Doyle v. Fitchburg R. Co.
| Decision Date | 02 September 1896 |
| Parties | DOYLE v. FITCHBURG R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
G.L. Mayberry and T.F. Carey, for plaintiff.
George A. Torrey, for defendant.
The defendant concedes that in view of the decision in Doyle v. Railroad, 162 Mass. 66, 37 N.E. 770, the plaintiff's intestate must be regarded as a passenger but he contends that, notwithstanding what is there said, the ticket was a gratuity, and he bases this contention principally on the difference between the bill of exceptions in this case and in that. There is a slight difference, it is true, between the two. In the former case the bill of exceptions stated that the tickets were issued only to employés who worked in Boston, and lived at some other place on the line of the road, and "without other compensation than that the person receiving the ticket should perform services for the defendant in accordance with the terms of his employment." In this case the words quoted were omitted. In other respects the two bills of exceptions are alike. We think that the difference is not important, and that it fairly may be said in this case, as in that, that the ticket formed part of the consideration by which the plaintiff's intestate was induced to enter and continue in the employment of the defendant, and was not a mere gratuity. The ticket was only given to employés, and not to all of those, but, so far as appears, only to such as worked in Boston, and lived, on the line of the railroad, in some other place. It had reference, therefore, to special circumstances attending the performance of services for the company, and the arrangement well may have been regarded as mutually advantageous. By it the defendant was enabled to obtain the services of those who did not live in Boston, and thus to draw its employés from a larger body, subject only to the expense of their transportation; and the plaintiff's intestate was enabled to enter the defendant's employment on equal terms, as to wages, with those living in Boston. Without speculating as to what the rights of the plaintiff's intestate to the ticket would have been if at any time he had left the defendant's employment before the end of the month, we think it plain, as already stated that, as this case stands, the ticket properly cannot be regarded as a gratuity.
The defendant contends, however, that, even if the plaintiff's intestate was not a free passenger, the plaintiff cannot recover, because of the stipulation on the back of the ticket, to which the plaintiff's intestate must be presumed, by accepting the ticket, to have assented. In this respect this case raises a question which it was not found necessary to decide in the former case, and which does not appear to have been directly decided in this commonwealth. We assume that if the ticket had been a gratuity the contract on the back of it would have precluded a recovery, and that it would have made no difference that the negligence was gross. Quimby v. Railroad Co., 150 Mass. 365, 23 N.E. 205; Rogers v. Steamboat Co., 86 Me. 261, 29 A. 1069; Griswold v. Railroad Co., 53 Conn. 371, 4 A. 261. How far common carriers may go in contracting to be relieved from the consequences of their own negligence and that of their servants is a matter on which different courts have their different views, and on which, in some instances, courts within the same jurisdiction have expressed themselves differently at different times. It is clear that they have not an unlimited power of contract in that respect. A private individual may refuse to transport a person from one place to another unless the latter will agree to assume all risk of injury. But a railroad corporation would have no right to insist, as a condition of carrying a passenger, that he should make such a contract. This arises out of the nature of the service which they undertake. They may prescribe rates of fare, and reasonable regulations for the safety of passengers and the conduct of the business in which they are engaged; but, if the passenger is willing to conform to them, they cannot insist that he shall accept the risk of accident, as a condition of being carried. But the question now is, what is the effect of such a contract voluntarily entered into by a passenger who in other respects occupies the position of a passenger for hire? There is a dictum in this state to the effect that such a contract would not relieve a railroad company from liability for injuries caused by its own negligence or that of its servants. Quimby v. Railroad Co., 150 Mass. 371, 23 N.E. 205. And we think that it must be regarded as settled in this commonwealth that such a contract in regard to the carriage of goods would not exempt a railroad from liability for its own negligence, or that of its servants. School Dist. in Medfield v. Boston H.E.R. Co., 102 Mass. 552, 556; Squire v. Railroad Co., 98 Mass. 239, 246; Fonseca v. Steamship Co., 153 Mass. 553, 557, 27 N.E. 665; Hoadley v. Transportation Co., 115 Mass. 304; Grace v. Adams, 100 Mass. 505. Although the liability of a carrier of merchandise is that of an insurer, and the liability of a carrier of passengers is measured by the highest degree of care which human foresight reasonably will admit of, we see no valid reason for holding that in the former case the carrier cannot be exempted from his own negligence, and that in the latter he may. The object in both cases, as is said in Railroad Co. v. Lockwood, 17 Wall. 357, 377, 378, is to secure the utmost fidelity and care in the performance of their respective duties; and this object, in the case of the passenger carrier as in that of the merchandise carrier, can be accomplished more satisfactorily by denying them the right to contract for exemption from liability for their own negligence and that of their servants than in any other mode. The powerful and dangerous agencies usually employed, the absolute control of them which they have, the trust necessarily reposed in them, the compulsion which they might otherwise exercise, and the public nature of their service under the rule, we think just and reasonable. The law in England and in some of the states here is otherwise, but the great weight of authority in this country is against the right of a common carrier to contract for exemption from the consequences of its own negligence, or that of its servants. Railway Co. v. Stevens, 95 U.S. 655; Railroad Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Selby, 47 Ind. 471; Rose v. Railroad Co., 39 Iowa, 246; Railroad Co. v. Curran, 19 Ohio St. 1; Annas v. Railroad Co., 67 Wis. 46, 30 N.W. 282; Railroad Co. v. Henderson, 51 Pa.St. 315; Jacobus v. Railroad Co., ...
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