CHICAGO, M. & ST. P. R. CO. v. WALLACE, 66 F. 506

BUNN, District Judge (after stating the facts). Proper assignments of error having been made by plaintiff in error, the main question in this court, as it was below, is whether the railroad company, in carrying the plaintiff's circus people, animals, and outfit, under the special contract in evidence, assumed the relation of a common carrier for hire. If it did, then the verdict must stand. If it did not, then the contract itself was a good defense to the action; and the whole case seems to depend upon this question.

The court is of opinion that the railroad company had a right to make the contract with, the defendant in error; that the contract was not against public policy, but was valid and binding upon the parties who made it,- according to its terms and conditions. The railroad company is charged in the declaration as a common carrier of the persons and property named in the contract, but the contract itself is wholly ignored, and the declaration framed as though no contract had ever been made.

If the plaintiff had the right thus to disregard the contract, and sue the railroad company as a common carrier, the recovery must stand, because in that case the company would be liable for any defect in its roadbed which common, or even extraordinary, prudence and foresight could remedy. It would also be liable for the negligence of its own employés, and for any insufficiency in the engine or engines employed to move the plaintiff’s cars, which ordinary prudence and foresight may have remedied.

But if the company, in carrying the plaintiff’s property under the contract and in the circumstances in which the undertaking was entered into, was not acting as a common carrier of the plaintiff’s goods, but in the capacity of an ordinary private carrier for hire, then the company had the right to make the contract, and both parties will be bound by its terms. That the company, in carrying the goods under the contract, was a private, and not a common or public, carrier, is the conclusion which the court has reached.

There was no.evidence offered that the railroad company had ever carried similar goods for Wallace before in his own private cars, or that it had ever carried or held itself out to carry goods in that manner for others, and there is no presumption that railroad companies would do so.

We know from common observation that they do not hold themselves out as common carriers of wild and domestic animals to be transported in the private cars of the owners, and loaded in a manner agreeable1 to the owners; persons, animals, horses, and other property being-carried upon the same train, which is operated at irregular times and seasons, at the convenience of the owners of such cars. They ordinarily operate their freight trains and passenger trains separately, and upon time schedules, prepared in advance by experts for the company, and with a view to reduce the danger of accident to a minimum.

Here was a special contract in writing, wholly, different from the ordinary bill of lading, providing for the hauling of a special train of cars, belonging wholly to the defendant in error, to be loaded as he pleased with persons, wild animals, domestic animals, and other property, and to be run on special time, the hours of departure to depend upon the time when the plaintiff should have his cars loaded and ready to start. Wallace was to be wholly responsible for the loading and the unloading as well as for the care of the property while in transit, the only duty of the railroad company being to haul the cars.

Another significant provision of the contract is that the property was to be carried at greatly reduced rates, in consideration of which the plaintiff was to assume all the risk of accidents, releasing the company therefrom. If this provision of the contract, as no doubt it was, was binding upon the railroad company, why not upon the plaintiff? The obligation was mutual. Why could not the railroad company say: “Yon wish your property carried in your own private cars, which is contrary to our usual rules and regulations, and at greatly reduced rates.

You wish your entire circus troupe, horses, animals, and all the paraphernalia and accompaniments of .a circus, carried for less money than at our rates as common carriers it would cost you to have the persons alone of your company transported, and you desire that they be carried at special times, also contrary to our rules as common carriers, and which materially increases risks in our business. Xow, here are our roadbed and our engines. They have answered our own purposes of transportation fairly well.

If you wish to take upon yourself all risk of damage by accident, we will accept your proposition, and carry at the rates proposed.” There is nothing unlawful in this, unless we assume that the railroad company cannot carry property or persons at all, except as common carriers, which is against all rule and precedent. Xo common carriers undertake to carry every species of property, in respect to which they have not held themselves out as common carriers. They may contract as private carriers, and in that case they may make any reasonable contract.

The railroad company as a common carrier could not enter into such a contract as this, because it cannot as a common carrier limit the liability imposed upon it from considerations of public policy. But the case is different in respect to property of which it is not a common carrier. If any authority were needed upon so plain a proposition it is not difficult to find.

In Hutchinson on Carriers (2d Ed.; § 44) it is stated: “A common carrier may, however, undoubtedly become a private carrier or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something -which it is not his business to carry. The relation in such a case is changed from that of a common carrier to that of a private carrier, and, where this is the effect of a special arrangement, a carrier is not liable as a common carrier, and cannot bs proceeded against as such.” Again, at

section 73, it is stated: “And, even as to such carriers as are prima facie public or common carriers, it may be shown that in the particular instance, or under the circumstances of the case, they did not undertake to transport, and are not liable as common carriers.” Again, at

section 56a, par. 2, it is stated: “In the second place, in order to charge one as a common carrier of goods, the goods in question must be of the kind to which his business is confined. No carrier undertakes to carry all kinds of goods, but only such as are of the description which he professes to carry. A common carrier is therefore not liable as such, where, by special agreement, as a matter of accommodation, merely, he undertakes to carry a class of goods which it is not his business to carry.” Again, at

section 56b, it is stated: “Common carriers of goods do not undertake to carry by any or all means, but only by those means and methods, and over the route, to which their business is confined. * * * And even if a carrier should, in a particular instance, undertake, by a special contract, to carry goods by unusual and exceptional methods or routes, his liability would bei based on his contract, and not on the ordinary rules governing common carriers.1” In the case of Railroad Co. v.

Lockwood, 17 Wall. 357, at page 877, the court say: "A common carrier may undoubtedly become a private carrier, or bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry,” There are also two recently decided cases, one before the supreme court of Michigan and the other before the supreme judicial court of Massachusetts, where a question almost identical with the one at bar was adjudged in the same way. Coup v. Railway Co., 56 Mich. 111, 22 N. W. 215; Robertson v. Railroad Co., 156 Mass. 525, 31 N. E. 650.

The declaration charges the defendant specially as a common carrier. The court held it was not a common carrier in respect to the property which it undertook to carry under the contract, but nevertheless instructed the jury that: “The contract made it the duty of the defendant to furnish reasonable safe and sufficient motive power to haul the cars of the plaintiff over the specified portion of its road, and the defendant will be liable if it failed, while attempting to perform its contract, to furnish such character of engine or motive power, and damage resulted therefrom to the plaintiff’s property or business.

And under such contract defendant was bound to have a reasonable safo roadbed, over which the cars and property of the plaintiff could be transported.

If its roadbed was not in a reasonably safe condition, but was out of repair, so as to be unsafe and dangerous, and the defendant knew this fact, or by reasonable diligence could have known it, and the derailment of plaintiff’s cars, and injury and damages to his property, was occasioned by such insufficient and insecure track and roadbed, then the defendant would be liable for such injury and damage.” —Thus allowing a recovery upon a cause of action nowhere hinted at in the plaintiff’s declaration. The plaintiff, if he recover, should recover according to his declaration. Kimball v.

Railroad Co., 26 Vt. 247; White v. Railway Co., 2 C. B. (N. S.) 7. But, independent of this principle, we do not think there is any middle ground upon which to rest a recovery in this case. The railroad company was either liable as a common carrier as charged in the declaration, or it was not, and, if not, then the contract it made with Wallace, by which he assumed the risk of accident, was valid and binding. By the contract the defendant in error assumed all risk from accident, and for a proper consideration released and exonerated the railroad company from all damage occasioned thereby.

He has got what he bargained for, or, if not, can sue upon his contract, but he must abide by its conditions. The judgment of the court below should be reversed, and the cause remanded, with instructions to the court below to award a new trial.