rep. 705. It may also be conceded that, had the ticket contained a coupon for transfer by the Robbins Company between the two railway stations, defendants would not be liable for the transfer company's negligence; but the ticket would be regarded as evidencing distinct contracts of carriage with the two railway companies and the transfer company. The ticket, however, contained no coupon or other provision relating to transfer from depot to depot. [1] Defendants contend that the disclaimer of responsibility contained in the ticket applied, nevertheless, to the interstation transfer. Several considerations make strongly against this contention. The natural meaning of the expression 'over other lines' would be 'other railroad lines,' not only under the doctrine of exclusion, but because such lines are alone mentioned in the ticket, which was silent as to transfer. The form of the ticket differs materially from that of the coupons attached to the railway ticket, in that, while both show their issue by the Cincinnati, Hamilton & Dayton Railway (or its receivers), the interdepot transfer ticket shows on its face that it is 'good for one through passenger and baggage * * * from C., H. & D. Railway depot to P., C., C. & St. L. Railway depot,' and is signed by defendants' general passenger agent; while the railroad coupons not only omit the words 'good for,' but are without the general passenger agent's signature. Defendants' answer admits that the transfer was issued 'in consideration of the purchase price of' the railway ticket. The undisputed testimony of the automobile driver, introduced by defendants, is that on the arrival of the Cincinnati, Hamilton & Dayton train at Piqua 'he read the forms of the ticket off to the ticket agent, stating where the party had come from, where he was going, and the form of the ticket,' upon which the interdepot transfer ticket was issued. The undisputed testimony of a member of the transfer company, who was defendants' witness, was that the compensation between that company and 'the Cincinnati, Hamilton & Dayton is conducted by transfer tickets; we collect these monthly. The chauffeur has charge of the collecting of the transfer tickets. ' There was otherwise no testimony of the terms of the arrangement between the railroad company and the transfer company; the defendants' answer precludes a defense (which, indeed, is not asserted) that decedent was the passenger of the Pennsylvania Company, or that the latter company contributed toward the payment of the transfer company's charges. The only reasonable interpretation of the record is that defendants made the arrangement for the transfer and paid the transfer company therefor-- the amount of such payment, however, not appearing, nor how much, if anything, was added on that account to what decedent would otherwise have paid for the railroad transportation. Presumably defendants charged the passenger, in the aggregate, no more than his through fare on the competing roads. But it is clear that decedent was not to make, and did not make, any payment directly to the transfer company, or have any relation with it other than here stated. If the two roads had had actual rail connection, and were the ticket a through one, it would have been defendants' duty, broadly speaking, in the absence of special contract otherwise, to carry decedent to the end of their own line and deliver him to the Pennsylvania Company. Railroad Co. v. Manufacturing Co., 16 Wall. 318, 324, 21 L.Ed. 297; Pennsylvania Co. v. Jones, 155 U.S. 539, 15 Sup.Ct. 136, 39 L.Ed. 176. What in such case would amount to a delivery to the succeeding carrier we have no occasion to define. But treating the ticket as creating two separate and independent contracts, one by each of the two railroads, for carriage over its own road only, defendants would still have owed decedent some measure of accommodation in connection with opportunity to effect a transfer, even at a common junction point. Texas & Pacific Ry. Co. v. Bigger, 239 U.S. 330, 335, 338, 36 Sup.Ct. 127, 60 L.Ed. 310; and see Chicago, etc., R.R. Co. v. Stephens (C.C.A. 6) 218 F. 535, 545, 546, 134 C.C.A. 263. It was plainly to defendants' interest to provide through connection, in view of the short interval between the arrival of their train and the departure of the Pennsylvania train, and the presumed competition of other shorter, and actually through lines between Toledo and Columbus. Defendants had an undoubted right to guarantee time for immediate connection with the Pennsylvania Railroad at Piqua; indeed, the regular Toledo ticket agent would have had such authority. Hayes v. Wabash R.R. Co., 163 Mich. 174, 177, 128 N.W. 217, 31 L.R.A. (N.S.) 229.

The proposition that the railroad ticket was not in fact a through ticket, but that (as affecting the matter of transfer between depots) decedent had the right to stop at Piqua loses its force, not only, to some extent, through the fact that the carriage had to be finished the day following the issue of the ticket (which following day was that of the transfer and injury), but especially through defendants' treatment of the ticket (at Piqua) as a through ticket, by delivering to decedent at that place an interdepot transfer ticket showing on its face that it was issued on 'through ticket'; and the...

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