Shannon's Adm'r v. Chesapeake & O. Ry. Co

• Court: Virginia Supreme Court
• Writing for the Court: WHITTLE
• Citation: Shannon's Adm'r v. Chesapeake & O. Ry. Co, 52 S.E. 376, 104 Va. 645 (1905)
• Decision Date: 07 December 1905
• Parties: SHANNON'S ADM'R. v. CHESAPEAKE & O. RY. CO.

52 S.E. 376

104 Va. 645

SHANNON'S ADM'R.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of Virginia.

Dec. 7, 1905.

1. Carriers — Injuries to Passengers — Limitation of Liability.

Under Code 1904, p. 668, § 1294c (25), providing that "no agreement made by a transportation company for exemption from liability for injury or loss occasioned by its own neglect or misconduct as a common carrier shall be valid, " a contract between an express company and its messenger, stipulating that the messenger shall exempt the company from liability for its own negligence, and undertaking to afford similar immunity to railroad companies in whose cars he might travel in the performance of his duties, was void, and afforded no defense in an action against a railroad company for negligence resulting in such messenger's death.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1252-1255.]

2. Same—Care Required as to Servants of Express Companies.

A messenger in the employ of an express company, while engaged with the servants of a railroad company in the service of transportation on the road, is entitled to at least as high a degree of care for his protection by the railroad company as it owes to its employes.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 978.]

Error to Circuit Court, Bedford County.

Action by J. Boyd Shannon, as administrator of John II. Shannon, deceased, against the Chesapeake & Ohio Railway Company. From a judgment for defendant plaintiff brings error. Reversed.

Lee & Howard and Caskie & Coleman, for appellant.

Harrison & Long, for appellee.

WHITTLE, J. This case is controlled in all respects, except one, to which we shall presently advert, by the case of Fisher's Administrator v. Chesapeake & Ohio Railway Company, 52 S. E. 373, in which an opinion was handed down at the present term.

The cases arose out of a common accident, and were brought to recover damages for the deaths of Fisher and Shannon, respectively, alleged to have been caused by the negligence of the defendant. The trial court sustained a demurrer to the evidence in each case, and rendered judgment for the defendant; and the judgment in Fisher's Case was reversed by this court in the opinion referred to.

In addition to other defenses, applicable alike to both cases, in the case under review the defendant filed a special plea in which it averred "that, as a condition of its permitting the plaintiff's intestate to travel in its car over its line of railway as express messenger in the employ of the Adams Express Company in his performance of his duties as such, * * * plaintiff's intestate * * * entered into a contract in writing with said Adams Express Company, which contract was in force at the time of the death of the plaintiff's intestate, whereby, in consideration of such employment and the compensation to be paid therefor, the said plaintiff's intestate did assume all risks of death or accident or damage to him or his property, whether from negligence or otherwise, and did release and discharge the said Adams Express Company and any connecting carrier, railroad company, express company, or other person or company or connecting carrier [in this instance the defendant], in whose cars or other conveyance he might travel in the performance of his duties aforesaid, from any and all claims, liabilities, and demands of every kind, nature, and description for or on account of his death, or any injury or damage to hisperson or property of any kind or nature sustained by him, whether caused by negligence of the said Adams Express Company, or any of said railroad companies or other carriers, or otherwise, and did further agree that he voluntarily assumed the risks of injury or death from said negligence or otherwise, and that none of said companies or persons should incur any further liability whatsoever than therein expressed by reason of permitting him to ride in said cars or other conveyance; * * * that at the time of the death of the plaintiff's intestate he was in an express car being transported by the defendant over its said line in pursuance of his contract with said Adams Express Company, and not otherwise."

The circuit court sustained a demurrer to the plea, and that ruling is assigned as cross-error by the defendant.

It will be observed that the precise question presented by this plea is a narrow one, and involves the validity of the contract set forth therein under section 3294c (25), p. 668, Va. Code 1904.

The section reads as follows: "No agreement made by a transportation company for...