cally alike. In each is contained the general provisions found in nearly all charters that tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness. If the city of Philadelphia can hold property in trust for the education of poor white male orphans, and the city of Cincinnati can la vfully execute a trust for the education of boys and girls, and the city of St. Louis can, without violating its organic law, administer a trust "for the purpose of furnishing aid to poor imigrants" passing through the city, there is no apparent reason why Denver, under her charter, which provides for the entertainment of visitors (trade), for the encouragement of manufactures (industry), for the assistance of charitable organizations, and for the good order, health, good government, and general welfare of the city, accept and execute a trust for the education of poor white male orphans."

STIPULATIONS AGAINST LIABILITY FOR NEGLIGENCE IN GRATUITOUS PASSES.

Can a railroad company or other common carrier which undertakes the transportation of persons gratuitously, lawfully stipulate against liability for injuries inflicted on such persons by the negligence of itself or its employees? It is clear on principle that a contract against the consequences of future wilful wrongdoing cannot protect the guilty party,1 and the same rule is applied in cases of negligence so gross as to imply wilfulness, or which constitutes a It is not perviolation of the criminal law." mitted that a person should contract for immunity in the commision of crime or the indulgence of his wicked desires.

Neither is a carrier permitted, by any stipulation or the insertion of any conditions in its contract to make a release from liabilities imposed on it by law a condition of undertaking the performance of its legal duty to transport persons or goods. 3 But, on the other hand, the right of a carrier, under some circumstances, to stipulate against liability for ordinary negligence is generally recognized. Thus, where a common carrier, as a matter of accommodation or special engagement, undertakes to carry

1 Mobile, etc., R. Co. v. Hopkins, 41 Ala. 486, 501. 2 Annas v. Milwaukee, etc., R. Co., 67 Wis. 46, 30 N. W. Rep. 282; Illinois Central R. Co. v. Read, 37 Ill. 484, 87 Am. Dec. 260; Higgins v. New Orleans, etc., R. Co., 28 La. Ann. 133; Starr v. Great Northern R. Co., 67 Minn. 18, 69 N. W. Rep. 632.

3 The authorities on this proposition are too numeraus to require citation.

5

4 Louisville, etc., R. Co. v. Keefer, 146 Ind. 21; Russell v. Pittsburgh, etc., R. Co. (Ind.), 61 N. E. Rep. 678, 681; Robertson v. Old Colony R. Co., 156 Mass. 525, 32 Am. St. Rep. 482; Coup v. Wabash, etc., R. Co., 66 Fed. Rep. 506, 30 L. R. A. 161; Railroad Co. v. Lockwood, 17 Wall. (U.S.) 377; Contra: Gulf, etc., R. Co. v. McGown, 65 Tex. 643.

* Louisville, etc., R. Co. v. Keefer, 146 Ind. 21, 26: Sargent v. Boston, etc., R. Co., 115 Mass. 416; Robertson v. Old Colony R. Co., 156 Mass. 525, 31 N. E. Rep. 650, 32 Am. St. Rep. 482; Bates v. Old Colony R. Co.. 147 Mass. 255, 17 N. E. Rep. 633; Express Cases, 117 U. S. 1; Railroad Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. Ed. 560; Pittsburg, etc., R. Co. v. Mahoney, 148 Ind. 196, 200; Blank v. Illinois Cent. R. Co., 182 Ill. 332, 55 N. E. Rep. 332.

6 Russell v. Pittsburg, etc., R. Co. (Ind.), 61 N. E. Rep. 678.

7 See authorities cited above.

8 Forepaugh v. Delaware, etc., R. Co., 128 Pa. St. 217, 18 Atl. Rep. 503, 5 L. R. A. 508; Coup v. Wabash, etc., R. Co., 56 Mich. 111, 56 Am. Rep. 374, 22 N. W. Rep. 215; Chicago, etc., R. Co. v. Wallace, 66 Fed. Rep. 506, 30 L. R. A. 161.

9 Coup v. Wabash, etc., R. Co., 56 Mich. 111; Robertson v. Old Colony, etc., R. Co., 156 Mass. 525, 31 N. E. Rep. 650, 32 Am. St. Rep. 482.

10 Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346, 352 and authority; Gillenwater v. Madison, etc., R. Co., 5 Ind. 339; Blair v. Erie R. Co., 66 N. Y. 313, 318; Seybolt v. New York, etc., R. Co., 95 N. Y. 562; Mellor v. Missouri Pacific R. Co. (Mo.), 10 L. R. A. 36.

not.11

And when the agreement to carry is made upon a consideration as part of or collateral to some other contract incident to performing the duties of a common carrier, a stipulation relieving the carrier from liability for negligence is void, although what purports to be a free pass is given to the passenger instead of a ticket. Thus the holders of "stock

drover's passes,' ," issued to persons accompanying shipments of live stock on which the usual rates of freight have been paid are entitled to protection as passengers, notwithstanding any stipulation to the contrary. 12 The freight paid is regarded as payment for the transportation of the shippers as well as the carriage of the live stock, and the undertaking to carry imposes upon the company all the obligations to use care and diligence to avoid inflicting injury on the passengers to which common carriers are subject, even though the shipper rides in the caboose of a freight train on which his stock is carried. 18

Nor is it essential that the shipment of freight, in consideration of which the pass is given, shall be live stock. It may be goods of any description. 14 The same rule applies where an employee is given a pass as partial compensation for his services, or is being carried from one place to another at the request and for the benefit of the carrier,15 and where a pass is given in payment for property sold or leased to the carrier, 16 or upon any other

11 Gillenwater v. Madison, etc., R. Co., Ind. 339; Abell v. Maryland R. Co., 63 Md. 433; Railroad Co. v. Derby, 14 How. (U. S.) 486; Steamboat, etc., Co. v. King, 16 How. (U. S.) 439.

12 Railroad Co. v. Lockwood, 17 Wall, U. S. 357; Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., v. Nickless, 71 Ind. 271, Louisville, etc., R. Co. v. Faylor, 126 Ind. 126, 25 N. E. Rep. 869; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362; Carroll v. Missouri Pacific R. Co. 88 Mo. 239, 57 Am. Rep. 382; Saunders v. Southern Pacific Co. 13 Utah, 275, 44 Pac. Rep. 932; Illinois Central R. Co. v. Anderson. 184 Ill., 294, 56 N. E. Rep. 331; Contra-Meuer v. Chicago, etc., R. Co., 5 S. Dak. 598; 59 N. W. Rep. 945, 25 L. R. A. 81.

13 Pennsylvania, Co., v. Newmeyer, 129 Ind. 401, 409; Louisville, etc., R. Co. v. Faylor, 126 Ind. 126, 25 N. E. Rep. 869; Carroll v. Missouri Pac. Ry. Co. 88 Mo. 239, 57 Am. Rep. 382; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315.

14 Indiana R. Co. v. Mundy, 21 Ind. 48.

15 Grand Trunk R. v. Stevens, 95 U. S. 655, 24 L. Ed. 535; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125, 18 Am. Rep. 360.

16 Camden, etc., R. Co. v. Bausch (Pa.), 7 Atl. Rep. 731.

valuable consideration. 17 But in New York it is held that a condition in a shipper's pass, exempting the carrier from liability for negligence, is valid where the special contract was made in consideration of a reduction in the cost of transportation to less than the tariff rate. 18 Postal clerks, riding on passes, have been held to be passengers, and entitled as such to damages for personal injuries, 19 in the absence of a special contract relieving the carrier of liability, except in states where, by statute, mail agents are placed on the same footing as the carrier's employees.20 Though riding on passes, they are clearly not carried gratuitously, because the price paid by the United States for the carriage and care of the mail includes payment for the transportation of the mail agents.21 But a special contract against liability would seem to be entitled to the same effect in relieving a carrier from liability to a postal clerk, as in the case of an express messenger, 22 or sleeping-car porter. 28

In view of the principles above laid down, that a common carrier may undertake the performance of duties not imposed on it by law, and that in doing so it acts merely as a private carrier, and has the same freedom of contract in relation to the terms on which it will undertake such duty as a private individual, it follows that unless a common carrier is 17 Williams v. Oregon Short Line R. Co., 54 Pac Rep. 991.

18 Boswell v. Hudson River R. Co. 18 N. Y. Sup. Ct. (5 Bosw.) 699, 10 Abb. Prac. 442; Bissel v. N. Y. Central R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Poucher v. N. Y. Central R. Co., 49 N. Y. 263, 10 Am. Rep. 364. 19 Seybolt v. New York, etc., R. Co., 95 N. Y. 562; Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346, 353; Ohio, etc., R. Co. v. Voight, 122 Ind. 288; Illinois Central R. Co. v. Crudup, 63 Miss. 291; Mellor v. Missouri Pac. R. Co. (Mo.), 10 L. R. A. 36; Baltimore, etc., R. Co. v. State (Md.), 6 L. R. A. 706; Arrowsmith v. Nashville, etc., R. Co., 57 Fed. Rep. 165; Gleeson v. Virginia Midland R. Co., 140 U. S. 435; Railroad Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. Ed. 560.

20 Pennsylvania R. Co.v. Price 96 Pa. St. 256; Bricker v. Philadelphia R. Co., 132 Pa. St. 1.

21 Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346, 353; Mellor v. Missouri Pac. R. Co. (Mo.), 10 L. R. A. 36.

22 Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346, 353; Railroad Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. Ed. 560. In Illinois Central R. Co. v. Crudup, 63 Miss. 291, it was held that a stipulation in a free ticket on which a mail agent was riding, by which he assumed all risk of injury, did not relieve the carrier from liability for injuries caused by its own negligence.

23 Russell v. Pittsburgh, etc., R. Co. (Ind.), 61 N. E Rep. 678.

under some obligation to carry passengers free, it may, when it gives a pass as a gratuity, impose such limitations on its own liability for the negligence of its officers and agents as it may choose, and they will be binding on the person accepting and using the pass. This is the rule that is generally accepted by the courts in which the question as to the effect of a release from liability in a gratuitous pass has been directly presented. 24 It has been expressly decided that the binding force of a contract, releasing the carrier from liability contained in a gratuitous pass, is not destroyed by the fact that the person to whom the pass was given was not required to sign it, where he accepted and used it, and was injured while riding upon it. 25 But the carrier's exemption grows out of contract, and where there was clearly no binding contract on the part of the passenger, releasing the carrier from liability, a stipulation to that effect in the pass is without force. Thus, a minor, riding on a contract made by his father, by which the person traveling thereon was given free transportation for a portion of the distance, and which provided that he should assume all risk of personal injury, except from gross negligence of the carrier, is not bound by such provision, because he is incapable of making a binding contract.26 And it has been held that an express messenger was not bound by a stipulation against liability for personal injuries on the part of the railroad

24 Wells v. New York Central R. Co., 26 Barb. 641, 24 N. Y. 181; Griswold v. Railroad Co., 53 Conn. 371 4 Atl. Rep. 261, 55 Am. Rep. 215; Kinney v. Central, etc., R. Co., 32 N. J. Law. 407, 90 Am. Dec. 675, 34 N. J. Law. 513, 3 Am. St. Rep. 265; Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205, 5 L. R. A. 846; Rogers v. Kennebeck, etc., Co., 86 Me. 261, 29 Atl Rep. 1069, 25 L. R. A. 491; Muldoon v. Seattle, etc., R Co., 10 Wash. 311, 38 Pac. Rep. 995, 45 Am. St. Rep. 787; Payne v. Terre Haute, etc., R. Co. (Ind. Sup.), 62 N. E. Rep. 472; Annas v. Milwaukee, etc., R. Co. 67 Wis. 46, 30 N. W. Rep. 282; Chicago, etc., R. Co. v. Hawk, 36 Ill. App. 327; McCauley v. Furness R. Co., L. R., 8 Q. B. 57; Hall v. Northeastern R. Co., L. R. 10 Q. B. 37; Duff v. Great Northern R. Co., L. R. 4 Ir. 178: Alexander v. Toronto, etc., R. Co. 33 Upp. Can. 474. See, also, Western, etc., R. Co. v. Bishop, 50 Ga. 465; Railroad Co. v. Skeels, 3 W. Va. 556; Kimball v. Rutland etc., R. Co. 26 Vt. 247; Mann v. Birchard, 40 Vt. 326; Hawkins v. Great Western, etc., R. Co., 17 Mich. 57, 18 Mich. 427; Levering v. Union, etc., Co., 42 Mo. 88; Baltimore, etc., R. Co. v. Brady, 32 Md. 328.

25 Quimby v. Boston, etc., R. Co., 150 Mass. 365, 23 N. E. Rep. 205, 5 L. R. A. 846.

26 Chicago, etc., R. Co. v. Lee, 92 Fed. Rep. 318, 34 C. C. A. 365

company, in a contract between it and his employer, where he had no knowledge of such stipulation. 27

The service of gratuitous carriage is clearly not within the duties which a common carrier owes to the general public, and when one whom the carrier is under no obligation to carry free accepts a pass as a pure gratuity, upon conditions therein expressed, good faith requires that if he is injured while using the pass he shall be bound by those conditions. The carrier in such a case has been likened to a bailee for the sole benefit of the bailor. 28 No one is bound to undertake a service for the sole benefit of another for which he receives no compensation, and if he does so he should be allowed to fix the terms on which he will undertake it, subject only to the general obligation to deal fairly and honestly.29 The grounds for denying common carriers the power to make contracts limiting their liabliity are thus stated in a leading case.30 "The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the

If

courts. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business. the customer had any real freedom of choice, if he had a reasonable and practical alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could, with more reason, be said to be his private affair and no concern of the public." It is apparent that this reasoning does not apply where a person seeks to be carried free. He asks a mere favor, which the law does not require the carrier to grant, and has at all times

27 Chamberlain v. Pierson, 87 Fed. Rep. 420; In Coppeck v. Long Island Railway Co., 89 Hun, 186, 34 N. Y. Supp. 1038, the same rule was applied in favor of a servant in charge of some stock riding on a contract made by his employer.

28 Annas v. Milwaukee, etc., R. Co., 67 Wis. 46. 29 Annas v. Milwaukee, etc., R. Co., 67 Wis. 46, 30 N. W. Rep. 282; Chicago, etc. R. Co. v. Hauck, 36 Ill. App. 327.

30 Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 627

perfect liberty to reject free passage on the terms imposed by the carrier, and to insist on being transported on the usual terms as a farepaying passenger. In discussing this subject the Supreme Court of Wisconsin said: 31 "We can see no good reason why the person who seeks a gratuitous carriage from a railroad company should stand in the same position to the carrier as the person who pays for his transportation, and therefore force the carrier to assume all the duties of such carriers. The carrier is in no case, under obligation of law, to carry a person gratuitously as he is when he is tendered proper compensation, and he does not therefore owe the same duty to the person carried free that he does to the person who pays for his carriage, unless he chooses to accept such duty by not stipulating against assuming it." Therefore, no principle of public policy is subverted by denying the holder of a free pass the right to repudiate his contract, 32 but there is sound public policy in holding him to it. 33 The expenses of operating a railroad are borne by he general public, that is, by its patrons who pay for its services. In so far as persons obtain the special favor of free carriage, they increase the burden on the general public, or at least postpone the day of lower rates. And if, by disavowing the agreements, which were made a condition of according them free passage, the pass-takers should be able to impose on the railroad the expense of paying for personal injuries received in taking a journey, for which nothing was paid to the railroad, they would thereby make a positive increase of disbursements to be borne by the general public.3 4

Besides, it is an evident breach of good faith3 5 for a person who has made use of a pass, for which he gave no return, to repudiate his own agreement by which alone

31 Annas v. Milwaukee,' etc., R. Co., 67 Wis. 46. 30 N. W. Rep. 282.

32 Annas v. Milwaukee, etc., R. Co., Ind. 67 Wis., 46, 30 N. W. Rep. 282.

33 Payne v. Terre Haute, etc., R. Co., (Ind.) 62 N. E. Rep. 472; Griswold v. New York, etc., R. Co., 53 Conn. 371; 4 Atl. Rep. 261, 55 Am. Rep. 115; Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205, 5 L. R A. 846. 34 Payne v. Terre Haute, etc. R. Co. (Ind.), 62 N. E. Rep. 472.

Griswold v. New York, etc., R. Co., 53 Conn. 37: 4 Atl. Rep. 261, 55 Am. Rep. 115; Kinney v. Central, etc., R. Co., 34 N J. Law, 513, 3 Am. Rep. 265.

he induced the company to issue the pass, and a court should not lend its aid to defeat an agreement which good morals and common honesty demand should be kept. It has also been suggested that if the practice of giving passes be regarded as opposed to public policy, the recipients who have used such passes would have no standing to sue as passengers, 36 But in any event there can be no hardship nor injustice in holding that where persons are carried for nothing the carrier should be liable for nothing. The doctrine that, although engaged in the business of a common carrier, a person or corporation undertaking to carry passengers free may limit its liability for negligence has been expressly adopted by the courts of Connecticut, 37, New Jersey, 38 New York, 39 Massachusetts, 40 Maine, Washington, +2 and Indiana, 48 and 42 of England, 44 and Canada. 45 In Wisconsin46 and Illinois 47 the same rule is held, but the courts have modified their declaration of the rule to except cases where the injury is due to such gross negligence as is punishable by law or clearly contrary to good morals, or which implies a willingness to inflict injury. As we have seen, such a contract only covers negligent injuries in any of the states; a person cannot, by contract, secure immunity from the consequences of his wilful misconduct, and a stipulation against liability for negligent injuries does not cover injuries caused by the violation of an express stat

36 Payne v. Terre Haute, etc., R. Co. (Ind.), 62 N. E. 472.

37 Griswold v. New York, etc., R. Co. 53 Conn. 371, 4 Atl. Rep. 261,55 Am. Rep. 115; Hale v. New Jersey, etc., Co., 15 Conn. 539.

38 Kinney v. Central, etc., R. Co., 34 N. J. Law, 513; 3 Am. Rep. 265; also 32 V. J. Law, 407, 90 Am. Rep., 675.

39 Wells v. N. Y. Central R. Co., 26 Barb. 641, 24 N. Y. 181; Poucher v. N. Y. Central R. Co., 49 N. Y. 263, 10 Am. Rep. 364; Ulrick v. Railroad Co., 108 N. Y. 80. 40 Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205; 5 L. R. A. 846.

41 Rogers v. Kennebeck Steamboat Co., 86 Me. 261, 29 Atl. 1069; 25 L. R. A. 491.

42 Muldoon v. Seattle City R. Co., 10 Wash. 311, 38 Pac. Rep. 995, 45 Am. St. Rep. 787.

43 Payne v. Terre Haute, etc., R. Co. (Ind.), 62 N. E. Rep. 472.

44 McCauley v. Furness R. Co. L. R. 8 Q. B. 57; Duff v. Great Northern R. Co., L. R. 4 Ir. 178.

45 Alexander v. Toronto, etc., R. Co., 33 Upp. Can.

474.

46 Annas v. Milwaukee, etc., R. Co., 67 Wis. 46, 30 N. W. Rep. 282.

47 Illinois Central R. Co. v. Read, 37 Ill. 384, 87 Am. Dec. 260, Chicago, etc., R. Co.v. Hawk, 36 Ill. App. 227.

ute. 48 And the courts of Georgia, 49 West Virginia,50 Vermont, 51 Michigan, 52 Maryland, 58 and Missouri,54 have pronounced have pronounced opinions which lend support to the contention that the rule which makes void the contracts of common carriers, exempting them from liability for negligence, does not apply to such a contract with a railroad company for which the consideration was free passage on its trains.55 Opposed to this weight of authority are the courts of Minnesota,56 Alabama, 57 Texas,58 and Iowa. 59 A Pennsylvania case60 contains some expressions that have caused it to be cited as an authority against the validity of such contracts. But, as the pass involved in that case was given to a stock drover, and the court held that the price paid for freight on the stock shipped by him included the cost of transporting the shipper, thus making him a paying passenger, it decided nothing as to the effect of contracts contained in passes given as mere gratuities. The Iowa cases 61 were based on two statutes of that state, which were held to forbid the making of any contract that would, under any circumstances, limit the liability of the carrier, and should not, therefore, be regarded as an authority outside of that state on the subject under discussion.

In the leading Texas case the court, after expressing the opinion that public policy forbids such contracts, bases its decision on the

48 Starr. v. Great Northern R. Co., 67 Minn. 18, 69 N. W. Rep. 632.

49 Western, etc. R. Co. v. Bishop, 50 Ga. 465, 110 Ga. 465.

50 Railroad Co. v. Skeels, 3 W. Va. 556.

51 Kimball v. Rutland, etc., R. Co., 26 Vt. 247; Mann v. Birchard, 40 Vt. 326.

52 Hawkins v. Great Western R. Co., 17 Mich. 57, 18 Mich. 427.

53 Baltimore, etc. R. Co. v. Brady, 32 Md. 328. See Abell v. Maryland R. Co. 63 Md. 433.

54 Levering v. Union, etc., Co., 42 Mo. 88.

55 See also Chicago, etc., R. Co. v. Wallace, 66 Fed. Rep. 506; 14 C. C. A. 257; Express Cases, 117 U. S. 1.

56 Jacobus v. St. Paul, etc., R. Co. 20 Minn. 125, 18 Am. Rep. 360; Starr v. Great Northern R. Co., 67 Minn. 18, 69 N. W. Rep. 632.

57 Mobile, etc., R. Co. v. Hopkins, 41 Ala. 486, 501. 58 Gulf etc., R. Co. v. McGown, 65 Tex. 643; See Missouri Pacific R. Co. v. Ivey, 71 Tex. 409, 9 S. W. Rep. 346, 10 Am. St. Rep. 758, 1 L. R. A 500; Fort Worth, etc., R. Co. v. Rogers, 53 S. W. Rep. 366, 21 Tex.!Civ. App. 605.

59 Rose v. Des Moines Valley R. Co., 39 Iowa, 246; Solan v. Chicago, etc., R. Co. 95 Iowa, 260, 63 N. W. Rep. 692, 28 L. R. A. 718.

60 Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315. 61 Rose v. Des Moines Valley R. Co. 39 Iowa, 246.

ground that the constitution of the state and the laws for the incorporation of railroad companies in Texas impose on such companies the character of common carriers of passengers and goods, and that it is not competent for such a company, by contract, to lay down its public character as a common carrier of passengers fixed upon it by law, and become a mere private carrier. 62 The Alabama case cited63 was a suit for the loss of baggage while travelling on a free pass containing a stipulation against liability. The evidence showed that the baggage had been stolen by servants of the carrier, one of whom was convicted of the felony, while the other fled. This decision, therefore, might well have been put upon the ground that a carrier cannot, by contract, shield himself from the consequences of wilful dishonesty, rather than upon the ground that a contract against liability for negligence is void where free passage is furnished.

In addition to these cases, the Minnesota case64 is directly opposed to the great weight of authority as stated above. In that case, the plaintiff was employed by a telegraph company to repair the telegraph lines along the defendant's right of way. The railroad company, which also used the telegraph wires in the transaction of its business under an arrangement with plaintiff's employer, gave him a pass, conditioned that, in using the same, he should assume all risks of accidents, and that the defendant should not be held liable for any negligence of its servants. Plaintiff used this pass in going from place to place to do repair work, and on one of these trips, while riding in the baggage car by permission of the trainmen, he was injured through the negligence of the company's employees by reason of being in that place. In holding that the railroad company was not relieved from liability by the condition indorsed on the pass, the court said: There are two considerations upon which the stringent rule as to the duty and liability of carriers of passengers rests. One is a regard for the safety of the passenger on his own account, and the other is a regard for his safety as a citizen of

62 Gulf etc., R. Co. v. McGown, 65 Tex. 643; Fort Worth, etc., R. Co. v. Rogers, 21 Tex. Civ. App. 605; 53 S. W. Rep. 366.

63 Mobile, etc., R. Co. v. Hopkins, 41 Ala. 486, 504. 64 Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125, 18 Am. Rep. 360.