
    Railway Company v. Spangler.
    
      Master■ and servant — Negligence of fellow-servant — Power of railroad company to contract against injuries arising from.
    
    The liability of railroad companies for injuries caused to their servants by the carelessness of other employes who are placed in authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with its employes at the time, and as part of their contract of employment, that such liability shall not attach to it.
    Error to the District Court of Lucas county.
    Spangler, the defendant in error, was a brakeman on a freight train of the Lake Shore and Michigan Southern Railway Company. While in the line of his duty he was injured, without his fault, and by reason of the negligence of the conductor of the train. He brought his action for damages for the injury so received. The company alleged for defense, among other things, “ that at the time of the hiring of plaintiff by defendant as a brakeman upon her trains of cars, as in the petition alleged, and as a part of the terms of said hiring, and in consideration thereof, plaintiff entered into an agreement and stipulation in writing with Spangler,” which contained the following stipulation:
    “ Second, that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, or of its- board of directors or general officers, which are the proximate cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employes of the company, whether they or either of them are superior to me in authority, as conductor, foreman, or’ otherwise or not.” The evidence tended to support this defense.
    • The trial court refused, upon request of'the company, to charge the jury that, “ if the jury find from the testimony that the plaintiff, at the time he was employed by the defendant as a brakeman, executed and delivered to the defendant the stipulation, a copy of which is set out in the answer, and that the same was accepted by the defendant, by and through its proper officer or agent, then the defendant is not liable for the alleged negligence of the conductor complained of in the petition,” assigning as a reason for the refusal that, in the opinion of the court, such stipulation was not binding upon the plaintiff below, it being against public policy.
    A judgment of recovery by Spangler was affirmed on error in the district court.
    This judgment is now sought to be reversed for alleged error in affirming the judgment of the trial court.
    The refusal of the latter court to charge the jury as requested is now assigned for error. Upon the question thus presented the court rests the disposition of the case.
    
      G. H. Scribner (with whom were Ashley Pond and O. G. Getzendanner), for plaintiff in error.
    The question is not whether a company may contract against liability for its own negligence. It is not claimed that it may, by contract, exempt itself from liability for negligently employing, or keepiug in its service, an incompetent conductor; or for negligently furnishing dangerous or defective machinery ; or for not keeping its roadway in proper repair. But, having exercised due care in all these respects, may it not stipulate against the consequences of negligent acts of a conductor, such as' here complained of?
    
      "Why not? In many of the states, the conductor is considered a co-serwant of the brakeman for casualties arising solely from the negligence of the conductor. The courts of this state have refused to extend the doctrine making the company liable, beyond the limits of the rule laid down in earlier cases. See the opinion of the court in Pittsburg, etc., Ry. Co. v. Devinney, 17 Ohio St. 197.
    Such a rule is calculated to better protect the public against injuries to merchandise in course of transportation by promoting greater diligence and watchfulness on the part of the brakemen employed upon the'trains.
    There are several authorities which support the proposition here maintained. Mitchell v. Penn. R. Co., 1 Am. L. Reg. 717; Galloway v. Western, etc., R. R. Co., 57 Ga. 512, Western, etc., R. R. Co, v. Bishop, 50 Ga. 465; Western, etc., R. R. Co. v. Strong, 52 Ga. 461; Hendricks v. Western, etc., R. R. Co., 52 Ga. 467.
    Mr. Thompson, in his work on Negligence (vol. 2, p. 1025), and again in 1 Central Law Journal, 465, criticises these cases. His criticism, however, applies only where the company undertakes to stipulate against its own negligence in not providing competent superiors or safe machinery and appliances for the use of the servant. It has no application to a case like the present, where no negligence is charged against the company itself.
    In the case of Roesner v. Hermann, 8 Fed. Rep. 782, it was held by Judge Gresham that an employer could not protect himself by contract with his employe against the consequences of his own negligence in not providing safe and suitable machinery. I do not claim that he can. But this case is criticised by the editor of the Albany Law Journal (24 Alb. L. Jour. 383), who cites the Georgia cases above referred to with approbation, and declares that he has no doubt the decision of Judge Gresham is wrong.
    The question appears to have been thoroughly considered, and determined in accordance with the views here maintained in Griffiths v. Earl of Dudley, L. R. 9 Q. B Div. 357.
    
      It has been held in New York that “ a contract between a railroad corporation and a gratuitous passenger by which the former is exempted from liability under any circumstances of the negligence of its agents, for an injury to the passenger is not against law or public policy and is valid.” Wells v. N. Y. Cent. R. Co., 24 N. Y. 181; Perkins v. N. Y. Cent. R. Co., 24 N. Y. 196; Bissell v. N. Y. Cent. R. Co., 25 N. Y. 442.
    A like ruling was made in the case of Kinney v. Cent. R. R. Co., 34 N. J. 513. Other cases hold a contrary doctrine.
    The point has never been decided in Ohio. See Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1. The supreme court of the United. States also declined to express an opinion upon this point in the case of Railway Co. v. Stevens, 95 U. S. 655, 660.
    There is a wide difference between the case of a contract with a passenger, or a shipper of goods, and a contract with an employe upon the trains. In the former case the contract might tend to relax the vigilance of the company and of its employes; while in the latter, a stipulation which would place additional responsibility upon the employe, and require, for his own protection, a close pbservance of the rules of the company and a strict watch upon the conduct of his immediate superior, would tend to promote the safety of passengers and merchandise in transit.
    
      Joshua B. Seney, for defendant in error.
    It is well established that no agreement can be made between a company and a paying passenger that will exempt the company from liability to such passenger for the negligence of its employe. Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1; Wells v. New York Central R. Co., 24 N. Y. 193; Smith v. New York Central R. Co., 24 N. Y. 231.
    So if a railroad company undertakes to convey a passenger without compensation, if the passenger is injured by the negligence of the company, it is liable in the absence of an express agreement exempting it. Nolton v. Western 
      
      Railroad, Corporation, 15 N. Y. 444; Philadelphia & Reading R. Co. v. Derby, 14 How. (U. S.) 468; Gillenwater v. Madison & I. R. Co., 5 Ind. 340; Wilton v. Middlesex R. Co., 107 Mass. 108; Blair v. Erie Railway Co., 66 N. Y. 313.
    But respectable courts have held that a railroad company may make a contract with a non-paying passenger, exempting itself from negligence. Wells v. New York Cent. R. Co., 24 N. Y. 181; Perkins v. New York Cent. R. Co., 24 N. Y. 196; Kinney v. Central R. Co., 34 N. J. 513; Bissell v. New York Cent. R. Co., 25 N. Y. 448. But see Jacobus v. St. Paul & Chicago R. Co., 20 Minn. 125.
    This question of public policy was considered in the following cases, but, like the case of Cleveland, P. &. A. R. Co. v. Curran, 19 Ohio St. 1, they arose on what is called drovers’ passes. Penn. R. Co. v. Henderson, 51 Pa. St. 315; Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Stevens, 95 U. S. 660; Ohio, etc., R. Co. v. Selby, 47 Ind. 471; Smith v. New York Cent. R. Co., 24 N. Y. 222.
    Public policy does not change with the character of the train and with the character of the persons carried. If pecuniary liability for negligence promotes care in running a passenger train, the same liability will promote care in running a freight train. If such a contract with a passenger endangers the safety of other passengers, will not such a contract with an employe endanger the safety of other employes ?
    Judge Thompson, in his work on Negligence, and also in an article in the Central Law Journal, severely criticises the Georgia cases cited by counsel for plaintiff in error. 2 Thomp. Neg. 1025; 1 Cent. L. Jour. 485.
    Such contracts with employes are void. Roesner v. Hermann, 8 Fed. Rep. 782; Kan Pac. R. Co. v. Peavey, 29 Kan. 169.
    Counsel for plaintiff in error' seem to concede that a company can not contract with its employe against liability for its own negligence. It was held in, Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St 201, that the negligence of a conductor is the negligence of the company itself. That decision has had the force and effect of positive law in this state for more than thirty years — it has been followed by many of the states of the Union — and it has received the approval of the highest tribunal of the land. Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377. In the states where the conductor is regarded as the fellow servant of the brakeman, and not as the representative of the-company, there is no need of a contract with the brakeman to exempt the company from liability for negligence of the conductor; and the only object of such a contract in this state is to do away with the force and effect of that decision. The court is, in effect, asked to hold that the settled law of Ohio, that a master is to be held responsible for the negligence of his superior servant in injuring the servant whom he has placed under his control, may be repealed by the contract of a railroad company.
   Owen, C. J.

Is it competent for a railway company to

stipulate with its brakemen, at the time, and as part of their contract of employment, that the company shall not be liable for the negligent acts of its conductors ?

Western, etc., R. R. Co. v. Bishop, 50 Ga. 465, is cited, with other decisions of the same court approving and following it, in support of the affirmative of this proposition. In that case it was held that such a contract, so far as it does not waive any criminal neglect of the company, or its principal officers, is a legal contract and binding upon the employe. But McCay, J., speaking for the court, says r “ We do not say that the employer and employe may make any contract; we simply insist that they stand on the same footing as other people. No man may contract contrary to law, or contrary to public policy or good morals, and this is just as true of merchants, lawyers, and doctors, of buyers and sellers, and bailors and bailees, as of employers and employes.” This invites us to inquire whether and to what extent the contract we are dealing with is affected by considerations of public policy. It is maintained on behalf of the company that “ a rule absolving the company from liability to the brakemen for negligence of the conductor, may operate to constitute the brakemen a sort of police; may nduee them to be more watchful, and report to their superiors the delinquencies of the conductor. And if they are unwilling to do this, they, and not the company, should suffer the consequences. A rule of this kind is calculated, also, to better protect the public against injuries to merchandise in course of transportation, by promoting greater diligence and watchfulness on the part of the brakemen employed upon the trains.”

Also that “ a stipulation which would place additional responsibility upon the employe, and require for his own protection, a close observance of the rules of the company, and a strict watch upon the conduct of his immediate superior, would tend to promote the safety of passengers and merchandise in transit.”

If this view is tenable, it follows that public policy is concerned in and subserved by such a contract as is here sought to be enforced. As brakeman on the train, Spangler was subject to the orders and control of the conductor.

In Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, it was first held, though by a divided court, that a railroad company is liable to an employe for an injury received through the negligence of another employe under whose control he is placed.

This principle was again considered in Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 202, and was applied by a unanimous court to a case like the one at bar, and the railroad company was held liable to a brakeman for an injury resulting to him from the carelessness of a conductor under whose control he had been plaged by the company.

In the course of an able and exhaustive opinion, Ranney, J., says: “ The servants employed to execute can not recover for injuries arising from a failure in that part of the business committed to them, because it is their failure, and not that of their employer; and although it should happen from the negligence of but one of them, yet each one entered the common service with a knowledge that others must be engaged, and they were jointly bound to perform what was jointly intrusted to them, and public policy may be concerned in their keeping a supervision over each other for the purpose. But how this can be made to extend to the conductor, over whose acts they have no supervision Or control, and are not presumed to be possessed of the requisite intelligence for the purpose, we are wholly unable to see; and equally so, how the safety of travelers is likely to be jeopardized by adding to the reponsibility of the conductor for his carelessness, that of the company that places him in power. ... It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. . . . But they can not be made to bear losses arising from carelessness in conducting the train, over which their employer gave them no power or control, either separately or collectively, until we are prepared to say that justice and public policy require the consequences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences.”

A careful examination of this case and of Little Miami R. Co. v. Stevens, supra, which it approves and follows, will make it apparent that the liability of railroad companies for injuries to their servants caused by the carelessness of those who are superior in authority and control over them, is placed chiefly upon considerations of public policy.

The doctrine established by these cases has remained unquestioned by this court for more than thirty years. It furnishes a conclusive answer to the contention of the company that the stipulation which it seeks to enforce would bettor protect the public by promoting greater diligence on the part of brakemen and the consequent safety of passengers and merchandise in transit.

We are thus relieved of all discussion of the relation which the liability of railroad companies for injuries to their servants caused by the negligence .of their superiors in authority sustains to the policy of the state. It is the firmly established policy of our law that such liability should attach. It follows that even Western, etc., R. R. Co. v. Bishop, supra, which is the strongest authority cited by the company in support of its position, fails to support the view contended for. As -we have seen, that case expressly declares that contracts contravening public policy will not be enforced. The policy of our law being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employes, stipulating that they shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employes simply, but has its reason and foundation in a public necessity and policy which should not be asked to yield or surrender to mere private interests and agreements. The trial court was right in refusing the instruction requested.

Judgment affirmed.  