Wilson v. Atlantic Coast Line R. Co.

• Decision Date: 30 April 1904
• Docket Number: 1,765.
• Citation: 129 F. 774
• Parties: WILSON v. ATLANTIC COAST LINE R. CO.
• Court: U.S. District Court — Northern District of Georgia

129 F. 774

WILSON v. ATLANTIC COAST LINE R. CO.

No. 1,765.

United States Circuit Court, N.D. Georgia.

April 30, 1904

1. CARRIERS-- SPECIAL SERVICES-- CIRCUS TRAINS-- LIABILITY FOR NEGLIGENCE--SPECIAL CONTRACT-- VALIDITY-- PUBLIC POLICY.

Where a railroad company agreed to haul certain cars of the proprietor of a circus according to a special schedule, and for a price less than the regular rates for such service, the carrier's servants having no right to direct the loading or unloading, which was in the exclusive charge of the employes of the circus company, an express contract between the parties, exempting the carrier from liability for the negligence of its employes, and releasing the carrier from liability for loss and damage to any of the circus company's property, menagerie, cars, or equipment while in transit, and to indemnify the carrier against damage or injury to any of the circus company's officers, agents performers, or employes, was not invalid, as contrary to public policy.

2. CARRIERS-- PLEADING-- DEMURRER.

Where a shipper brought suit on a special transportation contract against the carrier for damages to his property, the contract providing that it was made in consideration of reduced rates granted to the shipper, he could not contend, on demurrer to the petition, that the statement in the contract that a reduced rate was given was false.

3. CARRIERS-- ACTION EX DELICTO.

Where a circus proprietor brought suit in tort to recover damages for injuries to a circus train, transported over the line of defendant railroad company under a contract exempting the carrier from liability for negligence, and providing that the carrier's obligation should be that of a private carrier only, a petition alleging such contract as matter of inducement only, and charging that the same was illegal and void as beyond the carrier's corporate capacity, and that the transportation of shows, theaters, and circuses was a part of defendant's regular business as a carrier, was demurrable.

4. S CARRIERS-- CHARACTER OF TRANSPORTATION-- PRIVATE CARRIER.

A railroad company is not required, as a common carrier, to take a circus train, a part of which is loaded with wild animals, and transport the same over its line, but may refuse to transport such train, except under a special contract limiting its liability to that assumed by a private carrier.

4. See Carriers, vol. 9, Cent. Dig. Sec. 648.

Burton Smith and George Gordon, for complainant.

F. G. Du Bignon and R. C. Alston, for defendant.

NEWMAN District Judge.

This suit was brought originally in the city court of Atlanta, and removed by defendant to this court on the ground of adverse citizenship; the plaintiff being a citizen and resident of the state of Virginia, and the defendant a North Carolina corporation. The declaration alleges that the plaintiff is the owner and general manager of the 'W. H. Harris Nickle Plate Shows" that being the trade-name under which the plaintiff carries on his business of showman. Said show is not incorporated. It alleges that the defendant railroad corporation has damaged him in the sum of $15,000. The allegations on which the complaint is founded are as follows:

'That defendant, on the 15th day of September, 1902, entered into a contract with plaintiff, wherein the defendant agreed for a consideration to transport plaintiff's show from the city of Montgomery, Alabama, to Valdosta, Georgia, stopping at various places along defendant's line of railroad for the purpose of allowing plaintiff to exhibit his show. A copy of the contract is attached. Plaintiff, relying on the defendant's performance of said contract, arranged dates for exhibiting along the line of defendant's railroad, and went to an expense of one thousand dollars in preparing for and advertising said exhibitions, of which fact defendant had full knowledge. Defendant well knew, when it contracted to transport plaintiff and his show along the line of its railroad, the character of the business in which plaintiff was engaged, the importance of plaintiff's show being transported from place to place at the times specified, and the consequences to plaintiff of delay in such transportation; and plaintiff further shows that the defendant undertook to transport plaintiff and his show, with full knowledge of all the facts, and agreed in its capacity of common carrier to transport and care for plaintiff and his property. That on or about October 28, 1902, defendant undertook to move plaintiffs said show from Dothan, Alabama, to Bainbridge, Georgia, when, by reason of the unsafe and defective condition of defendant's track and appliances, and the negligence and carelessness of defendant's servants, two of plaintiff's cars, loaded with plaintiffs animals, wagons, tents, and other paraphernalia used by plaintiff in connection with his said show, were ditched, and his said property broken up and destroyed.'

It is alleged that the plaintiff's cars being moved from the siding at Dothan, Ala., into the main track of defendant's road, preparatory to transporting the show to Bainbridge, when, by reason of the defective and unsafe condition of defendant's said track and appliances, and by reason of the negligence and unskillfulness of defendant's servants and employes, plaintiff's cars were wrecked, and his property damaged. It is alleged that defendant's track was defective and unsafe, in that a large rail was joined to a smaller one, and the ends of said rails were not fastened together with fishplates, as safety required, but were simply spiked to the ties, making an extremely crude and unsafe joining of said tracks or rails. It is alleged that the uneven and defective joining of said two rails was on the curve of the track where said side track curved in to join the main track, and was on the outside of said curve, making the place doubly dangerous on account of the fact that at such a place the weight of the cars would be mainly thrown upon said outside rail at the defective joint, thus crowding it out, and allowing the wheels to drop down upon the ties. It is alleged that the defective and unsafe joining of said rails was due to the negligence of the defendant, its officers and agents in charge of its track, and that this defective and dangerous condition of its track defendant well knew, or could by the exercise of ordinary care have discovered; that by reason of the dangerous and defective condition of the track two of plaintiff's cars were derailed, turned over, and broken to pieces, his wagons which were loaded on said cars were thrown off and broken up, his tent poles, seats, and canvas were broken and smashed and otherwise damaged, the wagon known as the 'bank wagon' and 'lion den' was turned over and demolished. One of plaintiff's lions was so injured that it subsequently died, and another one so injured as to be of no further use to plaintiff. The damage to plaintiff's cars, wagons, seats, poles, canvas, lions, and other property amounted to $4,000. It is further alleged that by reason of said wreck, occasioned by defendant's negligence, the plaintiff was greatly delayed, and was unable to exhibit his show at Bainbridge on October 28, 1902, as he had advertised and arranged to do, and as defendant knew he had arranged to do, whereby plaintiff lost that day's exhibition, to his damage $800; that by reason the wreck and the destruction of his wagons and paraphernalia, plaintiff was unable to have any street parade of his show for 22 days following said wreck, and that by losing these parades he lost $200 per day, or an aggregate of $4,400; that the expense occasioned to the plaintiff by the extra men, horses, and wagons necessary for such a street parade as the plaintiff had daily in connection with his show as an advertisement was $200 per day; that this expense was occasioned for 22 days after the accident, to the plaintiff's aggregate damage $4,400; that the daily expense of maintaining plaintiff's show is $400, and for the day plaintiff was scheduled to show at Bainbridge he paid expenses to the amount of $00, being deprived of any return therefor by reason of the defendant's negligence. It was then alleged that the defendant is a common carrier, and is obliged by law to accept and transport all goods, animals, and other property offered to it for transportation over its line of railroad, but plaintiff shows that now regarding its duty as a common carrier, defendant refused to receive and transport his show until he should sign the contract heretofore mentioned and fully set out in 'Exhibit 'a." Plaintiff alleges that said contract was forced on him, and that, in so far as it purports to excuse defendant from its legal liability as a common carrier, and to limit its liability unreasonably as to items of damage to be suffered by plaintiff, it is against public policy and void. It is then alleged that the allegations of consideration of reduced rates contained in said contract is false, and that, on the contrary, defendant charged plaintiff double what he had formerly paid defendant for the same service; and that when he objected to the price demanded by defendant on this occasion he was informed that he must pay defendant's price or walk; and, in so far as said contract attempts to limit defendant's liability, it is without consideration.

The contract, which is attached to the declaration, is as follows:

Atlantic Coast Line Railroad Company.

Circus Contract.

An Agreement made this 15th day of September, 1902, by and between the Atlantic Coast Line Railroad Company, hereinafter styled and called the railroad company, of the first part, and W. H. Harris (Nickel) Plate Shows hereinafter styled and called a circus company, of the second part.

Whereas the Circus Company...