Griswold v. N.Y. & N. E. R. Co.

• Citation: 4 A. 261,53 Conn. 371
• Court: Supreme Court of Connecticut
• Decision Date: 31 October 1885
• Parties: GRISWOLD v. NEW YORK & N. E. R. CO.

4 A. 261

53 Conn. 371

GRISWOLD

v. NEW YORK & N. E. R. CO.

Supreme Court of Errors of Connecticut.

October, 1885.

W. C. Case and P. E. Bryant, for plaintiff.

S. E. Baldwin and E. D. Robbins, for defendant.

LOOMIS, J. The plaintiff's intestate, Charles P. Griswold, was a boy about 17, employed by the keeper of a restaurant at the defendant's station in Waterbury to sell sandwiches, fruits, etc., on all trains coming into Waterbury, having a free pass for that purpose between Hartford and Fishkill. His employment did not require him to travel as far east as Plainville, but his mother lived there, and he often went there to visit her. In July, 1883, he was at Plainville for this purpose, and boarded a train bound thence for Hartford, in order to stop off at Clayton, and look at the wreck of a train there caused by a collision the day before. The train had two passenger cars, and the conductor saw him on one of them just after the train started, but afterwards, without the conductor's knowledge, he went into the baggage car, and while there a collision occurred with another train coming westerly, (there being but a single track,) which wrecked the engine and baggage car, and killed the intestate. He was at the time riding on a free pass which provided that the person accepting it assumed all risk of accident, and expressly stipulated that the company should not be liable, under any circumstances, whether of negligence of their agents or otherwise, for any personal injury.

The defense was placed on three independent grounds: (1) The complaint was demurred to upon the ground that the action was brought for the sole benefit of the estate of the intestate, when it should have been for the benefit of the widow or heirs; (2) that the intestate was guilty of such contributory negligence as would prevent recovery; and (3) that, at the time of the injury, he was traveling on the defendant's train without the payment of any fare, under an agreement or condition expressly assuming all risk of accident, and stipulating that the defendant should not be liable in any event for injuries resulting from the negligence, etc., of its servants, or otherwise.

As our views of the last question will be decisive of the whole case, we will confine our discussion to that, and waive the other two questions.

Before we come to the discussion of the question whether, under the conditions of the pass, the law will protect the defendant from liability, it will be necessary to determine whether the pass was gratuitous, or upon consideration; for, if the latter is true, the defendant must be held to its full responsibility as a carrier of passengers. The plaintiff contends that the pass was part of the consideration to induce Chickering to open a lunch-room in the defendant's station at Waterbury; but the finding is silent in regard to this, and we are not justified in assuming that it was an element in the negotiations, or was in the mind of either party. It was, on the other hand, obviously an after-thought, and when asked for by Chickering he did not refer to it as a thing promised by Holbrook, or any one on behalf of the company. It was not claimed as matter of right under any contract duty, but merely as matter of favor, and as such we must hold it to have been granted.

The question of consideration should be determined, as in any other case of contract. The existence of some selfish motive, if any, impelling the act, renders it none the less a gratuity in the eye of the law, if there was no obligation at all to furnish the pass. The restaurant business belonged exclusively to Chickering, whatever may have been the incidental benefits to the railroad company. And, besides, it is to be observed that, at the time of the injury, the intestate was not traveling at all in the interest of the restaurant, but solely to gratify a personal curiosity, which could by no possibility be any benefit, direct or indirect, to the railroad company; so that, on the whole, we have no hesitation in calling his pass a pure gratuity.

We have, then, a case where the defendant gave a free pass upon the express condition that the passenger would make no claim for damages on account of any personal injury received while using the pass, in consequence of the negligence of the defendant's servants. But the plaintiff, as the personal representative of the one receiving the pass, has instituted a suit in direct violation of the condition. In ordinary transactions, such a breach of good faith, to say nothing of the breach of contract, would be disgraceful; but there may be great considerations of public policy which will conceal the private features of the transaction, and make the stipulation invalid in the eye of the law.

By the English decisions, it is clear that the carrier has full power to provide by contract against all liability for negligence in such cases. McCowley v. Furness Ry. Co., L. R. 8 Q. B. 57; Hall v. Northeastern Ry. Co., L. R. 10 Q. B. 437; Duff v. Great Northern Ry. Co., L. R. 4 Ir. C. L. 178; Alexander v. Toronto & N. R. Co., 33 U. R. Q. B. 474. This last case is almost identical with the one at bar.

In the United States we find much contrariety of opinion. Some state courts of the highest authority follow the English decisions, and allow railroad companies, in consideration of free passage, to contract for exemption from all liability for negligence of every degree, provided the exemption is clearly and explicitly stated. Welles v. New York Cent. R. Co., 26 Barb. 641; S. C. 24 N. Y. 181; Perkins v. Railroad Co., Id. 208; Bissell v. New York Cent. R. Co., 25 N.Y. 442; Poucher v. New York Cent. R. Co., 49 N.Y. 263; Magnin v. Dinsmore, 56 N. Y. 168; Dorr v. New Jersey Steam Nav. Co., 11 N.Y. 486; Kinney v. Central R. R., 32 N. J. Law, 409; S. C. 34 N. J. Law, 513; Western & A. R. R. v. Bishop, 50 Ga. 465. Other courts, also of high authority, concede the right to make such exemption in all cases of ordinary negligence, but refuse to apply the principle to cases of gross negligence. Illinois Cent. R. Co. v. Read, 37 Ill. 484; Indiana Cent. R. R. v. Mundy, 21 Ind. 48; Jacobus v. St. Paul & C. R. R., 20 Minn. 125, (Gil. 110.) And other state courts of equal authority utterly deny the power to make a valid contract exempting the carrier from liability for any degree of negligence. Railroad v. Curran, 19 Ohio St. 1; Mobile & O. R. R. v. Hopkins, 41 Ala. 486; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Flinn v. Philadelphia, etc., R. Co., 1 Houst. 469.

The supreme court of the United States, in Railroad Co. v. Lockwood, 17 Wall. 357, where a driver had a free pass to accompany his cattle on their transportation, held, in opposition to the New York and English cases, that the pass was not gratuitous, because given as one of the terms for carrying the cattle, for which he paid. The reasoning of Bradley, J., was directed so strongly to the disparagement of the New York decisions that it might have indicated an opposition to the principle of those cases in other respects had not the opinion concluded with this distinct disclaimer: "We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger, instead of a passenger for hire." The reasoning and the conclusions of the court, therefore, must be considered as all based on the assumption that the passenger paid for his passage. The conclusions of the court were:

"(1) That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law; (2) That it is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for negligence of himself or his servants."

We are not disposed to attempt to controvert the soundness of these propositions as applicable to passengers for hire, but it remains an open question, what is reasonable in the case of a free passenger? Will a just sense of public policy allow any distinction? It seems to us the two cases cannot be identical in the eye of the law or of public policy, but that there is ample ground for a distinction.

In the first place, the arrangement between the parties ought not to be regarded as a contract with the railroad company in its character as a common carrier, and therefore the stipulated exemption is no abdication of that rigid responsibility which the law imposes on common carriers. The gratuitous accommodation concerns only the immediate parties, unless in a very indirect way, by making the fare of other passengers higher. If, however, fares are unreasonable, they may be subject to governmental regulation. But it will suffice to say that the remote and indirect effect alluded to cannot make the exemption void on the ground of public policy. Many other gratuities and charities might be named, which, though conceded to be commendable, would have a similar effect.

Again, in Railroad Co. v. Lockwood, supra, and in other cases advocating the same doctrine, one prominent reason given for holding the contract void as opposed to public policy is that in making the contract the carrier and his customer do not stand on a footing of equality; that the latter is only one individual against a powerful corporation, which has him in its power; and that he cannot afford to higgle in regard to terms. It is manifest that this reasoning has no application at all to a free passenger. If his position is not superior, it is at least equal, to that of the railroad company. The latter will not often be found urging the acceptance of free passes. There is no possibility of any "higgling" on the part of the passenger for more favorable terms, and the solicitation for the pass itself will come from the latter also. Under these circumstances, it does not seem reasonable to add to a free gift of transportation the burden of insuring the passenger...