Wiley v. Grand Trunk Ry. of Canada

• Decision Date: 01 October 1915
• Citation: 227 F. 127
• Parties: WILEY v. GRAND TRUNK RY. OF CANADA.
• Court: U.S. District Court — Western District of New York

227 F. 127

WILEY v. GRAND TRUNK RY. OF CANADA.

United States District Court, W.D. New York.

October 1, 1915

Thomas A. Sullivan, of Buffalo, N.Y., for plaintiff.

John W Ryan, of Buffalo, N.Y., for defendant.

THOMAS District Judge.

The plaintiff sued to recover damages for personal injuries. The jury awarded him $3,500. This is a motion to set that verdict aside and grant a new trial.

The facts involve the liability of an interstate railway carrier under the anti-pass provisions of the Hepburn Act for personal injuries sustained, through the carrier's negligence, by a plaintiff who was injured while traveling on a drover's pass in the care of live stock. The jurisdiction of this court is founded on diversity of citizenship; the plaintiff being a resident and citizen of the state of New York, and the defendant a Canadian corporation, doing business in this district and operating lines of railway in Canada, New York, and New England.

The injuries were sustained at or near Ridgeway, in Canada, on one of the defendant's lines, in a head-on collision between two trains being run in opposite directions on the same track while under the care, management, and control of the defendant's servants and agents; the plaintiff being at the time of the collision, in the caboose of one of the colliding trains, in charge of a car of live stock which had been shipped from Bad Axe, in the state of Michigan, on the line of the Pere Marquette Railroad, to Buffalo, over the defendant's railway as a connecting line, and forming with its connecting lines an interstate railway route.

The plaintiff's transportation was furnished on a drover's pass issued in Michigan, by the Pere Marquette railroad, where the carriage was begun and the shipment was received. At the time of the shipment, the Pere Marquette Railroad issued a through bill of lading, which was signed by the plaintiff and the agent of that railroad company in which the plaintiff was furnished transportation from Bad Axe to Buffalo as a necessary caretaker of the live stock included in the bill of lading; the plaintiff at the same time purporting to release the railroads over which he was to travel from any liability for personal injuries sustained by the former through the latter's negligence.

The only evidence offered by the plaintiff on the trial of the issues of fact raised by the pleadings was concerning the collision itself, the nature and extent of the injuries sustained, and other facts tending to prove the amount of damages. No evidence was offered by the defendant tending to show freedom from negligence on its part. As it is now settled law in the federal courts that the happening of an injurious accident is, in passenger cases, where the passenger is in the exercise of due care, prima facie evidence of negligence on the part of the carrier, and that the burden then rests on the defendant to show that its whole duty was performed, and that the injury was unavoidable by human foresight (Gleeson v. Virginia Midland R'd Co., 140 U.S 435, 443, 11 Sup.Ct. 859, 35 L.Ed. 458, and cases there cited), the verdict must be taken to be conclusive of the defendant's negligence as alleged in the complaint.

Therefore the only issue raised by this motion is the validity of the release. If the plaintiff had been a gratuitous passenger, there is no doubt but that, under the decisions of the United States Supreme Court, the release would have been valid in the federal courts, in the absence of willful or wanton negligence, irrespective of the Hepburn Act. Northern Pacific Railway Co. v. Adams, 192 U.S. 440, 24 Sup.Ct. 408, 48 L.Ed. 513; Boering v. Chesapeake Beach Ry. Co., 193 U.S. 442, 24 Sup.Ct. 515, 48 L.Ed. 742. But the plaintiff would not have been a gratuitous passenger prior to the Hepburn Act, for other reason that the right to ride without special compensation was given in part consideration of the payment which was principally for other services; and although the plaintiff was being carried on a freight train at the time he sustained the injuries, he would, nevertheless, have been a passenger for hire, and entitled to protection as such, as incidental to the carriage of the stock under his care. Railroad Co. v. Lockwood, 17 Wall. 357, 368, 21 L.Ed. 627; Railway Co. v. Stevens, 95 U.S. 655, 24 L.Ed. 535; Norfolk Southern R. Co. v. Chatman, 222 F. 802, . . . C.C.A. . . . . Hence we are brought to the vital question involved in this motion.

Has Congress, by the Hepburn Act, so called, regulated the invalidity of such a release as is this, to the exclusion of the law of the state? In my judgment it has not. The release does not offend either the letter or spirit of the interstate commerce legislation of Congress. The fourth paragraph of section 1 of the 'Act to regulate commerce,' as amended June 29, 1906, and in effect January 1, 1907 (chapter 3591, 34 Stat. 584, 585), especially excepts from the anti-pass provisions of the law 'necessary caretakers of live stock,' and this provisions is not varied or affected by the subsequent amendments of April 13, 1908 (chapter 143, 35 Stat. 60, 61), and June 18, 1910 (chapter 309, 36 Stat. 546). This view of the statute is confirmed by a very recent decision of the Circuit Court of Appeals for the Fourth Circuit in Norfolk Southern R....