Bernardi Greater Shows, Inc. v. Boston & M. R. R.

• Decision Date: 07 February 1933
• Citation: 165 A. 124
• Parties: BERNARDI GREATER SHOWS, Inc. v. BOSTON & M. R. R. KIMBALL v. SAME. BITTNER v. SAME.
• Court: New Hampshire Supreme Court

165 A. 124

BERNARDI GREATER SHOWS, Inc.

v. BOSTON & M. R. R.

KIMBALL

v. SAME.

BITTNER

v. SAME.

Supreme Court of New Hampshire. Strafford.

Feb. 7, 1933.

Transferred from Superior Court, Strafford County; Scammon, Judge.

Separate actions on the case for negligence by Bernardi Greater Shows, Incorporated, by John S. Kimball, administrator of the estate of George Monroe, and by Edward Bittner, against the Boston & Maine Railroad. Transferred in advance of trial for decision on rights of parties under special agreement made by Bernardi Greater Shows, Incorporated, and Boston & Maine Railroad concerning the transportation of property and of persons connected with the Bernardi Greater Shows, Incorporated.

Case discharged.

Three actions on the case for negligence, transferred by Scammon, J., in advance of trial for a decision upon the question of law hereinafter stated.

The nature of the first action is sufficiently indicated by the following portion of the declaration:

"In a plea of the case, for that your said plaintiff was the owner of twelve new steel flat cars of most modern design and equipment, one box car and two coaches, all of said cars conforming to established regulations as to standards and equipment and in a fit and safe state of repair when entering upon the ways of the defendant railroad, and were so continued to be kept in a fit and safe state of repair at the plaintiff's expense, as it was led to believe by the defendant's usual, regular and customary inspection and repair of the same. The aforesaid cars with two flat cars and two box cars rented of said defendant railroad, all of them being safely and securely loaded with plaintiff's tents, wagons, show equipment and paraphernalia, none of which was of an exceptional or of an extraordinary character, kind, or nature, were, on July 22, 1928, being hauled for hire by said railroad, a common carrier, (as it usually and customarily hauled similar trains) in one train, using two of its engines and crews from Lakeport, New Hampshire to Gloucester, Massachusetts over the track and way of the former Dover and Winnipesaukee Railroad, now a part and way of said defendant Railroad; the control, movement and direction of said train on said track and way, and the said track and way itself, being under the sole care, control, and management of the said Boston & Maine Railroad, its officers, agents and employees; that on said day and date, due to the negligent, grossly careless and reckless management, care, operation, and inspection of said train by the said railroad, its officers, agents and servants, the great, excessive and unsafe rate of speed, at which said train of cars of its weight and length was hauled, the insufficient and unstable condition of the track system, unsafe for long and heavy trains, and particularly unsafe for the hauling of the aforesaid train at a rapid rate of speed—of which unsafe, unfit and unstable condition of its track system, then and there existing, the defendant knew or ought to have known, and of which the plaintiff had no knowledge or means of knowledge, and by reason of the aforesaid reckless and negligent management, care, operation and inspection, and the unsafe and negligent condition of its track system, the said train of cars was wrecked at or near Meeting House Crossing, so called, in Farmington, New Hampshire."

The declaration then described the damage to the property of the plaintiff, and contained an allegation that this damage was increased by subsequent negligent handling of the same by the defendant's agents. A copy of the contract under which the shipment was made was attached to the declaration, the essential provisions of which are hereinafter stated.

In the second action the plaintiffs intestate, George Monroe, is alleged to have been "an employee of David B. Stock, the owner of an independent amusement device attached subject to and operating under the booking, routing, rules and regulations of the Bernardi Greater Shows," who lost his life as a result of the wreck described in the declaration above quoted.

The plaintiff in the third action was an employee of the Bernardi Greater Shows who received personal injuries as a result of the same wreck.

The important provisions of the contract are as follows:

"First: The railroad will furnish the use of its railroad and necessary sidings, the necessary conductors, engineers and other trainmen, and sufficient motive power and will perform the switching and placing of cars for loading and unloading at its stations hereinafter named and transport the show, show material, show animals, apparatus and paraphernalia, and persons in charge thereof, employees and performers, and their personal baggage in cars loaded and unloaded by and at the expense and risk of the show, upon the dates and to make the runs following, to wit:

Leave

For

About 8:00 A. M.

Lakeport, N. H.

Gloucester, Mass.

Sunday, July 22nd, 1928

Gloucester, Mass.

Springfield, Mass.

Sunday, July 29th, 1928

Springfield, Mass.

Bellow Falls, Vt.

Sunday. Aug. 5th, 1928

and deliver loaded cars to the Rutland Railroad.

"Equipment consists of twelve (12) flat cars, one (1) box car, two (2) coaches owned by the show; also two (2) flat cars and two (2) box cars to be furnished by the railroad."

"Fifth: The liability of the respective parties hereto as to all persons and property transported or to be transported in pursuance of this agreement shall be governed by the provisions hereof, and in that behalf it is agreed that this contract is not made with the said railroad as a carrier, either common or special, of the said persons or property or any thereof (the compensation to be paid by said show being wholly inadequate consideration for any such undertaking), but as a hirer to the show of the cars and motive power and of men to operate the same, and of the right to use the road and tracks of the railroad to the extent necessary in the premises, and that said road and tracks and the conductors, engineers, trainmen and other employees furnished by the railroad hereunder or acting or under duty to act in the performance of or in reference to the use of service herein provided for, shall, as between the parties hereto, while used or engaged or under duty to act in such service and employment, be deemed to be the road and servants of the show, and that the railroad shall not be liable to the show, or to any person or persons for any injury or damage which may happen to any persons, or to the cars or property to be or which shall be transported or served hereunder, which may be incidental or referable to the use or service herein provided for, caused by any defect in said motive power, cars, road or tracks, or unsuitableness thereof for such transportation, or by the negligence of said conductors, engineers, trainmen or other servants, or any or either of them, or arising from any cause whatever. The filing of this contract with any commission or other public body is not an admission that the railroad is a common or special carrier hereunder.

"And the show hereby expressly agrees and binds itself to indemnify, save harmless and protect the railroad from and against any or all claims, damages, costs and demands in any way arising, incidental or referable to the subject matter of this agreement, for any loss or injury of whatsoever nature or howsoever caused, which may be sustained to the property of the show or to any property in its use or charge or to the person or property of any of its agents, servants, performers or employees while on or about said road or the premises of said railroad, or to the person or property of any of those who may come upon said road or said premises, because of the presence there of the show, or its agents, servants, performers or employees, whether in any case occasioned by the negligence of the railroad, its agents or servants, or otherwise, and whether occurring during the transportation of the show or before, after or between runs."

The sixth clause, after specifying the rates to be paid by the plaintiff, concludes as follows:

"And the show does hereby acknowledge that it had the option of shipping its show, both persons and property at higher rates according to the tariffs, classifications and rules of the railroad and therefor receiving the security of the liability of the railroad as a common carrier, but has voluntarily decided to ship the same under this contract at the reduced rates above named."

No special plea having been filed by the defendant, and the case being in order for trial upon the general issue, the presiding justice made the following order: "The question as to whether or not the within agreement, a copy of which is attached to the amended declarations in each action, is a bar to the maintenance of all or any of the foregoing actions is reserved and transferred as an important question of law in advance of trial."

Other facts appear in the opinion.

Cooper & Hall, of Rochester, Robert W. Upton and Joseph C. Donovan, both of Concord, and F. Clyde Keefe, of Dover, for plaintiffs.

Hughes & Burns, of Dover, and Conrad E. Snow, of Rochester, for defendant.

BRANCH, Justice.

1. It is plain that the provisions of the contract here involved furnish no answer to some of the allegations in the declarations of the plaintiffs, and that the broad question reserved by the superior court must therefore be answered in the negative. It is alleged that the defendant undertook to keep the cars of the show company in a fit and safe state of repair through its regular and customary system of inspection and repair and made a charge against the show company for this service, but that the inspection was negligently performed and that this negligence contributed to cause the accident. Although the show company undertook in the fourth clause of the contract that "each car and the contents thereof shall be of a character and in order suitable for such movement," the matter...