Railway Co. v. Bishop.

Further answering, it sets up that the defendant and the government of the United States had entered into a contract by which it agreed to carry the United States mails from Youngstown, in the state of Ohio, to and from Pittsburg, in the state of Pennsylvania, and that such contract was made in the state of Peunsylvania. That, under the provision of said contract, the plaintiff was to perform duties for the United States government in and upon the mail car of the defendant. That he entered into such employment, and under and by virtue of the contract of employment with the government of the United States, and under and by virtue of the contract between the United States government and the defendant, he was to perform his duties upon said train between these points in contemplation of the laws of the state of Pennsylvania, and thereby, impliedly, contracted to be amenable to said laws, so far as his rights and remedies, or any of them while he was being so carried, were concerned.

Further, that it was, at the time of entering into the said contract by said plaintiff with the United States government, and long prior thereto, and still is the statutory law of the state of Pennsylvania, as provided by the act of the general assembly of said state, passed April 4, 1868, that, "When any person shall sustain personal injury or loss of life, while lawfully emgaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon, of which said person is not an employee, the right of action in all such cases against the railroad company shall be only such as would exist if such person were an employee; provided this section shall not apply to passengers." And the defendant further alleges that the supreme court of Pennsylvania, construing this act, in the case of Railway Company v. Price, 96 Pa. St., 206, decided, and such is the law of that state, that a mail agent or postal clerk, as the plaintiff was, under and by virtue of the provisions of that section, was not a passenger, and that under and by virtue of that statute, he was to be regarded as an employee of the company, having no more rights than an employee of the company, and under and by virtue of the laws of the state of Pennsylvania, as such employee, he was not entitled to recover for injuries sustained by the negligence of a fellow workman; that a conductor of the train and a postal clerk stood in the relation of fellow-servants, and neither could recover for the negligence of the other as against the master.

Plaintiff in the reply alleges that the contract was made in the state of Ohio, and governed by the laws of that state, denies that it was made in Pennsylvania, or that he was not entitled to the rights of a passenger under the laws of that state.

The statute of Pennsylvania was offered in evidence by the defendant, and the decisions of the state of Pennsylvania, construing the same, and holding that a postal clerk and a conductor are fellow-servants, and for the negligence of whom no recovery could be had against the company.

The case of the Pennsylvania Co. v. Price, which was offered in evidence, does expressly hold that a mail agent or postal clerk was not a passenger within the meaning of the act in question.

The syllabus of that case is, "The act of April 4, 1868, provides that when any person shall snstain personal injuries or loss of life, while lawiully engaged or employed on, or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein, or thereon, of which company such person is not an employee, the right

Mahoning Circuit Court.

of action in all such cases against the company shall be only such as would exist if such person were an employee, provided this section shall not apply to passengers: Held, that a route or mail agent in the employ of the United States postoffice department, while traveling on a railroad in the performance of his duties is not a passenger within the meaning of the act."

A passenger, in the legal sense of the word, is one who travels in some public conveyance, by virtue of a contract, expressed or implied, as the payment of fare, or that which is accepted as an equivalent therefor."

"A mere trespasser, or a person who steals a ride upon a train, or who is employed thereon, is not a passenger within the meaning of the act of 1868, nor entitled as such to protection."

Upon the part of the plaintiff it is claimed that this decision was subsequently modified in the case of Spisak v. The Baltimore and Ohio Railroad Company, 152 Penn. St., 281.

We have examined this case carefully and we are not able to agree with the contention of counsel in this respect, and can not see that it in any sense modifies or changes the rule as laid down in the 96th Penn. State, in the Price case, as to a postal clerk.

In the case in the 152 Penn. S., referred to, it was held: "If the place of an accident where the person is injured is clearly and for general purposes the road, works, depot, or premises of the railroad company, the person injured is a fellow servant of the employees of the railroad company within the meaning of the act. If he is lawfully engaged or employed on or about them, he is not a passenger.

"If the accident occurs in a place which is not exclusively, but only within a limited and statutory sense, the premises of the company, and the person injured is engaged in work which it is ordinarily the duty of the employees to do, he is a quasi employee, within the meaning of the But if the work has no relation to railroad work as such and is connected with the railroad only by irrelevant and immaterial circumstances of locality, the case is not within the statute."

act.

And it appears in that case the plaintiff was an employee of the steel company, to which the railway company was delivering freight, that the steel company owned some switches or tracks upon its own premises and upon which the railway company delivered cars, and that on such tracks on the premises of the steel company the accident happened. The court distinguished the case from the Price case because of these facts, the place of the accident not being upon the road or premises of the railway company, and the plaintiff not having been engaged in work ordinarily done by employees of the railway company.

In the opinion of Mr. Justice Mitchell, it is said:

"The words of the act of 1868 are: When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, etc. In the first case that arose under the act, Kirby v. The Railroad Company, 76 Pa., 506, this court passed only upon its constitutionality, but the injury to the plaintiff happened on a side track part of the road and premises of the defendant company. It was clearly within the express words of the act."

After quoting some other decisions, he continues: "Upon the distinction thus expressed the cases divide themselves into two classes. In the first, the place of the accident is clearly and for general purposes the road, works, depot, or premises of the railroad company. In such case

Railway Co. v. Bishop.

it is sufficient if the person injured, is lawfully engaged or employed in or about them, and is not a passenger. To this class belongs Kirby v. The Railroad Company, 76 Pa., 506, already referred to. The other class is where the accident occurs in a place which is not so exclusively and for general purposes, but only within a limited and statutory sense, the premises of the railroad company."

"In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is business connected with the railroad in the sense that it is ordinarily the duty of the milroad employees, then while the party is engaged at it, the statute treats him as a quasi-employee, and put his rights upon the same basis." So that even where the locality of the accident is not upon the road, works, depot, or premises of the defendant company, but is only incidentally connected therewith, if the person be employed in the performance of duty ordinarily done by the railroad employees, he is still to be regarded within the letter of the act as an employee of the company defendant. In no manner does this case at all affect the question as decided by the supreme court in the Price case; and we find it to be established as the law of the state of Pennsylvania, that a postal clerk upon the cars of a railroad company in that state is not to be regarded as a passenger, but as an employee of the company upon the train. And from what I have already said as to the law of Pennsylvania in regard to the right of recovery for injury occasioned by the negligence of a co-employee, it follows that if the law of Pennsylvania is to apply to this case, there could be no recovery, as the accident confessedly occurred within the state of Pennsylvania, and while the plaintiff was in the performance of his duties as route agent, by reason of the negligence of a fellow-servant.

But the plaintiff claimed that this contract was entered into in the state of Chio, and that the law of Pednsylvania was not to be applied, but the law of Ohio, because where the contract is made in one state, to be performed partly in that state and partly in another state, the rights of the parties are to be determined by the law of the state where the contract is made, as it is indivisible, and the contract obligations of the parties cannot be permitted to be shifting according to the laws of the various states into which a portion of it may be transferred by reason of the fact that it is agreed to be in part performed in such states. The court did, in fact, so charge the jury. The court said to the jury: "The first question to which your attention is called, and which lt becomes your duty to consider and determine is whether or not, the plaintiff was lawfully upon this train in pursuance of a contract made between the defendant and the United States government in regard to carrying the mail, and the plaintiff as postal clerk, over its road, or with the plaintiff to carry him over the road. If you find that such contract was made and entered into, and that the same was not wholly to be performed within the state of Pennsylvania, but was made in Ohio to be performed in part in the state of Ohio, or was made outside of the state of Pennsylvania to be performed in part in the state of Pennsylvania, and part in the state of Ohio, then the plaintiff would not come within the terms and provisions of the act of the general assembly of Pennsylvania, to which your attention is called, and which is set out in answer filed by the defendant in this case, and he would be entitled to recover." Now it is objected that there was no evidence to show that the contract was made in the state of Ohio, and according to the evidence in the case, as shown by

Mahoning Circuit Court.

the bill of exceptions, it is clear that it was not made in the state of Ohio, or in the state of Pennsylvania.

The plaintiff, Bishop, resided in Solon, Ohio, as he stated substan tially all his life, and he had received his commission originally, or was ap pointed by the department at Washington as route agent in the southern part of this state upon some of the railroads thereof; that he acted for a number of years in that capacity on more than one road within the state and finally was transferred to the defendant's road, and a commission was issued to him to run upon that road, and this was the commission as shown by the record :

POST OFFICE DEPARTMENT.

UNITED STATES OF AMERICA.

To whom it may concern.

Office of GEN. SUP'T, R. M. S.

Knov ye, that the post master general has appointed the bearer hereof, Wilfred W. Bishop, railway postal car, or the line of the 2., L. E. & W. railroads which companies are requested to extend facilities of free travel to the holder of this commission between the points named on opposite page, when on duty and when traveling to and from duty. If fare is charged take receipt.

JAMES E. WHITE.
Gen'l Supt. R. M.
Washington, D. C., 189.

Approved :

R. L. WILSON,

Post Master General.

That is the extent of the evidence of the plaintiff, as to any contract being made in the state of Ohio, and that relates, not to the contract between the government and the railroad company, but his own.

On part he defendant it is shown that a contract had been en tered into between the railway company and the government for carrying oil and mail clerks over the line of its road from Pittsburgh to Youngstown and return. That it had been made on application of the company to the department at Washington. And correspondence is shown-at least letters, upon the part of the company to Thomas J. Brady, second assistant post master general, at Washington in reference thereto. And again that the general offices of the company were in Pittsburgh, in the state of Pennsylvania. From there correspondence was carried on with the post office department at Washington, for the purpose of secur ing this contract. After the company had received the authority, as stated by Jones in his deposition, from t. postmaster general, or an rder to carry the mail, they issued this letter.

W. G. LOVETT, Esq

Supt. Railway Service,

Cleveland, J.,

Dear Sir:

"PITTSBURGH, PA., April 23, '7.

I have communication from Hon. Thos. Brady, 2d Asst. P. M. Gen., ordering mail service on our line 1st prox.

Railway Co. v. Bishop.

We will have mail car ready and attached to our train leaving hei at 8:15 A. M. (Columbus time), on morning of 1st prox. I suggest that this car be run through to Cleveland, returning on train leaving Cleveland at 7:15 A. M.

I will arrange for the delivering of mails at all offices inside the required distance. Will you arrange for those beyond?

Please let me know if you will be ready, and if you desire any additional arrangements in this connection.

Yours, very truly,

Now, this was in pursuance of the contract made between the defendant company and the general government, through the postmaster general, and it was a mere announcement to the local supervisor of the railway service in Ohio, of the fact that the postmaster general had ordered the carrying of the mail to begin on the 1st proximo. It was not the making of a contract with the superintendent of mail service at Cleveland, that had already been done, the postmaster general's order had been already given to the company, and it had no tendency to show that the contract between the government and the railroad company was made in Ohio, but directly the opposite.

The Pittsburgh and Lake Erie Railroad company had contracted to carry the mails from the city of Youngstown to the city of Pittsburgh; and also for a valuable consideration agreed and bound themselves by said contract to carry the plaintiff, so that he might discharge the duties which he contracted with said United States government to discharge. No one in the service of the United States government has any power cr authority to make contracts for the transmission of mails and postal clerks, but the postmaster general. And it is to be officially noticed that his office and place of business is in the city of Washington, in the District of Columbia, at the headquarters of the government, as the vi dence in the case shows. The Court therefore committed error in submitting to the jury whether the contract was made in the state of Ohio.

The Court further charged: "Stated differently, if you find that the plaintiff at the time he received his injury, was lawfully upon the road of the defendant under a contract, either with the United States government or the plaintiff himself, to carry him from Cleveland, Ohio, to Pittsburgh, Pa., and return, or from Youngstown, O., to Pitttburgh, Pa., and return, the contract not being made in Pennsylvania, and not to be wholly performed within the state of Pennsylvania, and he was engaged thereon as a postal clerk, only, the provisions of that act, would not apply, even though he may have been injured, whilst upon the road of the defendant." Again: "If he was lawfully upon it by virtue of a contract made between the defendant and the United States government, or himself by which he was entitled to passage, as a postal cleik, înd was simply so engaged upon that train, and that contract was not mede in the state of Pennsylvania, and was not to be wholly performed therein, then he would be entitled to recover for whatever injuries he actually sustained, resulting from the negligence and want of care of the conductor of this freight train, with the train upon which plaintif was riding, collided." Two propositions are embraced in this part of the charge. One is, that plaintiff would be entitled to recover if he had entered into the contract himself with the railroad company to carry him.