Sprigg's v. Rutland R. Co.

• Decision Date: 09 March 1905
• Citation: 60 A. 143,77 Vt. 347
• Court: Vermont Supreme Court
• Parties: SPRIGG'S ADM'R v. RUTLAND R. CO.

60 A. 143

77 Vt. 347

SPRIGG'S ADM'R

v. RUTLAND R. CO.

Supreme Court of Vermont. Addison.

March 9, 1905.

Exceptions from Addison County Court; Munson, Judge.

Action by Gordon H. Sprigg's administrator against the Rutland Railroad Company There was a judgment for plaintiff, and defendant excepted. Exceptions overruled.

Argued before ROWELL, C. J., and TYLER, START, WATSON, and HASELTON, JJ.

Cushman & Russell, for plaintiff. Frank L. Fish and H. Henry Powers, for defendant.

ROWELL, C. J. This is case for negligence as a common carrier. Parker procured a cattle car of the defendant, and shipped therein a load of cattle to Boston over defendant's road and connecting lines. At the time of the shipment he and the defendant executed a duplicate "union live stock contract," which provided that the shipper or the consignee should pay freight at the rate of 21 cents per 100 pounds, which was expressed to be the lower published tariff rate, based on the condition that the carrier assumed liability on the cattle only to the extent of a certain agreed valuation, on which was based the rate charged for the transportation, and beyond which the carrier should not be liable in any event for negligence nor otherwise. It also provided that the shipper should, at his own risk and expense, load the cattle, and feed and care for them in transit; and should, in consideration of the premises, and of the carriage of a person in charge of the cattle on a freight train, without charge other than the sum paid for transportation, indemnify and save harmless the carrier from liability of every kind by reason of personal injury sustained by such person, whether the same was caused by the negligence of the carrier or its employés or otherwise. And therein the shipper acknowledged that he had the option of shipping the cattle at a higher rate of freight according to the official tariffs, classifications, and rules of the carrier, and thereby receiving the security of the liability of the carrier and connecting lines as common carriers, but that he had voluntarily decided to ship under said contract at the reduced rate mentioned therein. Said higher rate was 20 per cent. more than the rate charged under said contract, and the freight on the cattle at the rate charged was $42. Sprigg, the intestate, was the caretaker of the cattle, and signed a contract printed on the same sheet of paper as the other contract, and immediately following it, entitled, "Contract with man or men in charge of live stock," whereby he assumed, in consideration of his carriage on the stock train mentioned in the other contract, without charge other than the sum paid or to be paid for transporting the cattle, all risk of accident or damage to his person, and released and discharged the carrier from all liability on account of personal injury sustained by him, whether caused by the negligence of the carrier, its employés, or otherwise. By the rules and regulations of the defendant, the intestate could not have ridden on said stock train without signing, or otherwise assenting to, said last-mentioned contract, and there was no other consideration to support said contract except the one mentioned therein. The rate of freight paid would have been the same in amount whether the cattle were accompanied by a caretaker or not While in the caboose of said stock train, which was the proper car for him to be in and ride in, the intestate, without fault on his part, received the injuries sued for, by reason of a rear-end collision caused by the actionable negligence of the defendant's servants.

The defendant contends that the case is governed by Kimball v. The Rutland & Burlington R. R. Co., 26 Vt. 247, 62 Am. Dec. 567. There, as here, the shipper had the option to pay more and hold the company to safe delivery; but chose to pay less, and take what he stipulated for, which was, the court said, the privilege of becoming his own carrier, thereby making the company a private carrier, and varying its obligation as a common carrier to such an extent that no recovery could be had under the declaration, which charged the company only as a common carrier. But that case is no authority for the proposition, here contended for, that a railroad company can justly stipulate for immunity against its own negligence as a carrier, for that question was not involved, as there was no such stipulation in the case, but directly the contrary was stipulated, namely, that the company would use all reasonable care and diligence in respect of the cattle shipped, injury to which was alone sued for. That stipulation was that "at the rate charged as per tariff, no risk will be assumed by the corporation for any injury to live stock which they may do to each other or themselves, or any damage caused by breaking from the cars or otherwise; nor will they hold themselves liable for damage caused by accidental delays or weather; but the corporation will use all reasonable care and diligence." It is true that a ticket, called a "free pass," was stipulated for to the caretaker, without assumption of risk by the corporation for his personal safety; but, as we have seen, no question arose concerning that matter, for no personal injury to him was sued for.

The plaintiff contends that the intestate was a passenger for hire, and that the stipulation for immunity from negligent injury to him is against public policy and void. The defendant contends that the nature of the contract determines the case; that if it be a tripartite agreement based on valuable consideration, the rights of all three of the parties are found therein; that it seems absurd to say that the contract is valid as to the transportation of the stock, but invalid as to the transportation of the man who cared for the stock; that is, that as to the stock the rights of the parties are fixed by the contract, but as to the man, his rights are fixed by the common law; that it is more logical to say that the contract fixes the rights of all the parties who executed it; that if it be one contract, and not two; if the intestate's contract binds the defendant through the shipper's contract; if the former is merely a specification, as far as the defendant is concerned, of its obligations assumed by the latter; if the former is based upon the same consideration as the latter, and merely carries its provisions into effect as far as the defendant is concerned—then it is clear that the defendant should have the protection given it by the terms of both; that the intestate came into the shipper's contract for the purpose of carrying it into effect, in which he had no interest other than as representing the shipper and as his servant, and that he paid no consideration for his transportation, and, if anybody did, it was the shipper or the consignee, and they paid nothing except the freight on the stock; that it is illogical to say that they paid 21 cents per 100 pounds of the weight of the cattle, and that this included the caretaker; that it was not the payment of a gross sum of $42, as claimed by the plaintiff, but the payment of 21 cents per hundred pounds, which happened to amount to $42; that the agreed statement shows that that price per hundred was paid whether a man went with the cattle or not, which shows that nothing additional was paid if one did go. The defendant further contends that, as the contract is not corruptive of public morals nor promotive of crime, it...