Hammond v. North Eastern Railroad

A mail agent wlio is transported by a railroad company under a contract with the government to carry its mail agents free of charge may maintain an action against the company to recover damages for injuries arising from negligence. Such action is not founded on the contract with the government, but upon the duty which the law imposes upon the company. Where the allegations of a complaint clearly show that the action is to recover damages for a tort, and the defendant was not, and could not have been, misled as to the nature of the action, it is no ground for a motion, at the trial to dismiss the complaint, that the summons was framed under subdivision 1 of Section 152 of the Code, and the complaint concluded by demanding judgment for a specific sum of money. Where the action is to recover damages for injuries to the person, the plaintiff is not bound to prove at the trial every specific injury alleged in the complaint.

Before GRAHAM, J., at Charleston, March Term, 1874. This was an action by Isaac Hammond, plaintiff, against the North Eastern Railroad Company, defendant, to recover damages for injuries sustained by the plaintiff on the 16th of May, 1873, on •the road of the defendant. The summons was framed under the first subdivision of Section 152 of the Code of Procedure, and the complaint concluded with a •demand of judgment for the specific sum of money mentioned in the summons. The second paragraph of the complaint alleged that the defendant made a contract with the United States, for a certain consideration, to convey the mails over its road in a separate car or apartment, suitably fitted up for the assorting and safekeeping of the mails and for the exclusive use of the agent of the government, and also to convey such agent free of charge. The other paragraphs alleged that on the 16th of May, 1873, the plaintiff was the mail agent of the government; that on that day he was received as such agent by the defendant, on its road at Florence, in the apartment of a car used for the conveyance of the mails and the mail agent, to be conveyed to Charleston, for reward paid or agreed to be paid the defendant by the United States; that the defendant having received the plaintiff on its car, as aforesaid, it became its duty to convey him safely and securely, and it became responsible to him for any injury he might receive through the negligence or unskillfulness of the defendant, its agents or servants; that, a trestle supporting the track of defendant’s road at, &c., was at that time defective and unsound, as defendant knew, and unfit to be used fox* the purpose for which it was constructed, and yet the defendant, not regarding its duty, negligently suffered it to be used, and as the car in which the plaintiff was being transported was proceeding along said track the said trestle broke and gave way, and the said ear was thrown from the tx*ack, and the right thigh of the plaintiff was fractured, the left leg badly cut and bruised, and the plaintiff otherwise bruised and injured; that by reason thereof the plaintiff became for a long time ill, and spent a large sum of money, &c., to his damage $10,000. The defendant, by its answer, set forth the terms of its contract with the United States; admitted that the plaintiff was the mail agent of the government at the time the accident occurred; denied that he was being carried for reward, and also denied all the paragraphs of the complaint alleging that it was the duty of the defendant to convey the plaintiff safely and securely; that the trestle was defective, unsound and unfit for use; that there was negligence on the part of defendant; that the plaintiff sustained injuries as he alleged, and that he became ill and spent money in his care. At the trial the plaintiff inti’oduced evidence tending to show a tort committed by defendant, causing damage to the plaintiff, as stated in the complaint. This evidence was excepted to by defendant on the gx*ound: “That the action brought is an action ex contractu, for a specific money demand, being the damages consequent upon the breach of the contract of the defendant with the United States government; and the plaintiff, having elected to sue in contract, is limited in his proof, first, to the proof of the contract as alleged ; second, to the proof of its breach; and, third, to the proof of the damages legally i-esulting from such breach; and the plaintiff cannot go into proof as in an action ex delicto.” The objections of the defendant having been overruled, the plaintiff proceeded with his testimony. Plaintiff was introduced as a witness, and, having stated that he was acting as postoffice agent under authority of the United States government, was being examined as to the damages received by him at the hands of the defendant, whereupon the defendant objected to the proof, on the ground: “That, the claim being for damages to the plaintiff, as mail agent of the United States government, under a Contract between the United States government and the defendant, the plaintiff must show the contract referred to in the testimony of the - witness and in the complaint before the examination proposed is gone into; which objection being overruled by the Court, the defendant excepted.” The plaintiff then proceeded with his testimony, and proved the contract between the defendant and the United States government for transporting the mails, the only clause of which that need be here inserted is as follows': “1. That the mail (including British, Canada and other foreign mails) shall be conveyed in a secure and safe manner, free from wet or other injury, in a separate and convenient car, or apartment of a car, suitably fitted up, furnished, warmed and lighted, under direction of the Postoffiee Department, and to the satisfaction of the Postmaster General, or of his authorized agent, at the expense of the contractor, for the assorting and safekeeping of the mails, and for the exclusive use of the department and its mail agent, if the department shall employ such agent, and such agent is to be conveyed free from charge. When there is no agent of the department, the railroad company shall designate a suitable person upon each train, to be sworn, to receive and take charge of the mails, and of way bills accompanying and describing them, and duly deliver the same. And the mail shall be taken from and delivered into the postoffices at the end of the route; and also from and into the intermediate offices on the route, or that may hereafter be established on the route, provided the latter are not over-one-quarter of a mile from a depot or station.” The plaintiff having closed his case, the defendant, by its counsel, moved that the complaint be dismissed on the following grounds : 1. That the plaintiff has elected to bring his action on a contract for the recovery of money only, under the subdivision first of Section 152 of the Code of Procedure, and has shown a special contract between the defendant and a third party, viz., the United States government, for the breach of which special contract the United States alone has the right of action ex contractu. 2. That the plaintiff, whatever his right of action may be,, has shown no privity of contract with the defendant. 3. That the cause of action set forth in the complaint is the alleged failure of the defendant to perform its special contract with the United States government to convey the plaintiff in a safe and secure manner, for hire and reward, while the proof is of a contract to convey a mail agent free of charge, and there is no proof of any contract to convey the plaintiff, or to convey him in a safe and secure manner. 4. That the complaint alleges that, by virtue of a special contract with the United States government, defendant became bound to the plaintiff, while the proof is of a contract whereby the defendant became bound to the United States government, and not to the plaintiff, according to the terms of the said contract. 4. That the plaintiff has failed to show in what particular defendant has neglected its contract duty. The motion for dismissal of the complaint was refused and defendant, excepted. The defendant’s counsel then opened its case to the jury, and, to maintain the issue on its part, offered testimony going to shovv that it had not neglected any duty, and that the plaintiff had not suffered damages at the hands of defendant; to which the plaintiff offered testimony in reply. The cause was then summed up by the respective counsel, and the counsel for the defendant asked from the Court that the following instructions be given to the jury, viz.: 1. That the jury, in their verdict, are confined to the issues presented by the allegations in the plaintiff’s complaint, which are controverted by the answer of the defendant. 2. The first issue is whether the contract set forth in the complaint is the contract proven; and if the jury find that the contract proven between the United States government and the company is not fully set forth in all its particulars, the verdict upon that issue must be for the defendant. 3. That if the jury find that the defendant undertook, by its contract, to convey the plaintiff free from charge, and did not, under their contract, receive the plaintiff for the purpose of conveying him upon said railroad from Florence to Charleston, for reward paid or agreed to be paid by the United States government, under their said contract, as specially alleged in the third paragraph of the complaint, then the jury must find on that issue for defendant. 4. That for the same reasons stated in the above points, the jury must find for the defendant, under the fourth paragraph of the complaint, on the issue whether defendant had or had not assumed the contract duty to the United States government to convey the plaintiff, as aforesaid, that is to say, for reward paid or agreed to be paid, and in a safe and secure manner, if they find such contract as is alleged not to have been made, and also upon the issue in the same paragraph, viz.: That, by virtue of said contract, “defendant became responsible to him (plaintiff) for any injury he might receive from any negligence or unskillfulness on the part of the defendant, its agents or employees,” if the jury find no such clause of insurance in the contract proven. 5. That under the fifth paragraph of the complaint, the jury must find all of the following facts to sustain a verdict for the plaintiff: First. That, at the time of the accident, the track of the defendant’s road, over Mitten’s Branch, was defective and unsound and unfit to be used for that purpose, and that defendant knew this. Second. That, so knowing, it negligently suffered it to be used; and, Third. That the trestle gave way and broke, and the track of the defendant was destroyed by reason of the said defect and unsoundness and the negligence of the defendant. 6. That under the sixth paragraph of the complaint, the jury must find for defendant, unless they are satisfied on all of the above points that plaintiff has proved his case; and must also find that, “ by reason of the severe nature of the fracture, he is lame and crippled, and is prevented from actively pursuing his business.” 7. That the plaintiff’s complaint is an entire cause of action; and if the jury fail to find for the plaintiff on all the issues of law and fact set forth, they must find for defendant. His Honor the presiding Judge refused the instructions, and charged the jury as follows: The issue for you is, whether or not the railroad company was negligent in keeping in proper order that trestle over Mitten’s Branch. That is the question; that is the true issue. As to the' contract with the United States government, so far as that is concerned, I do not think it has anything to do with the case. The question is, whether the railroad company injured Mr. Hammond through negligence. The railroad is bound to use proper diligence in keeping their railroad up in good condition. If they fail to do so, they are liable for any damages that may occur. If they do exercise reasonable care and diligence, then they are not liable. You are to judge of that by the testimony. If you believe the testimony of Mr. Jones, that he informed the company that the trestle wás unsafe, and th.ey neglected ,to fix it, then they are guilty of gross negligence. ■ As to damages, the rule is that a man who is injured by the negligence of another is entitled to all necessary expenses that he has incurred on account of such injury. He is also compensated for the pain and suffering he has endured. And if you find the company has been guilty of gross negligence, then you can punish them in your verdict. Defendant excepted to the ruling of the Court in refusing to charge in accord with the prayer for instructions, and to the following portion of the Judge’s charge, viz.: First, “that the only question for you is whether or not the railroad company injured Mr. Hammond through negligence;” and, second, “ that the contract has nothing to do with the case.” Which exceptions were taken before the jury had withdrawn from the bar. The jury returned a verdict for the plaintiff for five thousand dollars. The defendant appealed.