Chicago, R.I.&P. Ry. Co. v. Hamler

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Chicago, R.I.&P. Ry. Co. v. Hamler, 215 Ill. 525, 74 N.E. 705 (Ill. 1905)
• Decision Date: 23 June 1905
• Parties: CHICAGO, R. I. & P. RY. CO. v. HAMLER.

215 Ill. 525

74 N.E. 705

CHICAGO, R. I. & P. RY. CO.

v.HAMLER.

Supreme Court of Illinois.

June 23, 1905.

Appeal from Appellate Court, First District.

Action by Anderson Hamler against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, affirmed by the Appellate Court (114 Ill. App. 141), defendant appeals. Reversed.

Magruder, J., dissenting.

W. T. Rankin and Benj. S. Cable, for appellant.

George E. Dickson and Castle, Williams & Smith (Ben M. Smith, of counsel), for appellee.

CARTWRIGHT, C. J.

On January 18, 1902, Anderson Hamler, the appellee, was a porter in the employ of the Pullman Company in a sleeping car attached to a passenger train of appellant running in a westerly direction in the state of Iowa. As the train passed through a station called Victor the engine exploded. The engineer and fireman were killed, and the Pullman sleeping car in which appellee was at work was thrown on its side, and he was injured. He brought this suit in the circuit court of Cook county to recover damages for his injuries, and alleged in each count of his declaration that he was employed by the Pullman Company as a porter; that his duties were the care of the sleeping car, the making up and taking down of berths therein and providing for the necessities and comforts of passengers; and that he was, with all due care and diligence, performing his duties as such porter when the car was thrown from the track. In the first count he charged negligent, careless, and wrongful management and operation of the boiler which exploded and threw the car from the track; in the second count he alleged that the engine was negligently, carelessly, and wrongfully equipped with a defective boiler; and the third count contained a general charge of the negligent operation of the train, causing the car to be thrown from the track. There was a plea of the general issue, and upon a trial there was a verdict of guilty, and damages were assessed at $15,000. On a motion for a new trial plaintiff remitted $7,500, and judgment was entered for $7,500. Appellant appealed from the judgment to the Appellate Court for the First District, where the cause was assigned to the branch of that court. One of the judges of the branch court presided at the trial in the circuit court, and took no part in the consideration of the appeal, and, the other judges disagreeing, the judgment was affirmed by operation of law. One of the judges was disqualified, and the judgment became final as to controverted questions of fact by operation of law, and not by consideration and judgment of the court.

On the trial the defendant offered in evidence a contract of employment with the Pullman Company, dated January 2, 1902, signed by the plaintiff, the execution of which was admitted by him, and which fixed the terms and conditions uponwhich he accepted the employment and entered into the service of said company. Among other things, the contract recited that plaintiff was aware that the Pullman Company secured the operation of its cars upon lines of railroad by means of contracts wherein said company agreed to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employés of said Pullman Company, and he thereby released the corporations or persons over whose lines of railroad the cars of said Pullman Company might be operated from all claims for liability on account of any personal injury to him while traveling over such lines in said employment or service. This contract was the basis of the defense to the suit, and the defendant tendered to the court an instruction to be given to the jury that the defendant was not a common carrier of the sleeping cars of the Pullman Company; that it could not be compelled to haul such sleeping cars, but might or might not haul the same, as it desired; that, if it undertook to haul such cars in its trains, it might do so, and in so doing might make such contract or demand such conditions as would protect it from liability for injury to the porter or other employés of the Pullman Company on the said cars through negligence; and that, if the plaintiff voluntarily entered into the agreement releasing the railroad company from all liability for any injury he might receive while acting as a Pullman porter, he could not recover, and the verdict should be that the defendant was not guilty. The court refused to give the instruction.

The principle involved and the rights of the parties under such a contract as this were considered and decided in Blank v. Illinois Central Railroad Co., 182 Ill. 332, 55 N. E. 332, which was an action brought by an employé of the American Express Company for personal injuries received while engaged in the service of that company in an express car. The defense was a contract made by the plaintiff with the express company to obtain employment, by which he released from any liabilityto him any corporation operating any railroad over which the express cars should run. It was decided that such a contract is valid, and not void as against public policy, and that the direction of the court to find the defendant not guilty was justified by the contract, which was a complete defense. There is no difference whatever, in principle, between the case of a porter on a car of the Pullman Company and a messenger in an express car. It is no part of the contract or obligation of a common carrier of passengers to furnish berths, or the services of a porter to make up beds or perform other services for passengers. The passenger pays the Pullman Company for the services performed by it, and not the railroad company, and if one desires such services as are rendered by the Pullman Company and its porter he must contract with the company for them. In its business as a common carrier of passengers a railroad company is bound to carry all who apply, and to treat all alike, and its duties and obligations to them are imposed by law. The obligations of a common carrier arise from the public nature of the employment, and, being imposed by law, it would be against public policy to allow the obligations so imposed to be changed by a contract exempting the carrier from the consequences of negligence in the employment. A railroad company, in its business as a common carrier, undertakes to use the care and diligence required by law in the transportation of passengers, and will not be permitted to absolve itself from its duties by a stipulation in the contract of carriage by which a passenger is to take the risk of its negligence; but if the service is one that is not imposed upon it as a duty, it may undertake it upon such terms as it may see fit. There can be no doubt that the defendant is not bound to haul sleeping cars tendered to it by the Pullman Company, with its conductors, porters, or other employés. The defendant is a common carrier of passengers, and as to them it assumes the duties and liabilities of a common carrier, but the Pullman Company furnishes special facilities and services to passengers, and the defendant is not a common carrier of Pullman cars and employés performing duties therein. The defendant might undertake to receive and haul the cars of the Pullman Company, but in doing so had a right to impose such terms as it might elect. This has been the opinion of the courts in all cases involving such contracts as the one here in question, which have been enforced in cases of express cars, circus trains, and Pullman cars, which the carrier was not bound to receive and haul as a common carrier. Bates v. Old Colony Railroad Co., 147 Mass. 255, 17 N. E. 633;Hosmer v. Old Colony Railroad Co., 156 Mass. 506, 31 N. E. 652;Louisville, New Albany & Chicago Railroad Co. v. Keefer, 146 Ind. 21, 44 N. E. 796,38 L. R. A. 93, 58 Am. St. Rep. 348;Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Mahoney, 148 Ind. 196, 46 N. E. 917,47 N. E. 464,40 L. R. A. 101, 62 Am. St. Rep. 503;Robertson v. Old Colony Railroad Co., 156 Mass. 526, 31 N. E. 650,32 Am. St. Rep. 482;Griswold v. New York & New England Railroad Co., 53 Conn. 371, 4 Atl. 261,55 Am. Rep. 115;Coup v. Railroad Co., 56 Mich. 111, 22 N. W. 215,56 Am. Rep. 374;Express Cases, 117 U. S. 1, 6 Sup. Ct. 542, 628,29 L. Ed. 791;Peterson v. Chicago & Northwestern Railway Co. (Wis.) 96 N. W. 532; Donovan v. Pennsylvania Co., 120 Fed. 315,57 C. C. A. 362, 61 L. R. A. 140;New York & Hudson River Railroad Co. v. Difendaffer, 125 Fed. 893, 62 C. C. A. 1;McDermon v. Southern Pacific Railway Co. (C. C.) 122 Fed. 669. In the last two of these cases the validity of the contract with the Pullman Company was involved. In the case of Blank v. Illinois Central Railroad Co., supra, appellant relied upon the decision of Judge Taft in Voigt v. Baltimore & Ohio Southwestern Railway Co. (C. C.) 79 Fed. 561, but that decision was reversed by the Supreme Court of the United States in Baltimore and Ohio Southwestern Railway Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, where it was held that Voight could not avoid his agreement on the ground that it was against public policy. The court, affirming the doctrine that a common carrier of passengers cannot lawfully stipulate for exemption from responsibility for the negligence of himself or his servants, said: ‘At the same time it must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appears that they contravene public right or the public welfare.’ Upon an extensive review of the authorities it was decided that the contract was not against public policy, but was valid, and constituted a defense to the action.

It is urged, however, that the contract in this case was...