Joseph McKenna

“ The railway company, however, contends that the evidence conclusively shows that the deceased was an employee of the railway company, and that certainty of proof is no doubt asserted for it to countervail the combined judgments of the jury and of the trial and supreme courts. ”

“ The direct averment, therefore, is that West was employed by the express company, and that he handled baggage and was riding in the express cars in the course of this employment and as part of its duties. A relation with the railway company is, it is true, averred. He handled its baggage and rode in its cars. But this did not make him its employee. If he was, such is not disclosed by the complaint, nor is it alleged in the answer of the railway company. Indeed, his employment by the express company is emphasized by the contracts attached to the answer, and a defense is based upon them. ”

“ It is averred that West, by these contracts, assumed all the risks of his employment by the express company, ratified the contracts of the latter, authorized it in his name to release any demand he might have for injuries, agreed to be bound by whatever covenants the company should make, and that neither he nor any of his personal representatives would claim compensation for injuries, whether resulting from negligence or otherwise. ”