Anderson v. Erie R. Co.

Citation223 N.Y. 277,119 N.E. 557
PartiesANDERSON v. ERIE R. CO.
Decision Date23 April 1918
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Julia M. Anderson, as administratrix, etc., against the Erie Railroad Company. From a judgment of the Appellate Division of the Supreme Court (171 App. Div. 687,157 N. Y. Supp. 740), reversing a judgment in favor of plaintiff, the plaintiff appeals. Affirmed.

Chase, Hogan, and Crane, JJ., dissenting.

F. W. Clifford, of Owego, for appellant.

Halsey Sayles, of Elmira, for respondent.

McLAUGHLIN, J.

Plaintiff's intestate, a clergyman, obtained from defendant, a written order that at any time during the year 1913 its agents would sell to him, for his personal use, a clerical ticket subject to the conditions on the back thereof. On the 10th of November, 1913, he presented this order to and purchased from defendant's agent at Elmira, N. Y., a ticket over defendant's road from that place to Leroy, N. Y., for which he paid $1.20 the regular fare being $2.35. The condition on the back of the ticket was:

‘In consideration of this ticket being sold at a reduced rate, a person accepting and using it expressly agrees to and does thereby assume all risk of accidents and damage to person and property, whether caused by negligence of the company or that of its agents or employés or otherwise. And as a condition precedent to the issuing and use thereof, each person represents that he or she is legally entitled to use such reduced rate ticket under all laws governing the same, and agrees that he or she will not use this ticket in violation of any law. This ticket is not transferable.’

The intestate having agreed to the condition, as evidenced by his signature thereto, the ticket was delivered to him, and while en route the car in which he was riding was derailed and he was killed. This action was brought to recover the damages alleged to have been sustained by reason of his death. Plaintiff had a verdict for a substantial sum, upon which judgment was entered. An appeal was taken to the Appellate Division, where the judgment was reversed and a new trial ordered. Plaintiff gave the usual stipulation and appeals to this court.

[1] The sole question presented by the appeal is whether the release from liability for negligence given by plaintiff's intestate to defendant, in consideration of the reduced rate at which the ticket was sold to him, prevents a recovery. Had the intestate, at the time of the accident, been traveling on a pass, there could be but one answer to the question. A recovery could not be had. This court settled that question over half a century ago. Wells v. N. Y. C. R. R. Co., 24 N. Y. 181. It was there specifically held that a contract between a railroad corporation and a person traveling on a pass, by which the former was exempted from liability for the negligence of its agents or servants for an injury to the latter, was not against public policy, and was a valid agreement which would be enforced when called in question. The rule as thus established has since been followed in this state. Perkins v. N. Y. C. R. R. Co., 24 N. Y. 196, 82 Am. Dec. 281;Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442, 82 Am. Dec. 369;Poucher v. N. Y. C. R. R. Co., 49 N. Y. 263, 10 Am. Rep. 364;Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562, 47 Am. Rep. 75;Ulrich v. N. Y. C. & H. R. R. R. Co., 108 N. Y. 80, 15 N. E. 60,2 Am. St. Rep. 369;Hodge v. Rutland R. R. Co., 112 App. Div. 142,97 N. Y. Supp. 1107, affirmed 194 N. Y. 570, 88 N. E. 1121;Fish v. D., L. & W. R. R. Co., 211 N. Y. 374, 105 N. E. 661. It is also the rule which has been adopted in many of the other states, of which see the following: Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069,25 L. R. A. 491;Quimby v. Boston & Main R. R. Co., 150 Mass. 365, 23 N. E. 205,5 L. R. A. 846;Dugan v. Blue Hill Street Ry., 193 Mass. 431, 79 N. E. 748;Griswold v. N. Y. & N. E. R. R. Co., 53 Conn. 371, 4 Atl. 261,55 Am. Rep. 115;Kinney v. Central R. R. Co., 34 N. J. Law, 513, 3 Am. Rep. 265;Payne v. T. H. & I. Ry. Co., 157 Ind. 616, 62 N. E. 472,56 L. R. A. 472. The same rule prevails in the Supreme Court of the United States. B. & O. Southwestern Ry. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560;Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513;Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442, 24 Sup. Ct. 515, 48 L. Ed. 742;Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576, 34 Sup. Ct. 964, 58 L. Ed. 1476. The English decisions are to the same effect. McCawley v. Furness Ry. Co., L. R. 8 Q. B. 57; Hall v. Northwestern Ry. Co., L. R. 10 Q. B. 437.

Mr. Justice Brewer in Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, tersely stated the reason for the rule as follows:

‘The railway company was not as to Adams a carrier for hire. It waived its right as a common carrier to exact compensation. It offered him the privilege of riding in its coaches without charge if he would assume the risks of negligence. He was not in the power of the company and obliged to accept its terms. They stood on an equal footing. If he had desired to hold it to its common-law obligations to him as a passenger, he could have paid his fare and compelled the company to receive and carry him. He freely and voluntarily chose to accept the privilege offered, and having accepted that privilege cannot repudiate the conditions. It was not a benevolent association, but doing a railroad business for profit; and free passengers are not so many as to induce negligence on its part. So far as the element of contract controls, it was a contract which neither party was bound to enter into, and yet one which each was at liberty to make, and no public policy was violated thereby.’ 192 U. S. 453,24 Sup. Ct. 411,48 L. Ed. 513.

Does an agreement to sell a ticket at a reduced rate of fare, in consideration of exemption from liability in case of...

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    • United States
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    • June 1, 1978
    ...the railroad offered a full price ticket with complete protection and a reduced price ticket with no protection (Anderson v. Erie R. R. Co., 223 N.Y. 277, 119 N.E. 557; cf. Lebron v. New York City Transit Authority, 44 N.Y.2d 782, 406 N.Y.S.2d 38, 377 N.E.2d 482 (dec. April 27, 1978); Resta......
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    ...and transportation bought at a reduced fare. The defendant, adopting the view expressed by a majority opinion in Anderson v. Erie R. Co. (N. Y.), 119 N.E. 557, urges in argument that, as in the granting of transportation, so in the granting of transportation at a reduced fare, the concessio......
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    ...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 ......
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