Davis v. Chesapeake & O. Ry. Co.

• Decision Date: 29 March 1906
• Citation: 92 S.W. 339,122 Ky. 528
• Parties: DAVIS v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

92 S.W. 339

122 Ky. 528

DAVIS v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

March 29, 1906

Appeal from Circuit Court, Greenup County.

"To be officially reported."

Action by John A. C. Davis against the Chesapeake & Ohio Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Davis &amp Mathews, Scott & Dinkle, and D. C. T. Davis, Jr., for appellant.

Worthington & Cochran and W. H. Wadsworth, for appellee.

PAYNTER J.

The appellant, Davis, was employed by the Adams Express Company as a messenger. Under a contract which the Adams Express Company had with the appellee, his duties required him to go upon appellee's trains to look after packages and property which it was transporting under its contract with the express company. While on one of appellee's trains in the discharge of his duties he was injured by the alleged negligence and carelessness of appellee. The principal defense relied on is a contract of release which the Adams Express Company required the appellant to execute upon entering its service. The preamble of the contract recites that he had applied to the express company for employment as a servant at a fixed compensation; that his duties were to take charge of goods which the express company transported upon cars and other conveyances of railroad companies; that the railroad companies required of the express company, as a condition of their permitting messengers to travel upon their trains in the performance of duties, that they should be indemnified and released from all liability for and in respect of any damage or injury which might be sustained by him in the course of his employment, whether the same be occasioned by the negligence of the railroad company or otherwise. The contract of release contains the following stipulations: "Now, therefore, in consideration of such employment to be given by the said express company, and the compensation to be paid therefor, and in consideration of $1 lawful money of the United States of America, paid by the Adams Express Company to the undersigned, the receipt whereof is hereby acknowledged, the undersigned for himself, his heirs, executors, administrators, and assigns, hereby fully consents to and ratifies each and every bond or other instrument or contract of indemnity against such liability and each and every release of said liability or other similar contracts executed and to be executed by the said express company to any railroad or other carrier, and the undersigned agrees to assume all risks of death or accident, or damage to him, or to his or any of his property, and does hereby release and discharge said Adams Express Company and any connecting carrier, railroad company, express company, or other company or person or connecting carrier in whose car or other conveyances he may travel in the performance of his duties as aforesaid, from any and all claims, liabilities and demands of every kind, nature, and description, for or on account of his death or any injury or damage to his person or property of any kind or nature sustained by the undersigned, whether caused by the negligence of the said Adams Express Company, or any of said railroad companies or other carriers or otherwise." The contract was executed in Virginia, and the injury of which he complains was received in Kentucky. The court below held that the contract was enforceable, hence appellant's right to recover was denied.

For the appellant it is urged that the contract is against public policy and is declared invalid both by the Code of Virginia and also by section 196 of the Constitution of Kentucky, for each denies the right of a common carrier to contract for relief from common-law liability. For the appellee it is insisted that the rule of public policy which renders invalid stipulations by common carriers restricting their liability for loss occasioned by their negligence does not apply when they engage to do some thing which it is not under obligation as a common carrier to do, and that when it enters into a contract as a private carrier for hire, it may exempt itself, by contract, from liability for its negligence, or that of its servants or agents. While there is some conflict in the authorities on the question, we are of the opinion that the courts which hold that an express messenger though carried in a special car, under a contract with the express company for transportation of express matter, announce the correct doctrine in holding that they are passengers for hire. The sum which the express company pays the railroad company for conducting its express business, on its cars, over its line of railway is necessarily, in part, for the transportation of the express messenger. The express messenger is not a trespasser, because he is being transported by the railroad company under a contract and for the same reason he is not a licensee. He is an employé of the express company and not of the railroad company. If he is not a trespasser or a licensee, or an employé of the railroad company, he must necessarily be a passenger. While the railroad company could not be compelled to enter into a contract by which it would receive into the express car the messenger of the express company and thus transport him, still when he does agree to, and does receive him on that car for transportation, though his business is to look after express matter, he is being transported for compensation, hence, as a passenger for hire. Fordyce v. Jackson, 56 Ark. 594, 20 S.W. 528, 597; Blair v. Railroad Co., 66 N.Y. 313, 23 Am.Rep. 55; Brewer v. Railroad Co., 124 N.Y. 59, 26 N.E. 324, 11 L.R.A. 483, 21 Am.St.Rep. 647; Kenney v. Railroad Co., 125 N.Y. 422, 26 N.E. 626; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Railroad Co. v. Thomas' Adm'r, 79 Ky. 169, 42 Am.Rep. 208; Jones v. Railway Co., 125 Mo. 666, 28 S.W. 883, 26 L.R.A. 718, 46 Am.St.Rep. 514; Yeomans v. Navigation Co., 44 Cal. 71; Railroad Co. v. Ketcham, 133 Ind. 346, 33 N.E. 116, 19 L.R.A. 339, 36 Am.St.Rep. 550; Chamberlain v. Railroad Co., 11 Wis. 238; Railroad Co. v. Wilson, 79 Tex. 371, 15 S.W. 280, 11 L.R.A. 486, 23 Am.St.Rep. 345.

It is said in Hutchison on Carriers, § 564: "It seems that if the person who is injured by the negligence of the employés of the carrier, is lawfully upon its conveyance, under a contract which does not make him an employé or servant of the company, he will be entitled to the same care and diligence for his safety as one who is strictly a passenger. Thus where one was upon a train as an express messenger, carrying express freight, under contract with the company, by which he was entitled to be carried, without a distinct price for his passage, and was injured by the negligence of the company's agents in the management of the train, or in putting obstructions in its way, it was held that such messenger was entitled to the same care and circumspection on the part of the company and its agents in his carriage as if he had been traveling upon the train as a passenger, who had paid a distinct price for his transportation." In 3 Thompson on Negligence, § 2651, it is said: "In respect of the measure of duty which the carrier owes him and his right of recovery for an injury happening through the negligence of the carrier's servants, an express messenger stands on the same footing as a U.S. postal clerk. He is on the carrier's vehicle lawfully, and for a consideration paid the company, and his legal rights are therefore those of a passenger for hire." In section 1578, vol. 4, Elliott on Railroads, it is said: "The courts have held the relation of carrier and passenger to exist in cases of mail agents, or postal clerks, and a similar rule is declared as to express messengers."

In the case of Kentucky Central R. R. Co. v. Thomas' Adm'r, 79 Ky. 163, 42 Am.Rep. 208, the party...