Russell v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 25 October 1901
• Court: Indiana Supreme Court
• Parties: RUSSELL v. PITTSBURGH, C., C. & ST. L. RY. CO.

157 Ind. 305

61 N.E. 678

RUSSELL

v.PITTSBURGH, C., C. & ST. L. RY. CO.

Supreme Court of Indiana.

Oct. 25, 1901.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Ambrose Russell against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Ayres, Jones & Hollett, for appellant. S. O. Pickens, for appellee.

DOWLING, J.

This was an action by the appellant, Ambrose Russell, against the appellee, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, for an injury sustained by appellant while acting as a porter upon a Pullman sleeping car attached to appellee's passenger train. The complaint alleged that on the 21st day of August, 1898, appellee operated a railway line through this state; that near the town of Cementville, Ind., a side track ran parallel to and a few feet from the side of the main track of appellee's line, and was used by the appellee in switching and operating cars; that on the said date appellant was employed as a porter on a Pullman coach attached to and constituting a part of a certain passenger train operated by the appellee; that as said passenger train was moving rapidly over the main tracks near the town of Cementville, and passing by anothertrain of the appellee upon the side track, the appellant, who was at the time seated near a window of the Pullman coach, was suddenly struck by a door or other obstacle which the appellee had carelessly allowed to project from the train of cars upon the side track or from its right of way at that point; that the said projection entered the window of the car in which the appellant was seated, and struck him upon the arm and elbow, breaking and crushing them, whereby they were rendered stiff, sore, and permanently disabled. The complaint denies negligence on the part of the plaintiff, and avers that the accident was occasioned wholly by reason of the negligence of the appellee. To the complaint the appellee filed answers in three paragraphs; the first being a general denial, which was afterward withdrawn. The second paragraph alleged that a written contract had been entered into between the appellee and the Pullman Palace Car Company by which the latter company agreed to furnish sleeping cars to be used for the transportation of passengers over the road of appellee; that said Pullman Palace Car Company was by said agreement entitled to, and did, collect revenue from all passengers using its cars; that it furnished one or more employés upon each of such cars, who were by the said company carried free of charge over the road of the appellee. It was further stipulated in said agreement that in the event of any liability arising against the said railroad company over whose railroad said cars were to be run, for personal injury, death, or otherwise, of any employé of said Pullman Palace Car Company, the said railroad company should be indemnified for said liability, and the same paid by said Pullman Palace Car Company. The answer then alleged that the appellant at the time of the accident was an employé of the Pullman Company, in charge of one of that company's sleeping cars, and was being hauled in said car in compliance with the contract above referred to; that he had neither paid, tendered, nor agreed to pay, any fare for his passage; that he had, prior to the injury complained of, agreed in writing with said Pullman Company as follows: “Fourth. In consideration of said employment and wages, I undertake and bind myself to assume all risks of accident or casualties, by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, and administrators, or legal representatives, forever release, acquit, and discharge said Pullman Palace Car Company, its assigns and legal representatives, from any and all claims for liability of any nature or character whatsoever on account of any personal injury or death to me in such employment and service. Fifth. I undertake and bind myself to obey all rules and regulations of the transportation companies, made for the government of their own employés, over whose lines the cars of said Pullman Palace Car Company may operate, while I am traveling over said lines in the employment and service of said Pullman Palace Car Company; and, in consideration of said employment and wages, I hereby, for myself, my heirs, executors, administrators, or legal representatives, forever release, acquit, and discharge any and all such transportation companies from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me while traveling over such lines in said employment and service.” The answer alleges that both of these agreements were in force at the time of the accident. The third paragraph of answer states substantially the same facts as the second, except that no mention is made of the written contract between the appellee and the Pullman Company for indemnity by the latter for liabilities for the injury or death of its employés. To these two paragraphs of answer the appellant filed separate demurrers upon the ground that neither paragraph stated facts sufficient to constitute a defense to appellant's complaint, which demurrers were overruled, and exceptions reserved. On appellant's refusal to plead further, judgment was rendered in favor of the appellee. The appellant assigns for error the overruling of the separate demurrers to the second and third paragraphs of answer. Counsel have discussed both these rulings as involving the same questions, and we shall so treat them.

The principal question here presented is whether a contract between a palace car company and a porter having charge of one of its sleeping cars is invalid in so far as it attempts to exempt transportation companies over whose lines the coaches of the palace car company are being run from all liability arising from their negligence and the negligence of their servants, and whether such contract may be pleaded in bar of an action by such porter against a transportation company for an injury caused wholly by the latter's negligence. The decisions of this state firmly establish that a common carrier of goods or passengers cannot contract with a customer for the release of the carrier from liability resulting from the latter's negligence. Wright v. Caff, 6 Ind. 416; Railway Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719;Railway Co. v. Faylor, 126 Ind. 126, 25 N. E. 869;Insurance Co. of North America v. Lake Erie & W. R. Co., 152 Ind. 333, 335, 53 N. E. 382. The grounds upon which this prohibition rests are variously stated by the court. It has been said that such exemptions are against public policy, that the public is interested in the exercise of care and diligence on the part of the carrier, that it is unreasonable for any person or corporation to contract for the privilege of being negligent, and that the public is concerned with the life and security of every citizen. The fundamental reason, however, for holding common carriers, such as the appellee, liable for the results of their negligence notwithstanding contracts exempting them therefrom, is that the state has granted them privileges which they exercise for the benefit of the public. In return for these the common carrier impliedly undertakes to use due care and diligence in the transportation of both goods and passengers. This being a main inducement for the grant of its special rights, the carrier cannot by any special contract rid itself of the burden of responsibility which is one of the conditions of its creation. Were it permitted to escape liability by entering into exonerating agreements, its position of advantage over its patrons would in almost every instance enable it to force from them such stipulations as it desired, and the object of the state in creating the carrier would be virtually defeated; the carrier thus being able to abandon the duty imposed upon it by the state. As said in the case of Railway Co. v. Faylor, 126 Ind. 126, 25 N. E. 869, at page 130, 126 Ind., and page 869, 25 N. E.: “A stipulation that the carrier shall not be bound to the exercise of care and diligence is in effect an agreement to absolve him from one of the essential duties of his employment, and it would be subversive of the very object of the law to permit the carrier to exempt himself from liability by a stipulation in his contract with a passenger that the latter should take the risk of the negligence of the carrier or of his servants. The law will not allow the carrier thus to abandon his obligation to the public, and hence all stipulations which amount to a denial or repudiation of duties which are of the very essence of his employment will be regarded as unreasonable, contrary to public policy, and therefore void.” In Railroad Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362, at page 12, 19 Ohio St., and page 365, 2 Am. Rep., the court say: “Carriers of the class of the plaintiff in error are creatures of legislation, and derive all their powers and privileges by grant from the public. They are created to effect public purposes, as well as to subserve their own interests. They are intended by the law of their creation to afford increased facilities to the public for the carriage of persons and property, and in performing this office they assume the character of public agents, and impliedly undertake to employ in their business the necessary degree of skill and care. This obligation arises from the public nature of the employment, and is founded on the policy of the law for the protection of the persons and property of the public, which must of necessity be committed to a very great extent to the care of public carriers. It cannot be denied that pecuniary liability for negligence promotes care; and, if public carriers in conducting their business can graduate their charges so as to...