Peterson v. Chicago & Northwestern Railway Co.

WiNslow, J. The general question presented in tbis case is whether a railway company can be relieved by contract from liability to' an express messenger for personal injuries suffered by him while riding on its train in performance of his duty, such injuries being proximately caused by the ordinary negligence of the employees of the company. The question is new in this state. This court has held that a common carrier may by contract exempt itself from liability to a person traveling on a free pass for injuries caused by the ordinary negligence of its employees, but not from the consequences of their gross negligence. Annas v. M. & N. R. Co. 67 Wis. 46, 30 N. W. 282. Also that it is against public policy to allow a common carrier to stipulate for exemption from liability for-negligence of its employees resulting in loss or injury to a passenger for hire. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, 58 N. W. 780. Neither of these cases, however, touches the exact question before us, nor does the early case of Chamberlain v. M. & M. R. Co. 7 Wis. 425, S. C. 11 Wis. 248, throw any light upon it. The question is an interesting one, and might be discussed at great length. It seems doubtful, however, whether any good result would be reached by such a discussion. The exact question here presented has been discussed with great learning and ability by the supreme court of the United States in the case of Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, and the result there reached was that an express messenger, under the facts here presented, was not a passenger for hire, and that for that reason the contracts exempting the railroad company from liability were not against public policy, but valid. We entirely agree with that result. It commends itself to our judgment, not [203] only upon reason, bnt upon the great weight of authority. The express messenger is not a person who has applied to a common carrier for transportation and is entitled to that transportation without condition, upon payment of his fare, but a person who voluntarily goes upon a train, not for transportation, but to transact certain business for the express company which it is allowed to transact, not because the railroad company is a common carrier, but because of a contract between the express company and the railroad company by which the express company and its messengers were granted rights which the railroad company could not be compelled to grant as a common carrier. We could add nothing to the discussion in the Voigt Case, and hence we content ourselves with announcing our concurrence with .the doctrines there laid down. It is said that there is a distinction between this case and the Voigt Case in that by the contract between the railway company and the express company in the Voigt Case the express company agrees to indemnify the railway company from all liability, whether resulting from negligence or otherwise, whereas in the case at bar the agreement is simply to indemnify against damage resulting in any manner whatever. It is said that such contracts are strictly construed against the railway company, and that there must be an express stipulation exempting the company from the results of negligence in order to effect that result, and Black v. Goodrich T. Co. 55 Wis. 319, 13 N. W. 244, is relied,upon. It is not necessary in the present case either to affirm or deny that the agreement between the express company and the railway company covered injuries resulting from negligence, because in this case the plaintiff himself, when he entered on his employment, agreed to exempt the express company and the transportation companies with which it dealt from all liability for personal injuries whether arising from negligence or otherwise, and also agreed that this stipulation should [204] inure to tbe benefit of all snob transportation companies as fully as if made directly with them. This was a promise, upon sufficient consideration, made to one person for tbe benefit of a third person, which could be enforced by such third person whether such third person knew of or assented to the promise before the commencement of the action or not. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, and cases cited. By the Gowrt. — Order affirmed.