Lake Shore & Michigan Southern Railway Company v. Teeters

• Decision Date: 29 March 1906
• Docket Number: 20,695
• Court: Indiana Supreme Court
• Parties: Lake Shore & Michigan Southern Railway Company v. Teeters

77 N.E. 599

166 Ind. 335

Lake Shore & Michigan Southern Railway Company v. Teeters

No. 20,695

Supreme Court of Indiana

March 29, 1906

From Whitley Circuit Court; Joseph W. Adair, Judge.

Action by Josiah C. Teeters against the Lake Shore & Michigan Southern Railway Company. From a judgment of the Appellate Court affirming a judgment on a verdict for plaintiff for $ 10,000, defendant appeals under subd. 3, § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Affirmed.

Olds & Doughman, George C. Greene and F. J. Jerome, for appellant.

H. W Mountz and Thomas R. Marshall, for appellee.

OPINION

Gillett, C. J.

Appellee brought this action to recover damages sustained by him through the alleged negligence of appellant, while he was traveling in charge of stock. From a judgment in his favor the company appealed.

The evidence shows that Teeters, who was a professor in the Idaho Industrial Institute, entered into a contract with the New York Central & Hudson River Railroad Company for the shipment, from Briarcliff Manor, New York, to Chicago, Illinois, of three head of fine cattle, which he had obtained at a stock-farm near Briarcliff Manor for the use of the institution with which he was connected. The stock was shipped in a stock-car of the ordinary type, with slats along the sides. After the loading had been completed, the car was put into a train, and started West. Teeters had climbed into said car, and as it started he and the agent waved adieus to each other. The cattle were tied in one end of the car, and there was straw and feed therein for their use. The car was hauled over the line of the initial carrier to Buffalo, New York, at which point it was delivered to appellant, as a connecting carrier, for transportation to Chicago. As the freight-train containing said car was passing through Burdick, in this State, said car and eight others were wrecked, and Teeters, who had made the journey in said car, was injured. The train was composed of seventy-five cars. The fortieth car from the locomotive was Teeters's. There were air-brakes under forty-nine cars, and it was the last nine of said cars that were wrecked. The accident was caused by a sharp check in the momentum of the air-brake cars, owing to the shutting down of the brakes, thereby causing the cars that were not on the brake line, and which were, of course, strung out to the full extent of the slack under them, to come into collision with the other part of said train. It is not disputed that there was evidence from which the jury was warranted in concluding that the wreck was due to negligence upon the part of the engineer in the operation of the brakes. At the time of the accident Teeters had been nearly five days en route. He had taken supper in the caboose on one occasion, and he testified that it was his impression that it was while he was on the Lake Shore road, although he admitted that he was not certain as to this. His presence upon the train had been known to the brakemen of appellant. He had attended to the feeding and watering of his cattle, from time to time, as occasion demanded, and had furnished milk to the train crew of the train after leaving Buffalo. At Chatham, New York, he spoke to the yardmaster of the New York Central about securing a transfer to another car, as he had been wet by the rain. At Buffalo he asked the yardmaster of said road to have his car transferred so that it might be taken on a Lake Shore freight which was scheduled to depart in a short time. There is no evidence that any of the crew in charge of the train after leaving Elkhart knew that Teeters was on board. When the car was delivered to appellant, it was transferred over a distance of seven or eight miles without a caboose, and at Brewster, New York, while the train was standing in the yards over night, the caboose was taken away, and there was no caboose attached until the next morning. Aside from these instances, there was a caboose attached throughout the trip, a fact that Teeters had knowledge of. He was in the stock-car at the time of the wreck, lying asleep in the hay and straw. He testified that the car was inspected at Buffalo; that he did not notice anything that would indicate that it was unsafe; that it rode very easily, and that he had never had anything to do with the operation or control of a freight-train. He further testified that under the transportation contract it was his understanding that he was entitled to ride or go along as an attendant of the stock.

The contract of shipment was signed by the initial carrier and Teeters. He paid $ 60 for the shipment. In substance, the contract is as follows: It recites the fact of the delivery of the stock to the carrier, and indicates its destination, and it further recites that the stock has been received by said carrier for itself, and upon behalf of connecting carriers for transportation upon the following terms and conditions, viz.: that said shipper is at his own sole risk and expense to take care of and to feed and water said stock whilst being transported, and to unload the same, and that neither of said carriers shall be under any liability or duty with reference to such matters, except in the actual transportation of the stock; that said shipper shall see that all doors and openings in said car are at all times so closed and fastened as to prevent escape therefrom of any of said stock, and that neither of said carriers shall be liable on account of the escape of said stock from said car, or for or on account of any injury sustained by said stock occasioned by any of the following causes, to wit: overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw used for feeding or bedding, or by fire from any cause whatever, or from causes beyond the control of the carrier; "that whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither said carrier nor its connecting carriers shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract. And it is further agreed by said shipper, that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight-train of said carrier, or its connecting carriers, without charge other than the sum paid or to be paid for the transportation of the live stock in charge of which he is, that said shipper shall and will indemnify and save harmless said carrier, and every connecting carrier, from all claims, liabilities and demands of every kind, nature and description, by reason of personal injuries sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or any of its or their employes, or otherwise." Attached to said instrument and following the signatures thereto is an instrument entitled, "Release for man or men in charge," which was signed by Teeters, and it purported, "in consideration of the carriage of the undersigned upon a freight-train" without charge other than the sum paid for the carriage of the live stock upon the train, to release and discharge the carrier or carriers from all claims, liabilities and demands for personal injury or damages sustained by such person, whether caused by the negligence of the carrier or carriers or of any of its or their employes.

The complaint does not set up the written contract. The action sounds in tort, and the accepting of the plaintiff as a passenger for hire is alleged, in general terms, as matter of inducement. It is claimed by counsel for appellant that inasmuch as the evidence disclosed the execution of a written contract, there was a fatal variance between the allegation and the proof. This precise question has but recently been determined adversely to the contention of appellant. Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 76 N.E. 299. The duties which attach to a common carrier in respect to the protection of the lives and limbs of its passengers for hire grow out of the relationship. They may have their foundation in contract, but the responsibility of the carrier in such cases is not measured by its agreement; it is imposed by law. New York, etc., R. Co. v. Lockwood (1873), 17 Wall. 357, 376, 21 L.Ed. 627; Ohio, etc., R. Co. v. Selby (1874), 47 Ind. 471, 17 Am. Rep. 719; Goddard's Outlines of Bailments, § 323; Pollock, Torts (7th ed.), 521. There can be no doubt as to the right in such a case to sue in tort. As was said by Bayley, J., in Ansell v. Waterhouse (1817), 2 Chit. 1: "Declarations against carriers in tort, are as old as the law, and continued until Dale v. Hall [1750], 1 Wils. 281, when the practice of declaring in assumpsit succeeded; but this practice does not supersede the other. * * * This was only declaring as usual four hundred years before Dale v. Hall, supra." There is no occasion entirely to wipe out the special contract in order to uphold a recovery under the pleadings; the company has been sued for a violation of its public duty, and the contract has nothing to do with the case except so far as it may bear upon the question as to whether appellee was in a place where he was entitled to the protection of a passenger for hire.

What we have already said concerning the form of the action brings us naturally to the contention of appellant, raised in a variety of ways, that under the decision in ...