Voight v. Baltimore & O. S.W. Ry. Co.

• Decision Date: 29 March 1897
• Docket Number: 4,932.
• Citation: 79 F. 561
• Parties: VOIGHT v. BALTIMORE & O.S.W. RY. CO.
• Court: U.S. District Court — Southern District of Ohio

79 F. 561

VOIGHT v. BALTIMORE & O.S.W. RY. CO.

No. 4,932.

United States Circuit Court, S.D. Ohio, Western Division.

March 29, 1897

This was an action at law by William Voight against the Baltimore & Ohio Southwestern Railway Company to recover damages for personal injuries. The case was heard on demurrer to the answer.

Plaintiff's petition alleges that on the 30th of December, 1895, he was travelling as a passenger for hire, being an express messenger, on a train of the defendant company; that through the negligence of the defendant and its servants the train upon which he was collided with another train of the defendant, whereby he suffered serious and permanent injuries, for which he asks damages. The defendant answered and its second defense was as follows: '(2) For a second and further defense this defendant says that on said 30th day of December, 1895, it was, and for a long time prior thereto had been, a corporation duly organized under the laws of the state of Ohio, engaged in the operation of its railroad extending from Cincinnati, Ohio, to St. Louis, Missouri, and to other places, and was so engaged at the time of the collision set forth in plaintiff's petition. Defendant says that theretofore, to wit, on the 1st day of March, 1895 it entered into a contract with the United States Express Company, a joint-stock company duly authorized by law to carry on the express business, and to enter into such contract, whereby it was agreed between said express company and this defendant, among other things, that it would furnish for said express company on defendant's line between the city of Cincinnati and said city of St. Louis certain cars adapted to the carriage of such express matter as said express company should desire to have transported over said line in said cars. Defendant says it was part of said contract that one or more employees of said express company known as messengers, should accompany said goods in said cars over the said line of this defendant's railroad, and for such purpose be transported therein free of charge, and that it was further provided in said contract that said express company should protect this defendant and hold it harmless from all liability it might be under to such employees for any injuries they might sustain while being transported by this defendant over its said line for the purpose aforesaid whether said injuries were caused by the negligence of this defendant or its employees or otherwise. This defendant further says that in pursuance of its said contract with said express company it placed upon its line of railroad between Cincinnati and St. Louis for said express company certain cars known as 'express cars,' and was hauling one of said cars in one of its trains on said 30th day of December, 1895, at the time said collision occurred. Defendant says that prior to said 30th day of December, 1895, the said plaintiff made application to the United States Express Company in writing for employment by it as an express messenger; and in pursuance to said application said plaintiff was, prior to and at the time of said collision, so employed by said express company under a certain contract in writing, by the terms whereof plaintiff did assume the risk of all accidents and injuries which he might sustain in the course of his said employment, whether occasioned by negligence, and whether resulting in death or otherwise, and did undertake and agree to indemnity the said express company from any and all claims that might be made against it arising out of any claim or recovery on his part, or on the part of his representatives, for any damages sustained by him by reason of any injury whether such injury resulted from negligence or otherwise, and did agree to pay the said express company on demand any sum which it might be compelled to pay in consequence of any such claim; and did further agree to execute and deliver to the corporation operating the transportation line upon which he might be injured a good and sufficient release, under his hand and seal, of all claims, demands, and causes of action arising out of any such injury, or connected with or resulting therefrom; and did further ratify all agreements made by the said express company with any transportation line in which said express company had agreed, or might agree, that the employees of said express company should have no cause of action for injuries sustained in the course of their employment upon the line of such transportation company. Said plaintiff did further agree to be bound by each and every of such agreements as fully as if he were a party thereto, and did further agree that his said agreement should inure to the benefit of any corporation upon whose line said express company should forward merchandise, as fully and completely as if made directly with such corporation. Defendant says that at the time the plaintiff sustained the injuries complained of herein, if any such were sustained, he was in an express car being transported by this defendant over said line from Cincinnati to St. Louis, in pursuance to said contract with said express company, and not otherwise. ' Plaintiff demurs to the foregoing, on the ground that it constitutes no defense in law to the case stated in the petition, and thus arises the issue here to be decided.

C. M. & E. W. Cist, for plaintiff.

Harmon, Colston, Goldsmith & Hoadly, for defendant.

TAFT Circuit Judge (after stating the facts).

It seems to be well settled that an express messenger, though carried in a special car, when carried under a contract with a railroad company made by the express company for the transportation of express matter in his charge, is a passenger for hire. Fordyce v. Jackson, 56 Ark. 594, 20 S.W. 528, 597; Blair v. Railroad Co., 66 N.Y. 313; Brewer v. Railroad Co., 124 N.Y. 59, 26 N.E. 324; Kenney v. Railroad Co., 125 N.Y. 422, 26 N.E. 626; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Railroad Co. v. Thomas, 79 Ky. 169; Jones v. Railroad Co., 125 Mo. 666, 28 S.W. 883; Yeomans v. Navigation Co., 44 Cal. 71; Railway Co. v. Ketcham, 133 Ind. 346, 33 N.E. 116; Chamberlain v. Railroad Co., 11 Wis. 238; Railway Co. v. Wilson, 79 Tex. 371, 15 S.W. 280. Postal clerks, whose relation to the railroad company is analogous to that of the express messenger, are also accorded the same rights as passengers for hire. Seybolt v. Railroad Co., 95 N.Y. 562; Nolton v. Railroad Co., 15 N.Y. 444; Magoffin v. Railway Co., 102 Mo. 540, 15 S.W. 76; Mellor v. Railway Co., 105 Mo. 455-460, 16 S.W. 849; Jones v. Railroad Co., 125 Mo. 666, 28 S.W. 883; Hammond v. Railroad Co., 6 S.C. 130; Libby v. Railroad Co., 85 Me. 34, 26 A. 943; Railroad Co. v. Kingman (Ky.) 35 S.W. 265; Baltimore & O. R. Co. v. State, 72 Md. 36, 18 A. 1107; Railway Co. v. Wilson, 79 Tex. 371, 15 S.W. 280; Railway Co. v. Ketcham, 133 Ind. 346, 33 N.E. 116; Railroad Co. v. Shott (Va.) 22 S.E. 811; Collett v. Railroad Co., 16 Adol. & E.

(N.S.) 984; Arrowsmith v. Railroad Co., 57 F. 165; Gleeson v. Railroad Co., 140 U.S. 435, 11 Sup.Ct. 859. A passenger for hire is entitled to the highest degree of care and skill from the railroad company in the management of its trains and the preservation of his safety. If the plaintiff was a passenger for hire, then a stipulation by the common carrier whose passenger he was, exempting the carrier from responsibility for its negligence or that of its servants, was void, according to the unbroken line of authorities in the supreme court of the United States. Railroad Co. v. Lockwood, 17 Wall. 359; Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 9 Sup.Ct. 469; Inman v. Railway Co., 129 U.S. 128-139, 9 Sup.Ct. 249; Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U.S. 312, 322, 6 Sup.Ct. 750, 1176; Hart v. Railroad Co., 112 U.S. 331-338, 5 Sup.Ct. 151; Railway Co. v. Stevens, 95 U.S. 655; Bank of Kentucky v. Adams Express Co., 93 U.S. 174-183; Railroad Co. v. Pratt, 22 Wall, 123, 124; Express Co. v. Caldwell, 21 Wall. 264-268. In the case at bar, according to the averments of the answer now under consideration, the express company guarantied the railroad company against any damage to it arising from suits for personal injury by the employees of the express ompany. By contract between the express company and the plaintiff, the plaintiff agreed to release all right of action which he might have against the railroad company for negligence, and stipulated that his agreement with the express company should inure to the benefit of the railroad company. These two contracts are, in effect, the same as a contract made directly with the railroad company by the messenger, whereby he agrees not to hold the railroad company liable for injury to him caused by the negligence of the company or its servants. In so far as they have this effect, they are void, because against public policy. Railroad Co. v. Lockwood, 17 Wall. 359. They do not, therefore, constitute a valid defense to the action of the plaintiff, to recover damages for injuries caused by the negligence of the defendant company.

The argument of defendant's counsel against the demurrer may be stated thus: The rule of public policy which renders invalid a stipulation by a common carrier, restricting its liability for loss caused by its negligence or that of its servants, applies only to those duties which it is bound to perform as a common carrier. Whenever that which it engages to do is something which it is not under obligation as a common carrier to do, it has the same freedom of contract as a private carrier for hire, and may therefore exempt itself by stipulation from liability for its own negligence or that of its servants. In the case at bar, the defendant company was not under any common-law obligation to furnish express...