Tripp v. Michigan Cent. R. Co.

• Decision Date: 02 January 1917
• Docket Number: 2863.
• Citation: 238 F. 449
• Parties: TRIPP v. MICHIGAN CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

238 F. 449

TRIPP v. MICHIGAN CENT. R. CO.

No. 2863.

United States Court of Appeals, Sixth Circuit.

January 2, 1917

[Copyrighted Material Omitted]

L. H Paddock, of Detroit, Mich., for plaintiff in error.

J. W Dohany, of Detroit, Mich., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and McCALL, District judge.

WARRINGTON Circuit Judge.

Everett A. Tripp brought an action in the court below against the Michigan Central Railroad Company to recover damages for personal injuries claimed to have been sustained by him through negligence of the railroad, and obtained a verdict and judgment in his favor. Later, upon motion of the railroad, the judgment was set aside and a new trial granted. This ruling was based on the decision in Charleston & West. Car. Ry. v. Thompson, 234 U.S. 576, 34 Sup.Ct. 964, 8 L.Ed. 1476, which had been rendered meanwhile. Thereafter, April 22, 1915, under stipulation of counsel, the evidence and record of the former trial were submitted to the court and jury, and, upon motion of the railroad and solely on the authority of the decision in the Thompson Case, the court directed verdict and entered judgment in favor of the railroad. The writ of error is prosecuted to reverse this action of the trial court.

According to the substantial tendency of the proofs taken at the first trial, Tripp, who was a horse dealer, on February 12, 1913, arranged at Chicago with Moses Wilcove to accompany as attendant a carload of horses owned and ready for shipment by Wilcove from Chicago to Utica, N.Y. The shipment was made under a form of instrument which the railroad company had used for some eight years, called a 'Uniform Live Stock Contract'; and this was executed by Wilcove and the railroad company. There is indorsed on this contract, and seemingly as part of the contract, a form of release which in terms absolves the railroad company from all damages that might happen to the attendant through the company's negligence. One of the regulations contained in the company's official classification required the person accompanying the live stock to sign this release. Before starting with the shipment, Tripp signed the release and received from the railroad company a duplicate of the contract including the release; and upon this duplicate he was expected and permitted to accompany the carload of horses as the attendant. The injuries for which recovery was allowed at the first trial occurred in the night of February 14th, on a switch at Welland, Ontario, in the regular course of the shipment and through collision between a train of defendant and the way-car, or caboose, in which Tripp was rightfully sitting.

The controlling question concerns the status of plaintiff at the time he received his injuries. Was he, in view of the live stock contract under which he was being carried, a gratuitous passenger or a passenger for hire? The pertinent features of the contract including the release are in substance and effect shown in the margin. ^[1] Here we have to consider a contract which, by reason of a reduced freight charge, limits the liability of the carrier respecting injury to the live stock or its loss to an agreed valuation either per head or in gross; exempts the carrier from its ordinary duties and responsibilities touching the sufficiency of the car body and from any sort of care of the stock in transit; requires the presence of an attendant for the live stock, and, 'in consideration of the premises and of the carriage' of the attendant 'without charge other than the sum paid or to be paid for the transportation of the live stock,' exacts of the shipper indemnity against liability for personal injury to the attendant regardless of the cause. Whatever else may be said of such a contract as this, it is difficult to perceive why the attendant was not a passenger for hire. It is clear enough that the requirement of an attendant placed the shipper under obligation to the carrier for the fare of the attendant and made the carrier responsible for his safe carriage. The language 'without charge other than the sum paid * * * for the transportation of the live stock' fairly implies that the rate charged for the carriage of the live stock, although reduced, had been fixed so as to include a reasonable fare for the carriage also of the attendant. The provision that the shipper should indemnify the carrier against claims for personal injury to the attendant shows that, as between the carrier and shipper, liability for such injury, as well as for the attendant's fare, was assumed by the shipper. This indemnity is in accord, too, with the other provisions, already pointed out, which were plainly designed to lessen the service and responsibility of the carrier. All these provisions tend to strengthen the implication that the rate charged on the live stock was intended to include the attendant's fare

Surely, freight rates must be fixed with reasonable reference to the responsibility and the cost and value of the service which the carrier and the shipper undertake respectively to assume and render. Albree v. B. & M.R.R., 22 Interest. Com. R. 303, 316; Boileau v. P. & L.E.R.R. Co., 22 Interst.Com.R. 640, 652. See, also, United States v. Balt. & Ohio R.R. Co., 231 U.S. 274, 293, 34 Sup.Ct. 75, 58 L.Ed. 218; Interstate Com. Comm. v. Diffenbaugh, 222 U.S. 42, 46, 32 Sup.Ct. 22, 56 L.Ed. 83. Indeed, the lower tariff rate can be explained in no other way. The design so to exact fare for the carriage of the attendant and to escape liability for his personal injury is extended into the release. It is there stated that he was to be carried 'without charge, other than the sum paid or to be paid for the carriage * * * of the live stock,' and (in addition to the indemnity required of the shipper as stated) that the attendant should assume all risk of personal injury caused by the negligence of the carrier. It is to be borne in mind, moreover, that the contract (including the release) represented not merely the relations between the carrier and the particular shipper and attendant there named, for the contract was typical; it was part of the carrier's official classification; it was duly issued and filed. Looking then to the provisions of the contract as a whole, apart from certain portions of the interstate commerce law which will be considered later, it is clear that the plaintiff was a passenger for hire. This finds ample support in familiar authorities.

In N.Y. Central R. Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 359, 21 L.Ed. 627, a live stock contract was involved which was much like the present one; though it is to be noted that it was not there provided as it is here that the fare of the live stock attendant (the owner in that instance) was included in the rate charged for the carriage of the live stock. The agreement in the Lockwood Case stated its consideration to be the carrying of the plaintiff's cattle at less than tariff rates; the shipper was required to care for his cattle while in transit and also to attend to the loading and unloading of them; and he assumed all risk of injury to the stock and of personal injury to himself or to any attendant who might go with the cattle. The shipper received a drover's pass which certified that the person to whom it was issued had shipped sufficient stock to entitle him to free passage and stated that the acceptance of the pass was to be considered a waiver of all claims for injuries that might be received by the holder while on the train. Mr. Justice Bradley said of this contract and pass:

'It may be assumed in limine that the case was one of carriage for hire; for, though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle. The question is, therefore, distinctly raised, whether a railroad company carrying passengers for hire can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to such carriage.'

Again, among the conclusions there reached, the fourth one was (84 U.S. (17 Wall.) 384, 21 L.Ed. 627): 'That a drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.'

In Baltimore & Ohio, etc., Railway v. Voigt, 176 U.S. 498, 505, 20 Sup.Ct. 385, 387 (44 L.Ed. 560), it was said of the Lockwood decision:

'This case has been frequently followed, and it may be regarded as establishing a settled rule of policy.'

True the answer to the question certified in that case negatived Voigt's right of recovery. The contract required an express company to hold the railroad harmless from liability for injuries sustained by the express company's employes through negligence of the railway. Voigt in turn agreed both to indemnify the express company against any liability it might incur under its indemnity to the railroad company, and also to release the railroad from liability for injuries sustained by him while being transported on the express cars; and in consideration of this agreement of Voigt he was employed as an express messenger. This agreement between the two corporations, the railroad company and the express company, respecting their joint transportation business presented a question manifestly different from the one arising between a carrier and a shipper or passenger for hire; in the former the railroad company is acting outside of, while in the latter it is acting within, the scope of its duty as a common carrier. This distinction is further illustrated in the more recent case of Santa Fe Railway v. Grant Bros., 228 U.S. 177, 184, 185, 33 Sup.Ct. 474, 477 (57 L.Ed. 787), where an agreement similar in principle to that of the express company...