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"All sums which the Coal Company hereby the sufficiency of such answers, is available agrees to pay to the Railroad Company shall for the purpose of justifying the ruling of be so paid on or before the fifteenth (15th) day the trial court, sustaining such demurrers. of each month for the preceding month.

"3. As a part of the consideration moving to Bruns v. Cope, 182 Ind. 289, 296, 105 N. E. the Railroad Company for its performance of 471, 474. this agreement and as an express condition

[3] One ground upon which appellee justhereof the Coal Company agrees that the railroad Company shall not be liable in any event tifies such action of the trial court is that to any one for any damages claimed on account the respective contracts upon which such of personal injuries received by any one while answers are based are against public policy being carried in said cars or while boarding and void. The disposition of the questions said cars or alighting therefrom, nor for any death resulting from such injuries, nor from any presented by this ground of objection to such loss of or damage to property that may be car answers, if in accord with appellee's contenried on said cars for said Coal Company, or for tion, will not only render unnecessary a conany of the miners riding in said cars, even sideration of the other objections, but will although such injuries, loss or damage be caused by the negligence gross or otherwise, of the Rail- so, in effect, dispose of all questions pre road Company or its employés but the Coal Com- sented by the appeal except possibly an pany does not guarantee the non liability of the objection to one of the instructions. Railroad Company as above provided.

Back of the question suggested, two ques. “4. This agreement may be terminated at any time by either of the parties hereto giving to tions are primarily involved, viz.: (1) The the other party three months' written notice of relation which appellant sustained to appelits intention to terminate the same."

lee, whether that of a common carrier or The third paragraph of answer contains that of a private carrier; (2) the liability averments substantially the same as the sec- of such carriers generally and the extent to ond, and, in addition, avers that after said which public policy will permit a limitation contract had been entered into between ap- of such liability. pellant and the mining company, the appel The latter question will be first considered. lee while in the employ of said mining com “The decisions of the courts as to the right of pany, entered into a contract as follows: the carrier of passengers to limit his liability

for the neglect of that care and circumspection "Miners' Agreement and Release. which the law requires of him have followed In order to obtain the benefit of being car- almost the same course as those upon the right ried to and from my work on a miners' train of the carrier of goods to guard himself by conwhich Indian Creek Coal & Mining Company tract with the bailor against the consequences proposes shall be run between the city of Vin- of his negligence; and the same diversity as to cennes, Indiana, and the coal mine operated by the validity of such contracts and the extent to that company on the Knox county coal branch which they may provide against the carrier's of the Vincennes Division of the Vandalia Rail- liability, when they are alloved, is to be found.” road for the joint accommodation of the Indian 2 Hutchinson, Carriers (30 Ed.) 8 1072, p. 1245. Creek Coal & Mining Company, and the men employed by it at said mine, I, the undersigned, cited and referred to are cases which dis

It follows that many of the cases herein hereby agree to contribute out of my wages one dollar and fifty cents ($1.50) per month toward cuss and define the right of such carriers in the expense

running said train, to be retain the matter of limiting liability for injury to, ed by said Indian Creek Coal & Mining. Com- or loss of, goods received by them for transpany, and to assume all risk of personal injury or death, and all damage to or loss of

property

portation. while riding on said train, or in boarding the Originally, at common law, a common carsame or alighting therefrom, and I hereby fully rier was held liable for all losses which did release and discharge said Coal Company and not fall within the excepted cases of “the any other person, persons or corporation connected with or concerned in the running of said act of God or of the public enemy,” while train from any and all liability for damages on the bailee or private carrier was held liaaccount of my personal injury or death, or dam- ble only for the losses resulting from a negage to or loss of property sustained while I lect of ordinary care. Davidson v. Graham, am riding on said train or boarding the same or 2 Ohio St. 131, 134; N. Y. C. R. R. Co. v. alighting therefrom, or resulting in any manner whatsoever from the running and operation of Lockwood, 17 Wall. 357, 21 L. Ed. 627, and said train.

cases there cited. “Dated this 12th day of January, A. D. 1912."

The liabilities of a common carrier may A demurrer was sustained to each of these be divided into two classes: one, the liabilparagraphs of answer, and these rulings are ity for losses by neglect which is the liaassigned as error and relied on for reversal. bility of a bailee or private carrier; the A motion for new trial filed by appellant other a liability for losses by accident or was overruled, and this ruling is also as other unavoidable occurrence. Steele et al. signed as error and relied on for reversal. v. Townsend, 37 Ala. 247, 79 Am. Dec. 49;

[2] In answer to appellant's contention N. Y. C. R. R. Co. v. Lockwood, supra, 17 that the court erred in sustaining the de- Wall. 357, 21 L. Ed. 635. The only elements murrers to each of its affirmative paragraphs necessary to create liability against the of answer, the appellee urges the several common carrier, under the common law as objections to such answers stated in the re- originally declared, was the delivery of the spective memoranda accompaning each of property to the carrier by the shipper, and a said demurrers. Either of said objections, failure to deliver on the part of such caror in fact any objection, though not con- rier. The reason assigned for the peculiar tained in the memoranda, which is fatal to duty and high responsibility thus imposed

on such carriers was the public characters a liability designed for his security and af. of their employment, the extensive control | fecting him alone. However, as before inwhich they exercised over the property car- dicated, “the common-law exception to the ried, and the facilities at their command common carrier's liability, which exempts for securing immunity for a breach of their only those losses arising from the act of trust. In the first half of the eighteenth God, was well settled to include only those century the rigidity of this rule was some inevitable causes of loss into which no huwhat relaxed, by the English courts, by man agency could have entered.” This left certain innovations sanctioned by said the carrier liable as an insurer for many courts, which permitted such carriers to losses, equally inevitable, and which no care limit their liability by notice, even though or prudence on his part could have preventgeneral, if brought to the knowledge of the ed. No one but the owner of the goods could shipper. These innovations became so fre have any interest in this liability; and, as quent, and their evil consequences so mani.its renunciation had no tendency to relax the fest, that expressions of regret from many vigilance which such carrier owed to others, eminent judges, both of England and Ameri- the owner was at liberty to surrender it. ca, on account of the sanction given such But he had no power to stipulate from what innovations by the courts, will be found in the cases herein cited. To correct these evils

was immoral in its tendency, or to take from Parliament, in 1854, passed the Railway and the carrier any of the motives to the faithTraffic Act, the seventh section of which ful discharge of his public duty, and conse

quently could not relieve him from the conprovides as follows: “That every railway company, canal company,

sequences of his own negligence or carelessand railway and canal company shall be liable ness. for the loss of, or any injury to, any horse, cat. “There is nothing in which the public have a tle or other animal, or to any article, goods or deeper interest than the careful and prudent things in the receiving, forwarding or delivering management of public conveyances, and no thereof occasioned by the neglect or default of higher moral obligation, than rests upon those such company or its servants, notwithstanding intrusted with the control of dangerous forces, any notice, conditions or declaration made and to discharge their duties with care and skill. given by such company contrary thereto, and Upon it the safety of thousands of lives and that no special contract between such parties millions of property daily depends. Now, one and any other parties, in the premises shall be of the strongest motives for the faithful perbinding upon or_effect such party, unless the formance of these duties is found in the pecunsame shall: (1) Be reduced to writing ; (2) be iary responsibility which the carrier incurs for signed by the owner or person delivering the the failure. It induces him to furnish safe and animal or goods; and (3) be adjudged by the suitable equipments, and to employ careful and court or judge before whom any question relat competent agents. A contract, therefore, with ing thereto shall be made, to be just and reason one to relieve him from any part of this reable."

sponsibility reaches beyond the person with Since the passage of this act the English whom he contracts, and affects all who place

their persons or property in his custody. It is courts have generally held that by special immoral because it diminishes the motives for contract the common carrier may exonerate the performance of a high moral duty; and it itself from the responsibility of insurance, is against public policy because it takes from but cannot free itself from the obligation to the public a part of the security they would

otherwise have." Graham & Co. v. Davis & use due care for the safe transportation and Co., 4 Ohio St. 362, 377, 62 Am. Dec. 285, delivery of the animal or thing to be deliv- 289; Davidson v. Graham, 2 Ohio St. 131, ered.” N. Y. C. R. R. Co. v. Lockwood, su- 17 Wall. 357, 21 L. Ed. 627, 632.

supra; N. Y. C. R. R. Co v. Lockwood, supra, pra, and cases there cited.

The courts of this country generally re An examination of these cases and those fused to give sanction to the doctrine, an- referred to therein will show that the great nounced by the English courts, which recog- weight of authority in this country, Indiana nized that by a general notice, brought to included, is to the effect that, whatever the knowledge of the shipper, the common doubt may have once been entertained on carrier might relieve itself from liability on the subject, it is now well settled that, althe theory of the implied assent of the own-though a common carrier cannot limit the er of the goods to the terms prescribed by liability which the common law devolves on such carrier in such notice (Graham v. Da- him, by any general notice; be, by special vis, supra); but a different conclusion was contract with the shipper, may limit his lireached in cases where the shipper expressly ability as an insurer, and thereby exonerate agreed to the limitation of liability and per himself from responsibility for losses arising mitted it to be made a part of his contract from causes over which he has no control, of shipment. In such cases the great weight but in so far as his special contract atof authority in this country is not substan- tempts to exonerate him from any loss to tially different from that recognized and ex- which his own fault or negligence has conpressed by the English courts since the pas- tributed, it will be treated as against public sage, by Parliament, of the traffic and trans- policy and void. Graham & Co. v. Davis & portation act referred to supra.

Co., supra; Davidson v. Graham et al., suThat is to say, the courts now generally pra; Michigan, etc., R. Co. v. Heaton, 37 recognize that the shipper may, if he so de- Ind. 418. 10 Am. Rep. 89; Adams Express

a

etc., R. Co. 8. Sherwood, 132 Ind. 129, 31 N., there cited), lending support to appellant's E. 781, 17 L. R. A. 339, 32 Am. St. Rep. contention, and while our statute must be 239; Indianapolis, etc., Ry. Co. v. Forsythe, treated as conclusive of the character, of the 4 Ind. App. 326, 29 N. E. 1138; Reid v. relation sustained by railroad companies and Evansville, etc., R. Co., 10 Ind. App. 385, 35 the public generally in the matter of the N. E. 703, 53 Am. St. Rep. 391.

business of transportation of freight and As before indicated, the liability upon passengers as usually carried on by, and rewhich appellee's action is predicated is al- quired of, such companies under the general leged to have resulted from appellant's neg- rules and regulations controlling them, yet ligence. The action sounds in tort and not we do not understand that by such statute in contract. The liability of an insurer is the Legislature intended that each and every not involved. It follows that the contracts carriage of passengers and goods, undertakupon which said answers are based consti- en by such companies under special contute no defense to appellee's cause of action, tracts, and different from that usually unif, in fact, the appellant sustained toward dertaken by and required of such companies, the appellee, at the time of his injury, the should be treated as common carriage relation of a common carrier, rather than rather than a private carriage. that of a private carrier.

It may be added, also, that the facts apIt is conceded by appellee that public pol- pearing in the complaint and answers in this icy is not involved in contracts of this char-case are such as distinguish it from the casacter when entered into between a passen- es supra, involving drovers' passes. ger and a private carrier, and that the lim

[5] On the other hand, we cannot agree itation of liability here involved is legal and with the appellant's contention that the comvalid if the contract is to be construed as mon carrier may, by the words of its conone between a passenger and a private car-tract, convert itself into a private carrier, rier. In this connection see Louisville, etc., where the transportation undertaken and Co. v. Keefer, 146 Ind. 21, 34, 44 N. E. 796, the duties and responsibilities incident there38 L. R. A. 93, 58 Am. St. Rep. 348; Pitts- to are such as are ordinarily incident to a burgh, etc., R. Co. v. Mahoney, 148 Ind. 196, common carrier, and we are also of the opin200, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. ion that the facts appearing in this case dis101, 62 Am. St. Rep. 503, and cases cited; tinguish it from the cases involving injuries Cleveland, etc., Co. v. Henry, 170 Ind. 94, to express messengers and show employés 99, 100, 83 N. E. 710.

cited supra. We next address our inquiry to this phase "A common carrier may undoubtedly, in a of the question. It is insisted by the ap- bailee for hire, when as a matter of accommoda

particular case, become a private carrier or pellant that the contracts under considera- tion or special engagement he undertakes to tion, by their express terms, show that ap. carry something which it is not his business to pellant contracted as a private carrier and carry." not as a public carrier, and that the cases But whether in the partioular case the just cited, involving similar contracts be common carrier should be treated as private tween public carriers and express and show carrier does not necessarily depend on whethcompanies, are conclusive of the question in er a special contract was entered into for volved, and in favor of appellant's conten- the carriage, nor upon the wording or protion that its contract is valid.

visions of such contract, but rather upon the [4] On the other hand, it is contended by nature and character of the carriage or transappellee, in effect, that railroad companies portation contracted for, and whether the are, in Indiana, made common carriers by duties and obligations flowing therefrom are statute (section 5271, Burns 1914, § 3925, R. those which such carrier owes to such inS. 1881; Pennsylvania Co. v. Clark et al. dividual contractor as a common carrier, or (1891] 2 Ind. App. 146, 151, 27 N. E. 586; 28 only those which such carrier could be reN. E. 208); and that they cannot, by the form quired to perform as a private carrier. 1 of their contract, make themselves private Hutchinson, Carriers (3d Ed.) § 44; Clevecarriers; that the instant case is not differ- land, etc., Co. v. Henry, supra, 170 Ind. 99, ent from those involving a drover's pass, and 83 N. E. 710; Parrill v. Cleveland, etc., Co., should be controlled by those cases (Ohio, 23 Ind. App. 638, 653, 55 N. E. 1026; Terre etc., Co. v. Selby, 47 Ind. 471, 17 Am. Rep. Haute, etc., Co. v. Sherwood, supra, 132 719; Louisville, etc., Co. v. Faylor, 126 Ind. Ind. 134, 31 N. E. 781, 17 L. R. A. 339, 32 126, 25 N. E. 869; Lake Shore, etc., Co. v. Am. St. Rep. 239; N. Y. C. R. R. Co. v. LockTeeters, 166 Ind. 335, 77 N. E. 599, 5 L. R. wood, 17 Wall. 357, 377, 21 L. Ed. 627, 639. A. (N. S.) 425; Pittsburgh, etc., Co. v. Brown, The business of common carriage by rail, 178 Ind. 11, 97 N. E. 145, 98 N. E. 625). while it contemplates the carriage of persons

We first consider appellee's contention. and property generally, yet it also contemWhile expressions may be found in some ju- plates that such passengers and property risdictions having statutes somewhat sini. will be carried on trains made up by the lar to our statute,' supra (see Walther v. carrier, and entirely under its supervision Southern Pacific, etc., Co., 159 Cal. 769, 116 and control and subject to the usual and Pac. 51, 37 L. R. A. [N. S.) 235 and cases ordinary regulations governing such trans

common

portation. It is no part of the duty of a com- , said mines operated, and hence interested in mon carrier, as such, to carry the property seeing that the miners who operated such of shippers in their (the shippers') cars, with mines were provided with a means of transthe shippers in charge, at such times as the portation to and from their work. Under shipper demands, nor are such carriers re- these circumstances, appellant furnished quired to give to the shipper any particular | such transportation. The contract under car for goods to be carried with an agent of which such transportation is furnished is the shipper in charge.

not a contract for mixed transportation, or The express messenger cases and show em- for transportation over the shipper's road, ployé cases, cited supra, are cases where the or of the shipper's employés and property in shipper demanded and was given a carriage the shipper's car, or for space in a par. and transportation entirely different from ticular car, but is a contract to carry passen. that extended to the shipping public general. gers only, in appellant's own cars, over its ly. The express company in those cases ask- own road, operated by its own men, for a ed and obtained a combined carriage of prop- consideration to be governed by the number erty and the agent in charge thereof, and de- of passengers carried. Appellant's business manded and obtained space for such carriage is that of a common carrier, and in the inin a particular car, and obtained privileges stant case, it had complete, undivided, and in connection with such transportation which unrestricted management, control, and diare not demanded by, or given to, the or- rection of every element that entered into dinary shipper,

such transportation, including road, roadbed, While the express company is itself a com- cars, locomotive, and all employés connected mon carrier, and owes to the public the du. with the operation of such train, and hence ties of such a carrier, it cannot demand or it was responsible for and had the power to obtain from another common carrier trans- control and guard against every element of portation of its property different from that negligence which might expose such passenwhich the other carrier owes to the ship-gers to any danger that might be avoided ping public generally, except by special con- by the exercise of that high degree of care tract for the special carriage desired. Such which the law in such cases imposes on the carriage has always been by special contract, common carrier. For a court, under such and has likewise been recognized as private circumstances, to permit such a carrier to carriage rather than

carriage. avoid the obligations and duties of a comLouisville, etc., Co. v. Keefer, supra, 146 mon carrier, on the ground that in the parInd. at page 26, 44 N. E. at page 796, 38 L. ticular instance it had contracted as a priR. A. 93, 58 Am. St. Rep. 348, and cases vate carrier, in our judgment, would be the cited; Express Cases, 117 U. S. 1, 6 Sup. equivalent of the court's giving its sanction Ct. 542, 628, 29 L. Ed. 802. So, also, with and approval to evasion. the show cases, supra.

The transportation The passengers to be carried were not in was a mixed transportation of property and the cars of the mining company, nor were persons, in cars owned by, and under the they in charge of any property of the mining supervision, management, and control of, company in such cars, and had nothing to the show company. It is a kind of trans- do with the management or control of said portation which the railroad company does cars or any property therein. Indeed, apnot owe to, and which is not given to, the pellee, when he entered said car, was not public generally. In such respects, the ex- then in the service of the mining company. press messenger cases and the show employé His day's work at the mine began after leavcases are wholly different from the instant ing appellant's car in the morning, and end

ed before entering it in the evening. He [6] In the instant case, the branch line of entered the car as appellant's passenger, and road over which the train in question was not as the mining company's employé to take being operated when appellee was injured charge of its property or to perform any was appellant's own line of road. It was a service for it. His relation to appellant branch run by it to said mines. It was used bore no resemblance to that of one of its by appellant in connection with its business employés, as in the express messenger cases. as a common carrier for the transportation Bates v. Old Colony Railroad (1888) 147 of the product of said mines. In this connec- Mass. 255, 267, 17 N. E. 633. tion, we suggest the query whether, by a (7) Transportation of himself was the only proper proceeding before the Public Service object for which appellee entered appellant's Commission, appellant might not have been train. His employment at the mine may required to furnish transportation over its have made necessary the transportation, but said branch to the workers in said mine, but when he entered the train he did not do so whether this be so or not, we need not and as the employé of the mining company, nor do not decide. Appellant did furnish such to do any service for it. Omitting any words transportation. As a common carrier oper- which tend to obscure, rather than illuminate, ating such branch road and engaged in haul the real character and purpose of the coning and transporting over such branch road tract, neither it nor the transportation prothe products of said mines, appellant was, as vided for therein contained any element

case.

sengers by a common carrier, except that the case of Baker v. Brinson, 9 Rich. (S. C.) such contract is for transportation between a at page 202, 67 Am. Dec. 548, said: regular station and a mine, instead of be “The exacting tendencies of certain great cartween regular stations, and the mining com- riers of the present day, enjoying facilities that pany acted as an intermediary for the mak- almost exclude competition, admonish us, in the

application of these wholesome rules, carefully ing of the contract, and the collecting of to guard against any abuses. Notwithstanding the fares. These elements are, in our judg. their apparent rigor, there is a salutary policy ment, of little importance in determining in these common-law doctrines, and those who whether, as to such contract, appellant are called to administer the law must see to it

that they are not wholly evaded." should be regarded as a common carrier. They might with equal propriety be inserted

Again in the case of Steele et al. v. Townin any contract for passage on excursion send, supra, 37 Ala. 247, at page 257 (79 Am. trains run to some point other than a pas. Dec. 49), the court quotes with approval senger station and arranged for by any one from Justice Gibson in Atwood v. Reliance other than the carrier. Mr. Hutchinson Transp. Co., 9 Watts (Pa.) 87, 34 Am. 'Dec. closes the paragraph of his work, from which | 703, as follows: we quoted above, with the following words: "Though it is perhaps too late to say that a

carrier may not accept his charge in special “But it may now be stated to be the decidedly terms, it is not too late to say that the policy prevailing doctrine in this country that a pas- which dictated the rule of the common law re'senger carrier cannot contract against the con quires that exceptions to it be strictly interpretsequences of his own negligence when the car.ed, and that it is his duty to bring his case riage of the passenger himself is the subject of strictly within them.” the contract." (Our italics.) 2 Hutchinson, Carriers, § 1072, pp. 1245, 6.

While these expressions of regret, in most

instances, seem to have been uttered in conOur examination of the cases herein cited, nection with innovations of the common-law. as well as many others, confirms this state doctrine applicable to the transportation of ment, unless it can be said that the accept

property, rather than of persons, there ance of a gratuitous pass is a "contract would be even greater reason for regret if within the meaning of that word as above innovations on the common-law rule should used.

be permitted where life and limb are inMany jurisdictions, Indiana included, hold volved (Graham v. Davis, supra, 4 Ohio, 379, that one who accepts a gratuitous pass, ac- 380, and cases there cited; Lake Shore, cepts with its benefits its burdens also, in- etc., Co. v. Teeters, supra. See, also, Ohio, cluding a release of liability for injury re etc., Co. v. Selby, supra), and it is wholly sulting from the carrier's negligence. Payne immaterial under what guise the innovation v. T. H. & I. R. Co., 157 Ind. 616, 62 N. E. may appear, it is equally to be condemned. 472, 56 L. R. A. 472; Indianapolis, etc., Co. If the courts approve contracts of this charv. Klentschy, 167 Ind. 598, 79 N. E. 908, 10 acter, where, as in this case, they are made Ann, Cas. 869; Malott v. Weston, .51 Ind. by a common rier for passenger carriage App. 572, 98 N. E. 127 ; 6 Cyc. 579, and cas- alone, over its own line of road, in its own es cited under note 53.

cars, operated solely by its own employés, on This l) the only class of cases which we the theory that the contract is one for prihave been able to find where a limitation of vate carriage, rather than for common carHability was allowed to defeat an action for riage, the innovation and the evils that will injuries caused by the carrier's negligence, result are just as real, and in no way difwhere the contract for carriage was with a ferent from what they would be if they common carrier for passenger carriage only, should hold that the contract is not in vioand the means of carriage, including road, lation of public policy, as expressed and reccars, locomotive power, and those operating ognized in the cases cited herein. the train were under the complete supervi

We, therefore, believe that the court sion and control of such carrier. And when should refuse to give their sanction to any we take into account the fact that the only innovation upon said general rule which will contract upon which the passenger bases his permit a common carrier to avoid responsiright to be upon the train, in such a case, bility for its own negligence resulting in inis gratuitous, and consider the reasoning jury to a passenger where, as in this case, upon which these cases are based, it is it has the exclusive supervision and control doubtful whether they can be said to consti- of every element of such transportation from tute an exception to the doctrine, supra, an- which such negligence is possible, and where, nounced by Hutchinson.

as in this case, its contract is for passenger There is no hardship in this doctrine, and carriage only, regardless of the guise under many strong reasons unite to commend it. which such innovation is asked or presented, That there is strong reason that such should and hence hold that no error resulted from be the holding of the courts is found in the the court's rulings on the demurrers to said expressions of regret of various eminent answers. judges, before referred to in connection with [8] As before indicated, this, in effect, disthe innovations permitted in the common poses of all the questions presented by this law rule. Upon this subject, the court, in appeal, except an objection to instruction

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