P. & L. E. R. R. v. Bishop

Laubie, J. This is a proceeding upon the part of the railroad company to reverse the judgment of the court below, in an action brought by Bishop to recover for personal injuries sustained by him in a collision on the road of the company in the state of Pennsylvania. He was a railway postal clerk on one of the colliding trains. One of the grounds of error is that the court below refused to send its written charge to the jury. There was no request made of the court below to reduce its charge to writing, and hence the parties were not entitled to demand as of right that it should be sent to the jury, and the court committed no error in refusing to send the charge to the jury, although it had voluntarily reduced it to writing. The main question in the case, which has been very extensively argued and presented to us by counsel for each party, is as to the rights of Bishop while upon the train under the laws of Pennsylvania. The plaintiff in his petition alleges, inter alia, that on the 7th day of December, 1895, and for a long time prior thereto, he was employed by the United States as a postal clerk, and was running- as such clerk from the city of Cleveland, O., to the city of Pittsburg, Pa., and return. That by some agreement, the terms of which are unknown to the plaintiff, and he is unable to set forth a copy of this agreement, the Pittsburg & Take. Erie Railroad Co., had contracted to carry the mails between the city of Youngstown, O., and the said city of Pittsburg. Also, for a valuable consideration, agreed and bound itself by such contract to carry the plaintiff so that he might discharge the duties which he contracted with said United States government to discharge, and that by reason of the premises that said plaintiff was a passenger upon said train. That said defendant company owed to him the highest degree of care. That on the 7th day of December, 1895, while he was upon a train of the defend: ant, in the discharge of his duties, as aforesaid, such train collided near Wampum, Pa., with a freight train, it being a rear end collision, and that he sustained serious and permanent injuries by reason thereof. That this collision had occurred through the negligence and carelessness of the conductor of the freight train, and of the train dispatcher of the defendant’s road. The allegation in the petition as to the train dispatcher was eliminated from the case by a written withdrawal entered upon the records upon the part of the plaintiff; and the case was tried solely upon the allegation of negligence of the conductor of the freight train. In the answer the defendant admits that it is a corporation under the laws of the states of Ohio and Pennsylvania, and that its road extends from Youngstown, O., to the city of Pittsburg, Pa., and beyond. And admits that on the 7th day of December, 1895, and prior thereto, plaintiff was in the employ of the United States government as a postal clerk, and as such was employed to work on and about a mail car on the defendant’s road, running between Youngstown, O., and Pittsburg, Pa., and that while he was riding upon said car on said day as such postal clerk he was injured by reason of a collision of the engine of his train with the rear end of a freight train standing upon the track north of the passing siding at Wampum. — 75 — Further answering, it sets up that the defendant and the government of the United States had entered into a contract by which it agreed to carry the United States mails from Youngstown, in the state of Ohio, to and from Pittsburg, in the state of Pennsylvania, and that such contract was made in the state of Peunsylvania. That, under the provision of said contract, the plaintiff was to perform duties for the United States government in and upon the mail car of the defendant. That he entered into such employment, and under and oy virtue of the contract of employment with the government of the United States, and under and by virtue of the contract between the United States government and the defendant, he was to perform his duties upon said train between these points in contemplation of the laws of the state of Pennsylvania, and thereby, impliedly, contracted to be amenable to said laws, so far as his rights and remedies, or any of them while he was being so carried, were concerned. Further, that it was, at the time of entering into the said contract by said plaintiff with the United States government, and long prior thereto, and still is the statutory law of the state of Pennsylvania, as provided by the act of the general assembly of said state, passed April 4, 1868, that, " When any person shall sustain personal injury or loss of life, while lawfully emgaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon, of which said person is not an employee, the right of action in all such cases against the railroad companyshall be only such as would exist if such person were an employee; provided this section shall not apply to passengers.” And the defendant further alleges that the supreme court of Pennsylvania, construing this act, in the case of Railway Company v. Price, 96 Pa. St., 206, decided, and such is the law of that state, that a mail agent or postal clerk, as the plaintiff was, under and by virtue of the provisions of that section, was not a passenger, and that under and by virtue of that statute, he was to be regarded as an employee of the company, having no more rights than an employee of the company, and under and by virtue of the laws of the state of Pennsylvania, as such employee, he was not entitled to recover for injuries sustained by the negligence of a fellow workman; that a conductor of the train and a postal clerk stood in the relation of fellow-servants, and neither could recover for the negligence of the other as against the master. Plaintiff in the reply alleges that the contract was made in the state of Ohio, and governed by the laws of that state, denies that it was made in Pennsylvania, or that he was not entitled to the rights of a passenger under the laws of that state. The statute of Pennsylvania was offered in evidence by the defendant, and the decisions of the state of Pennsylvania, construing the same, and holding that a postal clerk and a conductor are fellow-servants, and for the negligence of whom no recovery could be had against the company. The case of the Pennsylvania Co. v. Price, which was offered in evidence, does expressly hold that a mail agent or postal clerk was not a passenger within the meaning of the act in question. The syllabus of that case is, “ The act of April 4, 1868, provides that when any person shall snstain personal injuries or loss of life, while lawfully engaged or employed on, or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein, or thereon, of which company such person is not an employee, the right — 76 — of action in all such cases against the company shall be only such as would exist if such person were an employee, provided this section shall not apply to passengers: Held, that a route or mail agent in the employ of the United States postoffice department, while traveling on a railroad in the performance of his duties is not a passenger within the meaning of the act.” ‘ ‘ A passenger, in the legal sense of the word, is one who travels in some public conveyance, by virtue of a contract, expressed or implied, as the payment of fare, or that which is accepted as an equivalenttherefor. ” “ A mere trespasser, or a person who steals a ride upon a train, or who. is employed thereon, is not a passenger within the meaning of the act of 1868, nor entitled as such to protection.” Upon the part of the plaintiff it is claimed that this decision, was subsequently modified in the case of Spisak v. The Baltimore and Ohio Railroad Company, 152 Penn. St., 281. We have examined this case carefully and we are not able to agree with the contention of counsel in this respect, and can not see that it in any sense modifies or changes the rule as laid down in the 96th Penn. State, in the Price case, as to a postal clerk. In the case in the 152 Penn. S., referred to, it was held: “If the place of an accident where the person is injured is clearly and for general purposes the road, works, depot, or premises of the railroad company, the person injured is a fellow servant of the employees of the railroad company within the meaning oí the act. If he is lawfully engaged or employed on or about them, he is not a passenger. “ If the accident occurs in a place which is not exclusively, but only within a limited and statutory sense, the premises of the company, and the person injured is engaged in work which it is ordinarily the duty of the employees to do, he is a quasi employee, within the meaning of the act. But if the work has no relation to railroad work as such and is connected with the railroad only by irrelevant and immaterial circumstances of locality, the case is not within the statute.” And it appears in that case the plaintiff was an employee of the steel company, to which the railway company was delivering freight, that the steel company owned some switches or tracks upon its own premises and upon which the railway company delivered cars, and that on such tracks on the premises of the steel company the accident happened. The court distinguished the case from the Price case because of these facts, the place of the accident not being upon the road or premises of the railway company, and the plaintiff not having been engaged in work ordinarily done by employees of the railway company. In the opinion of Mr. Justice Mitchell, it is said: “ The words of the act of 1868 are: ‘ When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company,1 etc. In the first case that arose under the act, Kirby v. The Railroad Company, 76 Pa., 506, this court passed only upon its constitutionality, but the injury to the plaintiff happened on a side track part of the road and premises of the defendant company. It was clearly within the express words oí the act.” After quoting some other decisions, he continues : “ Upon the distinction thus expressed the cases divide themselves into two classes. In the first, the place of the accident is clearly and for general purposes the road, works, depot, or premises of the railroad company. In such case — 77 — it is sufficient if tbe person injured, is lawfully engaged or employed in or about them, and is not a passenger. To tbis class belongs Kirby v. The Railroad Company, 76 Pa., 506, already referred to. Tbe other class is where tbe accident occurs in a place which is not so exclusively and for general purposes, but only within a limited and statutory sense, tbe premises of tbe railroad company.” “ In tbis class the nature of tbe employment at which tbe party injured was engaged at tbe time, becomes material. If it is business connected with tbe railroad in tbe sense that it is ordinarily tbe duty of the milroad employees, then while tbe party is engaged at it, the statute treats him as a quasi-employee, and put bis rights upon tbe same basis.” So that even where tbe locality of tbe accident is not .upon tbe road, works, depot, or premises of tbe defendant company, but is only incidentally connected therewith, if tbe person be employed in tbe performance of duty ordinarily done by tbe railroad employees, he is still to be regarded within the letter of tbe act as an employee of tbe company defendant. In no manner does tbis case at all affect tbe question as decided by tbe supreme court in tbe Price case; and we find it to be established as tbe law of tbe state of Pennsylvania, that a postal clerk upon the cars of a railroad company in that state is not to be regarded as a passenger, but as an employee of tbe company upon tbe train. And from what I have already said as to tbe law of Pennsylvania in regard to tbe right of recovery for injury occasioned by tbe negligence of á co-employee, it follows that if tbe law of Pennsylvania is t© apply to tbis case, there could be no recovery, as tbe accident confessedly occurred within tbe state of Pennsylvania, and while tbe plaintiff was im tbe performance of bis duties as route agent, by reason of tbe negligence of a fellow-servant. But the plaintiff claimed that tbis contract was entered into in tbe state of Ohio, and that the law of Pednsylvania was not to be applied, but tbe law of Ohio, because where tbe contract is made in one state, to be performed partly in that state and partly in another state, tbe rights of tbe parties are to be determined by tbe law of tbe state where the contract is made, as it is indivisible, and tbe contract obligations of tbe parties cannot be permitted to be shifting according to the laws of tbe various states into which a portion of it may be transferred by reason of tbe fact that it is agreed to be in part performed in such states. Tbe court did, in fact, so charge tbe jury. Tbe court said to the jury : “ The first question to which your attention is called, and which It becomes your duty to consider and determine is whether or not, tbe plaintiff was lawfully upon this train in pursuance of a contract made between tbe defendant and the. United States government in regard to carrying tbe mail, and tbe plaintiff as postal clerk, over its road, or with the plaintiff to carry him over the road. If you find that such contract was made and entered into, and that tbe same was not wholly to be. performed within tbe state of Pennsylvania, but was made in Ohio to be performed in part in tbe state of Ohio, or was made outside of tbe state of Pennsylvania to be performed in part in tbe state of Pennsylvania, and part in the state of Ohio, then tbe plaintiff would not come within tbe terms and provisions of the act of the general assembly of Pennsylvania, to which your attention is called, and which is set out in answer filed by tbe defendant in tbis case, and be would be entitled to recover.” New it is objected that there was no evidence to show that tbe contract was made in tbe state of Ohio, and according to tbe evidence in tbe case, as shown by — 78 — the bill of exceptions, it is clear that it was not made in the state of Ohio, or in the state of Pennsylvania. The plaintiff, Bishop, resided in Solon, Ohio, as he stated substantially all his life, and he had received his commission originally, or was appointed by the department at Washington, as route agent in the southern part of this state upon some of the railroads thereof; that he acted for a number oí years in that capacity on more than one road within the state and finally was transferred to the defendant’s road, and a commission was issued to him to run upon that road, and this was the commission as shown by the record : Post Office Department. UNITED States of America. Office of Gen. Sup’t, R. M. S. To whom it may concern. Know ye, that the post master general has appointed the bearer hereof, Wilfred W. Bishop, railway ¡postal enr;-;, on the line of the P., E- E. & W. railroads, which companies are requested to extend facilities of free travel to the holder of this commission between the points named on opposite page, when on duty and when traveling to and from duty. If fare is charged take receipt. Janes E. White, Geni Supt. R. M. 3. Washington, D. C... 189. Approved: R. E. Wieson, Post Master General. That is the extent of the evidence of the plaintiff, as to any contract being made in the state of Ohio, and that relates, not to the contract between tne government and the railroad company, but his own. On part or .he defendant it is shown that a contract had been entered into between tSe railway company and the government for carrying oi mail and mail clerks over the line of its road from Pittsburgh to Youngstown and return. That it had been made on application of the company to the department at Washington. And correspondence is shown — at least letters, upon the part of the company to Thomas J. Brady, second assistant post master general, at Washington in reference thereto. And again, that the general offices of the company were in Pittsburgh, in the state of Pennsylvania. From there correspondence was carried on with the post office department at Washington, for the purpose of securing this contract. After the company had received the authority, as stated by Jones in his deposition, from t'~.; postmaster general, or an -rder to carry the mail, they issued this letter: ‘•Pittsburgh, Pa., April 23, ’7 W. G. Eovbtt, Esq. Supt. Railway Service, Cleveland, 3., Dear Sil: I have communication from Hon. Thos. Brady, 2d Asst. P. M. Gen., ordering mail service on our line 1st prox. — 79 — We will bavo mail car ready and attached to our train leaving heie at 8:15 A. M. (Columbus time), on morning of 1st prox. I suggest that this car be run through to Cleveland, returning on train leaving Cleveland at 7:15 A. M. I will arrange for the delivering of mails at all offices inside the required distance. Will you arrange for those beyond? Please let me know if you will be ready, and if you desire any additional arrangements in this connection. Yours, very truly, W. C. Quincy, Gen. Manager.” Now, this was in pursuance of the contract made between tne defendant company and the general government, through the postmaster general, and it was a mere announcement to the local supervisor of the railway service in Ohio, of the fact that the postmaster general had ordered the carrying of the mail to begin on the 1st proximo. It was not the making of a contract with the superintendent of mail service at Cleveland, that had already been done, the postmaster generaPs order had been already given to the company, and it had no tendency to show that the contract between the government and the railroad company was made in Ohio, but directly the opposite. 'The Pittsburgh and Fake Erie Railroad company had contracted to carry the mails from the city of Youngstown to the city of Pittsburgh; and also for a valuable consideration agreed and bound themselves by said contract to carry the plaintiff, so that be might discharge the duties which he contracted with said United States government to discharge. No one in the service of the United States government has any power or authority to make contracts for the transmission of mails and postal clerks, but the postmaster general. And it is to be officially noticed that his office and place of business is in the city of Washington, in the District of Columbia, at the headquarters of the government, as the evidence in the case shows. The Court therefore committed error in submitting to the jury whether the contract was made in the state of Ohio, The Court further charged: “Stated differently, if you find that the plaintiff at the time he received his injury, was lawfully upon the road of the defendant under a contract, either with the United States government or the plaintiff himself, to carry him from Cleveland, Ohio, to Pittsburgh, Pa., and return, or from Youngstown, O., to Pitttburgh, Pa,, and return, the contract not being made in Pennsylvania, and not to be wholly performed within the state of Pennsylvania, and he was engaged thereon as a postal clerk, only, the provisions of that act, would not apply, even though he may have been injured, whilst upon the road of the defendant.” Again : “ If he was lawfully upon it by virtue of a contract made between the defendant and the United States government, or himself by which he was entitled to passage, as a postal clerk, and was simply so engaged upon that train, and that contract was not made in the state of Pennsylvania, and was not to be wholly performed therein, then he would be entitled to recover for whatever injuries he actually sustained, resulting from the negligence and want of care of the conductor of this freight train, with the train upon which plaintiff was riding, collided.” Two propositions are embraced in this part of' the charge. One is, that plaintiff would be entitled to recover if he had entered into the contract himself with the railroad company to carry him. — 80 — There was no evidence or claim of that, and the court erred in submitting it to the jury. The other proposition is, if the contract was made outside of the state of Pennsylvania, whether made in Ohio, or not, then the law of Pennsylvania would not govern, and the plaintiff would be entitled to recover if all other facts and circumstances were properly shown to exist. Now, construe this charge with reference to the evidence, and what does it mean, and what must it have meant to that jury. It means, that if the contract between the general government and the railroad company was made neither in Pennsylvania nor Ohio, but at the seat of the general government, the statutes of Pennsylvania would not apply, nor the law of Pennsylvania, and plaintiff would be entitled to recover, without any inquiry as to what the law of the United States was as to the effect of the contract. Counsel for the parties presented this case, and their ideas upon it at considerable length, both orally and in writing, and apparently exhausted the books in an attempt to find authorities that would apply to .the case. At first we assumed that counsel had found all authorities bearing upon it, and we considered the question in that light. And I must say that I had arrived at the conclusion that there was no prejudicial error in this charge in any respect, that the statute of Pennsylvania had no application to the case, that it was not within the province of the legislature of the state of Pennsylvania to declare a man to be not a passenger in that state if he entered upon the train in another state to ■ be carried under any contract, to which he was a privy, for the payment of his fare. And, upon subsequent examination, I find the supreme court of the United States has declared, that by the common law, the law of the place! where a contract is made governs its nature, obligation, and interpretation, unless it appears that the parties, when entering into the contract, clearly manifest a mutual intent to be bound by the Jaw of some other country or state; and the fact that the contract is to be partly performed in another country or state, is not, of itself, sufficient to prove that intent. Liverpool & Great Western Steam Co. v. Phœnix Ins. Co., 129 W. S., 397, 455, 458; in which the rule is fully considered, and the English and American cases examined and commented on, and Cox et al. v. United States, 6 Peters, 172, cited with approval. In that case it was held, that a contract between the United States, through the navy department, and private persons, for services to be performed for the United States, is governed exclusively by the rules of the common law, and not by the statutes of the state where it is to be performed — that it is immaterial where the services are to be performed. I had also assumed that the constitution of the United States protected a citizen thereof, as Bishop was, from having having his privileges and immunities interfered with or abridged by any state. The provisions of the fourteenth amendment of the constitution of the United States provide expressly that no state shall by law abridge the privileges and immunities of any citizen of the United States. And this, too, although he.may be a citizen of such state. As the defendant was bound by it§ contract with the United States to carry the plaintiff from Youngstown to Pittsburgh, I thought it was bound to carry him safely, as a passenger for hire, and that his privileges, or rights, or status as such passenger, could not be abridged or taken from him by the legislature of the courts of Pensylvania on any — 81 — pretext whatever; that be was a privy to such contract, and bad a right to stand upon it. As illustrative of the last proposition, take the case of Emmitt v. Brophy, 42 O. S., where the court held that where abridge company sold its bridge to the county commissioners, and, a party, the principal stockholder to whom the consideration is paid, agreed by bond to pay off all debts and liens against the bridge company, that any creditor or anyone holding a lien is entitled to sue upon the contract, although his name was not mentioned in it, and although he may not have been known to the parties contracting at the time to be a lienholder; that he was privy to it, as it was made in part for his benefit. See. 131, U. S., 371; 155 U. S., 156. I do not regard it as at all mitigating against this rule that the contract is principally for the benefit of the party making it. It may be principally for his benefit, but if it is incidentally for the benefit of another, that other is privy to it, and would be entitled to sue upon it. 93 U. S., 149. Section 4000, Rev. Stats, of the U. S., provides :' “Every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.” The government therefore • pays for the carrjdng of the person as well as the mail itself, — the consideration is in solido. One party agrees to pay so much money, and the other party agrees to carry the mails and mail agent. The words "without extra charge therefor” refers more particularly to the mailable matter directed to be carried than to the person in charge thereof. Again, section 4005: “The length of cars required for such post office railway car service shall be determined by the post office department, and all such cars shall be properly fitted up, furnished, warmed, and lighted for the accommodation of clerks to accompany and distribute the mails.” ! Now, with a contract like that, paying for the carriage of the clerk ’and providing that certain accommodations shall be furnished by the railway company for his personal comfort, that he is not a privy to the contract, I think can not in any sense or reason be maintained. Supposing the company failed to warm up the car on a zero day, and his health was injured thereby, would such clerk not have a remedy upon the contract ? But it is useless to discuss this question further, as this court is not in condition to upset the Supreme Court of the United States. In examining the decisions and reports of the Supreme Court of the United States, I find that the case of the Pennsylvania Railroad Company v. Price, went to that court, and was there decided in conformity to the holding of the Pennsylvania court, that a postal clerk in cars carried under contract with the government is not a passenger. Price v. Pennsylvania R. R. Co., 113 U. S., 218. The syllabus is: “A person traveling on a railroad in charge of mails, unde: the provisions of section 4000, Revised Statutes, does not thereby acquire the rights of a passenger, in case he is injured on the railroad through negligence of the company’s servants.” Mr. Justice Miller delivered the opinion of the court. He recited the facts and continued: “The plaintiff argues here, and insisted throughout the progress otj the case in the state courts, that by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the dec — 82 — Cedent was a passenger, and the supreme court erred in holding otherwise. “These laws are thus cited in the brief of plaintiffs counsel: “Act March 3, 1865, Sec. 8, 13 Stat., 506, provides that for the purpose of assorting and distributing letters, and other matter in railway post offices, the post-master general may, from time to time, appoint clerks who shall be paid out of the appropriation for mail transportation. “Section 4000, Rev. Stat. requires that every railway company carrying the mail shall carry on any train which may run over its road, an £ without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same. “We do not think these provisions either aid or govern the construe* tion of the proviso in the Pennsylvania statute. “The person thus to be carriedwith mail matter, without extra charge, is ho more a passenger because he is in charge of the mail, nor beent no other compensation is made for his transportation, than if he had >. such charge, nor doer- the fact that he is in the employment of the Unite*) States, and the defendant is bound by contract with the government t* carry him, affect the question. It would be just the same if the compa^ • had contracted with any other person who had charge of freight on the train to carry him without additional compensation.” And with that I perfectly agree. If a party makes a contrae: with a railroad company to transport his freight and his servant, I hav* understood that the proper holding should be such servant is a passenger ; the consideration is paid in his interest and for his benefit, ?'.o is a privy to the contract and entitled to all the rights of a passenger, so far as being carried safely is concerned. And I cannot compre hend the application made of this doctrine to the case in question, when I consider that the same court had previously held, in Railroad Company v. Lockwood, 17 Wall, 357-384, that a drover traveling on a free pass, for the purpose of taking care of his stock on the train, is <. passenger for hire; and in Railroad Company v. Derby, 14 How., 486. and The Steamboat New World v. King, 16 How., 469-474, that a person lawfuly on the cars or boat riding on invitation of an officer, ui or on a free pass, is a passenger, and entitled to all the rights and priv • ileges of a passenger, “as resting not only on public policy, but on sound principles of law.” Justice Miller, proceeds r The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not: belong to any other person in a similar employment, by others than, the United States. “We are therefore, of opinion that no question of federal authority1 was involved in the judgment of the supreme court of Pennsylvania, anc. the writ of error is accordingly dismissed.” That settles for us the whole question in this case, holding as we do that the contract made with the general government is governed by the lav/ of the United States. And although the point was not ex-.ruined at any length, and it is apparently a first blush decision, we ire not in a position to overrule it, and therefore we are compelled to hold it was error for the court in this case to charge that if the contract was made outside of Pennsylvania, the statute of Pennsylvania — 83 — would not apply; and the case is reversed and remanded to the court below. J. P. Wilson, for Plaintiff in error. R. B. Murray and Wm, S. Anderson, for Defendant.