Cleveland, C., C. & St. L. Ry. Co. v. Henry

• Court: Indiana Appellate Court
• Writing for the Court: ROBY
• Citation: Cleveland, C., C. & St. L. Ry. Co. v. Henry, 80 N.E. 636 (Ind. App. 1907)
• Decision Date: 13 March 1907
• Docket Number: No. 5,867.,5,867.
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HENRY.

80 N.E. 636

CLEVELAND, C., C. & ST. L. RY. CO.

v.HENRY.

No. 5,867.¹

Appellate Court of Indiana, Division No 2.

March 13, 1907.

Appeal from Circuit Court, Union County; George L. Gray, Judge.

Action by John Henry, Sr., administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Florea & Broaddus and L. J. Hackney, for appellant. Stanford & Barnhart and Reuben Conner, for appellee.

ROBY, P. J.

Action by appellee to recover damages on account of the death of John Henry, Jr. The complaint was in one paragraph. Its averments, so far as relevant to the questions discussed, were to the effect that, on September 2, 1902, the owner of a certain show, engaged in giving exhibitions from day to day in certain Indiana towns and cities, had several railroad coaches which he used to carry his employés, animals, and property from place to place, and had contracted with appellant to haul and carry said coaches from Veedersburg to Crawfordsville, and after his entertainment at the former place had loaded all his property upon said coaches ready for appellant to move the same. The decedent was employed by said showman as a musician. That, as a member of said show, he was lawfully upon one of said show coaches, which had been hauled by appellant upon its main track, where it was engaged in making up a train for the purpose of transporting said coaches to Crawfordsville, and, while said coaches were lawfully upon said track, the appellant, by its agents and employés, negligently allowed one of its engines and one of its cars to run against and upon said coach in which decedent then was, and negligently ran said engine and car against, upon, and into said coach with such force and violence as to demolish the larger part of said coach, thereby bruising, wounding, and crushing said decedent so that he died therefrom. “That said John Henry, Jr., left surviving him, as his next of kin, his father, John Henry, Sr., his mother, Martha Henry, his two brothers, Thomas Henry and Andrew Henry, and his sister, Anna Henry, who have sustained damages by his death in the sum of $10,000.”

The objection made to this complaint is that no facts are therein stated showing damage to the next of kin named, and that, where said next of kin are ancestral and collateral, there is no presumption of damage to them; but any damage shown is special, and requires to be specifically pleaded. The allegation upon the subject was, however, sufficient. Pennsylvania R. Co. v. Coyer, 163 Ind. 631, 635, 72 N. E. 875. To this complaint appellant, after demurring unsuccessfully, filed an answer in two paragraphs. The first, a general denial. To the second paragraph appellee's demurrer for want of facts was sustained. The cause was submitted to a jury upon the issue formed, and a verdict for appellee returned; damages being fixed at $3,000. Appellant's motion for a new trial was overruled, and the errors assigned bring in question the act of the court in sustaining said demurrers and in overruling said motion.

It was averred in the second paragraph of appellant's answer that decedent was an employé of one Sparks, and at the time of his injury occupied a car belonging to said Sparks, who was not a common carrier, and that said car was not in use at the time for common carriage, but was with other cars employed in the private business of said Sparks, in housing and transporting his servants and property from point to point, and that said cars were handled and transported by the defendant under a special contract entered into between it and said Sparks, a copy of which is made a part of the answer. It was further averred that one consideration for said contract of carriage was, as stated therein, that the appellant should and did assume no liability for damages or injuries to said Sparks, at whose sole risk said transportation was to be furnished, and that appellant should be held harmless on account of any claim for personal injury. The contract referred to provides for the transportation of said cars from point to point, the price to be paid therefor, and other details connected with such service. The clause relied upon by appellant is as follows: “The party of the second part shall assume all responsibility for damages to persons or property which are hereby transported, at its sole risk, and it further agrees to indemnify and hold said railway company harmless on account of any claims for personal injuries or damages to property.”

The complaint does not set up the written contract. The action sounds in tort. Pittsburgh, etc., R. Co. v. Higgs, 76 N. E. 299, 302, 165 Ind. 694, 4 L. R. A. (N. S.) 1081;Lake Shore, etc., R. Co. v. Teeters (Ind. Sup.) 77 N. E. 599, 5 L. R. A. (N. S.) 425. Independent of contract, a person must answer for the consequences of his own negligence when the attendant circumstances justify the finding that the injured party had a legal right to be where he was when injured, and that the defendant ought, as a reasonably prudent man, to have anticipated such injury, in the absence of precaution upon his part to prevent it. 1 Thompson's Negligence (2d Ed.) §§ 3-6; 46 L. R. A. 33, monographic note.

Appellant claims that, under the contract specified, it became, so far as the transportation of the show outfit was concerned, a private carrier. The principals above stated are of general application. Common carriers are not, however, permitted to contract against liability on account of their own negligence (B. & O., etc., R. Co. v. Ragsdale, 14 Ind. App. 406, 409, 42 N. E. 1106), while private carriers do not come within the reason of the rule. Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348. A contract releasing it from liability on account of its own negligence would, if appellant acted as a common carrier in the transportation of the property and effects named, be within the prohibition and invalid. On the other hand, if it was acting in the capacity of a private carrier only, such contract would not be within the public policy declared by the courts, independent of statute and out of which the inhibition arises. B. & O., etc., R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560;Chicago, etc., v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161;Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503;Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348.

The Supreme Court formerly held that a contract between an express company and a railroad company, under which the latter was released from liability on account of its negligence, was valid, and that an employé of the express company whose contract of employment stipulated for such release upon his part was thereby debarred from any remedy against the railroad company on account of personal injuries received through its negligence. Pittsburgh, etc., R. Co. v. Mahoney, supra; Pittsburgh, etc., R. Co. v. Mahoney, 29 Ind. App. 654, 63 N. E. 230;Russell v. Pittsburgh, etc., R. Co., 157 Ind. 305, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214. Thereupon the act of March 11, 1901, was passed. Sections 1 and 2 of that act are in terms as follows:

“Section 1. Be it enacted by the General Assembly of the state of Indiana, that all contracts between employer and employé releasing the employer from liability for damages arising out of the negligence of the employer by which the employé is injured or in case of the employé's death, to his representatives, are against public policy, and hereby declared null and void.

“Sec. 2. That all contracts between employer and employé releasing third persons, copartnerships or corporations from liability for damages arising out of the negligence of such third persons, copartnerships or corporations by which the employé of such employer is injured, or in case of the death of such employé, to his representatives, are against public policy and are hereby declared null and void.” Acts 1901, p. 515, c. 225; Burns' Ann. St. 1901, § 7082b.

Except as a contract releasing appellant from liability is involved, the distinction between common and private carriers is not important, for, while a person in charge of, or employed on, or transported in, a private car, may not be technically a passenger, yet he is not an employé of the carrier, and it owes to him the duty of reasonable care as to other persons who intrust themselves to it. Lackawanna, etc., R. Co. v. Chenewith, 52 Pa. 382, 91 Am. Dec. 168;Cumberland Valley, etc., R. Co. v. Myers, 55 Pa. 288;Terre Haute, etc., R. Co. v. Chicago, etc., Co., 150 Ill. 502, 37 N. E. 915;Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597;Mallory v. Tioga, etc., R. Co., 39 Barb. 488; 3 Thompson's Negligence, 2653. “The public policy of the government is to be found in its statutes, and, when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials; but, when the lawmaking power speaks upon a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts.” United States v. Trans-Missouri, etc., Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007, 1027;Heller v. National Marine Bank, 80 Md. 618, 43 Atl. 800, 45 L. R. A. 438, 444, 73 Am. St. Rep. 212;State v. Fireman's, etc., Ins. Co., 152 Mo. 47, 52 S. W. 595, 45 L. R. A. 363, 377.

Appellant denies the application of the act of 1901, supra, to the facts in this case, saying: “This was a contract between an employer and a third person, releasing such third person from liability.” The statement thus made is accurate as to parties. This was a contract between an employer and a third person, to which the decedent was a stranger. The contention that decedent had released appellant from liability by...