John v. Northern P. Ry. Co.
| Decision Date | 11 October 1910 |
| Citation | 111 P. 632,42 Mont. 18 |
| Parties | JOHN v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
On Motion for Rehearing, November 10, 1910.
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by Terry A. John against the Northern Pacific Railway Company and another. From a judgment against the defendant named, and from an order denying a motion for new trial, it appeals. Affirmed.
Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.
Roote & Murray. and J. E. Healy, for respondent.
This is an appeal by the railway company defendant from a judgment pronounced against it on the verdict of a jury in Silver Bow county, for $25,000, and costs, also from an order denying it a new trial. The defendant Skones was released from liability on motion for a directed verdict.
The complaint charged that on August 11, 1907, at Butte, the railway company received plaintiff on its passenger train "and undertook and agreed to transfer him from Butte to Miles City for a certain reward," and that it was its duty to carry him "in safety and with due and proper care." It further charged that, after he had retired into an upper berth of a sleeping car, the same was negligently, carelessly, and unskillfully derailed, while in rapid motion, and partly turned over, whereby he was thrown out of the berth and injured. The answer, besides a general denial, admits that, while plaintiff was riding in an upper berth in a car of its passenger train, the car was partly tipped over; but denies that he was received, or was riding, as a passenger, or for a reward, and avers that he boarded the train, intending to ride, and at the time of the derailment was riding, upon a certain annual pass which he had presented as his ticket and rights to carriage, which pass contained the following conditions: "The person accepting this pass agrees that the Northern Pacific Railway Company shall not be liable under any circumstances, whether of negligence of agents or otherwise, for any injury to the person, or for any loss or damage to the property of the passenger using the same." It is further alleged "that plaintiff was riding and his rights upon said train were under and pursuant to the terms and provisions of said pass contract of carriage and not otherwise." The reply admits that the plaintiff had and held this pass, but alleges that it was issued to him as agent of another railroad, the St. Louis & San Francisco Railroad Company, of which he was a general agent, and in consideration of the issuance by such other railroad of annual passes from the latter to certain agents of the defendant company; and avers that his rights were those of a passenger for hire, and not affected by the conditions stated in the pass.
There was no conflict in the evidence. Desiring to go to Miles City, the plaintiff at about 12:40 a. m., August 12, 1907, at Butte station, boarded train No. 6 of the defendant company, having bought an upper berth in a sleeper from the Pullman Company. The subsequent derailment of the sleeper at a point about seven miles east of Butte caused him to fall from his berth, whereby he was severely and permanently injured. The cause of the derailment could not be ascertained. There was no direct evidence of any negligence on the part of the defendant or any of its servants. The plaintiff was riding on the pass mentioned in the answer, the conditions of which had been by him accepted by signing his name thereto, adding the letters which meant "General Agent." The pass was what is known as an "interchange" pass, and was given to the St. Louis & San Francisco Railroad Company by the defendant company, at the request of the former company, and by it sent to the plaintiff to be used in his business of soliciting passengers and freight for that company. No direct consideration passed for its issuance, but the two railroads were in the habit of exchanging passes for their respective employés, without regard to which company asked for the greater number. The inscription on the face read: "Pass Mr. T. A. John, General Agent St. L. & S. F. R. R." Plaintiff testified that, in his general work of soliciting passengers and freight for his road, certain other railroads, including the defendant company, would receive benefits, by virtue of the fact that such passengers and freight would be carried into and out of Montana over such other roads by connection with his road. He said he had frequently routed goods for his customers so that the shipments would go over the Northern Pacific Road, and that he gave most of the passenger business to that company because it furnished the best service. On the part of the defendant, there was testimony to the effect that there was no consideration for the issuance of such passes, no obligation to issue them, and that their exchange was simply a matter of courtesy between the roads.
At the close of all of the testimony, the defendant moved the court to direct a verdict in its favor, for the following reasons: (a) Because there was no proof that defendant undertook to carry plaintiff for a reward; (b) because mere proof of derailment of the train was no evidence of actionable negligence toward a person in plaintiff's situation; (c) because of variance between the allegation of the complaint to the effect that plaintiff was being carried for hire, and the proof that he was being carried gratuitously under special contract limiting the liability of the defendant; (d) because plaintiff had voluntarily agreed not to hold the defendant liable for injuries received; (e) because there is no allegation in the complaint of other than ordinary negligence, for which, under its contract, defendant was not liable. The court overruled the motion and instructed the jury, over defendant's objection and on motion of plaintiff, that "a common carrier cannot be exonerated by any agreement made in anticipation thereof from any liability for the gross negligence of himself or his servants." "Therefore," the court continued, "if you believe that the defendant corporation was guilty of gross negligence, or that its servants were guilty of gross negligence which proximately caused the derailment of the train, *** then your verdict must be for the plaintiff." This was the court's instruction No. 1. The court, also over defendant's objections, further charged the jury as follows:
1. We think the district court was correct in charging the jury that John was riding on a free or gratuitous pass. The plaintiff, by tendering instruction No 1, tacitly assented to this and adopted the court's theory that the only question in the case, aside from that of damages, was whether the defendant had been guilty of gross negligence. It is contended by the defendant that, as the pass was an interstate pass, good over the lines of its road in six states, it was subject to the provisions of the act of Congress approved June 29, 1906, known as the "Hepburn act" (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1907, p. 892, Supp. 1909, p. 1149]), and was therefore illegal and void if given in exchange for another pass, for the reason that the act prohibits the receipt of anything save money for transportation. Counsel cite an order of the Interstate Commerce Commission, under date September 15, 1909, and the case of United States v. C., I. & L. Ry. Co. (C. C.) 163 F. 114, in support of their position. But we do not find it necessary to base our judgment on this consideration. We find no testimony in the record which would warrant the conclusion that any consideration passed for the giving of the pass, or that it was anything more, as defendant's witnesses testified, than a gratuitous courtesy extended by one railroad company to the other.
2. We are of opinion that the court was in error in submitting to the jury the question of fact whether defendant had been guilty of gross negligence. There is nothing in the record to support an affirmative finding of such negligence. As will be hereafter shown gross negligence is a matter of proof. But plaintiff's counsel contend that there are, under our laws (1) no degrees of negligence, and (2) that any negligence by which a passenger is injured is gross negligence. We cannot assent to either of these propositions. That degrees of negligence are known to our laws is evidenced by an examination of sections 5253, 5295, 5299, 5300, 5306, 5331, 5354, and 5355, Rev. Codes, and recognized in the cases of Presser v. Montana C. Ry. Co., 17 Mont. 372, 43 P. 81, 30 L. R. A. 814; Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 P. 642; Robinson v. Helena L. & Ry. Co., 38 Mont. 222, 99 P. 837; and Neary v. Northern Pacific Ry. Co., 41 Mont. --, 110 P. 226. That this is so is a matter to be deplored, but the conclusion cannot be avoided. Aside from any question of what the common law was on the subject, plaintiff's second...
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