Maucher v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 22 September 1916
• Docket Number: 18721
• Citation: 159 N.W. 422,100 Neb. 237
• Parties: JOSEPH MAUCHER, APPELLEE, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

159 N.W. 422

100 Neb. 237

JOSEPH MAUCHER, APPELLEE, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT

No. 18721

Supreme Court of Nebraska

September 22, 1916

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

W. D McHugh, W. H. Herdman and John M. Kelley, for appellant.

Mahoney & Kennedy, contra.

MORRISSEY C. J. SEDGWICK, J., concurring.

OPINION

MORRISSEY, C. J.

Plaintiff brought this action against defendant to recover damages for personal injuries alleged to have been sustained in a rear-end collision on defendant's line of railroad August 12, 1913. There was a verdict for $ 12,500, which on motion for a new trial was reduced to $ 10,000, and defendant has appealed.

Defendant was, and is, a railroad company engaged in general railroad business, both intrastate and interstate. At the date of the injury plaintiff was an employee of a circus company known as "Barnum and Bailey Shows," but owned by Ringling Brothers, a copartnership. The day preceding the injury the circus company gave a performance in the city of Lincoln, Nebraska, and on the evening of that day loaded its cars with its circus equipment, baggage, and paraphernalia, and its employees. The cars belonging to the circus company were attached to a locomotive engine and way-car belonging to defendant. The engine crew and train crew were made up of the regular employees of defendant. As thus made up, this circus train started for Atlantic, Iowa, where the circus company was to give an exhibition the following day. The train passed eastward over defendant's tracks and passed South Bend, an open telegraph station. Richfield, about twelve miles farther east, was the next open telegraph station, and the stretch of track between these two stations constituted a "block." Shortly after the circus train left South Bend one of defendant's regular passenger trains arrived at that station, and received a "block" restriction card, which required the engineer to proceed at no greater speed than would permit a complete stop at any time within the range of track which was open to his vision. This "block" has a number of cuts and curves. The engineer failed to obey the restriction order and, as a consequence, ran his engine into the rear end of the circus train as it pulled onto a sidetrack at Richfield. As a result of this collision plaintiff received severe and perhaps permanent injuries.

There is practically no dispute as to the facts, but defendant denies liability, relying upon certain contracts set out at length in the pleadings. One of these is a contract between the circus company and defendant, whereby defendant undertook to transport the property of the circus company, consisting of its cars and other equipment, from point to point along its line of road, including the transportation from Lincoln, Nebraska, to Atlantic, Iowa, on special time schedules and at reduced rates. The employees of the circus company were to be conveyed in the cars of the circus company in the same train with the baggage, paraphernalia, and other equipment. This transportation was to be made by defendant furnishing to and for the use of the circus company the necessary locomotives, the fuel therefor, the engine and train crews and other necessary employees, and granting the right to use defendant's tracks. Among other stipulations contained were the following:

"It is expressly agreed and understood that this agreement is not made by the first party as a common carrier, but only as a hiring of said locomotives, engines and employees, and the use of its railroad to the second party, for the purpose of enabling the second party to move said train between said points; that all of the said cars, coaches and trains shall be operated under the management, directions, orders and control of the second party or its agents.

"It is expressly understood and agreed that all engineers, firemen, conductors, brakemen, train dispatchers and other operators and employees, furnished by the first party, are, in the operation and movement of said cars, coaches, and trains, exclusively the employees of the second party, but all of said cars, coaches, and trains shall be run according to the rules, regulations and time cards of the first party.

"It is expressly understood and agreed in consideration of the first party hiring the use of its railway and furnishing the motive power and employees to handle the second party's cars, coaches, paraphernalia and employees, as aforesaid, and for less than it would receive if it handled said circus cars, paraphernalia, menagerie and employees, as regular freight and passengers upon its cars, and in consideration of the privilege of stopping over at the points herein before designated, that the first party shall not be responsible or liable to the second party, or to any other person, partnership or corporation for any delay of any cars or trains, however caused, and whether or not arising in any way from any one's fault or negligence, of or for any loss, damage or injury to the property or person of the second party or of any one employed by the second party, or being upon any trains or cars, hauled under this agreement or being upon any premises of the first party or connected in any way with said circus, caravan or menagerie, or with the business of the second party, or for any loss of or damage or injury to the property or person of any one else, or of any partnership or corporation whatsoever, whether or not any such loss, damage or injury arises in any way from, or is in any degree attributable to, any fault or negligence of the first party or any of its officers, agents or employees, in or about the performance of this agreement, or the performance of the first party's general business or in connection with the railroad or property or any duty whatsoever of the first party.

"The second party further agrees and undertakes, as a further consideration hereof, that in case of delay, loss, damage or injury, to the person or property, either of the second party or any other persons, association of persons or corporation, carried or to be carried upon any of the cars or trains herein specified or employed on or about or in connection with the same on the business of the second party, it, the said second party, will release and does hereby release the first party from all liability or claim therefor for loss, damage or injury to itself or its business or property, will indemnify and forever save harmless the first party from all claim, demand, actions, causes of action, costs, judgments, and expenses, including attorney's fees, resulting from or growing out of such delays, loss, damage, or personal injury, the second party hereby assuming and agreeing to defend at its own cost all such claims, demands and actions, and to satisfy and pay the same, and the second party further undertakes and agrees to inform by personal notice, to each thereof, all of the persons permitted by the second party to be carried on any of said cars, coaches, and trains, under the terms of this agreement, and to advise and notify all such persons, and each thereof, that they are carried by the second party and not by the first party, and that the first party has not assumed, with respect to them or their baggage or other personal property, any of the duties and responsibilities of a carrier of passengers.

"It is a further consideration of this agreement, and the parties hereto agree, that the second party is to have sole charge of every person and of all animals and property on any car, coach or train hauled under said agreement, and the first party does not assume, and shall be under no responsibility for the safety of any of the cars, coaches, persons, animals or property on said cars, coaches, and trains, in charge of the second party, or of advance agents, from any cause whatever, and the second party agrees to, and does hereby, indemnify and save harmless the first party against all loss, damage or injury on account of strangers, tramps, or others riding on said cars, coaches or trains, and being injured or killed, or on account of strangers, tramps or other persons being injured or killed in the operation of said cars, coaches or trains, or in the handling, loading or unloading of cars, and will protect the first party from damages, and cost incident thereto, suffered by any one from wild, tamed or domesticated animals escaping from cars or custody, and protect the first party against all loss, damage and cost for and on account of the spread or transmission of any disease to persons or animals from unloading offal or otherwise, and against any fine or penalty arising therefrom, which may be imposed against the first party by any state, municipality or other competent authority."

This contract was made in the state of Illinois, and is claimed to be valid under the laws of that state.

At the time of the injury plaintiff was an employee of the circus company, and, as such employee, was riding on this circus train without having paid, offered to pay, or intending to pay, any transportation whatever, and his right to be thereon was due to his employment, under a contract which he had with the circus company. The train was being moved and operated over the track of defendant in pursuance of the contract heretofore partially set out.

Before entering the employment of the circus company, to wit, June 9, 1913, plaintiff had entered into a contract in writing with the circus company, containing the following stipulations: "Now, therefore, for valuable consideration, and in consideration of this employment, and the furnishing by first party to second party of transportation and board of the kind customary and usual in the...