Missouri Pacific Railroad Company v. Curcio
| Decision Date | 19 May 1924 |
| Docket Number | 381 |
| Citation | 261 S.W. 896,164 Ark. 350 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY v. CURCIO |
| Court | Arkansas Supreme Court |
Appeal from Monroe Circuit Court; George W. Clark, Judge; affirmed.
Judgment affirmed.
Thomas B. Pryor and Daggett & Daggett, for appellant.
1. The contract between the show company and the railroad company is not void on the ground of public policy in that it permits the carrier to contract against liability for its own negligence. Such contracts are sustained on the ground that in the performance thereof, the carrier is not acting as a common carrier. 5 R. C. L. § 668; 66 F. 506; 31 N.E 650; 22 N.W. 215; 20 S.Ct. 385. As a matter of law, under the undisputed evidence, the plaintiff was charged with knowledge of the contract and all provisions therein, and was bound by it. 83 N.E. 710. The verdict should have been directed for the defendant. It was not proper to submit the question of the plaintiff's knowledge of the contract to the jury in any form. See also 130 F. 870; 66 N.Y. 313.
2. If as an invitee, plaintiff deviated from the ordinary and regular route of ingress and egress provided, and entered a portion of the yards in which it was unnecessary to go in order to reach the cars, he then became a trespasser, and within the protection accorded him by the "lookout statute"; but one in such position, regardless of the statutory duty, can claim no more than that the train shall not be operated negligently, and that he shall not be wantonly or wilfully injured if his peril is discovered in time to prevent.
Bogle & Sharp and Emerson & Donham, for appellee.
1. The contract is not valid nor enforceable. It was entered into in the State of Missouri, and is to be construed according to the laws of that State, and there a carrier cannot contract to relieve itself against damages caused by negligence. 88 Mo. 239- 244; Rev. Stat., Mo. 1919, § 10018. It is also void because prohibited by the laws of the United States. 159 N.W. 422; U. S. Comp. Stat. 1918, § 8604A. Plaintiff was not bound to know of the existence of the contract by reason of the circumstances with which he was surrounded, as contended by appellant. 34 N.Y.S. 1039; 26 N.E. 524; see also 159 N.W. 428; 166 F. 526; 87 F. 42. Plaintiff was in the position of a passenger for hire, and entitled to the high degree of care to avoid injuring him that is due to a passenger. 100 P. 833. As further sustaining the proposition that the contract is not enforceable, see 89 A. 87, 204 Pa. 304; 43 S.E. 930; 248 U.S. 361; 39 S.Ct. 108.
2. Plaintiff was injured as the result of negligence on the part of appellant's employees, and it is immaterial whether he was a trespasser, licensee or invitee, and the issue of negligence has been settled by the jury's verdict. The lookout statute applies to moving trains in railroad yards and to switching cars therein. C. & M. Dig. § 8568; 78 Ark. 22, 28; 83 Ark. 61; 88 Ark. 204-10; 96 Ark. 243-9; 111 Ark. 129; 80 Ark. 528, 535; 107 Ark. 431; 110 Ark. 444, 448; 108 Ark. 326; Id 396; 93 Ark. 127; 125 Ark. 507; Id. 223; 137 Ark. 595; 132 Ark. 431; 146 Ark. 236; 136 Ark. 310; 123 Ark. 94.
The plaintiff, Antonio Curcio, is a native of Italy, a naturalized citizen of the United States, and a musician by profession. While employed as a member of a band of musicians accompanying a traveling show, he came to Little Rock on October 7, 1922, for a week's engagement. The entire outfit traveled in special coaches, which were stored in the railroad yards, and the members of the outfit lived in the coaches during their stay. There was a pathway along the track from the coaches to a nearby street, which afforded a way for the people occupying the cars to go in and out between the street and the cars, and one night during the stay in Little Rock plaintiff, along about midnight, left the coach, walked along the pathway to the street and thence to a restaurant, where he made a small purchase, and on his return, after having traveled down the track to a point opposite the cars, he turned across the track, and was knocked down and run over by a moving box-car which was being switched in the yard.
The show train was brought to Little Rock over the line of the defendant, Missouri Pacific Railroad Company, under special contract with the show company; the cars were stored in the yards of the defendant company, and it was a car operated by defendant company being switched in the yard which struck and ran over the plaintiff. This is an action to recover damages for the injuries received. Plaintiff's foot and ankle were so badly mangled that it was necessary to amputate the leg above the ankle, and there were two additional operations, shown to have been necessary on account of the original injury. Plaintiff recovered as damages a sum of money not claimed to be excessive, if he was entitled to recover at all.
Negligence of defendant's servants is alleged in operating the train of cars, which was being switched in the yard without keeping a lookout and without giving any signal or warning of the movement of the cars. Appellant denied the allegations of negligence and also pleaded as a further defense the special contract with the show company, which contained a clause exempting the defendant from liability for damages caused by negligence of defendant's servants or from any other cause.
The contract between defendant and the show company provided for transportation by the railroad company in cars to be furnished, some by each company, of the employees and paraphernalia and the wild and domestic animals of the show company, from place to place, for transportation charges specified in detail in the contract, and the clause of the contract under which defendant claims exemption from liability reads as follows:
"In consideration of the agreement of said party of the first part to run said regular or special train or trains as hereinbefore specified, and at and for the reduced rates aforesaid, and in further consideration of the fact that many of the animals to be transported as aforesaid are wild and ferocious, and not such as said party of the first part is by law required to receive and transport as a common carrier, it is further understood and agreed that the said party of the first part shall be, and is hereby, wholly released from responsibility for any and all damages, loss or injury which may accrue to said party of the second part, and to the cars and coaches and to the show and property of said party of the second part and on account of death of or injury to the employees of said party of the second part or of or to all persons connected with said show in any capacity whatsoever, whether such damage, loss, death or injury result from the negligence of said party of the first part, its servants, or agents, or otherwise, but if, notwithstanding this exemption from liability, said party of the first part shall be held liable in any legal proceedings for loss or damage suffered by said party of the second part, then, and in that event, it is hereby agreed that such damages shall be and they are hereby liquidated and stipulated not to exceed the actual value of the animals or the property aforesaid, which, for the purpose of this agreement, is by said second party stipulated, agreed and represented in no case to exceed the sum per head for each animal as follows, to-wit: (Here follows a list of valuations).
The contract contained an additional clause whereby the show company undertakes to indemnify the defendant "against any and all suits, claims and damages of all persons whomsoever alleging liability for loss or damage to cars or railway equipment, or to baggage or other property or damage resulting from any injury to or death of any person or persons employed by said party of the second part or connected with said Wortham-Waugh-Hofer Greater Alamo Shows, or permitted by said second party, his servants or agents, to ride in, about or upon said cars and coaches, or to be transported as aforesaid, or to be upon and about the premises of said first party, whereby or by reason whereof such persons may be killed or injured while being transported in or upon said cars or coaches, or while they may be in or upon the premises of said first party."
This contract was admitted in evidence over the objections of plaintiff's counsel, and the court submitted the question of defendant's liability, so far as it was affected by this contract, upon instructions which told the jury that plaintiff was not bound by the contract of exemption from liability unless he...
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