Bates v. Old Colony R. Co.
| Decision Date | 20 June 1888 |
| Citation | 147 Mass. 255,17 N.E. 633 |
| Parties | BATES v. OLD COLONY R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.H. Benton, Jr., for defendant.
The baggage car is a place of danger, as a matter of law, and it was the duty of the defendant to make and enforce a regulation that passengers should not ride in it. Railroad Co. v. Langdon, 92 Pa.St. 21. While the question has not been raised in this commonwealth whether the baggage car is, as a matter of law, a known place of danger so that a passenger cannot recover for an injury received while riding in it, the decisions necessarily cover this proposition in principle. Hickey v. Railroad Co., 14 Allen, 429, and citations. That an agreement under which the plaintiff got something to which he was not otherwise entitled, was carried in a place where he would not otherwise have had a right to be carried, was a reasonable and proper agreement. The plaintiff relies on the case of Railroad Co. v. Lockwood, 17 Wall, 357, and other American cases including the dictum of Mr. Justice GRAY in School-Dist v. Railroad Co., 102 Mass. 556. In the last-named case however, the special contract spoken of was simply a limitation in the bill of lading for carriage at the usual price, and in the usual manner, and therefore the remarks of the learned justice do not apply to a case where the limitation is by special contract, made in consideration of carriage for less than the regular price, or of carriage in a place or in a manner in which the carrier is not bound to carry. The court have recently said that the question whether a carrier can exempt itself from the consequences of its own negligence is not settled in this commonwealth. Graves v. Railroad Co., 137 Mass. 33. The reasoning of the court in the case of Railroad Co. v. Lockwood, ubi supra, so far from being against the defendant's contention, really supports it, because it puts the decision upon the proposition that the carrier in that case had extorted from the person carried an agreement which he was compelled to make in order to induce the carrier to do that which it was bound to do without the agreement, i.e., to carry him in the same manner and for the same price for which others were carried. The plaintiff cites the Lockwood Case to the proposition that a common carrier cannot, by express agreement, limit its liability for the negligence of its servants and agents in performing a contract to transport at a less price than it is entitled to receive, or in a different manner from that in which it is bound to transport. The opinion in that case, however, does not deal with this proposition, but simply with the general question whether a railroad company, carrying passengers for hire on one of its trains, at the usual rate and in the usual manner in which all passengers by such train are carried, can lawfully stipulate not to be answerable for their own or their servants' negligence with reference to such carriage. Neither do the authorities cited in that opinion, which are as follows, sustain this proposition: Laing v. Colder, 8 Pa.St. 479; Railroad Co. v. Baldauf, 16 Pa.St. 67; Goldey v. Railroad Co., 30 Pa.St. 242; Powell v. Railroad Co., 32 Pa.St. 414; Railroad Co. v. Henderson, 51 Pa.St. 315; Farnham v. Railroad Co., 55 Pa.St. 53, and Express Co. v. Sands, Id. 140; Transportation Co. v. Oil Co., 63 Pa.St. 14; Jones v. Voorhees, 10 Ohio, 145; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; Wilson v. Hamilton, Id. 722; Welsh v. Railroad Co., 10 Ohio St. 65; Railroad Co. v. Curran, 19 Ohio St. 1; Railroad Co. v. Pontius, Id. 221; Knowlton v. Railway Co., Id. 260; Fillebrown v. Railway Co., 55 Me. 462; Sager v. Railroad Co., 31 Me. 228, 238; Railroad Co. v. Allen, and Railroad Co. v. Heaton, 31 Ind. 394, 397; Flinn v. Railroad Co., 1 Houst. 472; Orndorff v. Express Co., 3 Bush, 194; Swindler v. Hilliard, 2 Rich. Law, 286; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247; Express Co. v. Crook, 44 Ala. 468; Whitesides v. Thurlkill, 12 Smedes & M. 599; Express Co. v. Moon, 39 Miss. 822; Insurance Co. v. Railroad Co., 20 La.Ann. 302. The plaintiff claims that, as he was an express messenger, he rode in the baggage car as a matter of right, and, although he was there under the terms of the contract, he had a right to be there without making the contract, and that therefore the contract was invalid, upon the ground that it was an unreasonable condition affixed by the defendant to the performance of its public duty to carry the plaintiff where he was carried without such a condition. This manifestly depends upon whether the defendant was, as a common carrier, under legal obligation to express matter, and messengers in charge of it, in the baggage cars attached to its passenger trains, for everybody who wished to engage in the express business on its roads. See Express Cases, (in March, 1886,) 117 U.S. 1, 6 S.Ct. 542, 628, 1190. Before the decision in the Express Cases it was contended by some express companies, and was decided by the United States courts in some circuits, that railroad companies were obliged to transport the traffic of express companies at common law; but this decision settled that, in the absence of any statute expressly requiring it, a railroad company is not required to be a common carrier of another common carrier, i.e., of an express company, and therefore any right of an express company to have its traffic carried upon the passenger trains of railroads must depend upon contract or upon some express statutory provision. The plaintiff also relies on Pub.St. c. 112, § 188, and possibly on Pub.St. c. 73, § 1, enacted first, (St.1869, c. 252.) But we contend that the plaintiffs' contention must rest wholly upon the effect which should be given to the provisions of Pub.St. c. 112, § 188, and that these provisions do not require a railroad company to become a common carrier of other common carriers; that is, of express companies. It is simply a provision that railroad companies shall treat all persons alike, which it is not denied that was done in this case. Again, the plaintiff came in as the servant of the express company, and had no rights in the baggage car, except as such servant, and under the right which the express company had under its contract with the defendant. As a passenger merely, he had no right in the baggage car. The statute is simply declaratory of the common-law duty, except so far as that duty may have been modified in this state by the decisions in Railroad Co. v. Gage, 12 Gray, 393, and cases following that decision, and as to such exceptions it is a return to the principle of the common law, as declared in McDuffee v. Railroad Co., 52 N.H. 457; Express Cases, 117 U.S. 1, 6 S.Ct. 542, 628, 1190; Sargent v. Railroad Corp., 115 Mass. 416. Was the contract between the plaintiff and defendant just and reasonable between them? How can a man, who obtains by a contract that which he is not entitled to without it, say that the contract is not as to him just and reasonable? Such contracts have always been sustained by the English courts, even under the railway traffic act of 1854. Hart v. Railroad Co., 112 U.S. 342, 5 S.Ct. 151. See authorities cited in opinion of Mr. Justice BLACKBURN, in Peek v. Railway Co., 10 H.L.Cas. 491-507. See Simons v. Railway Co., 18 C.B. 805; Railway Co. v. Dunham, 18 C.B. 826, (decided in 1856;) White v. Railway Co., 2 C.B. (N.S.) 7, (decided in 1857;) Pardington v. Railroad Co., 1 Hurl. & N. 392; McManus v. Railway Co., 4 Hurl. & N. 327; Garton v. Railway Co., 1 Best & S. 112; Peek v. Railway Co., 10 H.L.Cas. 473; Allday v. Railroad Co., 5 Best & S. 903; Doolan v. Railway Co., 2 App.Cas. 792; Railroad Co. v. Brown, 8 App.Cas. 703; Railway Co. v. Macarthy, 12 App.Cas. 218. Was the contract void as against public policy? See Sir GEORGE JESSEL, M.R., in Printing Co. v. Sampson, L.R. 19 Eq. 462-465. Dissenting opinion of ALLEN, J., in Smith v. Railroad Co., 24 N.Y. 222; Wells v. Railroad Co., Id. 181; Railroad Co. v. Lockwood, 17 Wall. 379, 381; Graves v. Railroad Co., 137 Mass. 34. Upon all questions of this character, the courts are bound to solve all doubts against the exercise of their power to declare the contract void as against public policy. Richardson v. Mellish, 2 Bing. 242; Com. v. Pease, 16 Mass. 91; Ward v. Allen, 2 Metc. 53; Ball v. Gilbert, 12 Metc. 397; McKee v. Manice, 11 Cush. 357; Bills v. Comstock, 12 Metc. 468; Kingsbury v. Ellis, 4 Cush. 578; White v. Buss, 3 Cush. 448; Hunt v. Frost, 4 Cush. 54; Frost v. Belmont, 6 Allen, 152; Love v. Harvey, 114 Mass. 80; Phippen v. Stickney, 3 Metc. 384; Gibbs v. Smith, 115 Mass. 592; Case v. Gerrish, 15 Pick. 49; Fuller v. Dame, 18 Pick. 472-481; Rice v. Wood, 113 Mass. 133; Smith v. Townsend, 109 Mass. 500; Holcomb v. Weaver, 136 Mass. 265; Guernsey v. Cook, 120 Mass. 501; Denny v. Lincoln, 5 Mass. 385; Ayer v. Hutchins, 4 Mass. 370; Snell v. Dwight, 120 Mass. 9; Alger v. Thacher, 19 Pick. 51; Taylor v. Blanchard, 13 Allen, 370; Roller Co. v. Cushman, 143 Mass. 353, 9 N.E. 629; Collins v. Locke, 4 App.Cas. 674; Hare v Railway Co., 2 Johns. & H. 80; Coal Co. v. Coal Co., 68 Pa.St. 173; Kellogg v. Larkin, 3 Chand. (Wis.) 133. Why should the ordinary rights of choice and power to contract, which belong to every man in every other instance, be taken away in the case of contracts with common carriers? Railroad Co. v. Hale, 6 Mich. 263; Dorr v. Navigation Co., 11 N.Y. 485. See, also, Smith v. Railroad Co., 24 N.Y. 222; Perkins v. Railroad Co., Id. 196. The English courts, before the passage of the act of 1854, were frequently appealed to to declare contracts limiting the liability of carriers for negligence to be void, but they uniformly refused to do so.
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