Cleveland, C., C. & St. L. Ry. Co. v. Henry
| Decision Date | 19 February 1908 |
| Docket Number | No. 21,211.,21,211. |
| Citation | 83 N.E. 710,170 Ind. 94 |
| Court | Indiana Supreme Court |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. HENRY. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Union County; George L. Gray, Judge.
Action by John Henry, Sr., as administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under section 1337j, Burns' Ann. St. 1901. Reversed.
For opinion in Appellate Court, see 80 N. E. 636 and 81 N. E. 592.
Florea & Broaddus and L. J. Hackney, for appellant. Stanford & Barnhart and Reuben Connor, for appellee.
Appellee's decedent, an employé of a traveling show company, was fatally injured in a collision while being hauled by appellant in a car belonging to his employer.
The complaint charges: That the John H. Sparks Show Company was engaged in giving exhibitions in towns and cities of Indiana, and, to enable it to transfer its employés, animals, and property from one place to another, owned and had in use four railway coaches or cars, properly fitted up and arranged for the business. The decedent was an employé of the show company, which company had a contract with appellant to haul said show cars from place to place over its railroad. The show company having concluded an entertainment at Veedersburg, and loaded all its property and employés on its said cars, the defendant, by its employés, while engaged in making up a train, took said cars from the siding onto the defendant's main track for the purpose of hauling them to Crawfordsville. That the plaintiff's decedent, as one of the employés of said show company, was lawfully upon and in one of said show cars, and while said cars were lawfully upon the tracks of the defendant the defendant, by its employés, negligently ran one of its engines and cars against the car occupied by the decedent with great force and violence, whereby said show car was crushed and the decedent fatally injured, without fault of the decedent or his next of kin.
Appellant's demurrer to the complaint being overruled, it answered in two paragraphs -first, the general denial, and, in the second, that at the time and on the occasion alleged in the complaint the defendant was not acting as a common carrier, and sustained no such relation to John Henry, Jr.; that the car on which the latter was injured was not at the time used for common carriage, or public conveyance, but with the other show cars was employed in the private business of said show company in housing, storing, and transporting its employés, property, animals, and effects from point to point where it gave entertainments for private gain; that at the time of the accident the show cars were being handled, drawn, and transported by the defendant as a private carrier under a special contract entered into by said show company and the defendant on August 26, 1902, in effect, so far as material here, as follows: The defendant, in consideration of the sum of $75, agrees to furnish a conductor, engineer, and trainmen, together with sufficient power to haul four cars for the show company in regular freight trains, with the privilege of stopping for exhibitions as herein specified, leaving Veedersburg, Ind., about midnight September 1st to show at Crawfordsville September 2d. The contract contains these provisions:
It is further averred in the answer “that the consideration of said contract was, as stated herein, that the defendant should and did assume no liability whatever for damages or injuries to said show company, at whose sole risk it agreed said transportation should be furnished, and who, by said agreement, provided and stipulated that this defendant should be held harmless on account of any claim for personal injury; that John Henry, Jr., occupied said car on said occasion, and at said time, and his only relation to this defendant was under and by virtue of said contract, and said Henry had not paid or tendered fare or compensation for carriage by the defendant, nor had he agreed to do so; and the defendant further avers that it has at no time held itself out to the public as a carrier of property, cars, and servants therein of individuals who were not operating as common carriers, and it has at no time carried or hauled such cars, except by special contract, and by private carriage.”
The objection made to the complaint is that no facts are given showing damage to the next of kin, to wit, father and mother, sister, and brother, given by name, “who have sustained damages by his death in the sum of $10,000.” It is contended that, where the next of kin are ancestral and collateral there is no presumption of damage to them, and that any damage suffered is special and must be specially pleaded. The complaint, however, is sufficient, upon the authority of Pennsylvania Co. v. Coyer (1904) 163 Ind. 631, 635, 72 N. E. 875. So far as expression has been given, there is unanimity among the courts of this country that a railroad corporation, as a common carrier, is under no legal duty to haul show cars, that is, cars owned and fitted up by showmen and used exclusively by them to house and transport their employés and show property as a complete outfit from place to place over railroads. Coup v. Wabash, etc., R. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374;Chicago, etc., R. Co. v. Wallace, 66 Fed. 508, 14 C. C. A. 257, 30 L. R. A. 161;Robertson v. Old Colony R. R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482;Wilson v. Atlantic, etc., R. Co. (C. C. 1904) 129 Fed. 774, affirmed 133 Fed. 1022, 66 C. C. A. 486; Hutchinson on Carriers (3d Ed.) § 88, p. 84; Moore on Carriers,§ 38. The rule rests upon the principle that such loaded cars or vehicles are not such goods as railroads hold themselves out to carry, and in respect to which they assume a public duty to serve all alike who apply for carriage, and such cars being a class of property they do not profess to carry, and the drawing of which is inconsistent with their business, they are therefore exempt from all public duty to haul them. 1 Hutchinson on Carriers (3d Ed.) § 47, and authorities collated; Moore on Carriers, § 1. A common carrier may, however, become a private carrier, and by special agreement undertake for hire to carry that which he is under no obligation to carry. Louisville, etc., Co. v. Keefer (1896) 146 Ind. 21, 26, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348, and cases cited; Pittsburgh, etc., Co. v. Mahoney (1897) 148 Ind. 196, 200, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503, and cases cited; Hutchinson on Carriers (3d Ed.) § 44. In the latter section the author states: See, also, Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560.
A vast difference exists in the powers and duties of public, or common carriers, and private carriers. A common carrier is one who holds himself out in common, that is, to all people alike, that he is engaged in the business of transporting persons, or certain kinds of property, and is prepared and ready to carry for all who apply, on the same terms. From its very nature his business is one in which the people generally, or the public, acquire an interest to the extent, at least, that the business be conducted honestly, impartially, and efficiently. Hence the law intervenes as to the public carrier and enforces certain regulations and limitations against him in the interest of the public welfare. Among these regulations he is held, under the general rules of the common law, to be an insurer of the property intrusted to him against loss from any source, except the...
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