The railway company, being 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; 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 employs 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 employs or otherwise. Voigt 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 his application, was employed by the express
company under a contract in writing signed by him and it whereby it
was agreed between him and the express company that he did assume
the risk of all accident or injury he 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
Page 176 U. S. 499
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.
Held that
Voigt, occupying an express car as a messenger in charge of express
matter, in pursuance of the contract between the companies, was not
a passenger within the meaning of the case of
Railroad Co. v.
Lockwood, 17 Wall. 307; that he was not constrained
to enter into the contract whereby the railroad company was
exonerated from liability to him, but entered into the same freely
and voluntarily, and obtained the benefit of it by securing his
appointment as such messenger, and that such a contract did not
contravene public policy.
The following statement and question were certified to this
Court by the judges of the Circuit Court of Appeals for the Sixth
Circuit:
"This was an action brought by William Voigt, the defendant in
error, against the Baltimore & Ohio Southwestern Railway
Company, the plaintiff in error, to recover for damages sustained
by him in consequence of a collision between two trains of the
plaintiff in error, upon one of which -- a fast passenger train --
he was riding at the time of the accident. He was an express
messenger riding in a car which was set apart for the use of the
United States Express Company, and occupied by that company for its
purposes under a contract between the express company and the
railway company. The plaintiff alleged in his petition that he was
traveling as a passenger for hire on one of the defendant's trains,
being an express messenger on said train. In fact, he was upon said
train only by virtue of his employment as express messenger of his
company and the above-mentioned contract between his company and
the railway company. The answer of the railway company set up two
grounds of defense. The first admitted that Voigt was an express
messenger on its train, but denied that he was traveling as a
passenger for hire. The railway company also admitted that, on the
occasion of the injury complained of, the train on which he was
riding came into collision with another of its trains, and that in
the collision Voigt sustained injuries. The second ground of
defense, inasmuch as it sets out the specific matter in
controversy, is here set forth in detail: "
Page 176 U. S. 500
"For a second and separate defense, 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 employees 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 employees 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 employees, or otherwise. The railway company further "
brk:
averred that, pursuant to said contract with the express
company, it placed upon its line of railroad for said express
company certain cars known as express cars, and that it was hauling
one of said cars on one of its trains on the 30th of December, 1895
at the time said collision occurred, and that, prior to the time of
the accident, Voigt had made application to the express company in
writing for employment by it as an express messenger, and that in
pursuance to said application he was, prior to and at the time of
the collision, employed by the express company under a contract in
writing between him and it, by the terms whereof he did assume the
risk of all accidents and
Page 176 U. S. 501
injuries 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 his
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
employees 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 bound 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
of any corporation upon whose line said express company should
forward merchandise (in this instance, the said railway company) as
fully and completely as if made directly with the corporation. In
said defense it was further set forth that at the time the
plaintiff sustained the injuries for which the suit was brought he
was in an express car being transported by the railway company over
its line from Cincinnati to St. Louis, pursuant to said contract
between said express company and the railway company, and that said
Voigt was at the time of the collision upon said car in pursuance
to his contract with said express company, and not otherwise.
"To this second defense a demurrer was interposed by Voigt on
the ground that the allegations therein did not constitute a
Page 176 U. S. 502
defense 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 F. 561. 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 traveling by a train of a common carrier, and further
that it was not "
brk:
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, 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 defense 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 express company and its employees, and to
which the employee agrees upon entering the service of the express
company, stands in the ordinary relation of a common carrier of
passengers for hire to the employee of the express company. The
rule is undoubtedly well settled that a railway company standing in
the relation of a common carrier to a passenger for hire cannot
absolve itself from liability or the consequences of its negligence
in carriage, but the members of the court are in doubt whether the
defendant in error comes within the rule above mentioned, and
therefore, upon the foregoing statement of fact, it is ordered that
the following question be certified to the Supreme Court of the
United States for its instruction:
Page 176 U. S. 503
"
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, 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 employees 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 employees or otherwise. A person made
application to said express company in writing to be employed by it
as express messenger on the railroad of the company between which
and such express company a contract as aforesaid existed, and such
applicant, "
brk:
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 he might sustain in
the course of said employment, whether occasioned by negligence or
otherwise, and did undertake and agree to indemnify
Page 176 U. S. 504
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.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
The question we are asked to answer is whether William Voigt,
the defendant in error, can avoid his agreement that the railroad
company should not be responsible to him for injuries received
while occupying an express car as a messenger, in the manner and
circumstances heretofore stated, by
Page 176 U. S. 505
invoking that principle of public policy which has been held to
forbid a common carrier of passengers for hire to contract against
responsibility for negligence.
The circuit judge thought the case could not be distinguished
from the case of
Railroad Co. v.
Lockwood, 17 Wall. 357, where a recovery was
maintained by a drover injured while traveling on a stock train of
the New York Central Railroad Company proceeding from Buffalo to
Albany on a pass which certified that he had shipped sufficient
stock to give him a right to pass free to Albany, but which
provided that the acceptance of the pass was to be considered a
waiver of all claims for damages or injuries received on the train.
This Court held that a drover traveling on a pass, for the purpose
of taking care of his stock on the train is a passenger for hire,
and that it is not lawful for a common carrier of such passenger to
stipulate for exemption from responsibility for the negligence of
himself or his servants. This case has been frequently followed,
and it may be regarded as establishing a settled rule of policy.
Railway Co. v. Stevens, 95 U. S. 655;
Liverpool Steam Co. v. Phoenix Ins. Co., 129 U.
S. 397.
The principles declared in those cases are salutary, and we have
no disposition to depart from them. At the same time, it must not
be forgotten that the right of private contract is no small part of
the liberty of the citizen, and that the usual and most important
function of courts of justice is rather to maintain and enforce
contracts than to enable parties thereto to escape from their
obligation on the pretext of public policy, unless it clearly
appear that they contravene public right or the public welfare. It
was well said by Sir George Jessel, M.R., in
Printing &c.
Co. v. Sampson, L.R.19 Eq. 465:
"It must not be forgotten that you are not to extend arbitrarily
those rules which say that a given contract is void as being
against public policy, because if there is one thing which more
than another public policy requires, it is that men of full age and
competent understanding shall have the utmost liberty of
contracting, and that their contracts, when entered into freely and
voluntarily, shall be held sacred, and shall be enforced by courts
of justice. Therefore you have this paramount public
Page 176 U. S. 506
policy to consider -- that you are not lightly to interfere with
this freedom of contract."
Upon what principle, then, did the cases relied on proceed, and
are they applicable to the present one? They were mainly two.
First, the importance which the law justly attaches to human life
and personal safety, and which therefore forbids the relaxation of
care in the transportation of passengers which might be occasioned
by stipulations relieving the carrier from responsibility. This
principle was thus stated by Mr. Justice Bradley in the opinion of
the Court in the case of
Railroad Co. v. Lockwood:
"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
rule 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 and 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 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 second fundamental proposition relied on to nullify
contracts to relieve common carriers from liability for losses or
injuries caused by their negligence is based on the position of
advantage which is possessed by companies exercising the business
of common carriers over those who are compelled to deal with them.
And again we may properly quote a passage from the opinion in the
Lockwood case as a forcible statement of the
situation:
"The carrier and his customer do not stand on a footing of
equality. The latter is only one individual of a million.
Page 176 U. S. 507
He cannot afford to higgle, or stand out and seek redress in the
courts. His business will not admit 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. . . . If the customer had any real freedom
of choice, if he had a reasonable or practicable alternative, and
if the employment of the carrier were not a public one, charging
him with the duty of accommodating the public in the line of his
employment, then, if the customer chose to assume the risk of
negligence, it could with more reason be said to be his private
affair, and no concern of the public. But the condition of things
is entirely different, and especially so under the modified
arrangements which the carrying trade has assumed. The business is
almost concentrated in a few powerful corporations, whose position
in the body politic enables them to control it. They do in fact
control it, and impose such conditions upon travel and
transportation as they see fit, which the public is compelled to
accept. These circumstances furnish an additional argument, if any
were needed, to show that the conditions imposed by common carriers
ought not to be adverse (to say the least) to the dictates of
public policy and morality."
Upon these principles, we think the law of today 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.
But are these principles, well considered and useful as they
are, decisive of, or indeed applicable to, the facts presented for
judgment in the present case?
We have here to consider not the case of an individual
Page 176 U. S. 508
shipper 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 U. S. 1, and
from the opinion in that case we shall make some pertinent
extracts:
"The express business . . . has grown to an enormous size, and
is carried on all over the United States and in Canada, and has
been extended to Europe and the West Indies. It has become a public
necessity, and ranks in importance with the mails and the
telegraph. It employs for the purposes of transportation all the
important railroads in the United States, and a new road in rarely
opened to the public without being equipped in some form with
express facilities. It is used in almost every conceivable way, and
for almost every conceivable purpose, by the people and by the
government. All have become accustomed to it, and it cannot be
taken away without breaking up many of the long settled habits of
business and interfering materially with the conveniences of social
life."
"When the business began, railroads were in their infancy. They
were few in number, and for comparatively short distances. There
has never been a time, however, since the express business was
started that it has not been encouraged by the railroad companies,
and it is no doubt true . . . that no railroad company in the
United States . . . has ever refused to transport express matter
for the public, upon the application of some express company, of
some form of legal constitution. Every railway company . . . has
recognized the right of the public to demand transportation by the
railway facilities which the public has permitted to be created, of
that class of matter which is known as express matter. Express
companies have undoubtedly invested their capital and built up
their business
Page 176 U. S. 509
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."
"But it is neither averred in the bills nor shown by the
testimony that any railroad company in the United States has ever
held itself out as a common carrier of express companies -- that is
to say as a common carrier of common carriers. On the contrary, it
has been shown, and in fact it was conceded upon the argument, that
down to the time of bringing these suits, no railroad company had
taken an express company on its road for business except under some
special contract, verbal or written, and generally written, in
which the rights and the duties of the respective parties were
carefully fixed and defined. These contracts, as is seen by those
in this record, vary necessarily in their details according to the
varying circumstances of each particular case and according to the
judgment and discretion of the parties immediately concerned. It
also appears that, with very few exceptions, only one express
company has been allowed by a railroad company to do business on
its road at the same time. . . . The reason is obvious why special
contracts in reference to this business are necessary. The
transportation required is of a kind which must, if possible, be
had for the most part on passenger trains. It requires not only
speed, but reasonable certainty as to the quantity that will be
carried at any one time. As the things carried are to be kept in
the personal custody of the messenger or other employee of the
express company, it is important that a certain amount of car space
should be specially set apart for the business, and that this
should, as far as practicable, be put in the exclusive possession
of the expressman in charge. As the business to be done is
'express,' it implies access to the train for loading at the
latest, and for unloading at the earliest, convenient moment. All
this is entirely inconsistent with the idea of an express business
on passenger trains free to all express carriers. Railroad
companies are by law carriers of both persons and property.
Passenger trains have, from the beginning, been provided for
Page 176 U. S. 510
the 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 "
brk:
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 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 companies were able substantially to
control, from 1854 until about the time of the bringing of these
suits, all the railway express business in the United States except
upon the Pacific roads and in certain comparatively limited
localities. In fact, as is stated in the argument for the express
companies, the Adams was occupying, when these suits were brought,
one hundred and fifty-five railroads, with a mileage of 21,216
miles; the American, two hundred roads, with a mileage of 28,000
miles, and the Southern, ninety-five roads, with a mileage of
10,000 miles. Through their business arrangements
Page 176 U. S. 511
with 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 goodwill 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 in 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.
The cases from the opinions in which are taken the foregoing
extracts were suits brought by certain express companies which had
been doing business on certain railroads under special contracts
between the respective companies, to compel the railroad companies
to permit them to continue business on the roads on terms to be
fixed by the courts -- in other words, to demand as a right what
they had theretofore enjoyed by permission of special contracts.
This the court declined to do, and directed the bills to be
dismissed.
Our citations have been intended partly to disclose in a
succinct form the nature of the express business, but more
particularly to show that in essence the express business is one
that requires the participation of both the companies on terms
agreed upon in special contracts, thus creating, to a certain
extent, a sort of partnership relation between them in carrying on
a common carrier business.
We are not furnished in this record with an entire copy of
Page 176 U. S. 512
the contract between the plaintiff in error, the Baltimore &
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 employees 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 employees 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 companies. Here there
was no stress brought to bear on Voigt as a passenger desiring
transportation from one point to another on the railroad. His
occupation of the car specially adapted to the uses of the express
company was not in pursuance of any contract directly between him
and the railroad company, but was an incident of his permanent
employment by the express
Page 176 U. S. 513
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 legal compulsion to enter into.
The relation of an express messenger to the transportation
company, in cases like the present one, seems to us to more nearly
resemble that of an employee than that of a passenger. His position
is one created by an agreement between the express company and the
railroad company, adjusting the terms of a joint business -- the
transportation and delivery of express matter. His duties of
personal control and custody of the goods and packages, if not
performed by an express messenger, would have to be performed by
one in the immediate service of the railroad company. And, of
course, if his position was that of a common employee of both
companies, he could not recover for injuries caused, as would
appear to have been the present case, by the negligence of fellow
servants.
However this may be, it is manifest that the relation existing
between express messengers and transportation companies, under such
contracts as existed in the present case, is widely different from
that of ordinary passengers, and that to relieve the defendant in
error from the obligation of his contract would require us to give
a much wider extension of the doctrine
Page 176 U. S. 514
of public policy than was justified by the facts and reasoning
in the
Lockwood case.
This subject has received attentive consideration in several of
the state courts.
In
Bates v. Old Colony Railroad, 147 Mass. 255, it was
held that if an express messenger holding a season ticket from a
railroad company, and desiring to ride for the conduct of his
business in a baggage car, agrees to assume all risk of injury
therefrom and to hold the company harmless therefor, the agreement
is not invalid as against public policy, and he cannot recover for
injuries caused by negligence of the company's servants. In its
opinion, the court said:
"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 this 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 the 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
fact that the plaintiff was riding in the baggage car as an express
messenger in charge of merchandise which was being transported
there shows more clearly that the contract by the express company
and the plaintiff was not unreasonable or against public policy. He
was there as a servant engaged with the servants of the railroad
corporation in the service of transportation on the road. His
duties were substantially the same as those of the baggage-master
in the same car; the latter relating to merchandise carried for
passengers and the former to merchandise carried for the express
company. His actual relations to the other servants of the railroad
corporation engaged in the transportation were substantially the
same as
Page 176 U. S. 515
those 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."
The same ruling prevailed in the subsequent case of
Hosmer
v. Old Colony Railroad, 156 Mass. 506.
Robertson v. Old Colony Railroad, 156 Mass. 526, was an
action brought for personal injuries caused to the plaintiff, an
employee of the proprietors of a circus, while riding in a car
belonging to the proprietors, drawn by the defendant company over
its road under a written agreement, in which it was provided that
the circus company should agree to exonerate and save harmless the
defendant from any and all claims for damages to persons or
property during the transportation, however occurring, and it was
held that, as the defendant company was under no common law or
statutory obligation to carry the plaintiff in the manner he was
carried at the time of the accident, it did not stand towards him
in the relation of a common carrier, and that the plaintiff could
not recover.
Griswold v. New York & New England Railroad, 53
Conn. 371, where a restaurant keeper had the privilege to sell
fruits and sandwiches on the trains, and to engage and keep a
servant for that purpose on the trains, riding on a free pass, it
was held that such servant could not recover for injuries sustained
on the train caused by the negligence of the company's servants,
because he was not a passenger.
The Supreme Court of Michigan, in
Coup v. Wabash, St. Louis
&c. Railway Co., 56 Mich. 111, where a railroad company,
under a special agreement, was to furnish men and motive power to
transport a circus of the plaintiff from Cairo
Page 176 U. S. 516
to 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.
Where a railroad company made a special contract in writing with
the owner of a circus to haul a special train between certain
points at specified prices, and stipulating that the railroad
company should not be liable for any damage to the persons or
property of the circus company from whatever cause, it was held by
the circuit court of appeals of the Seventh Circuit, citing
Coup v. Railroad Co., 56 Mich. 111, and
Robertson v.
Old Colony Railroad, 156 Mass. 506, that the railroad company
was not acting as a common carrier, and was not liable under the
contract for injuries occasioned by negligent management of its
trains. In its opinion, the court quoted the following passage from
Railroad Co. v. Lockwood:
"A common carrier may undoubtedly become a private carrier or
bailee for hire when, as a matter of accommodation or special
engagement, he undertakes to carry something which it is not his
business to carry."
Chicago, Milwaukee & St. Paul Railroad v. Wallace,
66 F. 506.
Louisville, New Albany & Chicago Railway v. Keefer,
146 Ind. 21, was a case in all respects like the present. It was a
suit by a messenger of the American Express Company against the
railroad company for personal injuries. The contracts between the
express company, the messenger, and the railroad company were in
terms similar to those existing in the present case, and the
defense was the same as that made here. It was held that the
contracts were valid and that the defense was good. It was
said:
"Under the doctrine declared in the
Express Cases,
117 U. S.
1, the property was being carried by appellant not as a
common carrier in the performance of a public duty, but being
carried, with a messenger in charge, as a private carrier, the
right to have it and him carried having first been secured to the
express company by private contract, the only way known
Page 176 U. S. 517
to the law by which the right, either as to the goods or
appellee as express messenger in charge, could be acquired."
"Appellee, when he went on the appellant's train and took charge
of the express packages in the baggage car, did not go as a
passenger who merely desired to be carried on the train from one
point to another. Carriage was not the object of his going upon the
train -- that was merely incidental. His purpose was not to be upon
the train, in the cars provided for passengers, but that he might
handle and care for the property of his employer thereon in the
space set apart in the baggage car for that purpose. Under the
authorities cited, it was not the duty of appellant, as a common
carrier, to carry for the express company the goods or messenger in
charge of them. The contract between appellant and the express
company gave it and its messenger rights which appellant as a
common carrier could not have been compelled to grant."
By the Supreme Court of Indiana, in
Pittsburgh, Cincinnati
&c. Railway v. Mahoney, 148 Ind.196, it was held that
railway companies may contract as private carriers in transporting
express matter for express companies, and in such capacity may
require exemption from liability for negligence as a condition to
the obligation to carry, and that a release by an employee of an
express company of all liability for injuries sustained by the
negligence of the employer or otherwise includes the liability of
the express company to hold a railroad company with which it does
business harmless against claims by employees of the express
company for injuries, and precludes an action against the railroad
company for causing his death while in discharge of his duty as
employee of such express company.
A precisely similar question was presented in the case of
Blank v. Illinois Central Company, and was decided the
same way by the Court of Appeals for the First District of Illinois
in an opinion rendered March 14, 1899. 80 Ill.App. 475. The court
cites the
Express Cases, and approves and applies the
reasoning in the Indiana cases, and this judgment has been affirmed
by the Supreme Court of Illinois. 182 Ill. 332.
The same doctrine prevails in the State of New York.
Bissell
Page 176 U. S. 518
v. New York Central Railroad, 25 N.Y. 442;
Poucher
v. New York Central Company, 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 everyone 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.
As against these authorities there are cited, on behalf of the
defendant in error, several cases in which it has been held that
postal clerks, in the employ of the government, and who pay no
fare, are entitled to the rights of ordinary passengers for hire,
and it is contended that their relation to the railroad company is
analogous to that of express messengers.
Arrowsmith v.
Nashville & Decatur Railroad, 57 F. 165;
Gleeson v.
Virginia Midland Railroad, 140 U. S. 435;
Ketcham v. New York, Lake Erie &c. Railroad, 133 Ind.
346;
Seybolt v. New York, Lake Erie &c. Railroad, 95
N.Y. 562.
There is, however, an obvious distinction between a postal clerk
and the present case of an express messenger in this -- that the
messenger has agreed to the contract between the express and the
railroad companies, exempting the latter from liability, but no
case is cited in which the postal clerk voluntarily entered into
such an agreement. To make the cases analogous, it should be made
to appear that the government, in contracting with the railroad
company to carry the mails, stipulated that the railroad company
should be exempted from liability to the postal clerk, and that the
latter, in consideration of securing his position, had concurred in
releasing the railroad company.
Brewer v. New York, Lake Erie & Western Railroad,
124 N.Y. 59, is also cited as a case wherein a recovery was
maintained by an express messenger against a railroad company, and
where there existed an agreement between the express company and
the railroad company that the latter should be indemnified and
protected against from all risks and liabilities. But the court put
its judgment against the railroad company
Page 176 U. S. 519
expressly 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.
Kenney v. N.Y. Cent. &c. Railroad, 125 N.Y. 422,
was also a case where, in an action for damages by an express
messenger against a railroad company, the plaintiff was permitted
to recover notwithstanding there was an agreement between the
companies that the railroad company should be released and
indemnified for any damage done to the agents of the express
company, whether in their employ as messengers or otherwise. But it
did not appear that there had been any assent to a knowledge of
this contract on the part of the messenger, and the court said:
"Our decision, however, is placed upon the ground that this
contract does not in unmistakable language provide for an exemption
from liability for the negligence of the defendant's employees. The
rule is firmly established in this state that a common carrier may
contract for immunity from its negligence or that of its agents,
but that, to accomplish that object, the contract must be so
expressed, and it must not be left to a presumption from the
language. Considerations based upon public policy and the nature of
the carrier's undertaking influence the application of the rule,
and forbid its operation except when the carrier's immunity from
the consequences of negligence is read in the agreement
ipsissimis verbis."
Chamberlain v. Pierson, 87 F. 421, in the Circuit Court
of Appeals of the Fourth Circuit, was a case in which an express
messenger was injured while traveling on a railroad which had a
contract with the express company, exonerating the foreman from
responsibility for injuries to the agents of the latter, and in
which said agreement was ineffectually pleaded in bar of the
action. The court said:
"The discussion of this feature of the case presents the
question was the plaintiff below, as a messenger of the express
company, bound by the contract between the railroad company and the
express company to assume all risks to life and limb to which he
was exposed in performing his
Page 176 U. S. 520
duties on the train as an express messenger? He was not a party
to the contract, never ratified it, and in his testimony, when
asked if he knew of this provision of the contract, . . . answered,
'If I had known that, I wouldn't have gone.'"
Without enumerating and appraising all the cases respectively
cited, our conclusion is that Voigt, occupying an express car as a
messenger in charge of express matter, in pursuance of the contract
between the companies, was not a passenger within the meaning of
the case of
Railroad Company v. Lockwood; that he was not
constrained to enter into the contract whereby the railroad company
was exonerated from liability to him, but entered into the same
freely and voluntarily, and obtained the benefit of it by securing
his appointment as such messenger, and that such a contract did not
contravene public policy.
Accordingly,
We answer the question submitted to us by the judges of the
circuit court of appeals in the negative, and it is so
ordered.
MR. JUSTICE HARLAN, dissenting:
In
Railroad Co. v.
Lockwood, 17 Wall. 357,
84 U. S. 384, it
was held 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;" 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;"
that "these rules apply both to carriers of goods and carriers
of passengers for hire, and with special force to the latter;" and
that "a drover traveling on a pass, such as was given in this case,
. . . is a passenger for hire." The railroad pass referred to
declared that its acceptance was to be considered a wavier of all
claims for damages or injuries received on the train. The above
principles have been recognized and enforced by this Court in
numerous cases.
I am of opinion that the present case is within the doctrines of
Railroad Co. v. Lockwood, and that the judgment should be
affirmed upon the broad ground that the defendant corporation
Page 176 U. S. 521
could not in any form stipulate for exemption from
responsibility for the negligence of its servants or employees in
the course of its business whereby injury comes to any person using
its cars, with its consent, for purposes of transportation. That
the person transported is not technically a passenger and does not
ride in a car ordinarily used for passengers is immaterial.
