Olds v. New York, New Haven, & Hartford Railroad , 172 Mass. 73 ( 1898 )

Kkowlton, J.

• The judge found that the jerking and jolting were “ greater and more severe than would occur on an ordinary passenger train run under due care; and ruled that if the liability in respect to preventing injury by jolting and jerking and stopping suddenly is the same, and if the obligations are the same in all these respects on a freight or mixed train, such as this train was, as on an ordinary passenger train, the plaintiff is entitled to recover; . . . but if the defendant was not liable -for such jolting and jerking as were ordinarily incident to a train of this kind, . . . the plaintiff was not entitled to recover.” By agreement of the parties the case was reported to this court. If the ruling was correct, judgment is to be entered for the defendant; if incorrect, for the plaintiff. On the findings of fact, it must be assumed that this is the only disputed proposition of law which was considered at the trial.

The accident occurred on a branch line of the defendant’s railroad about ten miles in length, extending from South Deer-field to Turner’s Falls in the town of Montague. The trains running on this branch of the railroad are usually made up of freight cars and a car known as a combination car, one part of which is fitted with seats for the conveyance of" passengers and another part is adapted to carrying baggage. It is reasonably to be inferred that there is not sufficient business over this part of the railroad to warrant the running of trains for carrying passengers only. If under these circumstances the defendant was legally bound to provide for the plaintiff at the place of the accident a train made up of passenger cars only, or to conduct its business in such a way as to start and stop its trains with no more jerking or jolting than is common in running ordinary passenger trains, the defendant is liable ; otherwise it is not.

The nature of the defendant’s business on this line, and the mode of conducting it, were well known to the plaintiff, and he must be assumed to have made his contract for carriage in reference to existing conditions. It is obvious that common carriers must adapt their vehicles and methods to the business to be done. There is every kind of business to be provided for in different places, from the carrying of thousands of tons of freight and tens of thousands of passengers per day over a single line, to the maintenance of lines over which only an occasional passenger will pass and a few small articles of merchandise be carried. In some places long passenger trains with the best possible equipment for safety and comfort are reasonably required; in others a single horse and a cheap wagon are all that can be maintained' from the income of the business for which provision is to be made, and all that reasonably can be expected. It is the duty of a carrier of passengers to exercise “ the utmost care consistent with the nature of the carrier’s undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business.” Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207, 218. If the business of a given line is the running of trains for freight with a car attached for passengers, the care required is such as ought to be exercised in running such trains. The law is clearly expressed in Chicago & Alton Railroad v. Arnol, 144 Ill. 261, 270, as follows: “Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, cannot expect or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all of the ordinary inconveniences, delays, and hazards incident to such trains, when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. . . . But if a railway company consents to carry passengers for hire by such trains, the general rule of its responsibility for their safe carriage is not otherwise relaxed. From the composition of such a train and the appliances necessarily used in its efficient operation, there cannot, in the nature of things, be the same immunity from peril in travelling by freight train as there is by passenger trains, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train and not to the other, and it is this hazard the passenger assumes in taking a freight train, and not hazard or peril arising from the negligence or want of proper care of those in charge of it.” Principles decisive of the present case are stated in Le Barron v. East Boston Ferry, 11 Allen, 312, and in Heyward v. Boston & Albany Railroad, 169 Mass. 466. See also Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207, 218; Illinois Central Railroad v. Axley, 47 Ill. App. 307; Dunn v. Grand Trunk Railway, 58 Maine, 187, 197; Lusby v. Atchison, Topeka, & Santa Fe Railway, 41 Fed. Rep. 181,184; Ohio & Mississippi Railway v. Dickerson, 59 Ind. 317.

The plaintiff in the present case well understood the kind of business in which the defendant was engaged, and the manner in which the business was- conducted. So far as there were dangers naturally incident to the running of freight cars and a passenger car in the same train, the parties must be presumed to have contracted in reference to them, and the plaintiff to have assumed them.

We have no occasion to consider the additional fact that the plaintiff was injured on a part of the railroad which was designed exclusively for freight traffic, beyond the terminus of the line intended for passengers also. There are additional reasons for holding that, when the plaintiff went beyond the passenger station over a portion of the freight tracks, where he and other passengers were permitted to ride for their convenience as a favor, he assumed all the risks incident to the ordinary management of a freight train in that place.

Judgment on the finding.