KARTIN V. BALTIMORE
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125
MARTIN V. BALTIMORE
& O. R. CO. October 18, 1889.)
(Circuit Court, D. West ViryinUl.
1.
RAILROAD COMPANIES-INJURIES TO EMPLOYES-CONTRIBUTORY NEGLIGENOE.
An em)'loye of a railroad company, who is being transported by- the company from one place of employment to another, cannot recover for inJuries received while sitting on a brake-wheel between the cars, though the train in which he is riding is run into through the negligence of other employes.
S.
SAME-RELEASE-RELIEF 4SS0CIATION.
Where an employe of a railroad company becOmes a member of a relief association, and as a condition of membership, and in consideration of the contributions of the railroad company to said association, and of the company's guaranty of the payment of the benefits of the association in case of injury, signs a contract by which' he releases the company from liability by reason of any accident that may hallpen to him while in the company's employ, an action will not lie against the company, where, both before and after bringing action, he receives money from the association on account of the injury, and gives receipt releasing and discharging the company from all' claims for damages. .
At Law. Action to recover damages for an injury alleged to have been caused on the 22d of May, 1887, at Bay View station, in Baltimore county, Md., by negligence of defendant's servants. The plaintiff was in the employment of the defendant in its telegraph department at the time of the accident, and had been in that service from the 19th day of November, 1886, and on the day of the accident was in the camp train at Bay View,ob. his way, with the other men in that service, to Chester, Pa. The camp cars in which the plaintiff was housed were on a,track in the railroad yard, and were run into by a freight train, going into a switch which had been improperly left open. It was the duty of the conductor and brakeman of the train which caused the accident to see that the switch was in proper shape and. situation when approaching it, and not to rely upon others to attend to it. The facts showed that the plaintiff, with some of the other persons in the same camp, were sitting on the brake-wheel on the platform between the cook car and lodging car of the camp train at the time the collision occurred, and these were the only persons hurt by it, being jammed in between the bumpers of the two. cars mentioned. The men in the cars were not hurt in the least degree. At the time the plaintiff went into the service of the defendant he was under age, and, by the written consent and authority of h,is father, plaintiff was admitted into the company's service, and became a member of the Baltimore & Ohio Employes' Relief Association. The train causiug the accident was not running more than four miles per hour, and did not hit the camp cars hard enough to damage' the one it struck the slightest. The plaintiff himself testified that he was sitting on the platfqrm,' as stated, and no persons other than those with him on the platform were injured in the collision. He also testified that he was at the time 'oithe accident in the employment of the company, and on his way to reSume work at Chester, in the construction of telegraph lines for the company. The plaintiff's declaratioll?Ontains four counts; the first three alleging that.he.was a passenger, and was b,eing carried by the defendant as such.
The fourth count alleged. that he was in the employment of the company in its telegraph. and, while' being' transported to the place of work, received, t4e .iPjl,.uy by of negligence of the employes of the company. Issue was joined on the plea of not guilty, and a which set up:-;., the plaintiff, on the 19th of November, 1886, was and desired to coriti n tie in the service alto of.the Baltimore & Ohi6 Railroad Company, in its telegraph department, and applitd tp be admitted a member of the Baltimore &. Ohi{) Employes' Belie.f a corporatiQn organized under the laws of the state of Maryland, and thereby agreed to conform to, andI;be ,bound by, by-laws, rilles, and regulations of said in force, andA1lcognized bY,si¥d 8.ssqciation; and also to conform to and be bound by such additional by-laws, rules, regulations, and of the constltiution of Said association as might thereafter be adopted by its committee ohrianrigement,-which application }yas in writing, and signed by the said J. Wilson Martin. Jr., the plaintiff, in his own proper handwriting; and. amongst other things. the plaintiff agreed that llis appli. catioIl, When approved l:J.r;J,be secret/try of the ar-;socl;ttion, should consti,tute a contract betweell himselfllnd the Baltimore & Ohio Railroad Company as a ct;mdition of 'his emploYm,l;mt by that compan)", and as such be. the irrevocable power and" authority of said company to make the deductions and payments mentidned 'and agreed 'upon: in said application; and when so approved said application s.hould likewisa,eonstitute the assignment in adVllI.lce to the said reIiefaSliociatioIlof such·portion of the plaintiff's wages, which should have any otller assignments by hi)II of his wages. or of any claim of liabilities incurred by him; and that the plaintiff upon thenlon further agreed' that, in consideration of the contribution of the Baltimore & 'Ohio Railroad Company to said association, and of the guaranty by said raiI.road company of the payment, of the benefits aforesaid, the said railroad company should not be liable to any claim or suit by reason of any accident happening to him while employed in any manner in the service.of said company, whether sucb ,accident should be caused by the negligence of said company, or otherwisp, except as guarantor of the benefits payaits officers, or blli to him, or beneficiary, under the terms of his application and agreement; and that the plaintiff further agreed that said association might taquire;iis a condition precedent to the payment of such benefits, tllat all acts ap,pl'opriate or necessary by the secretary of such association, to effectthe and discharge of said compan)·, be done by those who might bring snitJor damages by ,reason of such injurie!'\ or death; and. tllat the said plll.intifffurther understood and agreed that the said application, when the .acceptance' thereof should be indorsed thereon by the secretary of the said associatlon,should constitute a contract between him and the said association and'. the railroad company, by which contract his rights as a member of said ,associati()n,and as an employeof said ,'ailroad company, should bp determined ,asto all matters within Hs scope; all which, amungst otherih·ings, are in the .application forth, and wl;lich application was accepted by the secretary of the said association, and thereby constituted a contract between the said plain-tiff and 'the said defendant." And this plea further alleged" that the said plaintiff Was then ,and there, and continued to be, and remained, a servant and employe of the aaid company,aild took upon .himself the dangers QDd risks of ,personal injllry ft9m the neglect of other ,employes, agents. and. officers of said company; and afterwards, to-wit, on the 22d day of May, 1887, plaintiff met with happened onthe said company, whilst he was in tbe service ot'silid ,company'; and that aftenvatds, on the 22d day of September, 1887, and'-o1l eight other, different days,up;fo and including the 11th day of
MAll'J.'IN' tl. BAI,TIMORE &0.
127
-!oly,l888, the plaintiff received and accepted, underthe,rules and regulations of the said relief association, and in accordance with its constitution and bylaws, certain 8ums of money stated in the plea; being full allowance which' the plaintiff, as a member of said association, was entitled to receive, for the periods mentioned in his receipts and releases, by reason of the injury receiYed by him while in the discharge of duty in the service of said railroad company; and that the plaintiff thereby released and forever discharged the said companyfrom all claims for damages, indemnity, or other form of compensation bethen or might or could'thereafter have against the said compAny by reason of such injuries. wlJiob receipts and releases were severally signed and sealed and delivered to the said association by the in accordance witb his contract aforesl:/.id: wherefore the defendant averred that the plaintiff did ,release and· the defendant from all claims ,and,demands for damages by teason' of the ipjury in the plaintiff's declarationmentiorted." etc. To this, special.plea the plaintiffdemurred, but the demurrer was oVerruled. ThepJaintiff then a special replication, alleging that at the time of the ,execution of said contract.and releasesh/3 was ,a minor; .W which, replication the defendant demurred. In support of demurrer to this special counsel for defendant argued that an mfa.nt capable of performing service for the is capahle of making a binding contract, with or without the consent of his parents, to ,enter in.to .S1-1ch service; that it is a well-settled rule that, notwithstand. ing tile general incapacity of infants to enter into absolutely binding contract$,yet they may make contracts for their own benefit, such as oontrl;1cts, ofapprenticeship, or of hiring and service, which are beneficial infan.t; citing Wood v. Fenwick, 10 Mees. & W. 195; King v. Ohilksford, 1)}aJ;D &9. 94; King v. Arundel, 5 .Ma:u1e & S. 257; Raitroad Co', v. Elliott, 1 Cold, 611. The court sustainedthe demurrer, and rejected the replication, and issue was then also joined' on general replication to the special plea. On the trial the defendant proved the contract alleged in this special plea, the several releases and receipts executed by the plaintiff, the releases executed by the plaintiff and his father, and a written consent of the father to the employment of the plaintiff by the company. After the action was brought, plaintiff, in addition to former payments, received allowances under his contract with the relief association, and on each occasion gave receipts and releases under his seal, discharging the company from all liability on account of the action sct up in his declaration. The following authorities were cited: As to duty of company in conveying employe to place of labor, and negligence of Co. v. Jones, 95. U. S. 439,443. Employe notapassenger, when, Viele v. Railroad Co., 95 N. Y. 267; Ro88v. Railroad Co., 5 74 N,' Y. 617; GiUshannon v. Railroad Corp., 10 Cush. Seaver v. Rauroad Co., 14 Gray,466; Patt.Railway Ace. Law,210, 211.' funttact with relief association and defendant and valid, Owfm8 v. Railroad Co., 35 Fed. Rep. 715; Fuller v. A88ociation, 67 Md. 433, 10 Atl-.Rep.237; Graft v. Railroad Co., 8 An. Rep. 206. Contract {or hiring and serviqeby infant valid,Railroad (V. v,. Elliott, 1 Cold. 6110 Contract by infant'cannot be resoinded if executed, Breed Judd, 1 Gray, 459; (J,affne1J.v. Hayden, 110 Ma.ss.. 140; Stcmev.:QenArner.Dec. 659; Farn8Worth v. Wakqteld,12 Cush. 515. The
128
I'EDE'RAL
REPORTER,
vol. 41.
sc'ceptance 'orth'e benefits. and relief is a bar to the recovery against the , railroad company, Graft v.,!0ilroad Co., 8Atl. Rep. 206. Flick for plaintiff. . John A. Hutchimon, for defendant. BOND, J., (charging jury.) 1.' If the jury find from the evidence that the plaintiff was an employe o,f the railroad company, defendant, on the 22d day of May, 1887, and at the time of his injury was standing on the platform of a car in which he. Wa$ housed as snch employe, and that by reason of some negligence on the part of other employes of the railroad <lompany a train ran into the car on which the complainant was so housed and transported,and that he himself was not in the car,but on the platform between the cook and sleeping car, sitting on the 'brakewheel, the jury are instructed that such position occupied by the plaintiff was not a proper position for him to occupy, and that, if they believe the evidence of theplainHff in this respect, he is not entitled to re<lover, because he contributed to the injury by his own negligence, by being on the platform, instead of in the car, where he ought to have been. 2. And if theJury find from the evidence that, prior to his ment by the defendant, the plaintiff signed the contract and the receipts in evidence by the defendant, and received the benefits arising therefrom both before the bringing of this suit and afterwards, by which he released the defendant from all default of the defendant's employes, and injuries arising to hiriitherefrom, then the defendant is not liable in this action, and the verdict must be for the defendant.
Verdict for defendant.
LUTZ
et at v. MAGONE, Collector.
(Circuit Ccrwrt, S. D. New York. January 14, 1890.
L, CUSTOMS DUTIEB-FREE-LIST-ACIDS. , The meaning of the provision "for. "all acids used for medicinal, chemical, or manufacturing purposes, not specially enumerated or provided for," contained in the free-list of the tariff actof¥aroh 8,1883 (22 U. S.St. at Large, 488' Tariff Index, new, 594,) seems to, be that a,cids which are used for the reason that, by their ohemica1 combination with other articles, they produce substances medicinal. substances chemical, or substances which are regarded as the fruits of manufacture, are to be admitted free of duty. - So SAME-BAOCHARI1fE. Sacoharine,' which Is a chemical compound consisting of a dry white powder, sweeter by from 280 to 800 times than cane sultar; which is chiefly used in soda and mineral waters, liquors, wines, preserves, chewing tobacco, ('bewing gums medicines, and other things,' btit for the sole purpose of sweetening them; and which, thoup;h chemically an acid, is $lways bought and sold under the name of "saccharine," and never under that of "acid, "-is not free of duty under the abovementioned provision for acids, but is dutiable, as a "chemical compound," at the