R Cas Russell v. Pittsburgh, etc, Ry. Co caused by the carrier's negligence. If his carriage is not in the performance of a duty imposed upon the carrier by law, then it will depend upon the terms of his particular contract with the railroad company whether or not there is any liability. As said in the case of Railroad Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, at page 505, 176 U. S., page 387, 20 Sup. Ct., and page 565, 44 L. Ed.: "It must not be forgotten that the right of private contract is no small part of the liability of the citizen, and that the usual and most important functions of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare. In the case of Railway Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348, the above rule was strictly followed. There an express messenger in his written contract with the American Express Company agreed to assume all risks of accidents and injuries sustained in the course of his employment, whether occasioned by the negligence of any corporation engaged in operating any railroad, or of any employee of such corporation. The only compensation which the railway company was to receive for carrying the express messenger was that paid by the express company to it. The court held that, as railroads are not required by law to accept the traffic of independent express companies, they are not guilty of a departure from their public duty in availing themselves of a contract of exemption from liability for negligence entered into between the express messenger and his employer, the express company. As stated by the court (page 26, 146 Ind., page 798, 44 N. E., page 94, 38 L. R. A., and page 351, 58 Am. St. Rep.): "A common carrier may, however, become a private carrier or bailee for hire where, as a matter of accommodation or special agreement, he undertakes to carry something which it is not his business to carry. See the cases referred to at length in the course of the opinion. In the case of Railway Co. v. Mahoney, 148 Ind. 196, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503, this court again held valid a contract exempting the railroad company from liability for its negligence resulting in the death of an express messenger carried upon its train under a special agreement with the express company. At page 200, 148 Ind., page 918, 46 N. E., page 103, 40 L. R. A., and page 507, 62 Am. St. Rep., the court say: "These authorities probably sustain the proposition stated when applied to exemption against negligence in the discharge of a public or quasi public duty, such as that owing by a common carrier to an ordinary shipper, passenger, or servant. In a recent decision of this court, however (that of Railway Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348), we recognize the well-established rule that railway companies, although public or common carriers, may Russell v. Pittsburgh, etc., Ry. Co (N S) contract as private carriers, such as that of transporting express matter for express companies, as such matter is usually carried, and in that capacity may properly require exemption from liability for negligence as a condition to the obligation to carry,"-citing cases. In the case of Railroad Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, arising under a state of facts similar to those in the Keefer Case, supra, the supreme court of the United States held the carrier exonerated from all liability to the express messenger, because of a special contract entered into between the latter and the express company. At page 512, 176 U. S., page 390, 20 Sup. Ct., and page 567, 44 L. Ed., the court use the following language: "It is evident, by these agreements there was created a very different relation between Voigt and the railway company than the usual one between passengers and railroad companies. Here there was no stress brought to bear on Voigt as a passenger desiring transportation from one point to another on the railroad. His occupation of the car, specially adapted to the uses of the express company, was not in pursuance of any contract directly between him and the railroad company, but was an incident of his permanent employment by the express company. He was on the train, not by virtue of any personal contract right, but because of a contract between the companies for the exclusive use of a car. His contract to relieve the companies of any liability to him or to each other for the injuries he might receive in the course of his employment was deliberately entered into as a condition of securing his position as a messenger. His position does not resemble the one in consideration in the Lockwood and similar cases, where the dispensation from liability for injuries was made a condition of a transportation which the passenger had a right to demand, and which the railroad companies were under a legal duty to furnish. Doubtless, had Voigt only desired the method of transportation afforded the ordinary passenger, he would have been entitled to the rule established for the benefit of such a passenger. But this he did not desire. He was not asking to be carried from Cincinnati to St. Louis, but was occupying the express car as a part of his regular employment, and as provided in a contract which, as we have seen, the railroad company was under no legal compulsion to enter into." This statement of the law is applicable to the present case. The appellant did not occupy the position of an ordinary passenger upon appellee's train. He was not being carried upon any journey from one point to another, nor was his presence incidental to the shipment of goods which the carrier was bound to accept. He occupied the sleeping car as a part of his employment with the Pullman Company. His was not a position of disadvantage with reference to the appellee, rendering it practically impossible for him to reject the terms of limited liability contained in his contract with the Pullman Company. He might have declined R Cas Russell v. Pittsburgh, etc., Ry. Co to enter into such an employment, and returned to his usual occupation, described in the complaint as that of a stationary engineer and electrician. In no sense was the appellee bound to accept the appellant upon its trains solely because he accompanied a palace car tendered by the Pullman Company, for the obvious reason that the carrier was under no legal obligation to accept and haul the sleeping car itself. Counsel for appellant urge the argument that it is customary for sleeping cars to be attached to railway trains, thus affording a great convenience to travelers, and hence the carrier is not proceeding outside of its regular business in accepting such coaches. But counsel failed to distinguish between a departure from the legitimate business of a carrier and the doing of an act which, though within the general scope of its powers, is not imposed upon it as a duty. It would be no ground for an action of quo warranto against a railroad corporation that it has transported circus cars or express cars over its lines, or that a street car company has received for carriage a bag of specie. But no one would seriously contend that these acts are such as the carrier must perform. He may perform them, but if he refuse he cannot be proceeded against as for a violation of his common-law duty. If he does agree to perform them, he may stipulate specially how far his liability for negligence shall extend. Coup v. Railway Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; Robertson v. Railroad Co., 156 Mass. 526, 31 N. E. 650, 32 Am. St. Rep. 482; Blank v. Railroad Co., 182 Ill. 332, 55 N. E. 332. Counsel for appellant have referred us to no case holding that railroad carriers must receive sleeping cars for transportation over their lines in connection with the railroad passenger trains. The case of Pullman's Palace Car Co. v. Missouri Pac. R. Co., 115 U. S. 587, 6 Sup. Ct. 194, 29 L. Ed. 499, assumes that no such duty rests upon the common carrier. The court say at page 597, 115 U. S., page 199, 6 Sup. Ct., and page 502, 29 L. Ed.: "It may be, as is also alleged, that it has become indispensable in the conduct of a railroad company to run passenger trains, sleeping and drawing cars, with the conveniences usually afforded by such cars for night travel; but it by no means follows that the railway is, in law, obliged to arrange with the Pullman Company for such accommodations. * * * The business is always done under special written contracts. These contracts must necessarily vary according to the special circumstances of each particular case. But appellant contends that, inasmuch as appellee was not a party to the contract exempting transportation companies from liability for negligence, it cannot take advantage of its cars. The contract referred generally to transportation companies over whose lines the Pullman Company should run its This comprehended the appellee, and, as the contract was prima facie for the benefit of the appellee, it will be presumed to have accepted its provisions, and it may now claim its 23 (NS) A & E R Cas-39 Russell v. Pittsburgh, etc., Ry. Co (N S) advantages, as one in whose interest the agreement was executed. There was sufficient privity shown between the appellant and the appellee. Ransdel v. Moore, 153 Ind. 393, 405. 407, 53 N. E. 767. We conclude, therefore: First, that the appellee was under no legal duty to receive either the appellant or the car upon which he rode, since the appellant was not, and did not purport to be, a passenger, but occupied the sleeping car under a special contract between the Pullman Company and the appellee; second, the appellee could under these circumstances contract specially for a release from all liability for negligence towards appellant; third, a contract of release made between the appellant and the Pullman Company inured to the benefit of the appellee, referred to generally therein, and its provisions can be taken advantage of by the latter in this action. * * * re Appellant next argues that, even if a contract for exemption from liability were valid, this particular contract is void, because the word "negligence" is not used in the exonerating clause. The language employed is, "I hereby lease, acquit, and discharge any and all such transportation companies from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me while traveling over such lines in said employment and service." This provision is broad enough to include injuries resulting from the negligence of the appellee. As we have said, contracts made under the circumstances of the present case are not void as against public policy, and the same rule of construction should apply to them as to ordinary, valid stipulations. Railway Co. v. Mahoney, 148 Ind. 196, 203, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503. In the following cases the language of exempting the company from liability was not so strong as in the contract we are considering, yet it was held to include negligence by necessary implication: Railroad Co. v. Read, 37 Ill. 484, 87 Am. Dec. 260; Bates v. Railroad Co., 147 Mass. 255, 17 N. E. 633; Hosmer v. Same, 156 Mass. 506, 31 N. E. 652. The cases cited by appellant, when carefully examined, are not inconsistent with this interpretation. In New Jersey Steam Nav. Co. v. Merchants' Bank of Boston, 6 How. 344. 12 L. Ed. 465, the provision for exemption was in a shipping contract. Such restrictions being against public policy, as above shown, when found in agreements for the transportation of goods, should be strictly construed. In Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344. 53 Am. Rep. 500, the liability exemption clause was in an abbreviated form and illegible at the time the shipper received the contract; he having neither seen nor understood the abbreviations. It was held there was no exemption from liability for negligence. The following cases from the New York court of appeals are also relied upon by appellant as establishing the necessity for a rule of strict construction in the case at bar: Wells v. Navigation Co., & R Cas Southern Ry. Co. v. Wood N. Y. 375; Blair v. Railway Co., 66 N. Y. 313, 23 Am. Rep. 55; Mynard v. Railroad Co., 71 N. Y. 180, 27 Am. Rep. 28; Holsapple v. Railroad Co., 86 N. Y. 275; Nicholas v. Railroad Co., 89 N. Y. 370; Kenney v. Same, 125 N. Y. 422, 26 N. E. 626. The law in New York has long been that contracts containing exemptions from liability for negligence are valid, though made with shippers or passengers. As a reaction against a rule which the courts of that state regard as unfortunate, and which does not prevail in Indiana, the counter doctrine has been introduced, that, unless liability for negligence is expressly included, it will not be implied. As the rule does not obtain in this state, the cases involving the exception are irrelevant. See Railway Co. v. Mahoney, 148 Ind. 196, 200, 201, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. IOI, 62 Am. St. Rep. 503. The learned counsel for appellant cite the case of Jones v. Railroad Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514, which holds that a porter upon a sleeping car is a passenger entitled to protection from the negligence of the transportation company, and that a contract of release from such liability is no bar to his recovery. It does not appear from the reported decision how the objection to the release arose, and the discussion of the proposition here involved is brief and unsatisfactory. The court assumes that the same rule applies to express messengers and to sleeping car porters; but, as will be seen from recent decisions in this state, such contracts as the present are valid when entered into respecting express agents. We do not regard the case as controlling in its authority, and, even were it applicable to the present controversy, we are not inclined to follow it. There being no error in the action of the lower court in overruling the separate demurrers to the second and third paragraphs of answer, the judgment is affirmed. SOUTHERN RY. Co. v. WOOD. (Supreme Court of Georgia, Nov. 8, 1901.) [39 S. E. Rep. 922.] Carriers Contract with Passenger-Breach. The evidence authorized the verdict, and none of the grounds of the motion for a new trial contain assignments of error which required the trial judge to set aside the verdict of the jury and award a new trial. (Syllabus by the Court.) Error from superior court, Whitfield county; A. W. Fite, Judge. Action by Mrs. P. L. Wood against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. |