Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Mahoney

• Decision Date: 22 April 1897
• Docket Number: 17,933
• Citation: 46 N.E. 917,148 Ind. 196
• Parties: Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Mahoney, Administrator
• Court: Indiana Supreme Court

46 N.E. 917

148 Ind. 196

Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Mahoney, Administrator

No. 17,933

Supreme Court of Indiana

April 22, 1897

Motion to Modify Mandate Denied June 10, 1897, Reported at: 148 Ind 196 at 207.

From the Howard Circuit Court.

Reversed.

N. O Ross, G. E. Ross and Bell & Purdum, for appellant.

F Winter, M. Winfield, Kistler & Kistler, Fausler & Mahoney and Blacklidge & Shirley, for appellee.

OPINION

Hackney, J.

In December, 1894, Oscar P. J. Romick was an employe of the Adams Express Company, at the city of Logansport, caring for express matter entering and going from said city on the line of the appellant's railway. Between two and three o'clock on the morning of the 13th of said month, while passing from the south side of appellant's two parallel tracks, near the passenger depot, and from the express company's storeroom to the north side of said tracks, said Romick entered between two cars of a passenger train, separated by a space of from six to ten feet, just as additional cars were driven against those of one division of said train, and he was caught and crushed between said two cars. From his injuries he died, and the appellee, charging the appellant with negligence in driving in said additional cars without warning and without watchman at the point of the cut in the train, sued the appellant for damages.

The appellant's third answer to the complaint alleged a special contract between the appellant and said express company, whereby the former agreed to carry upon its passenger trains the express matter and messengers of the latter, said express company supplying its own servants, and handling the express matter by its own agents; that as a part of said special contract the express company agreed "to assume all risks of loss or damage that may arise out of, or result from its operations under this agreement, and to save and hold harmless" the railway company "against the same, and especially to protect" it "against claims that may be made upon it for loss or damage, either to the employes of the" express company "or the property in its charge, whether the loss may occur through the gross negligence of the" railway company "or its employes or otherwise." It was alleged also that between Romick and the express company existed the following contract: "Whereas O. P. J. Romick, the undersigned, has made application to be employed by the Adams Express Company as a servant of said company at a stipulated rate of compensation for his services, which rate said company is willing to pay only if the undersigned will assume all risks of said employment and release said company therefrom, as hereinafter set forth. Now, therefore, in consideration of such employment, to be given by said company and the compensation to be paid therefor, and in consideration of one dollar, lawful money of the United States, paid by the Adams Express Company to the undersigned, the receipt whereof is hereby acknowledged, the undersigned, for himself, his heirs, executors, administrators and assigns, hereby covenants and agrees that in no case shall said company be liable by reason of any act or negligence of its agents, servants, or employes, or any of them, or otherwise, causing any injury to his person or property or causing his death, while he shall remain in its employ, and he accepts said employment with full knowledge and notice of all the risks involved therein, which he assumes. And the undersigned hereby releases said company from any and all liability for and in respect of any such damage, injury or death, by reason of negligence or otherwise." Said contract was signed by said Romick, was duly attested and had appended thereto the following statement, made and sworn to by said Romick concurrently with said contracts:

"O. P. J. Romick, being duly sworn, says, that he is the individual who executed the foregoing release and contract. That he has read or heard read the same before execution, and understands that by signing such contract he has released the Adams Express Company, and all other carriers employed by it, from all liability to him for his death or personal injury, from any cause, whether negligence of either of said companies or their servants or agents, or otherwise." Upon motion of the appellee the trial court struck out said contracts as exhibits to said answer, and the allegations of the answer pertinent to said contracts; and thereafter sustained a demurrer to said answer, which answer, denuded of said allegations, was not more than an admission of the injuries, and a denial of negligence. These rulings are urged as error, and appellee's learned counsel concede in oral argument that if the language of the contracts is sufficiently direct and comprehensive to include a release, on his part, of a right of action for injuries from the appellant's negligence, said rulings were erroneous and the judgment should be reversed. It had been urged in the briefs for appellee that a contract of release from the results of negligence was void as against public policy, and the following authorities were cited in support of that proposition. Roesner v. Hermann, 8 F. 782; Railway Co. v. Spangler, 44 Ohio St. 471, 8 N.E. 467; Western, etc., R. R. Co. v. Bishop, 50 Ga. 465; Kansas Pacific R. W. Co. v. Peavey, 29. Kan. 169; Johnson, Admr., v. Richmond, etc., R. R. Co., 86 Va. 975, 11 S.E. 829; Louisville, etc., R. R. Co. v. Orr, 91 Ala. 548, 8 So. 360; Hissong v. Richmond, etc., R. R. Co., 91 Ala. 514, 8 So. 776; 2 Thompson on Neg. 1025; 1 Cent. Law J. 465; Arnold v. Illinois Central R. R. Co., 83 Ill. 273; Jacksonville, etc., R. W. Co. v. Southworth, 135 Ill. 250, 25 N.E. 1093; Purdy v. Rome, etc. R. R. Co., 125 N.Y. 209, 26 N.E. 255; Maney v. Chicago, etc., R. R. Co., 49 Ill.App. 105; Newport, etc., R. R. Co. v. Eifort, 15 Ky. L. Rep. 600; Runt v. Herring, 21 N.Y.S. 244.

These authorities probably sustain the proposition stated when applied to exemption against negligence in the discharge of a public or quasi public duty, such as that owing by a common carrier to an ordinary shipper, passenger, or servant. In a recent decision of this court, however, that of Louisville, etc., R. W. Co. v. Keefer, 146 Ind. 21, 44 N.E. 796, we recognized the well established rule that railway companies, although public or common carriers, may contract as private carriers, such as that of transporting express matter for express companies as such matter is usually carried, and in that capacity may properly require exemption from liability for negligence as a condition to the obligation to carry. See, also, Express Cases, 117 U.S. 1, 29 L.Ed. 791, 6 S.Ct. 542; Hosmer v. Old Colony R. R. Co., 156 Mass. 506, 31 N.E. 652; Bates v. Old Colony R. R. Co., 147 Mass. 255, 17 N.E. 633; Chicago, etc., R. W. Co. v. Wallace, 66 F. 506, 30 L.R.A. 161; Coup v. Wabash, etc., R. W. Co., 56 Mich. 111, 22 N.W. 215, 56 Am. Rep. 374; Forepaugh v. Delaware, etc., R. W. Co., 128 Pa. 217, 5 L.R.A. 508, 18 A. 503; Hartford Fire Ins. Co. v. Chicago, etc., R. W. Co., 70 F. 201, 17 C. C. A. 62, 30 L.R.A. 193; Quimby v. Boston, etc., R. R. Co., 150 Mass. 365, 23 N.E. 205, 5 L.R.A. 846; Muldoon v. Seattle, etc., R. W. Co., 10 Wash. 311, 38 P. 995; Griswold v. New York, etc., R. R. Co., 53 Conn. 371, 4 A. 261.

Contracts of exemption from such liability have been upheld for many years in the courts of New York without regard to the distinction between exemptions from those duties arising from the obligations of common carriers and those which the carriers are not required to perform, but may perform upon terms prescribed by them. In that state, however, impressed perhaps by the question of public policy, which in other states defeats contracts of exemption from the consequences of neglecting quasi public duties, it has been held that contracts of exemption must be strictly construed and with all presumptions indulged against an intention to exempt liabilities for negligence. Some of these cases are Kenney v. New York, etc., R. R. Co., 125 N.Y. 422, 26 N.E. 626; Brewer v. New York, etc., R. R. Co., 124 N.Y. 59, 11 L.R.A. 483, 26 N.E. 324; Mynard v. Syracuse, etc., R. R. Co., 71 N.Y. 180.

In the early case of Wells v. Steam Navigation Co., 2 N.Y. 204, it was held, however, that the right to contract for a restricted liability existed with reference to private carriers.

Learned counsel for the appellee insist that the rule of strict construction should be applied to the contracts before us and that under the rule the contract between the Adams Express Company and the appellant is one of indemnity only; that the contract between Romick and the express company exempted only the express company, and extended but to the ordinary risks of the employment with that company not including the negligence of that company or of the appellant, and that in construing the contract between Romick and the express company the sworn statement of Romick should be cast out, because it does not contain his signature, and because it was not embodied in the contract. The only reason assigned in the motion for striking out the exhibits was that they were...