Kirkendall v. Union Pac. R.

CARLAND, Circuit Judge (after stating the facts as above). By the express terms of the contract it was agreed and understood-that Kirkendall was authorized to sign the same for and on behalf of the shipper, with full power in the premises. Under the terms of the contract and the evidence introduced at the trial, Kirkendall was the em-ployé and agent of Lobman & Co. It appears clearly from the contract that the railroad company agreed to transport the two cars of cattle at less than the regular tariff rate in consideration of Lobman & Co. agreeing to the limitation of the liability of the company as a common carrier, and further agreeing that they would load, unload, and reload the cattle at their own expense and risk, that they would feed, water and tend the same at their own expense and risk, and that they would perform the other innumerable duties with reference to the transportation thereof prescribed by the contract to be performed by the shipper. — 201 — It now becomes pertinent to inquire: How was Lobman & Co. to perform the provisions of the contract on their part to be performed? Manifestly, they must furnish a man or men to care for the stock and to perform the other duties required by the contract to be performed by them, and the contract provided for just such services. The contract did not provide that the owner of the cattle should personally accompany and take care of the same, and this would in a great majority of cases be impossible; so that the fact that Kirkendall had no interest in the cattle as owner cannot affect the question to be decided. The railroad company, having placed the burden of caring for the stock upon Lobman & Co., agreed that it would transport Kirken-dall when accompanying the stock in question from Denver to Omaha without charge other than the sum stipulated for the carriage of the live stock. The transaction, stated in a few words, was this: The railroad company, in consideration of the paymenUby Lobman & Co. of the limited liability tariff, the agreement by them to the limitation of the liability of the railroad company as a common carrier, and the assumption by them of the care of the stock, agreed to transport the two cars of stock, and Kirkendall, the man in charge, from Denver to Omaha-. It is argued that the shipment of the cattle under the limited liability contract was purely voluntary on the part of Lob-man & Co.- — that theyr could have paid the regular tariff, and thereby held the railroad company to all its common-law or statutory liability as a common carrier, including, of course, the care of the cattle. We do not think it is proper to inquire as to what the parties might have done. They made a contract by which the liability of each party must be determined, and not by some contract that they might have made. The contract which was made required Lobman & Co. to care for the cattle, and they could not obtain the transportation for a man or men to perform this service, except such man or men signed such a release of liability as that which Kirkendall signed. We do not think it is putting it too strongly to say that Kirkendall was required to sign the release, if such fact has any relevancy in determining the validity of the same. [ 1 ] We think this case must be ruled by Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, and that the decision in that case requires us to hold that Kirkendall was a passenger for hire when he was injured, and that the release of liability signed by him was void as being against public policy. The facts in the Lockwood Case, as they are stated in the report of the case, were as follows: Lockwood, a drover, was injured while traveling on a stock train of the New York Central Railroad Company proceeding from Buffalo to Albany, and brought suit to recover damages for the injury. He had cattle in the train, and had been required at Buffalo to sign an agreement to attend to the loading, transporting, and unloading of them, and to take all risk of injury to them, and of personal injury to himself, or to whomsoever went with the cattle, and he received what is called a drover’s pass; that is to say, a pass certifying that he had shipped sufficient cattle to pass free to Albany, but declaring that the acceptance of the pass was to be considered a waiver of all claims for dam — 202 — ages or injuries received on the train. The agreement stated its consideration to be the carrying of the plaintiff’s cattle at less than tariff rates. Mr. Justice Bradley delivered the opinion of the court, and after a careful and exhaustive review of the decisions the Supreme Court came to the following unanimous conclusions: “First. That a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law. “Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. “Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter. “Fourthly. That a drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.” The opinion concludes with the following language: “We purposely abstain from expressing any opinion as to what would have been the result of our judgment, had we considered the plaintiff a free ¡passenger, instead of a passenger for hire.” In the case of Railway Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535, the facts were as follows: Stevens, being the owner of a patented car-coupling, was negotiating with the defendant railway company, at Portland, Me., for its adoption and use by the latter, and was requested by the defendant to go to Montreal to see the superintendent of its car department in relation to the matter; the defendant offering to pay his expenses. The plaintiff consented to do this, and, in pursuance of the arrangement, he was furnished with a pass to carry him in defendant’s cars. This pass was in the usual form of free passes. On its back was the following printed indorsement: “The person accepting this free ticket, in consideration thereof, assumes all risk of all accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, or for any loss or injury to the property, of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare.” The plaintiff testified that he put the ticket into his pocket without looking at it. During the passage from Portland to Montreal, the car in which the plaintiff was riding ran off the track and was precipitated down an embankment, and he was much injured. Mr. Justice Bradley again delivered the opinion of the court, and in his opinion said: “It is evident that the court below regarded this ease as one of carriage for hire, and not as one of gratuitous carriage, and that no sufficient evidence to go to the jury was adduced to show the contrary, and hence that under the ruling of this court in Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, it was a case in which the defendant, as a common carrier of passengers, could not lawfully stipulate for exemption from liability for the negligence of its servants. In 'taking this view, we think the court was correct. The transportation of the plaintiff in the defendant’s cars, though not paid for by him in money, was not a matter of charity nor of gratuity in any sense. It was by virtue of an agreement, in which the mutual interest of the parties was consulted. It was part of the consideration for which — 203 — the plaintiff: consented to take the journey to Montreal. Ills expenses in making that, journey were to be paid by the defendant, and of these the expense of his transportation was a part. The giving him a fee pass did not alter the nature of the transaction. The pass was a mere ticket, or voucher, to be shown to the conductors of the train, as evidence of his right to be transported therein. It was not evidence of any contract by which plaintiff was to assume all the risk; and it would not have been valid if it had been. In this respect it was a stronger case than that of Lockwood’s. There the pass was what is called a ‘drover’s pass,’ and an agreement was actually signed, declaring that the acceptance of the pass was to be considered as a waiver of all claims for damages or injury received on the train. The court rigidly refused, therefore, in the present case, to charge that the plaintiff was traveling upon the conditions indorsed on the pass, or that, if he traveled on that pass, the defendant was free from liability. And the court was equally right; in refusing to charge that, if the plaintiff was a free or gratuitous passenger, the defendant was not liable. The evidence did not sustain any such hypothesis. It was uncontradicted, so far as it referred to the arrangement by virtue of which the journey was undertaken.” Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, was a -case involving the validity of a contract contained in bills of lading for a shipment of certain cotton, and exempting the carrier for loss from certain express perils, whether arising through negligence, default, or error in judgment of the crew or others. The cotton was lost by reason of the stranding of the vessel on the west coast of Great Britain on account of negligence in the parties handling the same. Mr. Justice Gray delivered the opinion of the court, and said: “We are, then, brought to the consideration of the principal question in the case, namely, the validity and effect of that clause in each bill of lading by which the appellant undertook to exempt itself from all responsibility for loss or damage by perils of the sea, arising from negligence of the master and crew of the ship. “The question appears to us to be substantially determined by the judgment of this court in Railroad Co. v. Lockwood, 17 Wall. 357 [21 L. Ed. 627].” And after a careful analysis of the opinion of the court in the Lockwood Case he further said: “This analysis of the opinion in Railroad Co. v. Lockwood shows that it affirms and rests upon the doctrine that an express stipulation by any common carrier for hire, in a contract of carriage, that he shall be exempt from liability for losses caused by the negligence of himself or his servants, is unreasonable and contrary to public policy, and consequently void. And such has always been the understanding of this court, expressed in several later cases. Express Co. v. Caldwell, 21 Wall. 264, 268 [22 L. Ed. 556]; Railroad Co. v. Pratt, 22 Wall. 123, 134 [22 L. Ed. 827]; Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 183 123 L. Ed. 872]; Railroad Co. v. Stevens, 95 U. S. 655 [24 L. Ed. 535]; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338 [5 Sup. Ct. 151, 28 L. Ed. 717]; Phœnix Ins. Co. v. Erie & W. Transportation Co., 117 U. S. 312, 322 [6 Sup. Ct. 1176, 29 L. Ed. 873]; Inman v. South Carolina Railway, 129 U. S. 128 [9 Sup. Ct. 249, 32 L. Ed. 612].” In Baltimore & Ohio Southwestern Railway Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, the judges of the Circuit Court of Appeals for the Sixth Circuit certified the following question to the Supreme Court of the United States for its instruction: — 204 — “Question. “A railroad company, engaged as common carrier in the business of transporting passengers and freight for hire, entered into a contract in writing with an express company authorized by law to do and actually doing the business known as express business, by which contract the railroad company agreed, solely upon the considerations and terms hereinafter mentioned, to furnish for the exclusive use of such express company, in the conduct of its said express business over said railway company’s lines, certain privileges, facilities, and express cars to be used and employed exclusively by said express company in the conduct of such express business, and to transport said cars and contents, consisting of express matter, in its fast passenger trains, together • with one or more persons in charge of said express matter, known as express messengers, for that purpose to be allowed to ride in said express cars, and to transport such express messengers for the purposes and under the circumstances aforesaid free of charge. And by said contract it was agreed on the part of said express company to pay said railroad company for such privileges and facilities, and for the furnishing and use of said express car or cars, and for such transportation thereof, a compensation named in said contract, and by which contract it was further agreed by the express company to protect the. railroad company and hold it harmless from all liability it might be under to employes of the express company for any injuries sustained by them while being so transported by said railroad company, whether the injuries were caused by negligence of the railroad company or its employes or otherwise. A person made application to said express company in writing to be employed by it as express messenger on the railroad of a company, between which and such express company a contract as aforesaid existed, and such applicant, pursuant to the application aforesaid, was employed by said express company under a contract in writing, signed by him and it, whereby it was agreed between him and such express company that he did assume the risk of all accident or injury be might sustain in the course of said employment, whether occasioned by negligence or otherwise, and did undertake and agree to indemnify and hold harmless said express company from any and all claims that might be made against it arising out of any claim or recovery on his part for any damages sustained by him by reason of any injury, whether such damage resulted from negligence or otherwise, and to pay said express company on demand any sum which it might be compelled to pay in consequence of any such claim, and to execute and deliver to said railroad company a good and sufficient release under his hand and seal of all claims and demands and causes of action arising out of or in any manner connected with said employment, and expressly ratified the agreement aforesaid between said' express company and said railroad company. “Does said railroad company assume, toward such express messenger while being carried in the course of his said employment in one of said express cars attached to a passenger train of said railroad company, pursuant to the contracts aforesaid, the ordinary liability of a common carrier of passengers for hire, so as to render said railroad company liable as such to said express messenger, notwithstanding the contracts aforesaid, for injuries he might sustain by reason of a collision between the train to which said express car is attached and another train of said railroad company, caused by the negligence of employés of the railroad company?” The Supreme Court in an opinion delivered by Mr. Justice Shiras answered the above question in the negative; but in the course of the opinion it was expressly held that the Supreme Court adhered to the rule enunciated in the Lockwood Case, and said that the principles declared in Railroad Co. v. Lockwood, Railway Co. v. Stevens, and Liverpool Steam Co. v. Phenix Insurance Co., supra, were salutary, and that the Supreme Court had no disposition to depart from them —showing conclusively, in our opinion, that the court did not intend — 205 — in any way to overrule or modify the rule laid down in those cases. It was further said in the opinion in the Voigt Case: “Upon Hie.se principles we think the law of to-day may be fairly stated as follows: (1) That exemptions claimed by carriers must be reasonable and just; otherwise, they will be regarded as extorted from the customers by duress of circumstances, and therefore not binding. (2) That all attempts of carriers, by general notices or special contract, to escape from liability for losses to shippers, or injuries to passengers, resulting from want of care or faithfulness, cannot be regarded as reasonable and just, but as contrary to a sound public policy, and therefore invalid.” In Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, the facts were that Jay H. Adams resided at Spokane, Wash. On November 13, 1898, he, with a friend, started on one of the trains of the Northern Pacific Railway Company from Hope, Idaho, to Spokane. Shortly after leaving Hope, Adams, then in the smoking car, went back to the dining car for cigars. To reach the dining car, he passed through the day coach and the tourist sleeper. After buying cigars, he left the dining car and went forward. This was the last seen of him alive. His body was found the next day opposite a curve in the railroad track about six miles west of Hope. He was riding on a free pass, upon which appeared the following language signed by Adams; "Tlie person accepting this free ticket agrees that the Northern Pacific Railway Company shall not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person, or for any loss or damage to the property, of the passenger using the same. “1 accept the above conditions.” The heirs of Adams brought suit against the railway company, and recovered a verdict and judgment, which were sustained by the Court of Appeals for the Ninth Circuit (54 C. C. A. 196, 116 Fed. 324), and thereupon the case was taken to the Supreme Court of the United States on writ of certiorari. The Supreme Court, in deciding the case, arrived at the conclusion that when a railroad company gives gratuitously, and a passenger accepts, a pass, the former waives its rights as a common carrier to exact compensation; and, if the pass contains a condition to that effect, the latter assumes the risks of ordinary negligence of the company’s employés, and the arrangement is one which the parties may make, and no public policy is violated thereby. And if the passenger is injured or killed while riding on such a pass gratuitously given, which he has accepted with knowledge of the conditions therein, the company is not liable therefor, either to him or to his heirs, in the absence of willful or wanton negligence. An examination of the opinion of Mr. Justice Brewer in the Adams Case conclusively demonstrates that the ruling was based upon the ground that Adams was not a passenger for hire and had voluntarily entered into the contract which exempted the company from liability. The Lockwood Case is referred to, and it was said in the opinion of the court; “He [Adams] was not a passenger for hire, such as was held to be the condition of the parties recovering in Railroad Co. v. Lockwood, 17 Wall. 357 [21 L. Ed. 627], and Railway Co. v. Stevens, 95 U. S. 655 [24 L. Ed. 535].” — 206 — In Cau v. Texas & Pacific Railway Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053, the Lockwood Case is referred to and approved; but the court held in the case cited that, so long as there is no stipulation for an exemption from liability on the part of a common carrier which is not just and reasonable in the eye of the law, the responsibility of the carrier may be modified by contract. Charnock v. Texas & Pacific Railway Co., 194 U. S. 432, 24 Sup. Ct. 671, 48 L. Ed. 1057, is to the same effect. We are unable to reach the conclusion, from an examination of the decisions of the Supreme Court since the Lockwood Case, that it has in any way modified or overruled the same. On the contrary, it would seem that the Justices who have delivered the opinions of the court have taken care to make it plain that the Lockwood Case still declares the law as to cases within the facts in that case, and we think the case under consideration is such a case. It would be unprofitable to review the conflicting decisions of the state courts, as we must in any event follow the rule declared by the Supreme Court of the-United States; but the following authorities clearly sustain the proposition that Kirkendall, under the circumstances of this case, was a passenger for hire: Delaware, L. & W. R. Co. v. Ashley, 67 Fed. 209, 14 C. C. A. 368; C., P. & A. R. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362; Pennsylvania Co. v. Greso, 79 Ill. App. 127; N. Y., C. & St. L. R. R. Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809; I. C. R. R. Co. v. Beebe, 174 Ill. 13, 50 N. E. 1019, 43 L. R. A. 210, 66 Am. St. Rep. 253; O. & M. Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Lake Shore, etc., R. Co. v. Teeters, 166 Ind. loc. cit. 344, 77 N. E. 599, 5 L. R. A. (N. S.) 425; L. & N. R. R. Co. v. Bell, 100 Ky. 203, 38 S. W. 3; Pennsylvania R. R. Co. v. Henderson, 51 Pa. 315; Rowdin v. Pennsylvania R. Co., 208 Pa. 623, 57 Atl. 1125, 1126; Flinn v. Phil., Wil. & Balt. R. Co., 1 Houst. (Del.) 469; Feldschneider v. C., M. & St. P. R. Co., 122 Wis. 423, 99 N. W. 1034; Mo. Pac. Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346, 1 L. R. A. 500, 10 Am. St. Rep. 758; Moulton v. St. P., M. & M. R. Co., 31 Minn. 85, 16 N. W. 497, 47 Am. Rep. 781; Saunders v. Southern Pacific Co, 13 Utah, loc. cit. 284, 285, 44 Pac. 932; L. R. & Ft. Smith Ry. v. Miles, 40 Ark. loc. cit. 320, 48 Am. Rep. 10; Carroll v. M. P. R. Co., 88 Mo. 239, 57 Am. Rep. 382; Spriggs, Adm’r, v. Rutland R. Co., 77 Vt. 347, 60 Atl. 143; Weaver v. Ann Arbor R. Co., 139 Mich. 590, 102 N. W. 1037, 5 Ann. Cas. 764; Maslin v. B. & O. R. R. Co, 14 W. Va. 180, 35 Am. Rep. 748; Hutchinson on Carriers (3d Ed.) vol.’2, § 1003; Elliott on Railroads (2d Ed.) vol. 4, § 1605; Moore on Carriers, c. 19, § 17, p. 571. [2] At the time counsel for the railroad company moved for a. directed verdict nothing was said in regard to there being a want of evidence, as to the negligence of the railroad company. The point, however, is made in this court that the evidence of the plaintiff did not show negligence. If we are right in holding that Kirkendall was a passenger for hire at the time of his injury, then we think that it necessarily follows that a prima facie case of negligence was made when it was shown that the car in which he was riding was run — 207 — into by an engine and train from behind. It is said that there is no proof that it was an engine and train of the defendant company. In Gleeson v. Virginia Midland Railroad Co., 140 U. S. 443, 11 Sup. Ct. 862, 35 L. Ed. 458, it was said by Mr. Justice Lamar, in delivering the opinion of the court: . “Since the decisions in Stokes v. Saltonstall, 13 Pet. 181 [10 L. Ed. 1151. and Railroad Co. v. Pollard, 22 Wall. 341 [22 L. Ed. 877], it lias been settled law in tliis court that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. The rule announced in those cases has received general acceptance, and was followed at the present term in Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551 [11 Sup. Ct. 653, 35 L. Ed. 270].” “The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff' be a passenger, that the accident occurred. Tf that accident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima .facie case. When he proves the occurrence of the accident, the defendant must answer that ease from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” We think the evidence introduced on the part of the plaintiff made a prima facie case of negligence, and that the court committed error in directing a verdict for the defendant. The judgment below is reversed, and a new trial ordered,