Denver & R.G. R. Co. v. Whan

• Decision Date: 04 March 1907
• Citation: 39 Colo. 230,89 P. 39
• Parties: DENVER & R. G. R. CO. v. WHAN.
• Court: Colorado Supreme Court

89 P. 39

39 Colo. 230

DENVER & R. G. R. CO. v. WHAN.

Supreme Court of Colorado

March 4, 1907

Appeal from District Court, City and County of Denver; Peter L Palmer, Judge.

Action by James A. Whan against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wolcott, Vaile & Waterman, E. N. Clark, and W. W Field, for appellant.

B. C Hilliard, W. T. Rogers, and J. R. Allphin, for appellee.

GABBERT J.

Appellee was employed by the Pullman Company as conductor of the sleeping car Toltec. This car was attached to a train being operated by appellant, and was derailed and partially overturned, whereby appellee was injured. He brought suit against appellant to recover damages for the injuries sustained. There was judgment in his favor, from which the defendant appeals.

Many errors are assigned on the rulings of the court at the trial but a determination of the questions presented for consideration by the rulings of the trial court on the demurrer to the second defense disposes of this appeal without determination of the questions raised by the rulings on the trial of the case. From this defense it appears that the defendant had entered into a written contract with the Pullman Palace Car Company, by the terms of which the latter agreed to furnish the defendant sleeping cars, to be attached to its trains. By this contract it was provided that the Pullman Company should remain the owner of such sleeping cars, and should have the right to collect fares from passengers who were occupants thereof for the use of seats and berths therein; that if any of the Pullman Company's employés engaged in operating its cars should be injured in consequence of a railroad accident, or casualty, when serving in the line of his duties, the defendant should only be liable, if at all, to the same extent that the defendant would be liable if the employé so injured were an employé of the defendant, and that the Pullman Company should save the defendant harmless to any greater extent; that each company should have immediate notice from the other of any suit for such injury and the right to defend such suit; and that the Pullman Company has been duly notified of the institution of this action.

It is alleged that the sleeping car Toltec was being hauled over the line of the defendant under this contract at the time such car was derailed, and the plaintiff was thereon as an employé of the Pullman Company. It is further alleged that at the time of the derailment the plaintiff was in the employ of the Pullman Company in the discharge of his duties, under and pursuant to a contract of employment, by the terms of which the plaintiff expressly agreed to assume all risk of accident or injury by railway travel or otherwise, incident to such employment, and for himself, his heirs, etc., forever released, acquitted, and discharged the Pullman Company and its officers and agents from all claims or liability of any nature or character for any personal injury which he might receive by virtue of his employment. It is also alleged that by this contract the plaintiff agreed with the Pullman Company that his opportunity for employment was by means of contracts wherein the Pullman Company agreed to indemnify the corporations controlling lines of railroad over which its cars were operated against liability in cases provided for in such contracts, and that by reason thereof he ratified the same, and agreed to protect and save harmless the Pullman Company, with respect to any and all moneys which it might be compelled to pay, or any liability it might be subject to under any such contract resulting from his injury, and that the contract between the plaintiff and the Pullman Company might be assigned to any railroad company, and used in its defense. It is further alleged that plaintiff, by this contract, agreed that, while traveling in the discharge of his duties as an employé of the Pullman Company, he should not have the rights of a passenger with respect to the corporations over whose lines of road the cars of the Pullman Company might be operated, and that he released and discharged such corporations from all claims for liability of any nature for injuries sustained while so traveling in such employment. To this answer a general demurrer was interposed and sustained. The contract entered into by plaintiff with the Pullman Company as pleaded, in so far as it is pertinent to consider, is as follows:

'Be it known: That I, the undersigned, hereby accept employment by, and enter into the service of, the Pullman Company upon the following express terms, conditions and agreements, which, in consideration of such employment and the wages thereof, I do hereby make, with said the Pullman Company, to wit: * * *

'Fourth. I assume all risks of accidents or casualties by railway travel, or otherwise, incident to such employment and service, and hereby for myself, my heirs, executors, administrators, or legal representatives forever release, acquit and discharge the Pullman Company and its officers and employés from any and all claims for liability of any nature or character whatsoever on account of any personal injury or death to me, in such employment or service.

'Fifth. I am aware that said the Pullman Company secures the operation of its cars upon lines of railroad, and hence, my opportunity for employment by means of contracts wherein said the Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part, to the employés of said the Pullman Company, in cases provided for in such contracts, and I do hereby ratify all such contracts made, or to be made, by said the Pullman Company, and do agree to protect, indemnify and hold harmless said the Pullman Company, with respect to any and all sums of money it may be compelled to pay, or liability it may be subject to, under any such contract, in consequence of any injury or death happening to me, and this agreement may be assigned to any such corporation or person and used in its defense.

'Sixth. I will obey all rules and regulations made or to be made for the government of their employés by the corporations or persons over whose lines of railroad the cars of said the Pullman Company may be operated, while I am traveling over said lines in the employment or service of said the Pullman Company, and I expressly declare that while so traveling I shall not have the rights of a passenger with respect to such corporations, or persons, which rights I do expressly renounce; and I hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge any and all such corporations and persons from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me, while traveling over such lines, in said employment or service. I have read and understand every word of this paper.'

The contract between the defendant and the Pullman Company pleaded contained the following provision:

'That if any of the Pullman Company's employés furnished with any of its sleeping or parlor cars operated under this agreement be injured or killed, in consequence of a railroad accident or casualty, when serving in the line of his duties, the railroad company shall save harmless the Pullman Company from damages, costs and expenses growing out of, or incident to, such injury or death, to the extent that the railroad company would be liable if such employé were, in fact, an employé of the railroad company, and the Pullman Company shall save harmless the railroad company from such damages, costs and expenses to any greater extent.'

A common carrier may not exempt itself by contract from liability for negligently performing a service which it is its duty to perform. Russell v. Pittsburgh, etc., R. Co., 157 Ind. 305, 61 N.E. 678, 55 L.R.A. 253, 87 Am.St.Rep. 214. The grounds upon which this prohibition rests have been variously stated by the courts, as that such an exemption is against public policy; that the public is interested in the exercise of care and diligence on the part of the carrier; that it is unreasonable for any common carrier to contract for the privilege of being negligent; that the public is concerned with the life and security of its citizens; and that the obligations of a common carrier arise from the nature of the business in which it is engaged, and, being imposed by law, it will not be permitted to escape such obligations by a contract exempting it from the consequences of negligence in the transaction of its business. On the other hand, with respect to duties which it is under no obligation to perform, it may limit its liability by contract, and in such cases the liability of the carrier to one injured by its negligence will depend upon the terms of such contract. Russell v. Pittsburgh, etc., R. R. Co., supra; C., R.I. & P. Ry. Co. v. Hamler, 215 Ill. 525, 74 N.E. 705, 1 L.R.A. (N. S.) 674, 106 Am.St.Rep. 187. In other words, if the service is one that is not imposed upon the carrier as a duty, it may undertake it upon such terms as it may see fit. According to many authorities, the general test, then, to apply to contracts of common carriers, limiting their liability, is whether they relate to duties which they are bound to perform, or whether they relate to services which are optional for them to perform.

The Pullman Company was operating the sleeping car Toltec under a special arrangement with the defendant. Its purpose in so doing was to derive revenue from passengers on the train of the defendant to which this car was attached, who desired to ride therein. The money paid by such passengers...