Little Rock & Ft. S. Ry. Co. v. Eubanks

• Decision Date: 12 March 1887
• Citation: 3 S.W. 808
• Parties: LITTLE ROCK & FT. S. RY. CO. <I>v.</I> EUBANKS, Adm'x.
• Court: Arkansas Supreme Court

3 S.W. 808

LITTLE ROCK & FT. S. RY. CO.

v. EUBANKS, Adm'x.

Supreme Court of Arkansas.

March 12, 1887.

Appeal from circuit court, Franklin county.

J. M. Moore, for appellant. T. B. Martin and Ed. H. Mathes, for appellee.

SMITH, J.

Appellee, as administratrix of J. C. Eubanks, sued appellant in the Franklin circuit court, alleging that she was mother of deceased, and administratrix, etc.; that on the seventh of October, 1884, her intestate was employed under a contract as brakeman on appellant's railway, and that on or before that time appellant's railway, at the town of Ozark, was in a defective condition, in this: "The defendant had constructed on its said road, and as a part of it, on the track thereof, at said place, a switch and a frog, which was so worn, ill constructed, and defective as to render it unsafe and unfit for use." The complainant alleges knowledge by appellant of these defects, and that by reason thereof, and the unsafe condition of the road at that point, and appellant's negligence, her intestate, while in the performance of his duty as brakeman under his contract, was thrown from the car, run over, and killed. The answer denies that the switch or frog was defective, ill constructed, or unfit for use, or that plaintiff's intestate was thrown from the car and killed by reason of any such defects; denies that deceased was free from negligence; and alleges that his death was caused by negligence on his part. The answer also sets up and relies upon the following contract executed by deceased before his employment by defendant as a release of liability. "Clinton Eubanks, having been employed, at his request, by the Little Rock & Fort Smith Railway in the capacity of brakeman, hereby agrees with said railway, in consideration of such employment, that he will take upon himself all risks incident to his position on the road, and will in no case hold the company liable for any injury or damage he may sustain, in his person or otherwise, by accidents or collisions on the trains or road, or which may result from defective machinery, or carelessness or misconduct of himself or any other employe and servant of the company." The issues were submitted to a jury, which returned a verdict for the plaintiff for $9,360, upon which judgment was entered. A motion for a new trial was subsequently overruled, and a bill of exceptions was signed saving the points hereinafter noticed.

1. The execution of the contract copied above was admitted by the plaintiff. But the court refused this prayer of the defendant: "If you find that, before entering the service of defendant, deceased executed the release, a copy of which is set out in defendant's answer, you are instructed that, by reason of said release, plaintiff will be precluded from recovering anything in this suit, and you will find for defendant."

A common carrier or a telegraph company cannot, by precontract with its customers, relieve itself from liability for its own negligent acts. This, however, may be on the grounds of its public employment. Railroad Co. v. Lockwood, 17 Wall. 357; Pennsylvania R. Co. v. Butler, 57 Pa. St. 335; Little Rock, M. R. & T. Co. v. Talbot, 39 Ark. 523; St. Louis, I. M. & S. Ry. v. Lesser, 46 Ark. 236; 1 Whart. Cont. § 438. The validity of the contract before us is not affected by such considerations. The relation existing between the parties to it is essentially a private relation,—that, namely, of master and servant. And the question is whether a servant employed in the operation of dangerous machinery can waive in advance the duties and liabilities which the master owes him, and which do not depend on contract, but spring out of the relation itself. Of course, if he can waive them so as to bind himself, a waiver will also bar his personal representative; for the personal representative only succeeds to the right of action which the deceased would have had but for his death.

In 1880 the English parliament passed the "employers' liability act," the object of which was to make employers liable for injuries to workmen caused by the negligence of those having the supervision and control of them. In Griffiths v. Earl of Dudley, 9 Q. B. Div. 357, it was held that a workman might contract himself and his representatives out of the benefits of this act. An opposite conclusion has been reached by the supreme courts of Ohio and Kansas. They hold that it is not competent for a railroad company to stipulate with its employes, at the time of hiring them, and as part of the contract, that it shall not be liable for injuries caused by the carelessness of other employes. Lake Shore & M. S. R. Co. v. Spangler, 8 N. E. Rep. 467, (Sup. Ct. Ohio, 1886;) Kansas Pac. Ry. Co. v. Peavey, 29 Kan. 169, 44 Amer. Rep. 630, 11 Amer. & Eng. R. Cas. 260. In the notes to the last-mentioned case, as reported in the two series of reports last cited, the substance of Griffiths v. Earl of Dudley is set out. This, however, is not precisely the same question we have to deal with; for the negligence of a fellow-servant is not in fact and in morals the negligence of the master, although by virtue of a statute it may be imputed to the master. It is impossible for the master always to be present and control the actions of his servants. Hence a stipulation not to be answerable for their negligence beyond the selection of competent servants in the first instance, and the discharge of such as prove to be reckless or incompetent, might be upheld as reasonable, notwithstanding a statute might abolish the old rule of non-liability for the acts and omissions of a co-servant. But the supreme court of Georgia have, in several cases, sustained contracts like the one before us as legal and binding upon the employe, so far as it does not waive any criminal neglect of the employer. The effect of these decisions is that the servant of the railroad company, for instance, not only takes upon himself the incidental risks of the service, but he may by previous contract release the company from its duty to furnish him a safe track, safe cars, machinery, and materials, and suitable tools to work with. Western & A. R. Co. v. Bishop, 50 Ga. 465; Western & A. R. Co. v. Strong, 52 Ga. 461; Galloway v. Western & A. R. Co., 57 Ga. 512. On the other hand, in Roesner v. Hermann, 10 Biss. 486, 8 Fed. Rep. 782, a contract by a master against his own negligence was declared to be void as against public policy; GRESHAM, J., saying: "If there was no negligence, the defendant needed no contract to exempt him from liability; if he was negligent, the contract set out in his answer will be of no avail." Compare Memphis & C. R. Co. v. Jones, 2 Head, 517, where it was decided that such a contract would not protect the master against gross negligence.

It is an elementary principle in the law of contracts that "modus et conventio vincunt legem,"—the form of agreement and the convention of parties override the law. But the maxim is not of universal application. Parties are permitted, by contract, to make a law for themselves only in cases where their agreements do not violate the express provisions of any law, nor injuriously affect the interests of the public. Broom, Leg. Max. *543; Kneettle v. Newcomb, 22 N. Y. 249. Our constitution and laws provide that all railroads operated in this state shall be responsible for all damages to persons and property done by the running of trains. Const. 1874, art. 17, § 12; Mansf. Dig. § 5537. This means that they shall be responsible only in cases where they have been guilty of some neglignce; and it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground of considerations of public policy. The law requires the master to furnish his servant with a reasonably safe place to work in, and with sound and suitable tools and appliances to do his work. If he can supply an unsafe machine or defective instruments, and then excuse himself against the consequences of his own negligence by the terms of his contract with his servant, he is enabled to evade a most salutary rule. In the English case above cited it is said this is not against public policy, because it does not affect all society, but only the interest of the employed. But surely the state has an interest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community; and it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railroad company, and every owner of a factory, mill, or mine, would make it a condition precedent to the employment of labor that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer's negligence or otherwise. The natural tendency of this would be to relax the employer's carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous even when well managed; and the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.

2. The next question is whether the testimony is sufficient to support the verdict. The freight train upon which deceased was a brakeman was bound for Fort Smith, but had stopped at Ozark station, about 11 P. M., and the trainmen were engaged in switching off cars from the main track to a side track. The plaintiff's intestate was assisting in this operation, being on top of one of the cars, with a lantern in his hand. The evidence does not show clearly what it was that caused him to fall between the cars; but it is probable that he was thrown off by the jolting of the...