Sheridan v. N.J. & N. Y. R. Co.

• Decision Date: 14 May 1928
• Docket Number: No. 47.,47.
• Parties: SHERIDAN v. NEW JERSEY & N. Y. R. CO.
• Court: New Jersey Supreme Court

141 A. 811

SHERIDAN

v. NEW JERSEY & N. Y. R. CO.

No. 47.

Court of Errors and Appeals of New Jersey.

May 14, 1928.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Walter F. Sheridan against the New Jersey & New York Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Collins & Corbin, of Jersey City (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, of counsel), for appellant.

Alexander Simpson, of Jersey City, for respondent.

WHITE, J. The plaintiff was injured while riding on defendant's railroad train as the result of a collision between that train and the train of another railroad company because of the negligence of defendant's servants. The appeal is from a judgment upon a verdict rendered by a jury against the defendant for the resultant damages. The plaintiff was a driver of an express wagon in Jersey City belonging to the American Railway Express Company, which was his employer, and at the time of the accident he was riding from his home at Carlstadt on the defendant's train to Jersey City in order to go to work on his express wagon. His work had nothing to do with the operation of defendant's railroad, nor with any service of his employer, the American Railway Express Company, on such railroad. For some reason not made clear by the testimony, the plaintiff regularly each month made requisition to the American Railway Express Company, as one of its employees, for an order on the defendant company entitling the plaintiff to receive a commutation ticket from Carlstadt to New York City upon payment of one-half of the regular commutation fare for such ticket. This procedure had gone on for several years, and at the beginning of the month in question the plaintiff received such an order, presented it to the defendant railroad company, paid one-half the regular commutation fare, and received a pass or half-fare ticket, the back of which contained a release of all damages which might be suffered by the plaintiff as the result of the negligence of defendant's servants while the plaintiff was traveling on defendant's railroad upon such half-fare ticket or pass.

The learned trial judge held the release to be void as against public policy, and the correctness of this ruling is the one question raised by this appeal.

It is well established in this state that a passenger "not for hire" (namely riding on a "free pass") is bound by a contract or condition, to which he is party, releasing a common carrier from liability for injury resulting from negligence. Kinney et al. v. Central R. Co. of N. J., 32 N. J. Law, 407, 90 Am. Dec. 675, affirmed in 34 N. J. Law, 513, 3 Am. Rep. 265. As was said by Chief Justice Beasley, speaking for the Supreme Court in that case:

"I do not regard the contract now in controversy as one which the defendants have made in their character of common carriers. I think it plain they must, in this respect, be placed on the footing of gratuitous bailees. Every test which can be applied to the case will show that the defendants on this occasion, in this particular matter, were not common carriers. The deceased did not bargain with them on the basis of any such employment. If he had seen fit, he had a right to deal with them in their general character, but he did not do so. As a member of society, it was his right, upon paying his fare, to require of these defendants to carry him upon the terms which the law imposed upon them, but, instead of exacting this right, he solicited a mere benevolence, the discharge of which it would not be reasonable to consider as any part of the business of the carrier. The legal existence of this contract, therefore, cannot be impugned on the ground so often advanced where common carriers are concerned—that it is unwise to permit those public employees to throw off any given part of their common-law liability. The question ventilated must be settled by such rules of law as are applicable to the ordinary class of gratuitous bailments, or of persons rendering an unbought courtesy."

This reasoning seems to have been approved by Chief Justice Magie, speaking for the Supreme Court, in Trenton Passenger...