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on the train arose out of the special contract, he being one of the employees and servants of the defendant. It follows that, as Allen had no cause of action, the payment to him by the plaintiff was voluntary and imposed no duty on the defendant to reimburse the plaintiff.

4. If the defendant is liable to the plaintiff at all, there can be no recovery under section 11 of the contract before there has been an actual adjudication by a court of competent jurisdiction that the plaintiff is liable to Allen, the person injured.

5. That the plaintiff's cause of action was for money paid to the sheriff for the keep of the horses seized under the attachment is dependent upon its recovery on the principal cause of action, and was improperly joined therewith, and also that it accrued since this action commenced.

From a judgment overruling a demurrer to the complaint, the defendant appealed.

Winston & Fuller and W. H. Day, for the plaintiff.
Guthrie & Guthrie, for the defendant.

WALKER, J., after stating the case:-The first ground of demurrer is untenable, as it appears from the record that the court permitted an amendment of the complaint by which the date of the release was changed from October 10, 1902, to November 10, 1902. This is quite sufficient to dispose of this ground of demurrer. But we do not think that an amendment was necesary for the purpose, as it clearly appears from the context of the complaint that the date affixed to the release was intended for November 10, 1902. It is expressly alleged in Section 8 that a release was given on November, 10, 1902, and it is so impliedly stated in Section 9. But the amendment cures the defect, if there was one.

The second ground of demurrer can not be sustained. It is true, as stated, that the plaintiff was not as explicit in mak



ing the allegation in question as it might have been, but the allegation is sufficiently intelligible to enable the defendant to know what he is required to answer. "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties." The Code, Sec. 260. But there is another conclusive answer to this objection. The plaintiff alleges in section 5 that Allen is "one of the parties referred to in section 11 of the contract," and we find that section 11 provides that the railroad company shall not be held liable for the injury to any agent or employee of the defendant to an amount greater than $50 and that if the railroad company shall be so held liable the defendant will pay the excess to the railroad company. It follows from this allegation that Allen was either in one of the four coaches of the defendant at the time of the injury, or on one of the plaintiffs' coaches where he had the right to be by virtue of the provisions of section 5 of the contract. By section 11 the plaintiff is indemnified against all liability in excess of $50 for any injury to an agent or employee of the defendant, and it necessarily follows from these allegations of the complaint, when considered together, that Allen was rightfully in the car at the time the injury was received. We are further inclined to think that the complaint sufficiently shows that he was in one of the passenger coaches of the defendant, if the particular allegation, which has fallen under the condemnation of the defendant in his demurrer, is construed in connection with the other averments of the complaint. If the pleading was not sufficiently definite or certain to enable the defendant to understand the precise nature of the allegation, it could by motion have obtained an order from the court requiring the plaintiff to make it definite and certain by amendment, but this can not be done by demurrer, as it is not the statement of a defective cause of action or the



defective statement of a good cause of action, but, at most, only an uncertain and indefinite statement of one of the facts constituting a cause of action. Allen v. Railroad, 120 N. C., 548.

This brings us to the principal contention of the defendant that the plaintiff did not sustain the relation of a common carrier towards Allen, but was a private carrier, and as Allen was in the car only by virtue of the contract between the plaintiff and defendant, the former was not liable to him in damages for the injury, and consequently the defendant. can not be liable to the plaintiff under the indemnity contract, as the payment of the money to Allen was voluntary and not in discharge of any liability of the plaintiff to him. It is contended by the defendant's counsel that while a carrier can stipulate for release from liability for negligence in regard to property to be transported, it can not do so in regard to passengers "because public policy forbids such a waiver or release, and our courts follow the general Common Law doctrine that a carrier can not by contract secure exemption from liability for its own negligence." It is argued that if the contract for indemnity amounts to the release of the plaintiff from liability for negligence, as such release is against public policy, the contract must be void as it contains a stipulation indemnifying the plaintiff against the consequences of a breach of duty and releasing the plaintiff from its common law liability. In the demurrer, the defendant seems to assert that the plaintiff under the terms of the contract was not a common carrier, but a private carrier and subject only to the responsibilities and liabilities of that relation, which are quite different from those of a public carrier.

It seems to us that if the plaintiff was a common carrier with respect to Allen when he was injured, it has not, in any way by the contract, stipulated for exemption for negligence as between itself and Allen, and, as it has not done so the



contract must be valid. If Allen had sued the plaintiff for his damages, it could not have successfully pleaded that it had been released, even if the law permitted such a release between carrier and passenger, and for the simple reason that there is no provision in the contract for any such release. The very nature and terms of the contract presuppose that the plaintiff will remain liable to any agent or employee of the defendant who is injured by its negligence, otherwise there could be no indemnity, as that always implies a liability on the part of the person or corporation indemnified.

But whether we regard the plaintiff as a common or a private carrier in its relation to Allen, we think that under the terms of the contract and upon the admitted facts of the case it was liable to Allen for the injuries he received. It must be borne in mind that the demurrer admits the material facts alleged in the complaint. In all respects, except loading, unloading and reloading, it appears from the complaint that the plaintiff had the control and management of the cars of the defendant. It had the right to inspect and repair them and to haul them in any of its trains and was required to provide necessary motive power, conductors, enginemen and other train men, and exercise a general supervision over the train. If the defendant had the right to release the plaintiff as a public carrier from liability for injuries to its employees resulting from the plaintiff's negligence, it has not chosen to do so, but on the contrary the very terms of the contract excluded any such idea and strongly implied, if by them it is not expressly provided, that the plaintiff shall be and remain liable for all such negligence.

If the plaintiff at the time Allen was injured, did not occupy the position of a public or common carrier towards him by reason of the special terms of the contract of carriage between the plaintiff and defendant, and the plaintiff was but a private carrier, under a special contract, it was liable in



our opinion by the terms of that contract for any injury to Allen which was caused by its own negligence. By the contract, the parties did not profess to release the railroad company from liability from acts of negligence, but the agreement is predicated upon the assumption that there may be negligence of the railroad company resulting in injury to the defendant's employees, for which they should have their action. It would be vain indeed to indemnify the plaintiff against a liability that could never arise. It must be remembered that the contract provides, not only for a release from liability so far as the defendant itself may be concerned, but for indemnity against liability to its agents and ser


The cases cited by the defendant's counsel have no application here. In Robertson v. Railroad, 156 Mass., 525; 32 Am. St. Rep., 482, the injury was caused, not by the negligence of the railroad company, but by that of the proprietors of the circus, the particular negligence being the defective condition of the trucks of its cars. There are other differences between the two cases. The case of Coup v. Railroad, 56 Mich., 111; 56 Am. Rep., 374, was one in which the plaintiff was the proprietor of a circus and sued for injury to his property, alleged to have been caused by the negligence of the railroad company, and not for injury to one of its servants. In Railroad v. Keefer, 146 Ind., 21, 58 Am. St. Rep., 348; 38 L. R. A., 93, it appeared that the plaintiff, who was an express messenger, had himself authorized the making of a contract releasing the railroad company from liability for negligence. Several cases of a like tenor were cited to us, but they all rested upon the reason that a railroad company as a common carrier may become a private carrier or bailee for hire, when, as a matter of accommodation or special agreement, it undertakes to carry something which it is not its business to carry, and that as such it can make its own terms

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