Cleveland, C., C. & St. L. Ry. Co. v. Ketcham
| Decision Date | 26 January 1893 |
| Citation | 33 N.E. 116,133 Ind. 346 |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. KETCHAM. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; L. C. Walker, Judge.
Action by Fred G. Ketcham against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.John T. Dye, for appellant. W. A. Ketcham, for appellee.
The appellee was a railway postal clerk, and received injuries in a collision on the appellant's railroad, and he brings this action to recover damages resulting from the injuries sustained, which are alleged to have occurred on account of the negligence of the appellant and its employes, and without fault on the part of the appellee. There was a trial, and a special verdict returned, and judgment on the verdict in favor of the appellee. As appears from the facts found in the special verdict, the appellee at the time of the receiving of the alleged injuries was a regularly appointed and acting railway postal clerk in the employment of the United States. At the time of his appointment he received from the United States government a photograph commission, appointing him a railway postal clerk, requesting the railway company to extend to him the facilities of free travel when on duty and when traveling to and from duty, assigning him to duty between Chicago, Ill., and Cincinnati, Ohio. His photograph was attached, and the commission contained directions to the appellee that, if fare was charged, to take receipt, and stated that the same was only good between Chicago, Ill., and Cincinnati, Ohio. This commission was signed by the general superintendent of the railway mail service and by the postmaster general of the United States. That appellee, at the time of his appointment, and on, up to, and after the injury, resided at the city of Indianapolis, on the line of the appellant's railroad. That appellee, after his said appointment, was assigned to duty between Cincinnati and Chicago, the run beginning and terminating at Cincinnati. That after appellee's appointment, and before the alleged injury, by consolidation, appellant became the owner of the whole line of road over which appellee traveled between Cincinnati and Chicago. After the consolidation, no new photograph commission was issued, but at all times thereafter the appellant, its officers and conductors, recognized the request in the commission relating to transportation as if made to them specifically. That the appellant, in consideration of a payment to be made by the United States government to it for the furnishing of mail cars and carrying the mails, recognized and acceded to the bequests contained in the photograph commission held by clerks running over the line of its railroad, and suffered and permitted all the clerks holding such photograph commission, when on duty and when returning from duty, to ride over the lines of their railroad without exacting the payment of fare or the purchase of tickets, and at all times conceded and admitted the right of postal clerks holding such photograph commissions to ride over the lines of its said railroad without demanding or exacting the payment of fare, or the presentation of tickets, or other evidence of their right to ride than said photograph commission, and suffered, permitted, recognized, and conceded the rights of such clerks to ride either in the postal car or in the ordinary passenger coaches. On the day previous to the alleged injury appellee had finished his regular run ending at Cincinnati, and on the following evening, July 18, 1889, he entered the car of the appellant at Cincinnati, as a passenger for Indianapolis; he entered the postal car, and, being requested by the clerk in charge thereof to assist in handling the mail, (the same being on that evening unusually heavy,) acceded to said request, and remained in said postal car to assist in handling said mail, and did not enter or take passage in any of the passenger coaches of the appellant on said train, although he knew that passenger coaches were attached thereto. Facts are found showing that a collision occurred through the negligence of the appellant and its servants, and through no fault of the appellee he was injured. It is further found that at the time of such collision the appellee, as such passenger, was in said postal car as aforesaid, assisting in the handling of said mail while returning to his home. Appellant contends that under the facts found appellee was not a passenger at the time of the injury, and therefore cannot recover.
It is urged that the appellee was not a passenger for very many reasons; that he did not enter a car provided for the carriage of passengers; that he had not purchased a ticket; that he had not paid his fare; that he did not intend to pay his fare; that it does not appear that he had notified the conductor of his presence on the train, or that he was on the train with the knowledge or assent of the conductor; that there is no contract existing between the appellee and appellant, for transportation, upon which it based the right of action. Section 4000, Rev. St. U. S., makes it the duty of railway companies carrying the mails to “carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.” The findings of fact in this cause take from the case all question in regard to compensation for the carrying of the appellee, for it is found as a fact that, “in consideration of a payment to be made by the United States government to them [the appellant company] for the furnishing of said cars and carrying the mails, they recognized and acceded to the requests contained in the photograph commission held by clerks running over the line of their railroad, and suffered and permitted all the clerks holding such photograph commissions, when on duty and when returning from duty, to ride over their lines without exacting the payment of fare,” etc. This finding is to the effect that, as a part of the contract for the carrying of the mails, as a part consideration received for the carrying of the mails by the appellant it was likewise to carry all mail clerks handling the mails while on duty or returning from duty, so that, whether the appellee be regarded as on duty or off duty and returning home from duty, his fare was provided for and paid by the...
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