INDIVIDUAL CONTRACT RELIEVING RAILWAY COMPANY FROM DAMAGES.

Court of Appeals for Columbiana County.

#### The Newell Bridge & Railway Co. v. The East Liverpool Traction *&*Light Co.

Decided, December 20, 1916.

*Negligence*— Railway *Company Can Not by Contract*— Relieve *Itself from Liability for Its Own Negligence*— Street *Car Tracies Used by Two Companies*— Liability *for Injuries.*

The plaintiff and defendant are both street railroad companies. By contract the plaintiff has the right to use certain portions of the tracks of the defendant. A clause in said contract relieves the defendant from any responsibility for loss or damage occasioned by the operation of plaintiff’s cars over its tracks. By the negligence of the defendant a car of the plaintiff was thrown from the track, injuring several persons. The defendant requested the plaintiff to settle with the injured persons and leave the question of defendant’s liability to be determined later. The plaintiff having settled with the injured persons brought suit against the defendant to recover the. amounts paid in such settlement. *Held:*

1. The clause in the contract relieving the defendant from responsibility from loss or damage occasioned by the operating of plaintiff’s cars does not relieve the defendant from responsibility to the plaintiff for damages' occasioned by defendant’s own negligence.

2. The plaintiff is entitled to recover the amount paid in settlement of damages to the injured persons.

3. An action to recover the damages thus occasioned is not a suit between joint trespassers, but an original action to recover damages sustained by the plaintiff through the sole negligence of the defendant.

*6*Walter Sill and Brookes & Thompson,*for plaintiff in error.

*Billing sley, Moore & Van Fosseh,*contra.

Metcalfe, J.

The only questions in this case before the court at this time are raised by the demurrer to the answer. The plaintiff operates a line of street railway from Newell, West Virginia, across the Ohio river to the city of East Liverpool, Ohio, .and in the latter city runs its cars over a portion of the tracks of the defendant company. The right to so operate its cars on the defendant’s tracks is secured by contract, and it is the duty of the defendant to keep its tracks in repair.

On one of the streets in East Liverpool, over which the plaintiff ran its cars, was .a switch which was out of repair. The plaintiff had several times notified the defendant of the condition of the switch and requested of defendant that the necessary repairs be made thereon.

At the time of the accident complained of in the petition the plaintiff had occasion to run one of its cars over this switch. The front truck passed over in safety, but when the rear truck struck the switch it opened and threw the rear end of the car off the track it was running on and on to a track leading on to another street, so that the ear was thrown squarely across the street on which it was running.

A number of persons at work on the street at the time were injured. The defendant denied its liability, but it was agreed between the plaintiff and defendant that the plaintiff should settle with the injured persons and that the question of defendant’s liability should be detremined later. Thereupon, the plaintiff settled with the injured persons and brought this suit to recover the amounts paid in such settlement.

The defendant claims exemption from liability to the plaintiff by reason of the following clause in the contract by which plaintiff secured its right to run its cars over defendant’s tracks:

> ** ‘*To use all due precaution for the safety of the public, and in consideration of the rights herein granted to save and hold the first party (defendant) free and harmless from all loss, cost, *7damage, and expense whatsoever, which may in any wise accrue through, or be incurred by said first party (defendant) by reason of the operation by the second party (plaintiff) of his cars over the tracks of said first party as herein provided.”

The object of this clause in the contract is to secure indemnity to the defendant from liability for any acts of negligence on the part of the plaintiff in operating its cars while on the defendant’s tracks. The contract saves the defendant harmless from any acts of the plaintiff in the operation of its ears which would create a liability, whether such acts be negligent or not. There is nothing in the contract which in any way relieves the defendant from the consequences of its own negligence.

The car of the plaintiff was in operation at the time of the accident, but the accident was not occasioned through any fault of the plaintiff in operating the car, but by the negligence of the defendant in failing to keep the switch in repair. It happened solely on account of the fault of the defendant. It is not from its own negligence that the defendant is.relieved by the terms of the contract, but from the negligence of the plaintiff. In *Eugene C. Lewis Co.*v. *Metropolitan Realty Co.,*112 App. Div., 385, 98 N. Y. Supp., 391, affirmed 189 N. Y., 534, it is held that a provision in a lease relieving the lessor from any liability for >any loss or damage by reason of leakage of gas, steam or water pipes, did not relieve him from liability for an overflow of a water tank as the result of the lessor’s own negligence. And to the same effect, also, are *Levin*v. *Habicht,*90 N. Y. Supp., 349; *LeVette*v. *Hardman Estate,*77 Wash., 320, 137 Pac. Rep., 454; *Smith*v. *Faxson,*156 Mass., 589, 31 N. E. Rep., 687.

It is urged, too, that the plaintiff and defendant were joint trespassers and that this is an action between joint trespassers for contribution.

Doubtless the plaintiff and defendant would be jointly liable to the injured persons, but this is not an action for contribution as we view it. The action is to recovr for injuries to the plaintiff by reason of the sole negligence of the defendant.

The injury having occurred by reason of the defendant’s negligence, the fact that the plaintiff would be jointly liable *8with the defendant to the injured persons does not make the plaintiff a joint trespasser.

We think the court'erred in overruling the demurrer to the answer, and the judgment is reversed.

Pollock; J., and Spence, J., concur.