Miller v. Me. Cent. R. Co.

• Decision Date: 06 July 1926
• Parties: MILLER v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

133 A. 907

MILLER

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

July 6, 1926.

Report from Supreme Judicial Court, Aroostook County at Law.

Action by Burt E. Miller, administrator, against the Maine Central Railroad Company. On report from the Supreme Judicial Court. Case remanded, with directions.

Argued before WILSON, C. J., and PHILBROOK, DUNN, MORRILL, STURGIS, and BASSETT, JJ.

William T. Spear and Powers & Mathews, all of Ft. Fairfield, for plaintiff.

Perkins & Weeks, of Waterville, for defendant.

WILSON, C. J. An action to recover for personal injuries resulting in the death of the plaintiff's intestate. The case is reported to this court on an agreed statement of facts, the law court to pass on the question of liability, and, in the event of the defendant being found liable, the case is to be remanded to the court below for an assessment of damages by a jury.

In February, 1925, certain shippers in Aroostook county on the line of the Bangor & Aroostook Railroad Company loaded four cars with potatoes for interstate shipment over the line of the Bangor & Aroostook Railroad Company, and its connecting lines, of which the defendant was one.

Under the tariff schedules of the initial carrier, the shippers had the option of shipping such goods in "heater cars," so-called, in which case the carrier assumed the risk of freezing, or at a lower rate in "lined" or "unlined" box cars, in which the shipper by express stipulation assumed all risk of injury from frost. In the latter case, however, in accordance with long-established custom and usage, the shipper was permitted to install stoves suitable for the purpose in such box cars, and send with the shipment a caretaker to tend the stoves to protect the shipment from frost.

The shippers in the instant case chose the latter method. The plaintiff's intestate was jointly employed by the shippers to accompany the shipments in the capacity of caretaker, or "fireman," as he was termed in the bill of lading issued by the initial carrier. While the cars were being transported to their destination over the defendant's railroad, as the result of a wrecking of the train of which they were a part, due, it is admitted for the purposes of this case, to the defendant's negligence, the plaintiff's intestate was instantly killed.

There had been issued to the caretaker by the initial carrier a so-called "caretaker's pass," on which it was assumed he was being transported, and for which nothing was paid by him or the shippers, unless his transportation was a part of the contract of shipment, and in connection with which he had signed, as required by the tariff schedule of the initial carrier, a release of the initial and all connecting carriers from all liability whether due to their negligence or that of their employees, or otherwise.

The tariff schedules of the initial carrier, which had been duly filed with the Interstate Commerce Commission and published, expressly provide that the rates for such shipments cover only the commodities and "do not include the transportation of caretakers"; the transportation of caretakers being covered by a distinct tariff, under which the caretaker had the option of traveling on a "gratuitous free pass, in which case he shall release the carriers from all liability whether due to the carriers' negligence or otherwise, or of purchasing a ticket for transportation at the regular passenger rates and traveling as a passenger for hire.

The plaintiff contends that, notwithstanding his intestate apparently exercised an option and accepted a caretaker's pass and signed such release, the Interstate Commerce Act as amended by the Hepburn Act (34 Stat. 584), does not permit the issuing by interstate carriers of gratuitous caretakers' passes, and, notwithstanding the provisions of the tariffs of the initial carrier, he was being transported as a "passenger for hire," and the release executed by him was invalid as against public policy and of no effect.

The defendant, however, insists that, in view of the express provisions of the tariffs of the initial carrier, the plaintiff's intestate having exercised his option and chosen to travel on a "gratuitous free pass" and release the carrier from all liability, he was not a passenger for hire, and the release is therefore binding. In any event, it further contends that the plaintiff is now estopped from claiming in behalf of his intestate the rights of a "rejected alternative," viz., of purchasing a ticket at the regular passenger fare and traveling as a passenger for hire.

The issues raised are apparently new and of considerable importance. No decided case in either state or federal jurisdictions has been called to our attention where the tariff schedules or the contract of shipment were the same as the case at bar.

It is well settled law in this state, and the rule followed in the federal courts, that, in case of a passenger for hire, it is against public policy for a common carrier to exempt itself by contract, or otherwise, from liability for its own negligence. In case of one traveling on a gratuitous pass, a carrier may make it a condition of the issuance and acceptance of such pass that it will not be liable even for its own negligence, though in the absence of such stipulation a person traveling on a gratuitous pass is entitled to the same care and protection from the carrier as the passenger for hire. Buckley v. Railroad Co., 113 Me. 164, 93 A. 65, L. R. A. 1916A, 617; Rogers v. Steamboat Co., 86 Me. 261, 29 A. 1069, 25 L. R. A. 491; Quimby v. B. & M. R. R. Co., 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846; Griswold v. N. Y. & N. E. R. Co., 53 Conn. 371, 4 A. 261, 55 Am. Rep. 115; New York C. R, Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Grand Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535; Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 9 s. Ct. 469, 32 L. Ed. 788; Southern Pac. Co. v. Schuyler, 227 U. S. 601, 33 S. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901; Kansas City Southern Ry. v. Van Zant, 260 U. S. 459, 43 S. Ct. 176, 67 L. Ed. 348.

The transportation of "drovers" with live stock shipments and "caretakers" with certain perishable freight without other compensation than that paid for the shipment of the commodity has been a practice of long standing, and the rights and liabilities of the parties have been established by a long line of decisions in both the state and federal courts from Railroad Co. v. Lockwood, supra, to Norfolk Southern R. Co. v. Chatman, 244 U. S. 276, 37 S. Ct. 499, 61 L. Ed. 1131, L. R. A. 1917F, 1128.

The history of the litigation involving the rights of caretakers traveling on passes or permits issued in connection with such shipments discloses a persistent effort on the part of carriers to devise some agreement or create some condition under which they might be relieved against their own negligence in case of injuries to such caretakers in the course of transportation.

Whenever such caretakers have been held to be traveling as passengers for hire, the courts in this country have generally held that any agreement or stipulation absolving the carrier from liability for its own negligence was invalid and no defense. Railroad Co. v. Lockwood, supra; Norfolk Southern R. R. Co. v. Chatman, supra; Kirkendall v. Union Pac. R. Co., 200 P. 197, 118 C. C. A. 383; Weaver v. Ann Arbor R. Co., 139 Mich. 590, 102 N. W. 1037, 5 Ann. Cas. 764; Sprigg v. Rutland R. Co., 77 Vt. 347, 60 A. 143; Baker v. B. & M. R. R., 74 N. H. 100, 65 A. 386; Ill. Cent. R. R. Co. v. Anderson, 184 Ill. 284, 56 N. E. 331; Pittsburg, etc., R. R. Co. v. Brown, 178 Ind. 11, 97 N. E. 145. 98 N. E. 625; Buckley v. B. & A. R. Co., supra.

Thus far no court, which holds to the doctrine that carriers may not absolve themselves from liability to a passenger for hire for the results of their own negligence, has held such a stipulation in a caretaker's pass to be valid and binding.

The question of the rights of persons traveling on a so-called "caretaker's pass" first arose in N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, in which a drover traveling with his live stock in consideration of the carrying of his cattle for a lower rate, stipulated to assume all risk of injury to them and to himself resulting from the negligence of the carrier or otherwise.

The court held that a drover traveling on a pass such as was issued in that case was a passenger for hire, and a stipulation exempting the carrier from the result of its own negligence was not just and reasonable, and was contrary to public policy, and void.

Following this decision the federal courts in a long line of decisions, without exception, have held that passes issued to drovers or caretakers of live stock were not gratuitous passes, but were issued as a part of the contract of shipment, and such caretakers were passengers for hire. See cases above cited.

The same rule has been applied by the state courts to the caretakers of milk (Baker v. B. & M. R. K., 74 N. H. 100, 65 A. 386, 124 Am. St. Rep. 937, 12 Ann. Cas. 1072), and by this court to the caretakers of potatoes in the Buckley Case above cited.

An attempt was made in the Buckley Case by counsel to distinguish it from the "drover's pass" cases upon the ground that the shipper in the Buckley Case had an election as to the method of shipment; that the freight rate was the same, if shipped in a "box car," whether a caretaker went along or not, or whatever the season was in which the shipment took place; and that the caretaker in the case of a shipment of potatoes rendered no service to the carrier, nor did his presence relieve the carrier of any responsibility.

But the court held that in principle the cases could not be distinguished, and said:

"We do not think that the fact that the shipper had an election by...