Smith v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 14 February 1912
• Docket Number: 2,933.
• Citation: 194 F. 79
• Parties: SMITH v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 79

SMITH v. ATCHISON, T. & S.F. RY. CO.

No. 2,933.

United States Court of Appeals, Eighth Circuit.

February 14, 1912

Austin F. Moss (Russell G. Lowe and Martin E. Turner, on the brief) for plaintiff in error.

S. T Bledsoe and Charles H. Woods (J. R. Cottingham, on the brief), for defendant in error.

Before VAN DEVANTER, Circuit Judge, and AMIDON and RINER, District judges.

AMIDON District Judge.

The plaintiff, Smith, was a brakeman in the employ of the defendant company, with his headquarters at Wellington, Kan. For the purpose of enabling him to visit relatives residing at Ferry, in the state of Oklahoma, the defendant issued to him a free round-trip pass from Wellington to that place. On the return trip the train upon which he was a passenger was derailed, in the state of Oklahoma, and the plaintiff received the injuries for which he seeks to recover in this action. As in Northern Pacific Ry. Co. v. Adams, 192 U.S. 440, 24 Sup.Ct. 408, 48 L.Ed. 513, the evidence presents a case of ordinary negligence only, and fails to show either a wanton or willful breach of duty. Upon the back of the pass was the following printed provision, which was signed by the plaintiff:

'This pass is not transferable and must be signed in ink by the holder hereof, and the person accepting it and using it hereby assumes all risks of accidents and damages to person and baggage under any circumstances, whether caused by negligence of agents or otherwise. I accept the above conditions.'

At the close of the evidence the trial court directed a verdict in favor of the defendant, and that ruling presents the only error assigned in this court.

Plaintiff's principal contention is that the waiver on the back of the pass was void under a statute of Kansas, as interpreted by its Supreme Court, and, as the pass was delivered in Kansas it is urged that the validity of the waiver must be determined by the law of that state, though the injury occurred in the state of Oklahoma, under whose laws the waiver was valid. In support of this contention the plaintiff relies upon the general rule that a contract will be interpreted according to the law of the place of its execution and delivery, citing Liverpool & Great Western Steamship Co. v. Phenix Insurance Co., 129 U.S. 397, 9 Sup.Ct. 469, 32 L.Ed. 788. That was an action upon a contract to recover damages for its breach, and in such a case the rule which plaintiff invokes is generally, though not invariably, enforced.

That rule, however, has never been applied in actions of tort like the present. In such cases the law of the place where the injury occurs defines the rights of the parties. The Kensington, 183 U.S. 263, 22 Sup.Ct. 102, 46 L.Ed. 190; Weir v. Rountree, 173 F. 776, 97 C.C.A. 500. The courts have uniformly held that a contract exempting a carrier from liability for negligence, valid at the place of its execution and delivery, will not avail as a defense when the injury occurs in a state by whose laws such contracts are declared to be void as against public policy. Having adopted that rule when the law of the place of the injury would impose a liability upon the carrier, can a contrary rule be adopted when such law would protect the carrier by enforcing the contract? We think not. The contract is by its terms tied to the tort, and the same law should be applied to the one as to the other. The attempt to distinguish them met with the following answer by the Supreme Court in Martin v Pittsburg & Lake Erie R. Co., 203...