Williams v. Oregon Short Line Railroad

54 P. 991, 18 Utah 210, 1898 Utah LEXIS 116

• Court: Utah Supreme Court
• Decided: November 12, 1898
• Status: Published

Opinion

Miner, J.

This action was brought to recover damages for personal injuries received by plaintiff while riding as a passenger upon defendant’s cars near Malad Bridge, Idaho, on tbe 3d day of April, 1897.

The complaint charged, in substance, that while plaintiff was riding in defendant’s cars, as a passenger, the defendant carelessly and negligently operated and ran its train at a great and dangerous rate of speed over and upon a defective and inadequate railway track, roadbed and switch maintained by it, and by reason of such negligence and carelessness the train was wrecked, and the plaintiff was thereby greatly and permanently injured, crushed, bruised, and wounded in his back and loins, and in various other parts of his body, both externally and internally, and some of his ribs were broken, and because of said injuries plaintiff became sick, sore, lame and disordered, and so continued to this day, and he has suffered, and now suffers thereby great mental and physical pain and distress, and by reason of said injuries he has been rendered unable to follow his usual avocation, and was compelled to lay out and expend $50.00 for medical treatment, etc.

To this complaint the defendant interposed a special demurrer to the effect that it was unintelligible, ambiguous, and uncertain, and that it did not appear what the nature, extent, or kind of injuries, either external or internal, were inflicted, except that some of his ribs were broken, and that the nature and extent of the injury was not set forth. The demurrer was overruled, and the defendant filed its answer denying the allegations of the complaint, and alleged that at the time of the injury plaintiff was not a passenger, but was traveling on a free pass or ticket delivered to plaintiff without consideration.

1st. Appellant contends that the court erred in overruling the demurrer. We do not agree with the appellant in this contention.

In the case of Croco v. The Oregon Short Line R’y Co., decided at the present term of this court, 54 Pac. , 17 Utah, -, this court in passing upon the same question said that the plaintiff was not required to aver all the physical injuries which he sustained, or which may have resulted from or been aggravated by the wrongful act complained of. If such injuries can be traced to the act complained of, or are such as to naturally follow from the injury, they need not be specifically averred. When the defendant was informed by the complaint that the plaintiff was permanently injured, crushed, bruised and wounded in his back and loins, and in various other parts of his body, both externally and internally, some of his ribs broken, and because of such injuries plaintiff became sick, sore, lame and disordered, and so continued to be, and suffered by reason thereof, great mental and physical pain and distress, he was bound to expect evidence of any sickness or any injury to plaintiff’s body, both mental and physical, the origin or aggravation of which could be traced to the negligent act complained of.

A complaint alleging negligence and carelessness should specifically state the acts or omission complained of with reasonable certainty, and show what such negligence or carelessness consisted of, or it will be held bad on special demurrer. Mangum v. Bullion Beck, 50 Pac. Rep. 834, 17 Utah,-; C. B. & Q. R. R. v. Harwood, 90 Ill. 425.

But such particularity is not required in stating the injury complained of. It is sufficient on special demurrer if the facts are stated within the rule heretofore laid down. Where, however, special damages are claimed, such damages must be specifically alleged.

In the case of Croco v. The Oregon Short Line R’y, above referred to, many cases are cited and the above rule adopted. The fact that a special demurrer was interposed in this case does not change the rule. The allegations in this complaint were sufficiently unambiguous and certain to give the defendant notice of the nature and character of the injury complained of. The demurrer was properly overruled.

2d. It is also contended that the court erred in denying defendant’s challenge to the panel of jurors. The grounds of the challenge were the same as those made in the case of Kennedy v. The Oregon Short Line Ry. Co., decided at the present term of this court, reported in 54 Pac. Rep. 988, 17 Utah-. In thát case this court held against the contention of the appellant. The holding in that case is decisive of the question here presented.

3d. The plaintiff gave testimony tending to show that in April 1897, he applied to Mr. Boies, defendant’s train master at Pocatello, Idaho, for employment. Boies agreed to give him employment as brakeman if he would go to Glenn’s Ferry, Idaho. The plaintiff agreed to go to Glenn’s Ferry, and Boies gave him a pass from Pocatello to that place and return. Plaintiff did not ask for the pass. The pass had an endorsement on the back of it. Plaintiff could not say that he read it. It was usual, when a man was employed on a railroad and went to a particular place, to give him a pass to such place. Plaintiff’s employment was to begin when he was put .to work, and he was to begin work when he arrived at Glenn’s Ferry and when placed at work. His time was not going on when the accident occurred.’ The understanding was that the plaintiff’s time would begin when he was actually put to work. While traveling on a free pass in pursuance of the agreement, on defendant’s railroad to the place of employment, and when near Malad bridge in Idaho, and before reaching Glenn’s Ferry the train was wrecked, and the plaintiff was injured.

The signature of the plaintiff on the back of the pass was admitted. The pass was received in evidence. But the following conditions endorsed on the back of the pass, were offered in evidence, and on objection, were refused by the court: “This ticket is not transferable, and it is void if presented by any other than the person named, or if any alteration, addition or erasure is made upon it. The person accepting and using this ticket, in consideration of receiving the same, voluntarily assumes all risk of' accidents and damages, and expressly agrees that the Oregon Short Line Railroad Company shall not be regarded as a common carrier, nor as liable to him for an injury to his person, or any loss or damage to his baggage which may occur while using this ticket, whether caused by the negligence of the company’s agents or otherwise. Not good unless signed in ink by the person named on the pass.

“J. A. Williams.”

Among other things, the court instructed the jury as follows: “I charge you that it was the duty of the defendant to use the utmost care and skill which prudent men are ordinarily accustomed to use in keeping its roadbeds, rails and switch in proper repair, and adequate for the purpose for which they are used; and if you believe from the evidence that such care was not exercised upon the part of the defendant, by reason of which the train upon which the plaintiff was riding became derailed, which caused his injury, then I charge yon that you should find a verdict in favor of the plaintiff. ”

The appellant contends that the court erred in refusing to admit in evidence the conditions on the back of the pass, and in giving the jury the above instruction, requiring the greatest care, as in case of a passenger, and claims that the plaintiff was an employé and not a passenger, and therefore the defendant only owed him the exercise of ordinary care at the time of the injury, and that the instruction is incorrect, except when the relationship of passenger and carrier exists.

The testimony shows that the plaintiff had agreed to enter the employment of the defendant as a brakeman at such time as he could reach Glenn’s Ferry, Idaho. Free transportation, with the conditions attached thereto, was given the plaintiff by the defendant, without request, for the purpose of enabling the plaintiff to reach the agreed place, where the employment would commence. Plaintiff’s compensation was not to commence until he reached Glenn’s Ferry, and was there given employment on the order given by the yard master! Therefore, the relation of employe- and employer, master and servant, had not yet attached at the time of the injury which occurred at Malad bridge. The intention was to employ and be employed, and the pass was given with that expectation. The transportation of plaintiff to Glenn’s Ferry was not a matter of charity or gratuity on the part of the defendant. The free pass was given by virtue of an agreement by which the mutual interests of the parties were considered. The plaintiff desired employment at ■ Glenn’s Ferry. The ■ defendant desired plaintiff’s services at Glenn’s Ferry, and agreed to transport him there free of charge, if he would go there and enter its employment after he arrived there. The plaintiff agreed to this arrangement. The transaction was a.mutual benefit to both of the parties, and the pass did not alter it-. This was a case where the defendant as a common carrier of passengers could not stipulate for the exemption from liability on account of the negligence of his servants. The pass was simply the evidence of a right to be tranferred over the road, but not of a contract by which the plaintiff was to assume all the risks, and it would not have been valid if it had been. Under these circumstances it was not important what the back of the pass contained. Plaintiff’s acceptance of the pass under the circumstances and conditions would not prevent a recovery. There was a valid consideration for the pass, the plaintiff was a passen-' ger and entitled to that degree of care covered by the instruction. Being such, the defendant had no right to stipulate for the immunity expressed on the back of the pass. Railway Co. v. Stevens, 95 U. S. 655; Railway Co. v. Lockwood, 17 Wal. 357; 3 Wood on Railroads, p. 1696; 2 Wood on Railroads, p. 1203; Doyle v. Railroad Co., 166 Mass. 492; Denver Co. v. Dwyer, 20 Colo. 132; Flint & Pere Marquette R. R. Co. v. Weir, 5 Cent. Law Journal, 285; State of Md. v. Western R. R. Co., 63 Md. 433; Gillenwater v. R’y. Co. 5 Ind. 339.

•It is argued that even if the ticket was a free pass gratuitously possessed with the conditions printed thereon, still the defendant could not escape liability for its negligence. We believe the plaintiff is correct in this contention. It is held to be the general rule in most of the states that in the case of a person riding on a free pass the carrier is under the same obligations, as to care and vigilance, as he is to a passenger for hire; and as to a passenger to whom a pass is given, based upon any consideration, he cannot absolve himself from liability for injuries resulting from gross negligence, by any notice to( that effect printed upon the pass, as such conditions are held to be against public policy and void. 2 Wood on Railroads, 1208; 3 Wood on Railroads, p. 1696; Rose v. Des Moines R. Co., 39 Iowa, 246; L. & N. R. R. Co. v. Wynn, 88 Tenn. 330; Annas v. M. &. N. R. R. Co., 67 Wis. 46; Railway Co. v. Lockwood, supra; C. C. &. S. F. Ry. Co. v. McGowan, 65 Tex. 640; Shearman & Red, on Negligence, sec. 492; State of Md. v. Western R. R. Co., supra; Gillenwater v. Ry. Co., supra; O’Donnell v. Ry. Co., 50 Pa. St. 490; Hutchinson on Carriers, section 566.

In Saunders v. Southern Pac. Co., 13 Utah 284, this court held with reference to a drover’s pass, where like conditions were attached, that the holder of the pass was a passenger, and entitled to protection as a passenger on such train regardless of any clause in the contract exempting the carrier from liability from negligence of its servants, because such clause is against the policy of the law and therefore void. That when the passenger was received the company was liable for any injury which might befall him through the negligence of its servants, the same as though he actually paid his fare before entering the cars, and as to him the company was bound to the exercise of the same care. Hutchinson on Carriers, Sec. 550b; Railroad Co. v. Lockwood 17 Wall. 357.

Speaking of the duties of common carriers, in Railroad Co. v. Lockwood, 17 Wall. 357, the court said:

“In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties — an object essential to the welfare of every civilized community. Hence the common law rale which charged the common carrier as an insurer. Why • charge him as such? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence ond fidelity underlies the law, and is the reason for it; in the other it is directly and absolutely prescribed by the law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of due care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the essential duties of his employment. And to assert that he may do so seems almost a contradiction in terms. * :|: *

‘ ‘ The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit ■of such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business. * * *

“‘It being clearly established, then,’ says he, ‘that ■common carriers have public duties which they are bound to discharge with impartiality, we must conclude that they cannot, either by notices or special contracts, release themselves from the performance of these public duties, even by the consent of those who employ them; for all extortion is done by the apparent consent of the victim. A public officer or servant, who has a monopoly in his department, has no just right to impose onerous and unreasonable conditions upon those who are compelled to employ him.’ ”

From a review of the great weight of authority in this countrj7, the general rule, with reference to the liability of common carriers is held to be, first, “ that a common carrier cannot stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law;” second, “that it is not just and reasonable in the eye of the law for the common carrier to stipulate for exemption from responsibility for the negligence of the' master or his servants;” third, “that these rules apply both to carriers of goods and carriers of passengers, and with special forcé to the latter;” fourth, “that where a person agrees with a carrier to enter in its employment at a certain place in the future, and in consideration of the mutual interests of both a free pass is given to the place of employment with conditions on the back rendering the carrier non-liable for injuries caused by its .negligence, or that of its agents, and in traveling on the defendant’s road to the place of employment, the person is injured by the negligence of the carrier’s agents, such person must be regarded as a passenger for hire and not an employe, and the carrier is liable for damages caused the passenger by its negligence.” The conditions printed on the back of the pass were properly rejected. The instructions were not subject to the objection made.

We find no reversible error in the record. The judgment of the district court is affirmed, with costs.

Zane, C. J. and Bartch, J. concur.