Payne v. Terre Haute And Indianapolis Railway Co.
| Decision Date | 10 January 1902 |
| Docket Number | 19,768 |
| Parties | Payne v. Terre Haute and Indianapolis Railway Company |
| Court | Indiana Supreme Court |
From Clay Circuit Court; S. M. McGregor, Judge.
Action by John R. Payne against the Terre Haute and Indianapolis Railroad Company for damages on account of personal injuries sustained. From a judgment for defendant, plaintiff appeals.
Affirmed.
E. S Holliday, F. A. Horner and J. A. McNutt, for appellant.
J. G Williams, G. A. Knight and D. P. Williams, for appellee.
By sustaining appellee's petition for an order of transfer, this court has vacated the decision of the Appellate Court and has brought the cause here for final determination.
Appellant began this action to recover damages for personal injuries received by him through the negligence of appellee's servants while he was being carried as a passenger on one of appellee's regular passenger trains. Appellee answered that appellant paid no fare, but was traveling on a free pass, which was issued to him as a pure gratuity, and which contained a stipulation, agreed to by appellant, that "by its acceptance and use any and all claims for injuries to person or for loss or damage to baggage that might accrue to [appellant] are released". The court overruled appellant's demurrer to this answer. On appellant's refusal to plead further, judgment was rendered, from which this appeal is taken. The only question presented is the sufficiency of the answer.
Appellant is prosecuting this action in the face of his agreement not to do so. No allegations appearing to the contrary, presumably he was of sufficient capacity to make a binding contract. His contention, therefore, is that no one can lawfully make such a contract and be bound thereby. One who seeks to put a restraint upon the freedom of contracts must make it plainly and obviously clear that the contract in question is void. Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196, 40 L. R. A. 101, 62 Am. St. 503, 46 N.E. 917; Baltimore, etc., R. Co. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560.
The only claim that this contract is void is that it is against public policy.
It is thoroughly established in this State, and generally elsewhere, that railroad corporations, as common carriers, are not permitted, by contracts with their customers, to exempt themselves from the consequences of their own negligence. Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., R. Co. v. Nickless, 71 Ind. 271; Louisville, etc., R. Co. v. Faylor, 126 Ind. 126, 25 N.E. 869; Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 38 L. R. A. 93, 58 Am. St. 348, 44 N.E. 796; Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196, 46 N.E. 917; Russell v. Pittsburgh, etc., R. Co., 157 Ind. 305, 61 N.E. 678; New York, etc., R. Co. v. Lockwood, 84 U.S. 357, 17 Wall. 357, 21 L.Ed. 627; Baltimore, etc., R. Co. v. Voigt, 176 U.S. 498, 44 L.Ed. 560, 20 S.Ct. 385.
The main underlying reasons are briefly these: Railroads, by reason of physical conditions, are natural monopolies. In most instances, the public are restricted to a choice of using a certain line or none. The corporations, created by the State, are granted special privileges, in return for which they are held, among other things, to undertake to use due care and diligence in transporting passengers and goods. They owe this duty to the public generally. They owe the further duty, as common carriers, to transport, on equal terms of service and compensation, all who apply. The person who is practically constrained to patronize a certain road and the corporation that operates the road are not on a footing of equality in contracting. If the corporation was permitted to impose, as one of the terms of the contract, a waiver of its negligence upon one customer, it could practically upon all, and thereby, while claiming the benefits of its franchise, evade the performance of a public duty which was one of the chief considerations of the grant. Therefore, it is held, a contract, by which a common carrier assumes to abandon a duty it owes to the public generally, is void as being against public policy.
In the Selby, Nickless, and Faylor cases, supra, the plaintiffs were traveling on passes which purported to release the companies from damages through their negligence, and the stipulations were held void. But the passes were "stock-drovers' passes", issued in connection with bills of lading for the shipment of live-stock which the plaintiffs were to accompany and care for. The usual rates were paid, and the court properly decided that the transaction was an entirety, that plaintiffs had paid for transportation of their persons as well as their stock, that the companies stood in the relation of common carriers for hire to plaintiffs as part of the general public, and that therefore the rule which forbade the companies to abandon a duty owing to the general public rendered the waiver void. But the statements in these cases to the effect that such a waiver in a free pass is unenforceable, were unnecessary to the proper decision of the issues presented, and are therefore not authoritative.
The precise question raised by this appeal has not heretofore been presented to this court, but the principles announced in the Keefer, Mahoney, and Russell cases, supra, are controlling. In these cases it is expressly declared to be a well-established rule that railroad companies, though public or common carriers, may contract as private carriers for the transportation of persons whom they are not bound as common carriers to receive. In the Keefer and Mahoney cases, the court held that railroad companies were not required, under...
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