Balt. & Ohio Sw. Ry. Co. v. Voigt, 176 U.S. 498 (1900)

“1 For a second and separate defence the railway company answered that on the day in question it was, and had for a long time prior thereto been, a corporation under the laws of Ohio engaged in the operation of its railroad from Cincinnati to St. Louis and other places, and was so engaged at the time of the collision referred to, and that on the 1st day of March, 1895, it entered into a contract with the United States Express Company, a joint stock company duly authorized by law to carry on the express business and to enter into such contract, and that by said contract it was agreed between the express company and the railway company, among other things, that the railway company would furnish for the express company, on the railway company’s line between Cincinnati and St. Louis, cars adapted to the carriage of such express matter as the express company desired to have transported over said line, and that it was part of said contract that one or more employés of said express company should accompany said goods in said cars over the said line of said railroad, and for such purpose should be transported in said cars free of charge, and that it was further provided in said contract that the express company should protect the railway company and hold it harmless from all liability the railway company might be under to employés of the express company for injury they might sustain while being transported by the railway company over its line for the purpose aforesaid, whether the injuries were caused by negligence of the railway company or its em ployés or otherwise. The railway company further averr that, pursuant to said contract with the express company, i placed upon its line of railroad for said express company cei^ tain cars known as express cars, and that it was hauling on of said cars on one of its trains on the 30th of December, at the time said collision occurred, and that prior to t ie of the accident Voigt had made application to the company in writing for employment by it as an expiess n senger, and that in pursuance to said application he was, pn to and at the time of the collision, employed by the exp company under a contract in writing between him anc ’ the terms whereof he did assume the risk of all acci en p. 501injuries that he might sustain in the course of his said employment, whether occasioned by negligence and whether resulting in death or otherwise, and did undertake and agree to indemnify and hold harmless the 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 injury resulted from negligence or otherwise, and did agree to pay to said express company on demand any sum which it might be compelled to pay in consequence of any such claim, and did agree to execute and deliver to the corporation operating the transportation line (in this instance the railway company), upon which he might be injured, a good and sufficient release under bis hand and seal of- all claims, demands and causes of action arising out of any such injury or connected with or resulting therefrom, and did ratify all agreements made by the express company with any transportation line (in this instance said railway company), in which said express company had agreed or might agree that the employés of said express company should have no cause of action for injuries sustained in the course of their employment upon the line of such transportation company ; and that the said Voigt did further agree to be und by each and every of the agreements above mentioned as fully as if he were a party thereto. He did agree that his contract with the express company should inure to the benefit ° any corporation upon whose line said express company s ou d forward merchandise (in this instance the said railway company), as fully and completely as if made directly with the coiporation. In said defence it was further set forth that at the ^me t e plaintiff sustained the injuries for which the suit was roug t he was in an express car being transported by the rail-

°n the SGCOnd defence a demurrer was interposed by Voigt e abound that the allegations therein did not constitute a p. 502defence to the action. Upon the hearing of this demurrer it was sustained, and an entry was made of record finding the demurrer well taken. The opinion of the court sustaining the demurrer is published in 79 Fed. Rep. 560. The decision of the court went upon the ground that although Voigt was an express messenger riding upon an express car in the circumstances stated, he was a passenger for hire and entitled to the rights accorded by law to ordinary passengers travelling by a train of a common carrier, and further that it was not competent for the railway company to absolve itself from the duties which rest upon a common carrier in reference to its passengers. A stipulation in writing was filed waiving a trial by jury, and the case was tried by the court. The finding of the issues was in favor of the plaintiff and the damages were assessed at the sum of $6,000.00, and judgment was thereupon entered that the plaintiff recover that sum with costs. The defendant brings the case here on writ of error, and assigns errors, the substance of which is involved in the ruling of the court below sustaining the demurrer to the second defence of the answer of the defendant, and the controversy here involves the question whether in point of law a messenger of an express company, occupying a car of a railway company assigned to an express company for the prosecution of its business under a contract fixing the relations of the railway company and the express company, which, for the consideration shown by the contract, absolves the railway company from the consequence of its negligence to the exprès company and its employés, and to which the employé agrees, upon entering the service of the express company, stan s in the ordinary relation of a common carrier of passengers hire to the employé of the express company. The ru e is undoubtedly well settled that a railway company standing in the relation of a common carrier to a passenger for hire canno absolve itself for liability from the consequences of its ne^ gence in carriage, but the members of the court are m whether the defendant in error comes within the rule a mentioned, and, therefore, upon the foregoing statemen fact it is ordered that the folio wing question be certi e o Supreme Court of the United States for its instruction.

t e course of said employment, whether occasioned by neg‘gence or otherwise, and did undertake and agree to indemnify p. 504and 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.

The question we are asked to answer is, whether i Voigt, the defendant in error, can avoid his agreement a the railroad company should not be responsible to lin eg injuries received while occupying an express car as senger,.in the manner and circumstances heretofoie sta e , p. 505invoking that principle of public policy which has been held to forbid a common carrier of passengers for hire to contract against responsibility for negligence ?

m Printing dec. Co. n . Sampson, L. R. 19 Eq. 465 : “ It s not be forgotten that you are not to extend arbitrarily se ru es which say that a given contract is void as being than18 h ° P°t*cy> because if there is one thing which more and an°t Pu^c P°hcy requires it is that men of full age contraT’^61^ understanding shall have the utmost liberty of and v^ lng’ their contracts, when entered into freely courts ’ shaR be held sacred, and shall be enforced by justice. Therefore, you have this paramount public p. 506policy to consider — that you are not lightly to interfere with this freedom of contract.”

e ^ave here to consider not the case of an individual p. 508shipper or passenger, dealing, at a disadvantage, with a powerful corporation, but that of a permanent arrangement between two corporations embracing within its sphere of operation a large part of the transportation business of the entire country. We need not, in this inquiry, examine the nature of the business of an express company, or rehearse the particular services it renders the public. That has been done, sufficiently for our present purpose, in the Express cases, 117 IT. S. 1, and from the opinion in that case we shall make some pertinent extracts:

express business was started that it has not been encouragec by the railroad companies, and it is no doubt true that no rai road company in the United States has ever refused to trans port express matter for the public, upon the application o some express company, of some form of legal constitution. Every railway company has recognized the right of the pu lie to demand transportation by the railway facilities w ic the public has permitted to be created of that class of ma which is known as express matter. Express companies un doubtedly have invested their capital and built up then us p. 509ness in the hope and expectation of securing and keeping for themselves such railway facilities as they needed, and railroad companies have likewise relied upon the express business as one of their important sources of income.

p a companies are by law carriers of both persons and property, assenger trains have, from the beginning, been provided for p. 510the transportation primarily of passengers and their baggage. This must be done with reasonable promptness and with reasonable comfort to the passenger. The express business on passenger trains is in a degree subordinate to the passenger business, and it is consequently the duty of a railroad company in arranging for the express to see that there is as little interference as possible with the wants of the passengers. This implies a special understanding and agreement as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which they shall stop, the price to be paid, and all the varying details of a business which is to be adjusted between two public servants, so that each can perform in the best manner its own particular duties. All this must necessarily be a matter of bargain, and it by no means follows that, because a railroad company can serve one express company in one way, it can as well serve another express company in the same way, and still perform its other obligations to the public in a satisfactory manner. The car space that can be given to the express business on a passenger train is, to a certain extent, limited, and, as has been seen, that which is allotted to a particular carrier must be, in a measure, under his exclusive control. No express company can do a successful business unless it is at all times reasonably sure of the means it requires for transportation. On important lines one company will at times fill all the space the railroad company can well allow for the business. ...

“ In this way three or four important and influential com panies were able substantially to control, from 1854 unti about the time of the bringing of these suits, all the railway express business in the United States, except upon the Paci c roads and in certain comparatively limited localities. In act, as is stated in the argument for the express companies, t ie Adams was occupying, when these suits were brought, one hundred and fifty-five railroads, with a mileage of , miles; the American, two hundred roads, with a mileage o 28,000 miles; and the Southern, ninety-five roads, with a nn age of 10,000 miles. Through their business arrangemen p. 511with each other, and with other connecting lines, they have been able for a long time to receive and contract for the delivery of any package committed to their charge at almost any place of importance in the United States and in Canada, and even at some places in Europe and the West Indies. They have invested millions of dollars in their business, and have secured public confidence to such a degree that they are trusted unhesitatingly by all who need their services. The good will of their business is of very great value if they can keep their present facilities for transportation. The longer their lines and the more favorable their connections, the greater will be their own profits, and the better their means of serving the public. In making their investments and in extending their business they have undoubtedly relied on securing and keeping favorable railroad transportation, and m this they were encouraged by the apparent willingness of railroad companies to accommodate them; but the fact still remains that they have* never been allowed to do business on any road except under a special contract, and that as a rule only one express company has been admitted on a road at the same time.”

e are not furnished in this record with an entire copy of p. 512the contract between the plaintiff in error, The Baltimore and Ohio Southwestern Railway Company, and The United States Express Company, but it is sufficiently disclosed in the statement made by the Judges of the Circuit Court of Appeals, that the companies were doing an express business together as common carriers under an agreement entered into on March 1,1895; that by said contract it was agreed that the railway company would furnish, on its line between Cincinnati and St. Louis, for the express company, cars adapted to the carriage of express matter over said line; that one or more employes of said express company should accompany said goods in said cars over the said line, and for such purpose should be transported in said cars, free of charge; that the express company should protect the railway company and hold it harmless from all liability for injuries sustained by the employes of the express company while being transported for the said purpose over the railroad ; that Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars; that, in consideration of such agreement on his part, Voigt was employed as an express messenger, and while so employed, and while occupying as such messenger a car assigned to the express company, received injuries occasioned by a collision, on December 30, 1895, between the train which was transporting the express car and another train belonging to the same railroad company.

It is evident that, by these agreements, there was created a very different relation between Voigt and the railway company than the usual one between passengers and railroad com panies. Here there was no stress brought to bear on Voigt a» a passenger desiring transportation from one point to ano i on the railroad. His occupation of the car, specially adapte^ to the uses of the express company, was not in pursuance o any contract directly between him and the railroad companj, but was an incident of his permanent employment by the ex p. 513press 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 from any liability to him, or to each other, for 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 part of his regular employment, and as provided in a contract which, as we have seen, the railroad company was under no local compulsion to enter into.

“ The question of a right of carriers to limit their liability for negligence in the discharge of their duties as carriers by contract with their customers or passengers in regard to such duties does not arise under the contract as construed in this case. See Railroad Co. v. Lockwood, 17 Wall. 357; Griswold v. New York & New England Railroad, 53 Conn. 371. It was not a contract for carriage over the road, but for the use of a particular car. The consideration of the plaintiff’s agreement was not the performance of anything by the defendant which it was under any obligation to do, or which the plaintiff had any right to have done. It was a privilege granted to t e plaintiff. The plaintiff was not compelled to enter into the contract in order to obtain the rights of a passenger. Having these rights, he sought something more. . . • The fac that the plaintiff was riding in the baggage car as an express messenger in charge of merchandise which was being rans ported there, shows more clearly that the contract by 9 express company and the plaintiff was not unreasonab e or against public policy. He was there as a servant engage^ with the servants of the railroad company in the service transportation on the road. His duties were substantia y the same as those of the baggage-master in the same car, latter relating to merchandise carried for passengers, an former to merchandise carried for the express company, actual relations to the other servants of the railroad corpora^ engaged in the transportation were substantially the sain p. 515those of the baggage-master, and would have been the same had he been paid by the corporation instead of by the express company. Had the railroad done the express business, the messenger would have been held by law to have assumed the risk of the negligence of the servants of the railroad. It does not seem that a contract between the express company and the plaintiff on the one hand, and the defendant on the other, that the express messenger in performing his duties should take the same risk of injury from the negligence of the servants of the railroad engaged in the transportation that he would take if employed by the railroad to perform the same duties, would be void as unreasonable or as against public policy. ”

he Supreme Court of Michigan, in Coup v. Wabash, St. ^ouis (be. Railway Co., 56 Michigan, 111, where a railroad ^inpany, under a special agreement, was to furnish men and 0 ive power to transport a circus of the plaintiff from Cairo p. 516to Detroit on cars belonging to the plaintiff, stopping at certain named points for exhibition, the plaintiff paying a fixed price therefor, held, that such transportation was not a transaction with a common carrier as such; that the contract was valid, and that the railway company was not liable for injury due to negligence.

e same doctrine prevails in the State of Hew York. p. 518Bissell v. New York Central Railroad, 25 N. Y. 442; Poucher v. New York Central Railroad, 49 N. Y. 263. Though it must be allowed that the New York decisions are not precisely in point, as those courts do not accept the doctrine of Railroad Co. v. Lockwood to its full extent, but hold that no rule of public policy forbids contractual exemption from liability, because the public is amply protected by the right of every one to decline any special contract, on paying the regular fare prescribed by law, that is, the highest amount which the law allows the company to charge.

Brewer v. New York, Lake Erie & Western Railroad, N. Y. 59, is also cited as a case wherein a recovery was mam tained by an express messenger against a railroad company, and where there existed an agreement between the e^Pr^ company and the railroad company that the* latter shou indemnified and protected against all risks and lia 11 But the court put its judgment against the railroad compa p. 519expressly upon the ground that the messenger had no knowledge or information of the contract between the companies, and was not himself a party to the agreement to exempt the railroad company.