Opinion
No. 36065
Decided February 24, 1960.
Railroads — Free pass for interstate transportation — Provision in pass that passenger assumes risk of injury — Validity determined by federal law — Passenger injured — By claimed negligence of union depot used by issuing railroad — Depot has valid defense, when.
1. By reason of Section 1 (7) of Title 49, United States Code, the validity and effect of provisions with respect to liability in a free pass for interstate railroad transportation must be determined by federal rather than any state law.
2. Where a free pass for interstate railroad transportation provides that one using such pass assumes all risk of accidents and agrees that a common carrier providing services thereunder shall not be liable for personal injuries to such user, such carrier will have a valid defense to any action for personal injuries claimed to have been caused by the negligence of such carrier to such user while using such pass.
3. Where a terminal company owns and operates a union depot which is used by several railroads and is the only railroad station in a city in which N.Y.C. trains discharge passengers and where a free pass for interstate railroad transportation to such city given by the N.Y.C. System to a member of the family of an employee of another railroad is headed "N.Y.C. System" and does not contain the name of any company and provides that "each of the persons * * * using the same * * * agrees that the company shall not be liable * * * for any injury to his * * * person * * * and that * * * he * * * will not consider the company as a common carrier, or liable to him * * * as such," such provisions will constitute a valid defense for such terminal company in an action for personal injuries claimed to have been caused by such terminal company's negligence to the holder of such pass at the time of its use.
APPEAL from the Court of Appeals for Cuyahoga County.
Plaintiff instituted this action in the Common Pleas Court of Cuyahoga County against the Cleveland Union Terminals Company, herein referred to as the terminal company, to recover $25,000 damages for personal injuries claimed to have been caused by the negligence of the terminal company in operating an escalator. As a separate defense, the terminal company pleads that plaintiff was injured during the course of transportation furnished to her under a pass containing certain provisions relieving the terminal company of liability to the plaintiff.
Plaintiff's husband, who had been employed as a laborer on the Louisville Nashville Railroad, had applied for a trip pass for himself and his wife from Indianapolis, Indiana to Cleveland, Ohio and return on the New York Central. The pass is headed "New York Central System." There is no specific reference to any other organization in its wording. On the front, it states that it is "subject to conditions printed on back." The following appears on the back:
"Conditions"In consideration of receiving this free pass, each of the persons named thereon, using the same, voluntarily assumes all risk of accidents and expressly agrees that the company shall not be liable under any circumstances, whether of negligence of itself, its agents, or otherwise, for any injury to his or her person, or for any loss or injury to his or her property; and that, as for him or her, in the use of this pass, he or she will not consider the company as a common carrier, or liable to him or her as such.
"* * *
"I agree to the above conditions:
"(Signed) Eddie Lunsford wife"
New York Central trains operate from Indianapolis to Cleveland over the tracks of the Cleveland, Cincinnati, Chicago St. Louis Railroad Company to West 28th Street in Cleveland. Thereafter, those trains proceed over tracks of the terminal company to the Cleveland Union Terminal. After alighting from such a train at the Cleveland Union Terminal, it is necessary, in order to get out of the terminal, either to walk up steps or to take the escalator from the track level to the terminal concourse, where waiting rooms are located and from where passengers may then proceed out of the terminal to the city streets.
Plaintiff's injuries were received after she had alighted from the Indianapolis to Cleveland train and while she was riding on that escalator from the track level to the terminal concourse.
Nothing was paid to anyone on account of this transportation of plaintiff on this pass from Indianapolis to Cleveland.
The terminal company was incorporated in Ohio as a union depot company. It was organized as the result of the joint efforts of the Cleveland, Cincinnati, Chicago St. Louis Railway Company, the New York Central Railroad Company and the New York, Chicago St. Louis Railroad Company which are usually referred to in connection with the terminal company as "proprietary companies." The first two of those are part of the New York Central System but the third is a competitor of that system. Besides these three railroads the facilities of the terminal company are used by the Erie Railroad Company and the Baltimore Ohio Railroad Company. All these companies pay the terminal company for the use of the Cleveland Union Terminal facilities.
At the close of all the evidence, the trial judge sustained the terminal company's motion to withdraw the case from the jury. Judgment was rendered for the terminal company, and that judgment was affirmed by the Court of Appeals. The cause is now before this court on an appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Woodle Wachtel, for appellant.
Mr. John F. Dolan and Mr. Joseph T. Ryan, for appellee.
This court has never definitely passed upon the validity of provisions in a pass exempting a common carrier from liability for negligence to a "gratuitous" passenger. See Knowlton v. Erie Ry. Co., 19 Ohio St. 260, 2 Am. Rep., 395, inferentially indicating the invalidity of such provisions. See also Cleveland, Painesville Ashtabula Rd. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep., 362, holding one riding on "drover pass" a paying passenger, and Pittsburgh, Cincinnati, Chicago St. Louis Ry. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, L.R.A. 1917D, 641, Ann. Cas. 1918B, 286, holding such provisions invalid as to rights against railroad of employee of Pullman Company.
However, the Supreme Court of the United States has held that, by reason of what is referred to as the Hepburn Act (Section 1 (7), Title 49, U.S. Code) and notwithstanding Erie Rd. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed., 1188, 58 S. Ct., 817, 114 A.L.R., 1487, the validity and effect of any provisions with respect to liability in a free pass for interstate railroad transportation must be determined by federal rather than any state law. Francis v. Southern Pacific Co. (1948), 333 U.S. 445, 92 L. Ed., 798, 68 S. Ct., 611.
Provisions in free passes similar to the "conditions" set forth in the pass in the instant case were sustained as defenses in actions for negligently causing personal injuries or death in the Francis case and in Northern Pacific Ry. Co. v. Adams (1904), 192 U.S. 440, 48 L. Ed., 513, 24 S. Ct., 408, Boering v. Chesapeake Beach Ry. Co. (1904), 193 U.S. 442, 48 L. Ed., 742, 24 S.Ct., 515, and Kansas City Southern Ry. Co. v. Van Zant (1923), 260 U.S. 459, 67 L. Ed., 348, 43 S. Ct., 176, 22 NCCA, 896.
Charleston Western Carolina Ry. Co. v. Thompson (1914), 234 U.S. 576, 58 L. Ed., 1476, 34 S. Ct., 964, specifically ruled against a contention "that a so-called free pass * * * issued to [an employee or] a member of an employee's family really was not a free pass but was issued upon consideration of the services of the employee." Although it is difficult to reconcile that decision and the reasons stated therefor in the opinion with the holding in Martin v. Greyhound Copp. (CCA6-1955), 227 F.2d 501, 55 A.L.R. (2d), 761, the plaintiff in the instant case, unlike the plaintiff in the Martin case, has not relied upon any contractual provisions requiring the issuance to her of the pass that she was using. It may be that the Supreme Court denied certiorari (see 350 U.S. 1013, 100 L. Ed., 873, 76 S. Ct., 657) in the Martin case because it involved, as the opinion therein indicates, a summary judgment for the defendant on a complaint presenting "an issue of wilful, wanton, or gross negligence" and "a carrier cannot by such stipulations [even in a free pass] relieve itself from liability for acts done wantonly or wilfully, or for acts of gross negligence, New York Central Ry. Co. v. Mohney, 252 U.S. 152, 40 S. Ct., 287, 64 L. Ed., 502." In the instant case, there is no allegation of any such misconduct as a cause of plaintiff's injuries.
Plaintiff contends that, since the "conditions" relied upon by the terminal company refer to "the company" as not to be liable and to "the company" as not to be considered "as a common carrier, or liable * * * as such" and since the only possible "company" mentioned in the pass is the "New York Central System" and the terminal company is not named in the pass, those conditions should not be construed so as to exempt the terminal company from liability on account of injuries to the plaintiff caused by negligence of the terminal company.
In our opinion, that contention is irreconcilable with the decision and the reasons advanced therefor in Wilder v. Pennsylvania Rd. Co. (1927), 245 N.Y. 36, 156 N.E. 88, 52 A.L.R., 188. In that case, the free pass was for a trip from New York City to Washington, D.C. or Norfolk, Virginia and purported to be issued by the "Pennsylvania System" and provided, so far as pertinent, that, "in consideration of the issuance * * *, I hereby assume all risks of personal injuries * * * from whatever causes arising and release the company from liability therefor." The plaintiff in that case "fell on a soapy and slippery floor of the waiting room of the Pennsylvania station, owned by the defendant Pennsylvania Tunnel and Terminal Railroad Company" when "on the premises for the purpose of boarding a" Pennsylvania Railroad train on a trip to Norfolk on that pass. In holding that the foregoing-quoted provisions gave the owner of the station a valid defense, it is said in the opinion by Crane, J.:
"The meaning and purport of this agreement was that, because of the free use of facilities, the plaintiff assumed all risks of injury while using the pass between New York and Norfolk, Virginia. Impliedly, the agreement included not only the facilities of the Pennsylvania Railroad Company, but of the connecting lines. It had the same effect as if the Pennsylvania Railroad owned the station and operated a railroad to the plaintiff's destination. The contract was a single contract to travel all the way, and afforded protection to all the lines contributing to that end.
" * * *
"* * * her pass entitled her to the use of the Pennsylvania Railroad depot, its waiting rooms and the passage through its gates to the trains. The station and the waiting room were part of the connecting railroad which the plaintiff could use free of charge by reason of her agreement with the Pennsylvania Railroad Company. * * * While using this pass, therefore, she assumed all risks of personal injury. This assumption or agreement relieved the company owning and operating the station of liability. By fair implication, if not by express words, it shared the benefits as well as the responsibilities of the pass. In making the contract, the Pennsylvania Railroad was the agent of these connecting lines."
In Brown v. Terminal Rd. Assn. (Mo.-1957), 298 S.W.2d 471, the pass involved provided that no one "shall have any right or claim against the issuing company, its * * * agents, or any company or railway on whose lines or trains his pass may be honored, or its * * * agents." The emphasized words would quite clearly include any station owner at either end of the journey. Hence, that case, which is relied upon by the terminal company, is distinguishable from the instant case.
Plaintiff argues that, in interpreting the language of the pass involved in the instant case, the lower courts disregarded the general principle "that a contract is to be interpreted most liberally in favor of the contracting party who had no part * * * in selecting or preparing the language of the contract." That no such principle requires a liberal interpretation of the "conditions" in this pass in favor of plaintiff is apparent from the following statements by Brewer, J., in the opinion of Boering v. Chesapeake Beach Ry. Co., supra ( 193 U.S. 442), 449:
"* * * it is insisted that the exemption from liability for negligence results only from a contract therefor; that there can be no contract without knowledge of the terms thereof and assent thereto, and that she had neither knowledge of the stipulation nor assented to its terms; that thereforethere was no contract between her and the company exempting it from liability for negligence. * * * when a contract for carriage and shipment is shown * * * it is fitting that any claim of limitation of the ordinary liabilities arising from such a contract should not be recognized unless both parties to the contract assent, and that assent is not to be presumed, but must be proved. [Cf. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 58 N.E.2d 658.] Here there was no contract of carriage, and that fact was known to Mrs. Boering. She was simply given permission to ride in the coaches of the defendant. Accepting this privilege, she was bound to know the conditions thereof. * * * A carrier is not bound, any more than any other owner of property who grants a privilege, to hunt the party to whom the privilege is given, and see that all the conditions attached to it are made known. The duty rests rather upon the one receiving the privilege to ascertain those conditions."
In further support of her contention, that the "conditions" on the pass involved in the instant case should not be construed so as to provide a defense for the terminal company, plaintiff cites Parker v. Bissonette, 203 S.C. 155, 26 S.E.2d 497, 147 A.L.R., 773. That decision and some of the reasons given in support of it are difficult to reconcile with the decisions and reasons given therefor not only in the Wilder case but also in Hall v. North Eastern Ry. Co. (1875), L.R., 10 Q.B., 437, and Bicknell v. Grand Trunk Ry. Co. (Ontario-1899), 26 A.R., 431. However, even if we assume that the Parker case was correctly decided, the reasons given by the South Carolina court in deciding it will not support a construction of the pass in the instant case that might enable plaintiff to recover from the terminal company.
In the Parker case, recovery was sought by a plaintiff riding on a free pass issued by the Atlantic Coast Line Railroad Company for a trip to Charleston against a bus operator who transported passengers for that railroad from a station outside that city to its union station. Such transportation was necessary because that railroad's through trains did not run to the union station. As a defense, the bus operator set up the following provision of the pass:
"The person accepting this free ticket agrees that the Atlantic Coast Line Railroad Company shall not be liable under any circumstances, whether of negligence of agent or otherwise, for any injury to the person, or for any loss or damage to the property, of the passenger using the same."
In the opinion by Henderson, J., it is said:
"* * * the stipulation in the pass * * * definitely says that the person accepting the free ticket agrees `that the Atlantic Coast Line Railroad Company shall not be liable' * * * there is nothing to show that it was the intention of the parties that the stipulation here should be for the benefit of anyone else * * *."
In distinguishing the Wilder case, it is said:
"* * * The passes are quite different.
"In the present case the passenger agreed that the railroad company should not be liable; in the New York case the passenger assumed all risks of injury. Mrs. Parker did not expressly assume all risks of the journey from Savannah to the union station in Charleston, but limited herself to agreeing that only the Atlantic Coast Line Company should be without liability. * * * Also, the pass in the New York case is entitled `Pennsylvania System' not `Pennsylvania Railroad,' and the court said that the station * * * is part of the Pennsylvania System, and that it apparently was the intention of the parties to include the station and its owner, part of the Pennsylvania System, within the privileges of the agreement."
In the instant case, the plaintiff also "assumes all risk of accidents." Furthermore, the pass is entitled "New York Central System." The only way that a New York Central train discharges passengers in Cleveland is through the Cleveland Union Terminal. That terminal would therefore appear to be an essential part of the New York Central System into Cleveland. In the instant case, the release is not, as in the Parker case, to any specifically named railroad. It is to "the company," as it was in the Wilder case, and there is nothing in the pass to indicate that only one company of the numerous companies that are a part of the New York Central System was to be described by the words "the company." If only one company was to be described, which one would it be? In our opinion, the words "the company" in this pass certainly describe a company (such as the terminal company) that owns common carrier facilities, while such company is furnishing such facilities and services with respect thereto, which facilities and services are a part of the common carrier facilities and services being provided under the pass by the so-called New York Central System. In furnishing such facilities and services, a company such as the terminal company does so as an integral part of the New York Central System.
Plaintiff further relies upon Robert C. Herd Co., Inc., v. Krawill Machinery Corp. (1959), 359 U.S. 297, 3 L. Ed. (2d), 820, 79 S. Ct., 766, holding that a provision in a bill of lading limiting "carrier's liability" did not "indicate that the contracting parties intended to limit the liability of * * * agents of the carrier" because "contracts purporting to grant immunity from * * * liability must be strictly construed and limited to intended beneficiaries" and "not applied" to relieve a tort-feasor from liability for negligence "unless the clarity of the language used expresses such * * * understanding of the contracting parties." If we assume that such a rule of strict construction should be applied in construing the "conditions" involved in the instant case (but see the language hereinbefore quoted from Boering v. Chesapeake Beach Ry. Co., supra [ 193 U.S. 442] indicating it should not), we are of the opinion that the language of this pass clearly expresses an intention that a company, such as the terminal company, is to be immune from liability based on negligence for injuries received by the user of such pass while accepting thereunder the common carrier facilities of such company and its services with respect thereto as a part of the common carrier facilities and services to be provided under such pass by the New York Central System. While so furnishing its facilities and services with respect thereto, the terminal company was not merely an agent of the so-called New York Central System but was an integral and essential part of that system, and would be described by the words "the company" found in the pass.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.