Wessman v. Railroad , 84 N.H. 475 ( 1930 )

The argument of the defendant upon rehearing may be summarized as follows: that the defendant as a common carrier was not bound to transport the plaintiff without compensation; that in furnishing her free transportation it acted as a private carrier; that as a private carrier it might lawfully attach to the performance of such a service any conditions which would be valid between individuals; that a stipulation for release from liability for the negligence of its servants as distinguished from its "personal" fault does not offend the public policy of this state; that this distinction was recognized and applied in the case of Piper v. Railroad,75 N.H. 228, and that the result which we have reached in the present case is inconsistent with that decision.

It seems plain to us that the case at bar is distinguishable from the Piper case upon at least three grounds, and the statement of these distinctions will serve to develop the answer to the rest of defendant's argument.

It is true that in the Piper case a contract purporting to relieve the defendant from all liability for personal injuries was held valid as to the negligence of the defendant's servants, but in appraising the force of this decision as an authority it should be borne in mind that while a majority of the court concurred in the result, the published opinion represented the views of only two judges. It is plain, therefore, that this case settled the law only with reference to the factual situation there existing, and that the statements of the concurring judges cannot be relied upon as authoritative declarations of legal principles, although they may serve to delimit the scope of the majority decision.

I. With the foregoing considerations in mind the first distinction to be noted between the present case and the Piper case is that Mrs. Wessman was a passenger while Piper was not, — a fact which the concurring judges in that case thought to be of vital importance, as is shown by the following quotation from their opinion (p. 238): "But it is important to bear in mind that he [Piper] was not a passenger. . . . He was not seeking transportation, either for himself, or as the agent or employee of the Express Company (Webster v. Railroad, 161 Mass. 298) — a circumstance of much importance which distinguishes this case from Baker v. Railroad,74 N.H. 100." Again we read (p. 239): "Unlike a passenger, he did not seek the aid of the railroad charged with the public duty of transportation, but he sought and obtained from the railroad the privilege of working for the Express Company in the railroad's station." In accordance with the distinction thus clearly indicated it is plain that the present controversy should be decided in accordance with the Baker case and is not governed by the Piper case.

But we are told that this distinction is unsound. "Certainly," it is argued, "the fact that Piper was an express agent and this plaintiff a free passenger is immaterial." This contention will receive further examination, but at this point we are not interested in considering the validity of the distinction suggested in the Piper opinion. We merely point out that the concurring judges in that case clearly excepted passenger cases from the scope of their decision, and hence it cannot be held that the present case is governed by it.

II. The second ground of distinction between the present case and the Piper case is that the peculiar relationship between Piper and the railroad which formed the basis for the principal argument advanced in support of that decision finds no parallel in the present situation. The plaintiff there was an employee of an express company using the defendant's station platform in the performance of his duties. The court considered that "he was there as a servant engaged with the servants of the railroad corporation in the service of transportation on the road." He was regarded as an invitee whose situation approximated closely that of a fellow-servant with the employees of the defendant, and the contract was held valid only as to certain risks which he would have assumed if he had been in the defendant's employ, i.e., the risk of injury from the negligence of fellow-servants. "The fellow-servant doctrine," said the two judges who joined in the published opinion, "is strong evidence that public policy recognizes such an agreement entered into by one in the plaintiff's position as valid and binding." Piper v. Railroad, supra, 242. Clearly the analogies of the fellow-servant relationship have no comparable application to the situation of the plaintiff in the case at bar, and hence the conclusion which we have reached need not be regarded as inconsistent with the decision in the Piper case.

III. The third distinction between the present case and the Piper case is one which goes to the very root of defendant's argument and is indicated by the language of the opinion above quoted: "Unlike a passenger," said the concurring judges, "he [Piper] did not seek the aid of the railroad charged with the public duty of transportation." Here it is clearly intimated that if Piper had been seeking of the railroad the performance of its "public duty of transportation" the result would have been different, and throughout that opinion it is assumed that if Piper had been "exercising a public right which the railroad cannot refuse to recognize" the release would have been invalid. This is undoubtedly the law as pointed out in our former opinion, and accordingly defendant's counsel are forced to contend that "the plaintiff in this case was not a passenger in the sense that she was receiving a service which she could demand of right and which the defendant was bound to perform." "Granted," they say, "that paying passenger has a right to demand of the railroad the full performance of its common law duty, the railroad owes no common law duty to carry free passengers and its freedom of contract with respect to the carriage of such passengers should not in reason be any more limited than in the case of the expressman. Neither have right to demand the particular service which they ask for."

Counsel here confuse the nature of the service rendered with the terms upon which it was to be performed. The provisions of the contract by which a railroad undertakes a given service do not at all determine whether the service is one which as a common carrier it could be compelled to perform. The nature of the service is indicated by the character acts involved in its performance, and in order to ascertain whether a given service constitutes a part of the public duty of common carrier the decisive inquiry is whether "these acts are such as the carrier must perform." Russell v. Railway, 157 Ind. 305. "Common carriers are such by virtue of their occupation, and not by virtue of the responsibilities under which they rest." New York Central R. R. Co. v. Lockwood, 17 Wall. 357, 376.

The Pullman porter cases of which Russell v. Railway, supra, is a sample, the express messenger cases like Baltimore c. Railway v. Voigt,176 U.S. 498, and the circus train cases like McCree v. Davis, 280 Fed. Rep. 959, all lend point to this distinction. Many courts have asserted that railroads do not hold themselves out as engaging in the business of hauling Pullman cars or circus trains or carrying express, and it has been held that the very nature of the exceptional service desired in these cases made it clear that in undertaking them railroads acted outside the scope of their public undertaking as common carriers. We need not consider here the question whether these decisions are in conflict with the reasoning and the conclusion of this court in Baker v. Railroad, 74 N.H. 100. It is sufficient to point out the fact that the things which the railroads were asked to do in these cases — the character of the physical acts of service required — were the criteria relied upon by the courts to determine the public or private nature of the undertaking.

Thus considered, it is plain that Mrs. Wessman required of the defendant no unusual or extraordinary service. Unlike the plaintiff in the Piper case, she was seeking transportation for herself. What she asked of the defendant was to be carried from Concord to Manchester upon one of its regular passenger trains. This service was one which the defendant as a common carrier was bound to furnish to all comers. The incidental arrangement of the parties in regard to compensation did not affect the nature of the service or the character of the acts necessary to its performance. For the same reason it did not affect the legal duty of the defendant as a common carrier to transport her safely. Its legal right to refuse free transportation did not operate to curtail its legal duty toward a free passenger once the transportation had been undertaken. The liability of a common carrier does not depend on the fact that compensation for the passage paid to the carrier, nor does its duty to carry safely result alone from the consideration paid. "It is imposed by the law, even where the service is gratuitous." Philadelphia c. Railroad v. Derby, 14 Howard 468, 485. ". . . it makes no difference whether the service is performed gratuitously or not, in regard to the obligation to perform it well, after it is once entered upon; for, ever since the decision of the leading case of Coggs v. Bernard, (2 Smith's Leading Cases 82), it has been regarded as sound law, that `the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it'." Mobile c. Railroad v. Hopkins,41 Ala. 486.

That the duty of a carrier to a free passenger is identical with that which it owes to a paying passenger is the uniform holding of many cases in which free passengers have been allowed to recover for personal injuries in the absence of a release. Louisville c. Railway v. Faylor, 126 Ind. 126; Todd v. Railroad, 3 Allen 18; Wilton v. Railroad, 107 Mass. 108; State v. Railroad, 63 Md. 433; Lemon v. Chanslor, 68 Missouri 340; Waterbury v. Railroad, 17 Fed. Rep. 671; Washburn v. Railroad, 3 Head (Tenn.) 638; Steamboat New World v. King, 16 How. 469; Philadelphia c. Railroad v. Derby, 14 How. 468; Thompson v. Railroad, 47 La. Ann. 1107. To these cases should be added those in which a recovery has been permitted despite the giving of a release. Pennsylvania Railroad v. Butler, 57 Pa. St. 335; Gulfc. Railway v. McGown, 65 Texas 640[65 Tex. 640]; Mobile c. R. R. v. Hopkins, 41 Ala. 486; Norfolk Western Ry v. Tanner,100 Va. 379; Bryan v. Railway, 32 Missouri App. 228; St. Louis c. Railway v. Pitcock, 82 Ark. 441; Williams v. Railroad,18 Utah 210; Rose v. Railroad, 39 Iowa 246;c. Ry v. Collier, 1 Neb. (unof.) 278. And the soundness of this rule is recognized in many of the cases relied on by the defendant. See particularly Buckley v. Railroad, 113 Me. 164.

According to the foregoing authorities as well as those cited at the outset of the former opinion, Mrs. Wessman, as soon as she came upon the defendant's premises to begin her journey, became a passenger to whom the defendant owed all of its common carrier duties of service and protection. To the performance of these duties the doctrine of respondeat superior applies without limitation, and ever since the decision of the supreme court of the United States in New York Central R. R. v. Lockwood, supra, it has been well established law that a common carrier cannot effectually "stipulate for exemption from responsibility for the negligence of himself or his servants." Ib. 384. Such was the declaration of this court in Durgin v. Company, 66 N.H. 277, 279, and this principle is decisive of the present case.

The defendant seemed finally to concede at the argument that, in the absence of a release, its liability to the plaintiff would be that of common carrier to its passenger and it was then driven to contend that the execution of the release ipso facto altered their relationship and divested the defendant of its common carrier obligations so far as the plaintiff was concerned. The argument is thus stated: "She was not a passenger when she negotiated for the pass, when she made the contract in question and the defendant in giving it to her was not acting as a common carrier. She could not demand the pass and the railroad was under no duty to give it to her . . . she was not asking the defendant to perform its public duty for hire. She chose instead to deal with it as a private individual and to accept a gratuity outside its public duty."

The assertion that the defendant in giving her the pass "was not acting as a common carrier" is inconsistent with the language of the statute, which, while forbidding any railroad corporation "acting as a common carrier of passengers" to issue or give any free pass for passengers between points within this state, specifically excepts from this prohibition "its officers and employees and their families." P. L. c. 242, s. 13. Unless the pass in question was issued by virtue of this authority its issuance was illegal and all its provisions and stipulations would be void, as stated in the former opinion. If issued under authority of the statute it must have been issued by the defendant as a common carrier since it is plain that the only purpose of the exceptions in the statute was to permit common carriers to do in certain special situations that which they are generally forbidden to do.

If, as the defendant argues, a railroad lays aside its public character and acts as a private carrier whenever it issues a free pass it would follow that free passes could be issued without restriction since it is only to railroads acting as common carriers that the prohibition of the statute applies. Of course, an act of the legislature cannot be nullified in this way and the defendant's argument must be fallacious. The nature of the fallacy is not far to seek. It is the well known error of arguing in a circle.

The claim is that by negotiating a special contract with the plaintiff the railroad laid aside or was divested of its character as a common carrier, and that the contract is valid because it is one which a private carrier might lawfully make. In other words, the contract is good because in making it the defendant acted as a private carrier, and it acted as a private carrier because it made the contract. This fallacy was early pointed out by Mr. Justice Bradley in New York Central R. R. v. Lockwood, supra, and has not escaped the attention of other courts. Norfolk . Western Ry v. Tanner, 100 Va. 379.

The most persuasive part of the defendant's argument is the suggestion that to permit the plaintiff to repudiate her release after accepting the benefits of the pass would be contrary to common conceptions of honesty and fair play. The following language from the case of Duncan v. Railroad, 113 Fed. Rep. 508, 514 has been repeatedly urged upon our attention: "The result we have reached conform the law applicable to the present issue to that moral sense which justly holds those who accept gratuities and acts of hospitality to perform the conditions on which they are granted."

One answer to this argument has been well stated by the supreme court of Arkansas as follows: "It is not a question of benevolence and hospitality on the part of the carrier in giving, nor the violation of moral obligation on the part of the passenger in receiving without being bound by the terms of the agreement upon which the gratuity was offered and accepted. The question is one of public duty which the State, as parens patriae, having due regard for the lives and limbs of all her subjects, will not permit to be relegated to the domain of private contract." St. Louis c. Ry v. Pitcock, 82 Ark. 441.

Perhaps the most convincing answer to defendant's argument, however, is that it proves too much. The same considerations of honesty and fair play would require that all contracts of a common carrier for exemption from liability based upon rate concessions and other special circumstances when fairly entered into should be enforced, but this is nowhere the law in America. The fair play argument often has to yield to other considerations. It cannot be given paramount importance here.

Former result affirmed.

All concurred.