Transferred from Superior Court, Hills borough County; Stone, Judge.
Action by Fred L. Baker against the Boston & Maine Railroad Company. Plaintiff demurred to the plea. Demurrer sustained.
"At the time of the collision in the declaration complained of, the defendant, a corporation duly established by law and operating a railroad between various points in the states of New Hampshire and Massachusetts and elsewhere, was engaged in hauling for D. Whiting & Sons of Boston, Mass. (the firm in the declaration mentioned), certain special cars furnished by the defendant for the sole use of said firm in the carriage of milk, accompanied by certain of the firm's employés, from various points in New Hampshire to Boston aforesaid, over lines of railroad operated by the defendant, said employés riding in said cars for the purpose of taking care of and handling the milk and performing work incidental thereto for said firm. The car in which the plaintiff was at the time aforesaid was being so used by said D. Whiting & Sons, and solely for their accommodation, and the same was one of said special cars, and the plaintiff was then riding therein as one of their said employés. The defendant, in furnishing and hauling said cars as aforesaid, was engaged in performing an agreement between itself and said D. Whiting & Sons, entered into upon the faith of, and partly in consideration of, the indemnity contract hereinafter mentioned. By the terms of the first-mentioned agreement the defendant was to make no charge (apart from said agreement) for carrying said employés, they being allowed to ride in the cars free for the purpose aforesaid, and the plaintiff, at the time of the collision in the declaration alleged, was, in pursuance of said agreement and subject to the provisions of said indemnity contract, being carried by the defendant free of charge. In consideration of the furnishing and hauling of said cars by said defendant, said D. Whiting & Sons paid to said defendant an agreed sum of money and executed the indemnity contract hereinafter set forth. At the time of the execution of all the agreements herein mentioned, large quantities of milk were produced by individual farmers living along the line of said defendant's railroad. The quantity was such that it was more economical and more advantageous to all parties—producers, distributers, and consumers—to have it transported in special cars furnished with icing facilities, than to have it carried in ordinary cars. The said D. Whiting & Sons were engaged in the business of buying and selling milk, buying it of the individual producers and distributing it at various points and at Boston on the line of said defendant's railroad. Practically all the milk so produced along the line of said road was taken by said D. Whiting & Sons and by them distributed as aforesaid. The defendant furnished no other special cars for the transportation of milk on said road except those furnished to said D. Whiting & Sons. The ice used in cooling the milk during transportation was furnished and applied by said D. Whiting & Sons, whose employés, riding in said cars as aforesaid, did all the work incident to caring for and handling the milk. In and by a contract in writing (herein called the 'indemnity contract'), made and entered into by and between this defendant and said D. Whiting & Sons, and made as a part of the transaction and agreement whereby the defendant undertook as aforesaid to furnish and haul said special cars, It was provided and agreed as follows: 'In consideration of one dollar and other valuable considerations to us paid by the Boston & Maine Railroad, we, D. Whiting & Sons of Boston, Massachusetts, hereby agree to indemnify and hold harmless the Boston & Maine Railroad, its servants and agents, should any claim be made by any of our employés on account of personal injury or damage to property received while on the
cars or premises of said railroad; and we further agree to indemnify and hold harmless the said Boston & Maine Railroad, its servants and agents, should any claim be made by any person on account of injury received, or by reason of any damage to property of any person, at the hands of us, or of our employés or appliances.' In May, 1901, the plaintiff was employed by said D. Whiting & Sons to work on said milk cars, as one of the employés of said Whiting & Sons whom the defendant under the agreement first mentioned was required to carry free, said employment being for no definite time. In September, 1901, subsequent to the making of said indemnity contract, and while the same and said agreement in relation to furnishing and hauling special cars with employés of the firm therein were in force, and pursuant thereto, the plaintiff was requested, as a condition of his continuing in the employment of said Whiting & Sons, to sign a contract in writing, herein called the 'contract of release.' Said further employment was understood by both the plaintiff and said D. Whiting & Sons to be furnished in consideration of the plaintiff's executing and delivering to the said D. Whiting & Sons this contract, which was in terms as follows: 'Whereas, as one of the employés of David Whiting & Sons, I am allowed by the Boston & Maine Railroad to ride upon its cars, and work in and about its depots, buildings, and premises, free and exempt from any charge therefor; and whereas, said David Whiting & Sons are required by said Boston & Maine Railroad to bind themselves to indemnify and hold it harmless against any claims that may be made by any of their employés on account of personal injuries or damages to property received while on the cars or premises of said railroad; and whereas, I have agreed, so long as I remain in the employ of said David Whiting & Sons, to be insured against accident and death or disability therefrom, by policies of insurance issued in my favor, in part at the expense of my said employers and in part at my own expense; and whereas, it is my desire and purpose to indemnify and save harmless the Boston & Maine Railroad against liability on account of injuries that may be sustained by me in my person or property in the course of my said employment, and likewise to protect said David Whiting & Sons against all claims that may be made by said Boston & Maine over against them on account of such injuries to me: Now, therefore, I do hereby covenant and agree with said David Whiting & Sons, their successors and assigns, and also with said Boston & Maine Railroad, that for a good and valuable consideration to me paid (the receipt whereof is hereby acknowledged), and especially in view and in consideration of a contribution by said David Whiting & Sons to the premiums for my said insurance, I will not at any time hereafter make or prosecute in any manner, at law or otherwise, any claim against the Boston & Maine Railroad for or on account of injuries that may be sustained by me during the period of my employment by said David Whiting & Sons, their successors or assigns, against all liability which they are or may be under to answer over to the Boston & Maine Railroad on account of claims made or presented by me for injuries sustained as aforesaid. In witness whereof I have hereunto set my hand and seal, as also to a duplicate hereof, this twenty-seventh day of September, 1901. Fred L. Baker.' The continuation of said employment of the plaintiff by D. Whiting & Sons was understood by the parties thereto to constitute, and the same did in fact constitute, the 'good and valuable consideration,' the receipt of which is in terms acknowledged by the said contract of release. The plaintiff continued in said employment from said September 27, 1901, to the time of the collision aforesaid. Pursuant to the agreement and indemnity contract hereinbefore referred to, it was the intention of said D. Whiting & Sons and said defendant that all employés of said D. Whiting & Sons should sign similar contracts of release, and practically all did so sign or leave said employment. The further consideration mentioned in the contract of release, namely, a contribution to premiums for accident insurance, was, in fact, paid by said D. Whiting & Sons according to the arrangement recited in that contract, and the plaintiff received a duly executed policy of insurance in the Fidelity & Casualty Company of New York. The policy therefor, issued originally in September, 1901, was kept alive by a premium paid annually (in part by said D. Whiting & Sons and in part by the plaintiff), and the insurance was still in force at the time of said collision. On the 21st of July, while in their employ, the plaintiff was severely injured, as he claims, by the negligence of the Boston & Maine Railroad, in a collision between an express train and the milk train in which the plaintiff was riding in the course of his said employment, and while he himself was in the exercise of ordinary care. Thereafter, at once and while ignorant of his legal rights, the plaintiff made inquiries as to the amount due him under said policy, and the insurance company forwarded to him a blank for proof of claim. On advice of counsel this blank was never filed with said insurance company, and said company was immediately notified that no benefits from said policy would be accepted by the plaintiff to the prejudice of his rights against said Boston & Maine Railroad, and the plaintiff then brought this suit. All of the agreements and contracts aforesaid were in full force and effect and binding upon the respective parties thereto at and during the time of the occurrences in the plaintiff's declaration referred to, and the plaintiff's presence at the time of said collision, in the car in which he alleges that he
received the personal injuries complained of (said car being one of the special cars above mentioned), was due solely to his...
