McCree v. Davis

280 F. 959, 1922 U.S. App. LEXIS 1887

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 14, 1922
• Docket: No. 3590
• Status: Published

Opinion

DONAHUE, Circuit Judge

(after stating the facts as above). The trial court, as appears from its opinion, copied into the record in this case, sustained the motion of the defendant for a directed verdict upon the theory that the contract between the plaintiff and her employer, the circus company, and the contract between the circus company and the railroad company, were valid contracts, barring plaintiff from recovery of any damages in this action. It is unnecessary to consider these contracts in detail. If either is valid, it would be a bar to plaintiff’s recovery of damages for injuries which she may have sustained by reason of the ordinary negligence of the railway’s employés.

[ 1 ] While the validity of the contract between herself and the circus company might well be challenged as an Ohio contract (section 6243, Gen. Code Ohio; Railway Co. v. Kinney, 95 Ohio St. 64, 115 N. E. 505, L. R. A. 1917D, 641, Ann. Cas. 1918B, 286), regardless of the attempt to escape the settled public policy of Ohio by providing that the laws of the District of Columbia, or some other state or country, having no connection whatever either with the making or performance of the contract, should control (Insurance Co. v. Clements, 140 U. S. 226, 232, 11 Sup. Ct. 822, 35 L. Ed. 497; Insurance Co. v. Cohen, 179 U. S. 262, 21 Sup. Ct. 106, 45 L. Ed. 181, quoted and approved in Insurance Co. v. Hill, 193 U. S. 551, 554, 24 Sup. Ct. 538, 48 L. Ed. 788), or as so offending against the public of Ohio that it would not be enforced in the courts of Ohio (Bank v. Earle, 13 Pet. 519, 10 L. Ed. 274; Grosman v. Union Trust Co., 228 Fed. 610, 143 C. C. A. 132, Ann. Cas. 1917B, 613), or by a federal court in Ohio, for the reason that the law of Ohio is, in a case of this character, equally the lex fori as if the case were pending in an Ohio court (Pritchard v. Norton, 106 U. S. 129, 1 Sup. Ct. 102, 27 L. Ed. 104; Trust Co. v. Grosman, 245 U. S. 412, 418, 38 Sup. Ct. 147, 62 L. Ed. 368; Grosman v. Union Trust Co., 228 Fed. 610, 143 C. C. A. 132, Ann. Cas. 1917A, 613; Keystone Wood Co. v. Boom Co., 240 Fed. 296, 153 C. C. A. 222), nevertheless the decision of either of these questions would avail nothing, for the reason that the authorities are unanimous in holding that the railroad company, although a common carrier, when acting outside the performance of its legal duties, may contract as a private carrier and stipulate from liability for injury to persons or property caused by its negligence, and that the- employés of the circus company, accepting transportation under such a contract, are bound by its terms (Railroad Co. v. Maucher, 248 U. S. 359, 39 Sup. Ct. 108, 63 L. Ed. 294; Clough v. Grand Trunk Ry. Co., 155 Fed. 81, 85 C. C. A. 1, 11 L. R. A. [N. S.] 446; Wilson v. Railroad Co. [C. C.] 129 Fed.. 774; Railroad Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Railway Co. v. Henry, 170 Ind. 94, 103, 105, 83 N. E. 710).

[2] There is, however, a serious controversy between counsel as to the correct construction of the fifth paragraph of this contract between the railroad, company and the circus company. It is contended on the part of the defendant that the words “or arising from any cause whatsoever” comprehend and include the negligence of any of the railway company’s servants and employes. It is contended on the part of counsel for plaintiff in error that this construction is entirely too broad, and that this provision should be construed in accordance .with the doctrine of ejusdem generis. It is undoubtedly a canon of construction that all contracts limiting liability must be strictly construed against the carrier. Nevertheless the words used in a contract must be given their plain, usual, and ordinary meaning, and where that meaning is clear and unambiguous it cannot be controlled or changed by any rules of interpretation that might be useful and applicable to the interpretation of ambiguous language or uncertain or indefinite terms in a contract. This language is plain and comprehensive. In so many words it provides that the railway company shall not be liable to the circus company, or to any person or persons, for any injury or damage which may happen to said person, cars, or property “arising from any cause whatsoever.” It is true that there are a number of specific causes of accident or injury mentioned, such as defects in railroad or tracks, or unsuitableness of tracks for the purpose, or the negligence of conductors, engineers, trainmen or other servants or any or either of them.

It would seem from other parts of this paragraph that the employés specifically mentioned, were the conductors, engineers, trainmen, or other employés furnished by the railway company to the circus company, for the moving of the circus train and engaged in the handling of the circus train, nevertheless the application of the doctrine of ejusdem generis to this comprehensive provision “or arising from any cause whatsoever” would necessarily defeat the intent, purpose, and effect of this provision. This court is therefore of the opinion that paragraph 5 of this contract must be construed as a release of this railway company from all damages to persons and property of the employés of this circus company caused by the ordinary negligence of any of the employés of the railway company, and that, the plaintiff in error having accepted transportation under this contract, she is bound by its terms. The railroad company, however, could not contract, either with the circus company: or the employés of that company, for a release from any willful and wanton negligence on its part; therefore this comprehensive provision, “or arising from any cause whatsoever,” cannot be held to include wanton and willful negligence on the part of the railroad company or its,, employés, and, if so construed, it would be void as against public policy.

The second amended petition charges that the injury to the plaintiff was occasioned by the wanton and willful negligence.of the defendant’s agent, servants, and employés in charge of and operating the troop train, which collided with the rear end of the circus train, and if there is any evidence tending to support this allegation of the plaintiff’s petition, then she would be entitled to have that question submitted to. a jury, regardless of the contracts, and regardless of the fact that she did not sustain the relation of passenger to the railway company. It is insisted, however, that there is no such thing as willful negligence, for the reason that the term implies intentional injuries, and that, in the case of intentional injury, negligence is of no importance. There is, however, a substantial difference between the' terms “willful negligence” and “intentional injury,” as these terms are commonly understood. A person may be guilty of willful negligence, without having formed the actual intent to injure any person, much less the particular individual who happens to be injured by the result of that negligence.

It is also said that the terms “wanton” and “willful” are merely vituperative epithets, that add nothing whatever to the charge of negligence. The Supreme Court of the United States does not seem to entertain this view of wanton and willful negligence. On the contrary, in the case of Railroad Co. v. Mohney, 252 U. S. 152, 157, 40 Sup. Ct. 287, 289 (64 L. Ed. 502, 9 A. L. R. 496), that court said:

“But the Court of Appeals affirmed the judgment on two grounds, one of which was that all of the judges were ‘clearly of the opinion that the negligence in the case, under the evidence, was willful and wanton.’ This court does not weigh the evidence in such cases as we have here, but it has been looked into sufficiently to satisfy us that the argument that there is no evidence whatever in the record to support such a finding cannot be sustained. A carrier by rail is liable to a trespasser or to a mere licensee willfully or wantonly injured by its servants in charge of its train (Commentaries on the Law of Negligence, Thompson, §§ 3307, 3308 and 3309, and the same sections in White’s Supplement thereto), and a sound public policy forbids that a less onerous rule should be applied to a passenger injured by like negligence when lawfully upon one of its trains. This much of protection was due the plaintiff as a human being who had intrusted his safety to defendant’s keeping. Southern Pacific Co. v. Schuyler, 227 U. S. 601, 603; Chicago, Rock Island & Pacific Ry. Co. v. Maucher, 248 U. S. 359, 363.”

It is said, however, that the doctrine announced by the Supreme Court in the Mohney Case applies to passengers only, because the court expressly used the word “passenger” in connection with willful and wanton negligence. The court, however, in the language above stated, expressly applied this rule of liability for willful and wanton injury to trespassers or mere licensees. In Railway Co. v. Maucher, supra, the Supreme Court said:

“Furthermore, plaintiff was not even a passenger on the railway. His claim rests, not upon a contract of carriage, but upon the general right of a human being not to be injured by the negligence of another.”

To the same effect is the doctrine announced in Railway Co. v. Schuyler, 227 U. S. 601, 613, 33 Sup. Ct. 277, 57 L. Ed. 662, 43 L. R. A. (N. S.) 901.

This plaintiff was not a trespasser or mere licensee. Even if she did not sustain the relation of a passenger to the railroad company, she was being’transported, either by the railroad company, itself, or by the circus company using the tracks, motive power, and train crew furnished to the circus company by the railroad company, not gratuitously, but at a price satisfactory to the railroad company, and paid to the railroad company by the circus company. Therefore she was entitled to ride upon this train, and she was rightfully upon the tracks of the defendant company. Under the authority of the cases above cited, the plaintiff as a human being was entitled, at the very least, to be protected from the willful and wanton negligence of the agents and servants of the railroad company engaged in the operation and movement of other trains upon its tracks. It was said by this court in the case of Fluckey et al. v. Southern Ry. Co., 242 Fed. 468, 155 C. C. A. 244, that:

“Cross and wanton negligence of a railway company, to avoid the contributory negligence of a person struck by a railway motor car, must be really willful or so highly reckless as to constitute the equivalent of willfulness.”

In Perna v. Rapids Ry. Co., 250 Fed. 728, 731, 163 C. C. A. 60, 63, this court said:

“We think there was error in failing to give effect to the charges introduced into the amended declaration and to Ihe evidence tending to support them. This was not, to present a case of mere negligence on the part of a wrongdoer, which might be defeated by the contributory negligence — that is, the mere negligence — of the person injured. It is a case of culpability in the wrongdoer, different in kind from ordinary negligence, and creates liability in favor of an injured person whose own ordinary negligence contributes to the injury; the two kinds of culpability thus involved have no relation to each other” — citing Aiken v. Holyoke Street Railway, 184 Mass. 269, 274, 68 N. E. 238; McGhee v. Campbell, 101 Fed. 936, 942, 42 C. C. A. 94, 100.

The court also quotes with approval from the opinion of McGhee v. Campbell, supra, the following:

“In cases where the injury is wanton or willful, the doctrine of contributory negligence has no application.”

While the doctrine announced in these cases is not applicable to the facts in the case at bar, nevertheless they are pertinent for the purpose of showing that this court has not heretofore considered the terms “gross,” “wanton,” and “willful” as merely vituperative adjectives.

It is a settled rule of law that a contract purporting to release the defendants from all liability for negligence would be ineffective as a defense, where the injury to the plaintiff results from such willful and wanton negligence on the part of the servants of the defendant. Railway Co. v. Mohney, supra. The wanton and willful negligence charged in the Mohney Case was that the second section of the train ran past two block signals indicating danger ahead, and collided with the rear car of the first section in which Mohney was riding, causing him serious injury. Therefore the question here presented as to the facts constituting wanton and willful negligence is identical with the question in the Mohney Case, and, as we have heretofore noted in this opinion, the Supreme Court in the Mohney Case was merely applying the rule of liability to a trespasser or to a mere licensee for willful or wanton negligence to one riding upon a pass, regardless of whether that pass was or was not gratuitous.

The plaintiff in this case has specifically stated the facts upon which she predicates the averment that the negligence of the defendant’s servants was willful and wanton. There is evidence in this record tending to prove these averments of her petition charging willful and wanton negligence on the part of the employés of the railway company other than those employed in the movement of the circus train, and who under no construction of this contract between the circus company and the railway company could be held to. be the servants of the circus company. Therefore it was a question for the jury to determine whether the plaintiff had sustained, by a preponderance of the evidence, the truth of the allegations of her petition in this respect, and, if so, whether the failure of the railway employés in charge of the troop train to observe and obey the block signals and the signals given by the rear brakeman of the circus train evidenced such reckless disregard for human life and human safety as to constitute willful and wanton negligence.

Tor the reason above stated, the trial court erred to the prejudice of the plaintiff in error in sustaining the motion of the defendant for a directed verdict. The judgment of the District Court is reversed, and the cause remanded for a new trial in accordance with this opinion.