Buckley v. Bangor & A. R. Co.

• Decision Date: 03 March 1915
• Citation: 93 A. 65,113 Me. 164
• Parties: BUCKLEY v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

93 A. 65

113 Me. 164

BUCKLEY

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

March 3, 1915.

On Motion and Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Daniel J. Buckley against the Bangor & Aroostook Railroad Company. Verdict for plaintiff, and defendant brings exceptions and moves for a new trial. Exceptions and motion overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and HANSON, JJ.

Hersey & Barnes, of Houlton, and Howard Pierce, of Mars Hill, for plaintiff. Powers & Guild, of Ft. Fairfield, and Joseph F. Gould, of Bangor, for defendant.

SAVAGE, C. J. Case to recover for injuries sustained by plaintiff while traveling on the defendant's railroad February 8, 1913. The verdict was for the plaintiff. To a refusal of the presiding justice to direct a verdict for the defendant, the defendant excepted. It also filed a motion for a new trial. As the same questions arise under the exceptions as under the motion for a new trial, they will be considered together.

The essential facts are not in dispute. The plaintiff was employed by one Smith as caretaker of five cars of potatoes shipped by the latter from Mars Hill, in this state, to Boston, Mass., and, in the course of his employment, was, at the time of the accident, traveling upon defendant's freight train, of which these cars formed a part. His duties, under his employment, were to keep the cars warm and keep the potatoes from freezing. Before starting, the plaintiff signed a contract with the defendant, by which, in consideration of his carriage upon the freight train, he in terms "voluntarily assumed all risks of accident or damage," and released the defendant from all liability for personal injury sustained by him, whether caused by the negligence of the defendant or its employés, or otherwise. On the outward trip from Mars Hill he received the injury for which he now seeks compensation.

The defendant admits that the plaintiff at the time of the accident was in the exercise of due care; that the injuries were caused by the negligence of the defendant's employé's; and that the damages awarded were not excessive. But the defendant contends that the plaintiff was traveling gratuitously, and is therefore barred of his right to recover by his contract of release. On the other hand the plaintiff contends that he was, under the circumstances, a passenger for hire. And this is the single issue in the case. If the plaintiff was traveling gratuitously, he cannot maintain the action; otherwise the verdict must stand.

It was admitted at the trial that at the time of the accident, there existed these methods and charges in transporting potatoes: First, the defendant company might furnish an Eastman heater car, and during the season when heat was required such car was heated by the Eastman Company, for which the shipper paid an extra charge known as the heater charge, this charge being collected by the defendant company at the time when it collected its transportation charges, but a separate receipt was given for the heater charges, and none of the money collected as a heater charge was retained by the defendant company, but was forwarded to the Eastman Company; secondly, the defendant company might furnish to the shipper an ordinary box car, and, when the weather required it, the shipper might at his own expense line such car and furnish stove and fuel for heating the same, in which ease a transportation charge alone was made. In any event, whether the potatoes were transported at a season of the year when heat was needed, or otherwise, or whether transported in an Eastman heater car or in a box car, lined or unlined, the charge for transportation was the same throughout the year. When the potatoes were shipped in a lined car at a season requiring heat, a caretaker was furnished by the shipper at his own expense, and traveled on the defendant's road as this plaintiff was traveling.

When the potatoes were shipped in an ordinary car with lining and heat furnished by the shipper, and a caretaker also furnished by the shipper, the defendant corporation was not liable for damages sustained by having the potatoes frozen; on the other hand, when the potatoes were shipped in an Eastman heater car, the Eastman Company was responsible for any damages sustained by the freezing of the potatoes.

No ticket or pass was furnished to the caretaker, or, in this case, to the plaintiff, on his trip from point of shipment to point of destination; but he traveled that part of his journey by virtue of the terms of a certificate "issued to him, which stated that he was a caretaker of the cars in question, and that he was entitled to agreed caretaker's fare for the return trip." "Upon reaching his point of destination, the caretaker could obtain a return ticket at the reduced rate of one cent a mile, by exhibiting the certificate to the ticket agent at point of destination."

In this case the shipper chose the second of the modes of transportation referred to. It does not appear that he made any special contract with the defendant respecting liability. His implied contract was, as may be inferred from the admission, to assume the risk of freezing, but no other risks. He took ordinary box cars, furnished by the defendant, lined them, furnished fuel for them, and furnished the plaintiff, as a caretaker for them, all at his own expense. And he paid the defendant company the ordinary transportation charges, but no heater charge. And he paid no charge for the fare of the plaintiff on the outward trip, unless such a charge is deemed to be included in the general charge for transportation of the potatoes.

The conflict between the parties is centered upon the question: What effect is to be given to the release signed by the plaintiff before starting? And that depends upon whether he was riding gratuitously, or was a passenger for hire.

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. The denial of the right to contract for such exemption is based upon the salutary principle that the safety of the general traveling public requires that a common carrier of passengers must be held to the highest degree of care. A contract for such exemption is contrary to public policy, a public policy which is based upon the interest which the state has in the lives of its citizens. The duty of exercising that care is one from which such a carrier cannot escape, when it undertakes to carry passengers for hire. Libby v. M. C. R. R. Co., 85 Me. 34, 26 Atl. 943, 210 L. R. A. 812; Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491; Doyle v. Fitchburg R. R. Co., 166 Mass. 492, 44 N. E. 611, 33 L. R. A. 844, 55 Am. St. Rep. 417; Pennsylvania Co. v. Henderson, 51 Pa. 316; Flinn v. Philadelphia, etc., R. Co., 1 Houst (Del.) 469; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362; Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St Rep. 348; Carroll v. Mo. Pac. R. Co., 88 Mo. 239, 57 Am. Rep. 382; Davis v. Chicago, etc., R. Co., 93 Wis. 470, 67 N. W. 16, 1132, 33 L. R. A. 654, 57 Am. St. Rep. 935; Louisville, etc., R. Co. v. Bell, 100 Ky. 203, 38 S. W. 3; Lackawanna, etc., R. Co. v. Chenewith, 52 Pa. 382, 91 Am. Dec. 168; Southern R. Co. v. Watson, 110 Ga. 681, 36 S. E. 209; Kansas City, etc., R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821, 46 Am. Rep. 104; Weaver v. Ann Arbor R. R. Co., 139 Mich. 590, 102 N. W. 1037, 5 Ann. Cas. 764; Baltimore, etc., R. Co. v. McLaughlin, 73 Fed. 519, 19 C. C. A. 551; Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Grand Trunk Ry. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535; Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. And one riding on a so-called "free pass" for which a valuable consideration has been given is a passenger for hire. Griswold v. N. Y. & N. E. R. Co., 53 Conn. 371, 4 Atl. 261, 55 Am. Rep. 115; Doyle v. Fitchburg R. R. Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; Com. v. Vt. & Mass. R. R. Co., 108 Mass. 7, 11 Am. Rep. 301. Or on a pass issued in connection with business in which the carrier has an interest. G. T. R. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535.

It is generally held also, upon grounds of public policy, that a common carrier of passengers is under the same liability, in the absence of exemption contract, for injuries resulting from its negligence, to persons traveling on a free pass, or gratuitously, as it is to passengers for hire. Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491; Quimby v. B. & M. R. R., 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846; Griswold v. N. Y. & N. E. R. Co., 53 Conn. 371, 4 Atl. 261, 55 Am. Rep. 115; Louisville, etc., R. Co. v. Faylor, 126 Ind. 126, 25 N. E. 869; Todd v. Old Colony R. Co., 3 Allen, 18, 80 Am. Dec. 49; Williams v. Oregon Short Line, 18 Utah, 210, 54 Pac. 991, 72 Am. St. Rep. 777; Waterbury v. N. Y. C, etc., R. Co. (C. C.) 17 Fed. 671.

But it is well settled in this state that the rule of public policy does not prevent the carrier, in cases of purely gratuitous carriage, from contracting exemption from its liability, even for its own negligence. And one who accepts gratuitous carriage, having first contracted to exonerate the carrier from such liability, is to be held to the terms of his contract. Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491; and such is the prevailing rule elsewhere. Quimby v. B. & M. R. R., 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846; Griswold v. N. Y. & N. E. R. Co., 53 Conn. 371, 4 Atl. 261, 55 Am. Rep. 115; Kinney v. Central, etc., R. Co., 34 N. J. Law, 513, 3 Am. Rep. 265; Wells v. N. Y. C. R,...