Santa Fe, Prescott Phoenix Railway Company v. Grant Brothers Construction Company

• Decision Date: 07 April 1913
• Docket Number: No. 147,147
• Citation: 228 U.S. 177,57 L.Ed. 787,33 S.Ct. 474
• Parties: SANTA FE, PRESCOTT, & PHOENIX RAILWAY COMPANY, a Corporation, and National Surety Company, Plffs. in Err., v. GRANT BROTHERS CONSTRUCTION COMPANY
• Court: U.S. Supreme Court

228 U.S. 177

33 S.Ct. 474

57 L.Ed. 787

SANTA FE, PRESCOTT, & PHOENIX RAILWAY COMPANY, a Corporation, and National Surety Company, Plffs. in Err.,

v GRANT BROTHERS CONSTRUCTION COMPANY.

No. 147.

Argued January 24, 1913.

Decided April 7, 1913.

Messrs. Gardiner Lathrop, Robert Dunlap, and Paul Burks for plaintiffs in error.

Messrs. Isidore B. Dockweiler and A. C. Baker for defendant in error.

[Argument of Counsel from pages 178-181 intentionally omitted] Mr. Justice Hughes delivered the opinion of the court:

The Grant Brothers Construction Company recovered judgment in the district court of the territory of Arizona for $9,061 for the loss of its property by fire on June 6, 1907, between Bouse and Phoenix, Arizona, while in course of transportation on the railroad operated by the Santa Fe, Prescott, & Phoenix Railway Company, the plaintiff in error. The judgment was entered upon a verdict of a jury, a motion for a new trial was denied, and the judgment was affirmed by the supreme court of the territory.

The railway company had been engaged in building, westerly from its main line, a branch railroad known as the Arizona & California Railroad. For this purpose it entered into a contract with the construction company for the necessary grading. The property in question consisted of the camp and grading outfit and supplies, belonging to the construction company, which had been used by it in this work, and were being removed by reason of its completion. At the time in question the branch line was operated regularly only as far as Bouse, and the property was loaded on cars 'at the front' or end of track, about 12 miles west of that station, to be carried to Phoenix. The superintendent, foremen, and about fifty workmen of the construction company, were taken on the cars at the same place for the same destination. The cars were hauled by the railway company to Bouse (where explosives and hay were unloaded), and were there attached to a regular train which brought them to a point known as the A. and C. Junction, where the Arizona & California line joined the main line of the railway company. At this junction (which was about 4 miles from Wickenburg, a station on the main line in the direction of Phoenix), all the cars containing the outfit of the construction company, save one, were cut out of the train and were put upon a side track. The rest of the train, with the employees of the construction company, went on to Wickenburg. This took place late in the evening of June 5, 1907, and about 10 o'clock in the morning of the next day, four of the cars left on the side track were destroyed by fire.

The A. and C. Junction is described as being in an open desert, without a station agent or inhabitants, and without water or fire apparatus. The cars were left without a watchman in charge. The reason given by the conductor for leaving them at this point was that there was no room for the cars at Wickenburg. There was no explanation of the cause of the fire, the only suggestion as to this being that before the fire occurred one train passed by, between 4 and 5 o'clock in the morning.

At the close of the evidence the railway company requested the trial court to direct a verdict in its favor. This request was refused and exception taken; and the sustaining of this ruling is assigned as error. It is contended by the railway company that, under its contract with the construction company, it was exempt from all liability; and, further, that even assuming it to be liable for negligence, there was a total failure of proof in that respect.

The principal question relates to the scope and validity of the provision of the contract between the parties as to the liability of the railway company.

The facts are these: In November, 1904, the railway company issued a call for proposals for the grading of the roadbed, clearing right-of-way, making necessary canals, etc., of the Arizona & California Railroad, for a distance of about 40 miles. The construction company made a bid, which was accepted, and a contract was executed accordingly on December 12, 1904.

This contract, after providing for the performance of the described work of grading, etc., contained the following terms with respect to the transportation of suplies, camp and grading outfit, and employees of the construction company, which were the same as those set forth in the call for bids:

'14. Water will be delivered in cars at the end of the track at the rate of one dollar and fifty cents ($1.50) per 1,000 gallons, and supplies will be hauled to end of track, both in the usual manner of construction trains, subject to delays, etc., incident thereto. All risk of loss or damage to be borne by the contractor.

'15. The company will furnish a rate of 1 cent per ton mile from all points on the S. F. P. & P. Road and leased roads for the contractor, on camp and grading outfit and supplies, corral supplies, etc., except explosives and commissary goods, and return to original shipping points at same rates, on completion of the work. All movements of goods at less than tariff rates to be at consignee's risk of loss and damage.

'16. The company will also furnish the contractor's employees . . . a rate of 1 cent per passenger mile, . . . and return those who have worked until the completion of contract at the same rate. Passengers carried at less than tariff rates will be required to assume all risk of accident to person and baggage. The plan of movement of these employees and freight is to be according to rules of the general freight and passenger agent.

'17. The company will also secure for the contractor similar rates over the Santa Fe Company's coast lines, on camp and grading outfit, in carload lots, both to and from the work, and for workmen going to the work in lots of five (5) or more.'

After the work covered by this contract had been finished, it was agreed that the construction company should continue the grading of the road further to the west, upon the same terms and conditions as those stated in the former contract, save that the prices for the work were increased, and it was provided that water should be delivered at the end of track free of cost, except for car hire, and that men and supplies should be hauled free on the line of the Arizona & California Railroad, between the A. and C. Junction and the end of track. This supplementary agreement, which was evidenced by letters exchanged in November, 1905, also contained an express provision 'that the company shall assume no obligation or risk in case of accident or damage to men and supplies.'

It was under these conditions that in June, 1907, the railroad company—the grading having been done—took up the men, outfit, and supplies of the construction company at the end of the track for the purpose of transporting them to Phoenix.

It is alleged in the complaint that the transportation of the property was to be at the contract rate of 1 cent per ton mile, and it is undisputed that this was less than the tariff rates of the railway company accorded to the general public.

It is the established doctrine of this court that common carriers cannot secure immunity from liability for their negligence by any sort of stipulation. New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 507, 44 L. ed. 560, 565, 20 Sup. Ct. Rep. 385; Knott v. Botany Worsted Mills, 179 U. S. 69, 71, 45 L. ed. 90, 93, 21 Sup. Ct. Rep. 30; The Kensington, 183 U. S. 263, 268, 46 L. ed. 190, 193, 22 Sup. Ct. Rep. 102. The rule rests on broad grounds of public policy, justifying the restriction of liberty of contract because of the public ends to be achieved. The great object of the law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the essential duties of his employment.' It is recognized that the carrier and the individual customer are not on an equal footing. 'The latter . . . cannot afford to higgle or stand out and seek redress in the courts. . . . He prefers rather to accept any bill of lading, or sign any paper the carrier present; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business.' New York C. R. Co. v. Lockwood, 17 Wall. 378, 379, 21 L. ed. 639, 640. For these reasons, the common carrier, in the prosecution of its business as such, is not permitted to drop its character and transmute itself by contract into a mere bailee, with right to stipulate against the consequences of its negligence.

Manifestly, this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier. In such case, it is dealing with matters involving ordinary considerations of contractual relation; those who choose to enter into engagements with it are not at a disadvantage; and its stipulations even against liability for its own neglect are not repugnant to the requirements of its public service. The rule extends no further than the reason for it. It is apparent that there may be special engagements which are not embraced within its duty as a common carrier, although their performance may incidentally involve the actual transportation of persons and things, whose carriage in other circumstances might be within its public obligation. Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385, and cases cited; Northern P. R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, 24 Sup. Ct. Rep. 408; Long v. Lehigh Valley R. Co. (C. C. A. 2d C.) 65 C. C. A. 354, 130 Fed. 870.

Thus, in Baltimore & O. S. W. R. Co. v. Voigt, supra, it was held that an express messenger in...