Marlatt v. Erie Railroad

Kruse, J. (dissenting):

The plaintiff, who was in charge of a carload of live stock, was riding in the caboose of the train and was thrown from his seat through the negligent operation of the train, as he claims, and hurt. He had been employed by the shippers to take charge of and care foT the stock, and was rightfully upon the train. He paid no fare himself and none was exacted by the conductors. Their authority for passing him was a notation upon the way bill to “pass man in charge free.” The stock was being shipped under what is known as the uniform live stock contract, which contemplates that the shipper shall send a caretaker with the stock, and provides that the caretaker shall be carried without charge other than what is paid for the transportation of the stock, and that the shipper will indemnify the carrier and connecting carriers against claims for personal injuries sustained by the caretaker, whether caused by the negligence of the carriers or otherwise. It also evidently contemplates that the man in charge shall execute an instrument whereby he voluntarily assumes all risk of accident and releases and discharges the carriers from all claims for personal injury or damage sustained by him, whether caused by the negligence of the carriers or otherwise.

It is contended upon the part of. the defendant that under the contract of shipment the defendant is exempted from lia-bility for the injuries so sustained by the plaintiff. That would be so if the plaintiff had been a party to the contract or had signed the release. But he was neither a shipper nor did he execute the release. The release was executed by William' Scott, one of the shippers. The plaintiff had no knowledge of the terms of the contract under which the stock was being shipped or of the release. He did not represent himself to be Scott and the conductors who passed him did not understand him to be Scott, and he did not deceive the railroad company as to his identity or otherwise. Indeed, the first conductor upon the train knew the plaintiff, and although the notations upon other way bills for passing the man in charge of stock had sometimes upon, previous occasions designated the man in *396charge by name, no such designation was made upon the way bill for the stock of which the plaintiff had charge upon this occasion. There is nothing in the evidence showing that the plaintiff, either under the terms of his contract of employment with the shippers or under any arrangement with the railroad company, assumed directly or indirectly the risk of injury to him resulting from the carelessness of the carrier in transporting him upon the train in question.

Furthermore, as will be seen, the release did not assume to bind him or any one else but Scott. And even if it had, I do not think the shippers could do so without his knowledge or consent. (Brewer v. New York, Lake Erie & Western R. R. Co., 124 N. Y. 59.) In Baltimore & Ohio, etc., Railway v. Voigt (176 U. S. 498), where the railroad company was held not liable for injuries sustained by an express messenger, who had himself voluntarily assumed the risk of accident, the case of Brewer v. New York, Lake Erie & Western R. R. Co. (supra) was referred to. The doctrine of the Brewer case was not disapproved, but the case was distinguished by the fact that in the Brewer case 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.

' Furthermore, it appears that upon other occasions the carriers had permitted caretakers to go with shipments of live stock without executing any release. The trial judge charged as requested by defendant’s counsel, that in the absence of any custom or practice to the contrary Scott alone was entitled to go with the car of stock in question as the caretaker or attendant thereof, but refused to charge that the evidence was insufficient to establish a general practice or custom upon the part of the initial carrier which would operate as a waiver of that part of the agreement .or of the rule requiring it to be carried out. It is possible that the evidence was insufficient to establish a general custom to that effect. But whether it was or not, I think, under the rule: of the Brewer case, the plaintiff’s right of recovery is not affected thereby.

2. As regards the negligence of the defendant, I think the evidence was sufficient to make that question one of fact. The trial court limited the grounds of negligence to the careless *397management of the train, and instructed the jury that if the accident resulted from a sticky air valve the plaintiff could not recover. An inspection of the train was made before the accident and immediately after, and no sticky air valve was discovered. The jerky and jolting condition of the train before the accident, as well as the fact that the air did not come on suddenly at the time when the train was stopped, and other surrounding circumstances, made it fairly a case for the jury to determine whether the sudden and abrupt stopping of the train was the result of a sticky air valve, as the defendant claims, or the negligent operation of the train by the engineer, as the plaintiff claims, and the jury having found for the plaintiff upon that question, I think them finding should not be disturbed.

3. As regards the complaints made to the conductor of the operation of the train immediately before the accident, I think they were competent, at least upon the question of notice. There was no suggestion upon the part of the defendant that the evidence should be limited in any way, and if it was competent for any purpose it was properly received.

I think the judgment and order should be affirmed, with costs.

Robson, J., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.