Gonzales v. Baltimore and Ohio Railroad Company

• Decision Date: 23 May 1963
• Docket Number: No. 8733.,8733.
• Parties: Adelaide Viola GONZALES, Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

318 F.2d 294 (1963)

Adelaide Viola GONZALES, Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a Corporation, Appellee.

No. 8733.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1963.

Decided May 23, 1963.

Jeremy C. McCamic, Wheeling, W. Va. (McCamic & Tinker, and Jolyon W. McCamic, Wheeling, W. Va., on brief), for appellant.

Fred L. Davis, Parkersburg, W. Va. (John R. Morris, and McDougle, Davis, Stealey & Morris, Parkersburg, W. Va., on brief), for appellee.

Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.

BOREMAN, Circuit Judge.

Mrs. Gonzales, plaintiff below, appeals from a final decision of the United States District Court for the Northern District of West Virginia vacating three special verdicts of the jury and a judgment for damages for her personal injuries, which judgment had been noted by the Clerk pursuant to Rule 58 Fed.R.Civ.P., and awarding judgment and costs to The Baltimore & Ohio Railroad Company, the defendant below.

Plaintiff was injured as the result of a fall in the baggage room located in the defendant's passenger station in Wheeling, West Virginia. Shortly before the accident, Mrs. Gonzales, a resident of Bond, Colorado, had entered the station, accompanied by relatives, to begin the second half of a trip by railroad from her home to Wheeling and return. Her husband was a long-time employee of the Denver & Rio Grande Western Railroad Company and, as the wife of such employee, plaintiff had been issued free passes by that railroad and by the connecting railroads on her route, one of which was the B. & O. The B. & O. pass, signed and accepted by Mrs. Gonzales, covered the portion of her trip between Wheeling and Chicago and contained the following provision:

"In consideration of the issuance of this free pass, I hereby assume all risks of personal injury and loss of or of damage to property from whatever causes arising, and release the company from liability therefor, and

I hereby declare that I am not prohibited by law from receiving free transportation and that this pass will be lawfully used."

At the defendant's baggage check counter in the station, after plaintiff exhibited her pass and presented her luggage to attendants, an open catch was noticed on her foot locker. The time for the departure of her train was rapidly approaching and it became apparent that the attendant was having difficulty in closing the catch. Intending to render assistance to the attendant, one of plaintiff's male relatives who had accompanied her to the station walked down the hallway to a door marked "Employees Only," entered the baggage room and closed the door behind him. Mrs. Gonzales followed him a few moments later, opened the door to the baggage room, fell down the concrete steps just inside the baggage room and was injured. The evidence was conflicting as to whether either Mrs. Gonzales or her male relative was invited by word or gesture to come behind the baggage check counter. In her complaint and at the trial, plaintiff claimed that, subsequent to her fall and injury, she was detained and falsely imprisoned for some time by force or threats and against her will. However, no issue as to false imprisonment is involved in this appeal.

At the close of the evidence, the District Court submitted to the jury eight questions for special verdicts and reserved decision on defendant's motion for a directed verdict. In answer to the first three questions, the jury found the defendant guilty of negligence, Mrs. Gonzales free of contributory negligence, and awarded her damages in the amount of $2,500. No answer was returned by the jury to the fourth question — "Was the plaintiff invited by any of the defendant's employees to come behind the baggage check counter." The jury found also that the defendant railroad was not guilty of either willful or wanton negligence and not guilty of false imprisonment.

Later the District Court granted defendant's motion for judgment n. o. v., vacated the jury's verdicts on the first three questions, set aside the Clerk's entry of judgment for damages and entered judgment in favor of the defendant on the ground that the waiver of liability provision in Mrs. Gonzales' pass relieved the railroad of any liability to her for injuries resulting from ordinary negligence.

Plaintiff contends that her B. & O. pass was not gratuitous, that she had the status of a passenger for hire and, therefore, the general rule that a waiver of liability provision in a gratuitous pass insulates a railroad from liability for ordinary negligence is not applicable in this case. Her argument is based on the assumption that a contractual relationship can be found comparable to that which was held to provide consideration for a "free" pass for bus travel in Martin v. Greyhound Corporation, 227 F.2d 501 (6th Cir. 1955), cert. denied, 350 U.S. 1013, 76 S.Ct. 657, 100 L.Ed. 873 (1956). Plaintiff's ingenious theory is that the union, of which her husband was a member, had negotiated a contract with the Denver & Rio Grande Western for the benefit of the employees of that railroad; that as a result of collective bargaining concerning wages and other conditions of employment, her husband's employer railroad agreed to provide its long-time employees and members of their families with passes over its lines and the lines of other railroads; that this was a part of the employees' compensation. In addition, she claims that the B. & O. is obligated by the terms of a similar agreement between it and its employees to issue passes to its employees and their families, and that a binding agreement between the B. & O. and the Denver & Rio Grande Western requires each to issue passes for transportation on its railroad to employees (and their families) of the other railroad. She thus attempts to establish consideration for her pass through these several contracts and to show that her pass was not "free."

Although the plaintiff's argument was presented below, the trial court found no consideration for the pass issued to Mrs. Gonzales. In this we agree. Neither of the latter two alleged contracts upon which plaintiff relies was proved by competent evidence. However, it does affirmatively appear that the B. & O. was under no binding obligation to issue passes, even to its own employees and members of their families, and that passes were issued on a complimentary basis. In any event, the Martin case, cited supra, is distinguishable. There the plaintiff, Mrs. Martin, was injured while riding on a bus owned by her husband's employer. Her pass, issued by the bus company, contained a waiver of liability provision. The court, permitting recovery of damages, specifically recognized that its rationale was not in accord with the line of federal decisions applicable to railroads under the Hepburn Act. Nothing in the Martin case suggests that there would be no waiver of carrier liability by one using a pass containing a provision similar to the one in the case at bar if either Martin or his wife had been riding on a bus of a different company or if railroads instead of buses had been involved.

Absent consideration for the issuance of the pass, the plaintiff's case must fall within the line of cases following Northern Pacific Railway Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513 (1904). In Adams it was held that a free pass with a waiver of liability provision similar to that of the B. & O. pass in the case at bar was effective to relieve the railroad of liability to a passenger, riding on such pass, for the railroad's ordinary negligence. The Adams decision was soon followed by Boering v. Chesapeake Beach Ry. Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742 (1904). In 1906 Congress passed the Hepburn Act, 34 Stat. 584, which, with certain exceptions, prohibited issuance of passes by railroads. That act as amended¹ (especially by the Transportation Act of 1940, 54 Stat. 898, 900) prohibits the issuance by a railroad of a free pass except, inter alia, to its employees and their families or to the employees (and their families) of other railroads.

Following enactment of the Hepburn Act, the Supreme Court decided Charleston & West. Carolina Ry. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476 (1914), and Kansas City Southern Ry. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348 (1923), holding that the waiver of liability clause, in a free pass issued by an interstate railroad carrier under the Hepburn Act, was valid and that the person accepting and using such a pass was bound by its provisions and stipulations. More recently in Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948),² the Court reviewed its prior decisions and held that the free-pass provision of the Hepburn Act was a regulation of interstate commerce; the incidents and consequences of...