Alexander v. St. Louis-San Francisco Ry. Co.

• Decision Date: 07 February 1928
• Docket Number: No. 20127.,20127.
• Court: Missouri Court of Appeals
• Parties: MARY ALEXANDER, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

2 S.W.2d 165

MARY ALEXANDER, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.^*

No. 20127.

St. Louis Court of Appeals. Missouri.

Opinion filed February 7, 1928.

Appeal from the Circuit Court of the City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

E.T. Miller, A.P. Sewart and C.H. Skinker, Jr., for appellant.

The stipulation on the special fare order, providing that holder assumed all risks of accidents and damages while using half-fare ticket issued on said order without any claim on railway company was legal and valid under the acts of Congress and rulings of the Interstate, Commerce Commission. The transportation being interstate, the Missouri law had no bearing on the validity of the stipulation, and the facts being admitted, the court should have upheld the stipulation as a matter of law and peremptorily instructed the jury to find for defendant. Sec. 8563, par. (7), sec. 8563, par. (3), sec. 8583, par. (1), sec. 8595, par. (1), U.S. Comp. Stat. 1925; Int. Com. Com. Conference Rulings, No. 208, sec. D; Kansas City Co. Ry. v. Van Zant, 260 U.S. 459 (reversing 289 Mo. 163); Anderson v. Erie R. Co. (N.Y.), 119 N.E. 557; Mosher v. Railroad, 127 U.S. 390; Mo. Pac. R. Co. v. Prude, 265 U.S. 99 (reversing 156 Ark. 583, 247 S.W. 785); Bitterman v. Railroad, 207 U.S. 205; Alabama Railway v. Jackson Railway, 271 U.S. 244.

S.T.G. Smith and A. Courtney Davis for respondent.

A stipulation on a railroad ticket or an order for a railroad ticket exempting a railroad company from liability for damages and risk of accidents does not release a railroad company from liability to a passenger for hire for injuries sustained by such passenger for hire while riding on said railroad company's cars. Powell v. Railroad Co., 255 Mo. 420; Jones v. Railroad Co., 125 Mo. 666; Carroll v. Railroad Co., 88 Mo. 239; New York Central R.R. Co. v. Lockwood, 84 U.S. 357; Grand Trunk Ry. Co. v. Stevens, 95 U.S. 657; Norfolk Southern Ry. Co. v. Chatham, 244 U.S. 279.

SUTTON, C.

This is an action for personal injuries sustained by the plaintiff while a passenger on defendant's railroad train en route from New Albany, Mississippi, to St. Louis, Missouri. The injuries sued for resulted from the derailment of the train near Menfro, Missouri. Plaintiff is, and was at the time of her injury, the wife of Pate Alexander, who was employed by The Pullman Company as a metal screen worker at its plant in St. Louis. On application of her husband, plaintiff procured from defendant a special fare order entitling her to purchase thereunder a ticket over defendant's railroad from New Albany to St. Louis at one-half the regular fare. This special fare order contained the following provision: "Holder assumes all risks of accidents and damages while using tickets issued on this order, without any claim on the St. Louis-San Francisco Railway Company." Beneath this provision was this statement: "Above conditions accepted," which was followed by plaintiff's signature. Plaintiff was riding on a ticket purchased under this order, at the time she was injured. It appears to be conceded that the derailment of the train whereby plaintiff was injured resulted from the negligence of defendant, or its servants.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $750, and the defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. In support of this assignment, the defendant relies solely upon the stipulation in the special fare order providing that the holder assumes all risks of accidents and damages while using ticket issued on said order, without any claim on the railway company. Defendant, giving full recognition to the general rule that the stipulation of a common carrier of passengers exempting it from liability for injuries to a passenger resulting from its negligence is void as against public policy, insists upon the validity of the stipulation in this case on the ground that it was made in consideration of a reduced fare.

It is contended, on authority of Kansas City Southern Ry. Co. v. Van Zant, 260 U.S. 459, that under the Hepburn Act, which provides "that no common carrier ... shall ... directly or indirectly issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law," Congress has entered the field of interstate transportation of passengers by railroads, relative to the fares that may be charged therefor, and the persons to whom free passes or reduced fares may be lawfully granted, and that since the plaintiff was on an interstate journey when she was injured, the Federal decisions must control in the determination of defendant's liability or not for her injury.

Defendant likens this case to cases decided in both the Federal and State courts, wherein it is held competent for the carrier to contract against liability for its negligence resulting in injury to a person riding on a free pass, and argues that there is no distinction in principle between gratuitous transportation and transportation bought at a reduced fare, in so far as concerns the right of the carrier to contract against liability for its negligence.

The text of 10 Corpus Juris 714, which is supported by a multitude of cases, reads as follows:

"In analogy to the rule established by the great weight of authority in the case of carriers of goods, that any contract relieving the carrier from liability for negligence is invalid, it is well settled that any contract purporting to exempt a common carrier of passengers from liability for negligence of itself or its employees to a passenger, particularly when carried for hire, is void, as being against public policy; and the authorities are practically unanimous in support of the proposition that no contract, condition, or limitation will relieve the carrier from liability to a passenger carried for compensation for the consequences of the negligence of the carrier or its employees, or modify that liability so as in any way to restrict it within the limits fixed by the common law, notwithstanding such contract is agreed to by the passenger in consideration of special concessions as to rates or otherwise."

In Buckley v. Bangor & Aroostook R. Co., 113 Me. 164, 167, the court said:

"It is settled with practical uniformity of decisions that a common carrier of passengers cannot, by antecedent contract or release, exempt itself from liability to a passenger for hire, for its own negligence, or that of its servants, no matter in what way the hire or compensation has been paid, or is to be paid."

In Louisville, New Albany & Chicago Ry. Co. v. Faylor, 126 Ind. 126, 130, the court said:

"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 therefore void."

In Gulf, Colorado & Santa Fe Ry. Co. v. McGown, 65 Tex. 640, 646, the court said:

"The relation of passenger and carrier is created by contract, express or implied, but it does not follow from this that the extent of liability or responsibility of the carrier is, in any respect, dependent on a contract. In reference to matters indifferent to the public, parties may contract as they please; but, not so in reference to matters in which the public has an interest. For the purpose of regulating such matters, rules have been established, by statute or the common law, whereby certain duties have been attached to given relations and employments. These duties attach as matter of law, and without regard to the will or wish of the party engaged in the employment, or of the person who transacts business with him, in the course thereof; and this is so, for the public good. Duties thus imposed are not the subject of contract. They exist without it, and cannot be dispensed with by it. The violation of such a duty is a tort. The law declares that it is the duty of a public carrier of passengers to use the highest degree of care, to insure their safety. Why was not this left to be settled by the contract of the carrier and passenger? Certainly for no other reason than that the employment itself was of such a nature as to make it a matter of public concern."

In Jacobus v. St. Paul & Chicago Ry. Co., 20 Minn. 125, 129, the court said:

"There are two distinct considerations upon which the stringent rule as to the duty and liability of carriers of passengers rests. One is a regard for the safety of the passenger on his own account, and the other is a regard for his safety as a citizen of the State. The latter is a consideration of public policy growing out of the interest which the State or government as parens patriae has in protecting the lives and limbs of its subjects... . So far as the consideration of public policy is concerned, it cannot be overridden by any stipulation of the parties to the contract of passenger carriage, since it is paramount from its very nature."

In Denver & Rio Grande R. Co. v. Whan, 39 Colo. 230, the court said:

"A common carrier may not exempt itself by contract from liability for negligently performing a service which it is its duty to perform... .

"The grounds upon which this prohibition rests have been variously stated by the courts, as that such...