Wessman v. Boston & M, R. R.

• Citation: 152 A. 476
• Parties: WESSMAN v. BOSTON & M, R. R. (two cases).
• Decision Date: 06 May 1930
• Court: New Hampshire Supreme Court

152 A. 476

WESSMAN

v. BOSTON & M, R. R. (two cases).

Supreme Court of New Hampshire. Merrimack.

May 6, 1930.

Actions by Charles Wessman against the Boston & Maine Railroad and by Mary Wessman against defendant named. Verdict for plaintiffs. Case transferred on defendant's exceptions.

Exceptions sustained in part and new trial ordered.

Two actions on the case for negligence, tried together before MATTHEWS, J., and a jury, with verdicts for both plaintiffs. Mary Wessman, the plaintiff in the second case, hereinafter referred to as the plaintiff, seeks to recover for personal injuries resulting from a fall caused, as she claims, by the icy condition of the defendant's station platform at Manchester. Her husband, the plaintiff in the first case, seeks to recover for loss of services. Transferred upon the defendant's exceptions to the admission of testimony; to the denial of its motions for a nonsuit and a directed verdict; to the charge of the court, and to the denial of its requests for instructions.

Upon the day of the accident the plaintiff traveled from Concord to Manchester upon one of the defendant's trains, and used for this purpose a trip pass obtained for her by her husband, who was an employee of the defendant. The accident occurred soon after she alighted from the train, as she was leaving the Manchester station. The pass bore upon its back the following agreement, which was signed by the plaintiff:

"In consideration of the issuance of this free pass, I hereby assume all risk of personal injury and of loss of or damage to property from whatever causes arising, and release the railroad from liability therefor, and I hereby declare that I am not prohibited by law from receiving free transportation and that this pass will be lawfully used.

"Mrs. Mary Wessman."

The court charged the jury as follows: "You are instructed that the railroad could not and did not by this contract relieve itself from any responsibility to which it would otherwise be subjected for injury resulting to the plaintiffs through its negligence in the care of its platform, and for that purpose the contract is void."

Other facts appear in the opinion.

Joseph C. Donovan and Robert W. Upton, both of Concord (Mr. Upton orally), for plaintiff.

Demond, Woodworth, Sulloway & Rogers, of Concord (Mr. Jonathan Piper, of Concord, orally), for the defendant.

BRANCH, J.

1. Although the plaintiff was riding upon a free pass, the relationship of passenger and carrier between her and the defendant was unaffected by that fact. A person riding upon a pass is as much a passenger as if he had paid full fare (2 Moore: Carriers, (2d Ed.) 975. Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 A. 1069, 25 L. R. A. 491), and is entitled to all the care and protection which the carrier is bound to furnish to paying passengers. 3 Hutchinson: Carriers (3rd Ed.) §§ 1021, 1022. Todd v. Old Colony, etc., Railroad Co., 3 Allen (Mass.) 18, 21, 80 Am. Dec. 49. See 10 C. J., Tit. Carriers, s. 1310, where the cases are collected. This relationship continued until she had a reasonable opportunity to leave the station. Hill v. Railroad, 77 N. H. 151, 89 A. 482, Ann. Cas. 1914C, 714. The defendant was bound to exercise ordinary care to have the station platform in reasonably safe condition for the use of all its passengers including the plaintiff. Haselton v. Railway, 71 N. H. 589, 53 A. 1016; Byron v. Railroad, 82 N. H. 434, 136 A. 250. The agreement in question did not purport to relieve the defendant from its duty to exercise ordinary care with reference to the plaintiff. It merely granted to it a release from liability in case this duty was violated. The sufficiency of the evidence of defendant's fault with reference to the condition of the platform is not seriously questioned. It therefore follows that the motions for a nonsuit and a directed verdict were properly denied, unless the plaintiff is barred from recovering by reason of the stipulation contained in the pass.

It is well-established law that stipulations intended to relieve a common carrier from liability for negligence are invalid if the transportation is for hire (Baker v. Railroad, 74 N. H. 100, 65 A. 386, 124 Am. St. Rep. 937, 12 Ann. Cas. 1072; Peerless Co. v. Railroad, 73 N. H. 328, 61 A. 511; Durgin v. Express Co., 66 N. H. 277, 20 A. 328, 9 L. R. A. 453; Duntley v. Railroad, 66 N. H. 263, 20 A. 327, 9 L. R. A. 449, 49 Am. St. Rep. 610; 3 Hutchinson: Carriers (3rd Ed.) §§ 1072-1074), but the contention of the plaintiff that there was legal consideration for the pass in question cannot be adopted in view of the provisions of our statute with reference to passes. P. L. c. 242, §§ 13-15. This statute (section 13) provides that no railroad corporation shall "issue or give any free ticket, free pass or free transportation for passengers between points within this state, except to its officers and employees and their families, * * *" and forbids the rendering of service for any other compensation than that fixed by its schedules on file with the Public Service Commission. If it were true, as the plaintiff argues, that "the pass on which Mrs. Wessman was traveling was issued at the request of Mr. Wessman in consideration of his services to the railroad," we should be forced to the conclusion that it was illegally issued, but the evidence does not justify this conclusion. The only testimony upon this point was that of the plaintiff Charles, who testified that, after working for the defendant a year, he held an annual pass and "could get" trip passes for his family once a month; that he was "entitled to monthly passes" for his family, and that the same "privilege" was accorded to other men working in the shop. This evidence would not justify, and much less compel, a conclusion that the railroad was under a legal obligation to issue the pass in question, since this would violate the statute which forbids the rendering a service for compensation not mentioned in its schedule of rates. The court will not give to an agreement or understanding an interpretation which would render it illegal and void when there is a perfectly obvious sense in which it may be given legal effect Anything but a free pass to members of an employee's family is forbidden by the statute. The railroad apparently undertook to comply with the statute—not to violate it. The pass in question was by its terms denominated a free pass, and must be so regarded. Charleston, etc., Railroad Co. v. Thompson, 234 U. S. 576, 34 S. Ct. 964, 58 L. Ed. 1476. It therefore becomes necessary for us to decide whether the holder of a free pass is bound by the terms of his agreement releasing the carrier from liability for personal injuries.

Although we have never before been called upon to determine this precise point, it can hardly be regarded as an open question in this jurisdiction. The policy of this state with reference to contracts designed to relieve a party from the consequences of the nonperformance of his common-law duty to exercise ordinary care has been so plainly stated as to permit of only one conclusion. In Baker v. Railroad, 74 N. H. 100, 112, 65 A. 386, 391, 124 Am. St. Rep. 937, 12 Ann. Cas. 1072, it was set forth as follows: "It is against the policy of the law to permit any one, be he common carrier or not, to relieve himself by contract from the performance of his common-law duty to use ordinary care to avoid injuring those with whom he knew or should have known his business would bring him in contact." While this statement was nob necessary to the decision in that case, it was accepted by a majority of the court as a correct exposition of public policy, and the principle therein enunciated was applied to its fullest extent as a basis of decision in the case of Conn v. Manchester Amusement Co., TO N. H. 450, 111 A. 339. In that case, when considering the effect of a covenant in a lease, by which the lessee agreed to save the lessor "harmless from liability for personal injuries to any person or persons on or about the leased premises," the court said: "It must be held, either that the defendant did not agree to save the plaintiff harmless in so far as liability to its employees is concerned, or that, if it did, the agreement is illegal; for, notwithstanding it is permissible for me to insure you against liability to others for injuries caused by your future misconduct, it is not permissible for me to agree to release you from liability to me for injuries caused by such misconduct." The court apparently regarded the principles thus enunciated as so well established that the citation of authorities in their support was unnecessary.

The foundation for the rule of policy above stated has not been given extended consideration, but from the language used in the Baker case and the citation of Nashua, etc., Co. v. Railroad, 62 N. H. 159, 161, it appears that the real reason for the rule is to be found in the cardinal importance attached to the doctrine of ordinary care in this state. The preeminent position here accorded to this canon of conduct is attested by the statements of the court in Nashua, etc., Co. v. Railroad, supra. "Every one in the conduct of his lawful business is bound to act with this degree of care, and if he fails to do so is responsible for the consequences. It follows that a person injured by reason of his want of ordinary care, or (since the law makes no apportionment between actual wrongdoers) by the joint operation of his own and another's negligence, is remediless. This general rule of law justly applied to the facts, determines, it is believed, the rights of the parties in all actions for negligence."

The unvarying application of this rule to varying relationships has frequently been exemplified. Interesting instances are to be found in Benoit v. Perkins, 79 N. H. 11, 104 A. 254; Conway Nat. Bank v. Pease, 76 N. H. 319, 82 A. 1068; Cavanaugh v. Railroad, 76 N. H. 68, 79 A. 694; Garland v. Railroad, 76 N....