Louisville, New Albany & Chicago Railway Co. v. Keefer

• Decision Date: 01 October 1896
• Docket Number: 17,560
• Citation: 44 N.E. 796,146 Ind. 21
• Court: Indiana Supreme Court
• Parties: Louisville, New Albany & Chicago Railway Co. v. Keefer

44 N.E. 796

146 Ind. 21

Louisville, New Albany & Chicago Railway Co. v. Keefer

No. 17,560

Supreme Court of Indiana

October 1, 1896

From the Greene Circuit Court.

Reversed.

Baker & Daniels and Davis & Moffett, for appellant.

Matson & Giles, for appellee.

OPINION

Monks, C. J.

Appellant was employed as an express messenger by the American Express Company, which was carrying on the express business over the road of appellant between Bedford and Switz City, Indiana. While so employed and engaged in his usual duties on the express car of said train, the place provided by appellant for him to ride, he was injured by the falling of appellant's railroad bridge, and brought this action against appellant to recover damages therefor. A demurrer to the complaint for want of facts was overruled. Appellant answered in three paragraphs, and appellee's demurrers to the second and third of said paragraphs were sustained. The case was tried by a jury and a verdict returned in favor of appellee, and over a motion for a new trial judgment was rendered against appellant. The action of the court in overruling the demurrer to the complaint and in sustaining the demurrer to the second and third paragraphs of answer is assigned as error. It is first insisted that the court erred in overruling the demurrer to the complaint. While the allegations are not as specific and complete as they should have been made, we have concluded that the complaint is sufficient on demurrer.

The third paragraph of answer avers that the appellee was, at the time of the injury, upon the train and in the express car as a messenger of the American Express Company, in charge of its express matter then therein; that he had not paid or tendered fare or compensation for his carriage, nor had he agreed to pay; that his right to be upon the train was secured to him and to the express company by a contract in writing between the railroad company and the express company, and that he was then riding upon the train in pursuance of the contract and not otherwise, and that the only compensation the railroad was to receive was the compensation to be paid by the express company, under the contract for the express privileges granted it thereby. It is also alleged that appellee, in consideration of his employment by the express company, and at the time thereof, executed a contract in writing--which is set out in the answer--in which appellee covenanted and agreed as follows:

"And whereas, such express company, under its contracts with many of the corporations and persons owning or operating such railroad, stage or steamboat lines, is or may be obligated to indemnify and save harmless such corporations and persons from and against all claims for injuries sustained by its employes. Now, therefore, in consideration of the premises and of my said employment, * * * * I do hereby assume all risks of accidents and injuries which I shall meet or sustain in the course of my employment, whether occasioned or resulting by or from the gross or other negligence of any corporation or person engaged in any manner in operating any railroad or vessel or vehicle, or of any employe of any such corporation or person otherwise, and whether resulting in my death or otherwise. And I do hereby agree to indemnify and save harmless the American Express Company of and from any and all claims which may be made against it at any time by any corporation or person under any agreement which it has made, or may hereafter make, arising out of any claim or recovery upon my part or the part of my representatives, for damages sustained by reason of my injury or death, whether such injury or death result from the gross negligence of any person or corporation or of any employe of any person or corporation or otherwise.

"And I hereby bind myself, my heirs, executors and administrators with the payment to such express company, upon demand, of any sum which it may be compelled to pay in consequence of any such claim, or in defending the same, including all counsel fees and expenses of litigation connected therewith. I do further agree that in case I shall at any time suffer any injury, I will at once, without demand, and at my own expense, execute and deliver to the corporation or person owning or operating the railroad, stage or steamboat line upon which I shall be so injured, a good and sufficient release, under my hand and seal, of all claims, demands and causes of action arising out of such injury, or connected with or resulting therefrom.

"I do hereby ratify all agreements heretofore made by said express company with any corporation or persons operating any railroad, stage or steamboat line in which such express company has agreed in substance that its employes shall have no cause of action for injuries sustained in the course of their employment upon the line of such contracting party, and I agree to be bound by each and every such agreement in so far as the provisions thereof relate to injuries sustained by employes of the company are concerned, as fully as if I were a party thereto. And I do hereby authorize and empower said express company at any time while I shall remain in its service, to contract for me and in my behalf, in its own name or in mine, with any corporation or person operating any railroad, stage or steamboat line, for my transportation as messenger or employe, free of charge, upon the condition and consideration that neither I nor my personal representatives, nor any person claiming under me, will make any claim for compensation because of any injury sustained by me, whether resulting from the gross negligence of such corporation or persons, or of any employe of such corporation or persons or otherwise, and the contracts so made shall be as binding and obligatory upon me as if signed and delivered by me. And I do further agree that the provisions of this agreement shall be held to inure to the benefit of any and every corporation, and to all persons upon whose railroads, stage or steamboat lines the American Express Company shall forward merchandise, as fully and completely as if made directly with such corporation or persons."

That under the contract between the express company and appellant, said express company was granted express privileges and facilities on the railroad lines of appellant, and the express company agreed with appellant that, "It is mutually understood and agreed by and between the parties hereto, that the express company will assume all risks and damages to its property, freight and valuable packages, and also assume all risks and damages to its agents and messengers on the said road."

Appellee insists that a common carrier cannot protect itself by contract from liability for negligence to a person riding as appellee was on appellant's train, for the reason that such a contract is void as against public policy.

This is a correct statement of the law in this State where the carrier is at the time performing a duty it owes to the public as a common carrier. A common carrier may, however, become a private carrier or bailee for hire where, as a matter of accommodation or special engagement he undertakes to carry something which it is not his business to carry. Railroad Co. v. Lockwood, 17 Wall, on p. 377; Coup v. Wabash, etc., R. W. Co., 56 Mich. 111, 56 Am. Rep. 374; 22 N.W. 215; Robertson v. Old Colony, R. R. Co., 156 Mass. 525, 32 Am. St. Rep. 482; 31 N.E. 650; Chicago, etc., R. W. Co. v. Wallace, 66 F. 506, 14 C. C. A. 257, 30 L. R. A. 161.

Was appellant, in the carriage for the express company of goods and appellee its agent in charge thereof, performing a duty as a common carrier, or was it performing a service foreign to its duties as a common carrier, and which it could not have been compelled to perform? Railroad companies are not required by usage or common law to transport the traffic of independent express companies over its lines in the manner in which the traffic is usually carried and handled, and they need not, in the absence of a statute requiring it, furnish to such express companies equal facilities for doing an express business upon their passenger trains. Sargent v. Boston, etc., R. R. Corp., 115 Mass. 416; Express Cases, 117, U.S. 1.

In the case last cited, the railroad companies had undertaken to perform for the public the express business, before that time done over the same lines by express companies. The express companies applied for space in the express cars for their goods and messengers, and the railroad companies refused to furnish the space or carry their messengers, and these suits were brought to compel the railroad to furnish the desired express facilities. The court held that it was not the duty of railroads to carry the goods and messengers of express companies, and that a railroad in such service was not performing a duty it owed to the public as a common carrier. That such right could only be acquired by an express company by contract with the railroad company. The court, by Mr. Chief Justice Waite, said:

"The reason is obvious why special contracts in reference to this business are necessary. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable certainty as to the quantity that will be carried at any one time. As the things carried are to be kept in the personal custody of the messenger or other employe of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that this should, as far as practicable, be put in the exclusive possession of the expressman in charge. As the business to be done is 'express,' it implies access to the train for the loading at...