Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Henry

• Decision Date: 19 February 1908
• Docket Number: 21,211
• Citation: 83 N.E. 710,170 Ind. 94
• Court: Indiana Supreme Court
• Parties: Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Henry, Administrator

83 N.E. 710

170 Ind. 94

Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Henry, Administrator

No. 21,211

Supreme Court of Indiana

February 19, 1908

From Union Circuit Court; George L. Gray, Judge.

Action by John Henry, Sr., as administrator of the estate of John Henry, Jr., against the Cleveland, Cincinnati, Chicago &amp St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 3,000, defendant appeals. Transferred from Appellate Court under § 1394 Burns 1908, subd. 2, Acts 1901, p. 565, § 10.

Reversed.

Florea & Broaddus, L. J. Hackney and Frank L. Littleton, for appellant.

Stanford & Barnhart and Reuben Conner, for appellee.

OPINION

Hadley, J.

Appellee 's decedent, an employe 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 alleges 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 employes, animals and property from one place to another, owned and had in use four railway cars, properly fitted up and arranged for the business; that the decedent was an employe of the show company, which company had a contract with appellant to haul said show cars from place to place over its railroad; that the show company having concluded a performance at Veedersburg, and loaded all its property and employes on its said cars, the defendant, by its employes, 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 employes 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 employes, 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: (1) the general denial; (2) 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 employes, 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 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, Indiana, about midnight September 1, to show at Crawfordsville September 2. The contract contains these provisions:

"The above-described cars must conform to the requirements of the laws of the United States as to height of draw-bars and their equipment with grab irons, automatic draw-bars and air-brakes. * * *

The cars are to be loaded and unloaded by the party of the second part [show company]. * * *

The engineers, conductors and brakemen to be provided by the party of the first part shall be sober and reliable. * * *

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 railroad company harmless on account of any claim for personal injuries or damage to property."

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. 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 transported 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, 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, 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 employes and show property as a complete outfit, from place to place over railroads. Coup v. Wabash, etc., R. Co. (1885), 56 Mich. 111, 22 N.W. 215, 56 Am. Rep. 374; Chicago, etc., R. Co. v. Wallace (1895), 66 F. 506, 14 C.C.A. 257, 30 L.R.A. 161; Robertson v. Old Colony R. Co. (1892), 156 Mass. 525, 31 N.E. 650, 32 Am. St. 482; Wilson v. Atlantic, etc., R. Co. (1904), 129 F. 774, 66 C.C.A. 486, affirmed in 133 F. 1022; 1 Hutchinson, Carriers (3d ed.), § 88; Moore, 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, Carriers (3d ed.), § 47, and authorities collated; Moore, 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., R. Co. v. Keefer (1896), 146 Ind. 21, 26, 38 L.R.A. 93, 58 Am. St. 348, 44 N.E. 796, and cases cited; Pittsburgh, etc., R. Co. v. Mahoney (1897), 148 Ind. 196, 200, 40 L.R.A. 101, 62 Am. St. 503, 46 N.E. 917, and cases cited; 1 Hutchinson, Carriers (3d ed.), § 44. In the latter section the author states: "A common carrier may, however, undoubtedly become a private carrier or a bailee for hire, when, as a matter of accommodation or special engagement he undertakes to carry something which it is not his business to carry. The relation in such a case is changed from that of a common carrier to that of a private carrier, and where this is the effect of a special arrangement, a carrier is not liable as a common carrier and cannot be proceeded against as such." See, also, Baltimore, etc., R. Co. v. Voigt (1900), 176 U.S. 498, 44 L.Ed. 560, 20 S.Ct. 385.

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 acquire an interest to the extent, at least, that the business shall 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 entrusted to him against loss from any source, except the act of God or the public enemy, is also held to the highest degree of care for the safety of his passengers, and is denied the right to make any contract for relief against the negligence of himself or employes.

A private carrier is one who does not engage in the business of carrying, or does not hold himself out to carry certain kinds or classes of property. He is one who is under no duty or obligation to make the carriage, is at liberty to refuse to accept it as he pleases, and will undertake it only upon terms satisfactory to himself. In respect to the undertaking he enjoys the full freedom of the right of contract, and may stipulate for relief from liability for every...