CLOUGH v. GRAND TRUNK WESTERN RY. CO., 155 F. 81

BURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. If the contract under which the Wallace Circus was being transported over the railway of the defendant was a valid contract, the relation of the railway company to the circus company was not that of a common carrier at all. That the railway company was under no common-law obligation to move the circus company over its line in the manner it was being transported at the time of the injury to the plaintiff in error must be conceded.

If the railway company was under no statutory or common-law obligation to render the special service it was called upon to render there were no reasons of public policy which forbade the rendition of such service upon such terms as the ■parties might stipulate. The right to make special stipulation under such conditions has been recognized and applied in a number of cases substantially like the case at bar when circus trains were hauled under special agreements relieving the company from carrier’s liability. Coup v. Wabash, etc., Ry. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; Forepaugh v.

Delaware, etc., Ry. Co., 128 Pa. 217, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672; Robertson v. Old Colony R. R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482; Chicago, etc., Ry. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Wilson v. Atlantic, etc., R. R. Co. (C. C.) 129 Fed. 774. The same freedom of contract in respect to the transportation of express matter and express messengei's has been recognized repeatedly. B. & O. Ry. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, and cases therein cited.

But it is urged with much force that Clough, the injured plaintiff in error, was not a party to the contract between the circus proprietors and the railway company, and therefore not affected by it. It has been said also that he neither agreed to relieve the railway company from liability for negligence while being carried upon the circus train nor bargained away by any agreement with the circus company his right to hold the railway company or the circus company liable for any negligence by which he might be injured while being transported as an employe of the latter.

Upon these grounds it has been urged that the Voight Case has no application, because there the messenger had expressly assumed in his contract with the express compaxiy the risk of all injury he might sustain while in its service and to assume and ratify any agreement the express company had made or might make i'eleasing any ti-ansportation company from liability,to any of its employes. It is unnecessary to consider whether an express messenger’s riglit of action to recover for carrier’s negligence would depend upon any personal agreement made by him.

In the Voight Case the messenger’s release to the express company was a fact in the case, and as that inured to the benefit of the railway company it was unnecessary to go farther. See, also, Long v. Lehigh Valley Co., 130 Fed. 870, 65 C. C. A. 354, where it was held that the messenger would be presumed to know and assent to any contract between the express company and the railway company under which he was to be transported. In Brewer v. N. Y., etc., R. Co., 124 N. Y. 59, 26 N. E. 324, 11 L. R. A. 483, 21 Am. St.

Rep. 647, it was held that the messenger was not affected by the contract between the express company and the railway company by which he was made to assume the hazard of his carifiage; he having no knowledge of the contract. The express messenger cases are all distinguishable from the case at bar in the character of the service which the railway company undertook to render. In the express company case the car in which the express matter was carried and the messenger traveled was furnished by the railway company, and the car itself was part of a train under the exclusive control of the carrier.

Under the contract here involved, the trains were made of cars furnished and loaded by the circus company. These trains were pulled by engines which were the general property of the railway company, but the special property of the circus company under a contract of hiring. The trains were to be hauled over the tracks of the defendant in error, but only upon a special contract for the use of the tracks to the extent necessary.

The engine and the train were under the control of servants of the railway company, but under a contract by which they became for the purpose of moving this train the special servants acting under orders and directions and in behalf of the circus company. Neither was such a contract one which disabled the railway company from discharging its general duties as a common carrier. The arrangement fell far short of that sort of transfer of corporate property which is involved in the leasing of one railway to another or to a stranger.

In the absence of statutory power, a leasing which disables the lessor from the continued exercise of its corporate duties is ultra vires. Arrowsmith v. Nashville, etc., R. Co. (C. C.) 57 Fed. 165, and cases there cited. The stipulation between the railway company and the circus company involved only the temporary use of the company’s tracks for the single purpose of passing its train over the rails from one point to another and. the use of a limited amount of its motive power to haul these trains. This did not disable the company from the usual exercise of its corporate power.

We see no illegality in a railway company permitting a use of its tracks by another which does not substantially disable it from the usual and. ordinary performance of its corporate duties to the public. 2 Flliott on Railroads, § 451; Union Pac. R. Co. v. Chicago, etc., Ry. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265. Neither does the fact that the enginemen and trainmen were operating this train at the time of this collision affect the question of liability to this plaintiff.

They were the general servants of the defendant in error, but on this occasion they were the special servants of those who hired them. For the time the railway company had parted with its control and direction of these servants and was not responsible for their acts to either the circus company or those in its service whose only right upon this train was by virtue of their relation to the circus company. Byrne v. Railway Co., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693; Hardy v. Shedden Co., 78 Fed. 610, 24 C. C. A. 261, 37 L. R. A. 33.

This train under this contract was at the time being run or operated by the special servants of the circus company, and their acts were the acts of that contractor, and not the acts of the railway company. _ The plaintiff paid no fare, and his only right upon the train was by virtue of the contract and arrangement which his employers had with the railway company. By the terms of that agreement his employers assumed all risks of transportation and undertook themselves as hirers of _ motive power to move their own train under trackage rights acquired under same agreement.

As the relation of passenger and carrier did not exist between plaintiff and the railway company, an action for negligence based only upon that relationship cannot be. maintained. Judgment affirmed.