Rogers v. Kennebec Steamboat Co.

• Decision Date: 24 February 1894
• Citation: 86 Me. 261,29 A. 1069
• Parties: ROGERS v. KENNEBEC STEAMBOAT CO.
• Court: Maine Supreme Court

29 A. 1069

86 Me. 261

ROGERS

v. KENNEBEC STEAMBOAT CO.

Supreme Judicial Court of Maine.

Feb. 24, 1894.

Exceptions from supreme judicial court, Cumberland county.

This was an action on the case by Marcia E. Rogers against the Kennebec Steamboat Company to recover damages for personal injuries alleged to have been received by the plaintiff, through the negligence of the defendant's servants, while attempting to pass over the gang plank or bridge from the defendant's wharf in Bath to their steamboat, on the 20th day of November, 1890. Judgment for plaintiff. Defendant excepts. Exceptions sustained.

The plaintiff admitted that she was invited by a friend, who had a pass for four ladies, to go from Bath to Boston by boat, but testified that she never saw the pass, and denied that at the time of the injury she was traveling on a pass, or had any knowledge or notice of the conditions it contained.

A material part of the declaration is as follows:

"And the plaintiff avers further that on the day last mentioned, in company with and by invitation of a friend, she came and was lawfully upon said wharf, with intention to go thence to Boston on the last-mentioned steamboat, and that when said bridge or slip was fixed by the defendant for use, and was open for such use by the defendant, and divers persons then standing on the wharf, including the plaintiff and the friend aforesaid, were by the defendant invited to pass upon, across, and over said bridge to the steamboat aforesaid, then and on the day last named the plaintiff did enter and go upon said bridge or slip, as so invited by the defendant, to get access to the steamboat aforesaid, believing that the same bridge was safe and fit for use, and not knowing the contrary. And further the plaintiff alleges that, when she entered upon said bridge as aforesaid, she understood that the friend aforesaid had in possession a pass or license issued by the defendant through some authorized agent, but never seen by the plaintiff, whereby the plaintiff was entitled to go upon said steamboat from Bath to Boston without the payment of any fare, and that the plaintiff then and there intended to seasonably ascertain whether such pass or license was in possession of the friend, and, in default of such pass, to pay to the defendant at the office aforesaid, or elsewhere as the defendant might prefer, the regular, usual, legal price and fare charged by the defendant for the transportation of one person from Bath to Boston, and had in her possession lawful and sufficient money to make the payment aforesaid."

Weston Thompson, for plaintiff. A C. Stilphen and Symonds, Snow & Cook, for defendant.

WHITEHOUSE, J. On the evening of November 20, 1890, the defendant's steamer Kennebec arrived at the wharf in Bath about half past 5 o'clock, on her regular passage from Gardiner to Boston. There was a fresh breeze from the northwest with a flood tide and freezing temperature, and the spray from the wheels caused ice to form on the guards of the steamer. The gang plank was adjusted so as to form a bridge or passageway between the steamer and the wharf. The plaintiff had come down from Brunswick by rail and was going on board as a passenger to Boston. She was on the gang plank, and with a single step more would have been on the steamer, when suddenly, by reason of the swaying of the boat, the end of the gang plank resting on the steamer slipped from its place, and dropped down over the margin of the guard. The lip of the plank was thereby thrown upward and backward, the edge of it striking the plaintiff's leg, and inflicting the injury of which she complains.

The plaintiff claims that the defendant's servants were guilty of negligence in the management of the gang plank, and in this action to recover damages for the injury thereby sustained a verdict of $3,950 was rendered in her favor.

The case now comes to this court on exceptions and motion for a new trial. The defendant claims—First, that the evidence fails to show any negligence on the part of the defendant's servants on the occasion in question; and, secondly, that the plaintiff became a passenger by virtue of a free pass which had printed on the back of it an express condition that the person accepting it must assume all risk of personal injury while using it.

The plaintiff admits that she was invited by Miss Niles to go to Boston by boat on a pass in company with Miss Niles and her two sisters, Miss Fannie Niles and Mrs. Remick, but says she never saw any pass, and denies that at the time of the accident she was traveling on a pass. She further says that, in any event, she had no knowledge of any condition on the pass in question which exempted the defendant from liability for personal injuries, and was not chargeable with any knowledge of such condition which Miss Niles and her sisters may have had. It is further contended that the terms printed on the back of the pass ought not to be construed as a contract against the defendant's liability for negligence, and finally it is insisted that it was not competent for the defendant, as a common carrier of passengers, to make such a stipulation against liability for negligence.

1. The plaintiff had undoubtedly consented to avail herself of the benefit of a free pass on the defendant's steamer to Boston. Her own testimony is clear and unequivocal on this point. She was informed by Miss Niles that a pass had been obtained "for four ladies," and accepted her invitation to go in place of one first invited, who was obliged, to decline. She admits that it was "distinctly understood" that she was to go on the pass, and that "no doubt was expressed by any one" as to her "being allowed to go on it." She "had always wished to go by boat," and accepted with pleasure this proffered courtesy from her friend. She afterwards stated that her employer would not have consented for her to leave at that busy season but for the favorable opportunity presented to her of going on a pass. She went from Brunswick to the wharf at Bath, and stepped upon the gang plank of the steamer, with the full expectation of a gratuitous passage to Boston, and with no intention of paying her fare. That such a pass was actually issued by the defendant, and was in the pos session of Miss Niles, on the steamer, as well as at Brunswick, is conclusively shown by the uncontradicted testimony of Miss Niles and Mrs. Remick. It was presented by the latter at the ticket office on the steamer for the purpose of obtaining a stateroom. After obtaining the key the ladies went up stairs to the stateroom assigned them, and the plaintiff there ascertained the extent of her injury. The pass was returned to Mrs. Remick when she received the key, but, in the excitement and confusion following the accident, it appears to have been lost its terms are satisfactorily shown, however, by the testimony of the Niles sisters, in connection with a copy of the pass, in blank, introduced in evidence.

It is equally clear that the plaintiff had become a passenger at the time of the accident. She was at that moment within the protection of the defendant's servants, and immediately after the injury was assisted by them to the ladies' cabin. The steamer then left the wharf, and proceeded on her course down the river. It was soon discovered, however, that the plaintiff's wound required the attention of a surgeon, and the steamer put back to the wharf, and the plaintiff returned to Brunswick that night.

It cannot be questioned that a person may become a passenger before the transportation has actually commenced, and before he has entered the earner's vehicle. In the familiar case of Brien v. Bennett, 8 Car. & P. 724, the defendant's omnibus was passing on its journey, and the plaintiff made a signal for the driver to stop and take him up. The omnibus was accordingly stopped for that purpose, and the door opened; but just as the plaintiff was putting his foot on the step the omnibus was driven along, and the plaintiff thrown upon his face and injured. It was held that the stopping of the omnibus at the plaintiff's request implied a consent to take him as a passenger, and that thereupon, in attempting to enter the carriage, he had the rights of a passenger.

In Shannon v. Railroad Co., 78 Me. 52, 2 Atl. 678, a person waiting in the station for a passage on a train soon to depart was invited by the ticket agent to sit in an empty car standing on the side track while the waiting room was being cleaned; and it was held that she was entitled to the same protection from the company, while in this car, as if in the regular waiting room. In either place the person is a passenger in the care of the company. See, also, Smith v. Railway Co., 32 Minn. 1, 18 N. W. 827; Warren v. Railroad Co., 8 Allen, 227; Poucher v. Railroad Co., 49 N. Y. 203; Railroad Co. v. Martin, 111 Ill. 219; Allender v. Railroad Co., 37 Iowa 264; Caswell v. Railroad Co., 98 Mass. 194; Hutch. Carr. (2d Ed.) §§ 556-565.

Upon the facts disclosed in the case at bar, it must be conceded that at the time of the accident the relation of passenger and carrier between the plaintiff and the defendant had been fully established. She clearly would have been a passenger if she had gone upon the gang plank intending to procure a ticket at the office, and pay her fare, and she was not the less so because traveling on a pass. Hutch. Carr. § 565; Shannon v. Railroad Co., supra.

2. The plaintiff was traveling on a pass with the following conditions printed on the back of it, viz.: "The person who accepts this pass thereby assumes all risks of personal injury, and loss or damage of property, while using it" The terms of this condition are clear and unmistakable. They are in effect the same as those on the "free ticket" in Quimby v. Railroad Co., 150 Mass. 366, 23 N. E. 205, and are sufficiently comprehensive to cover all risks of personal injury, "of every name and nature," including those arising from the...