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of the train cannot be subordinated to the special comfort of the few persons who choose for their own convenience to travel on such trains. It is a fact well known that the acceptance of passengers on freight trains is a matter of accommodation to the public, and is generally discountenanced by railroad authorities in their own interests, and this is so well recognized that many state legislatures have checked the courts in their hostile rulings and denied by statute a recovery for injury received in the ordinary travel upon freight trains. Indeed the peril to passenger trains from the necessary proximity of freight trains to depots, is sufficiently apparent to deter any thoughtful court from attempts to regulate the running of railroads, by requiring the use of such places by freight trains. If one choose to enter a train, the chief purpose of which is the receiving, transporting and delivery of freight, he must enter at the points most convenient for receiving and discharging freight. Of course reasonable care must be taken by the carriers of freight when they accept passengers, though for their own convenience, not to expose them to needless danger on entering or leaving the train.' Certainly they must exercise reasonable care not to place them, on leaving the train, in dangerous places on dark nights, without light and without notice of the danger. A railroad company is under the same obligation to stop a freight train on which it carries passengers at a station or safe landing place as it is under to stop a regular passenger train at such points of security.'

The conductor of a mixed train who stops it for the usual time, having told a dilatory passenger that he must get on the coach as it then stands, 75 or 100 yards from the passenger station, is not bound, in order to relieve the company from liability, to look after the passenger's movements, and refrain from giving the signal to move the train until assured that the passenger is on board. Yet the act of a conductor of a freight train, in turning away from passengers whom he sees about to board the train, Peber v. Bond, 38 Fed. Rep. 822; Arkansas M. R. Co. v. Canmın, 52 Ark. among whom are several small children, and deliberately ordering a brakeman to signal the engineer to back the train without warning to such passengers and without any signal but a slight wave of the brakeman's hand,—is a clear case of culpable negligence.'

517; Mansf. Ark. Dig. $ 5477. March v. Concord R. Co. 29 N. H. 942. *Browne v. Raleigh & G. R. Co. 108 N. C. 34. *Central R. & Bkg. Co. v. Smith, 80 Ga. 526. 'Alabama G. S. R Co. v. Sellers (Ala.) 10 Ry. & Corp. L. J. 224. Brorene v. Raleigh & G. R. Co. 108 N. C. 34.

A railroad company is liable, where one, having the care of stock in a freight car, attempts to enter the car with the assurance of the conductor that it is safe and that he will have ample time to do so, and is injured by the sudden movement of the train while in the act of entering the car. It is liable for injuries to a passenger in charge of stock upon its stock train, by the sudden motion of the train while he is boarding the car, where the engineer saw him going to the train under such circumstances as to create a reasonable inference that he was about to get aboard.'

Until the government adopts a more paternal attitude toward its citizens, and forbids them to use their own judgment in traveling upon freight trains, assuming all risks incident to the use of the trains for the purpose for which they are intended, it cannot be expected that courts will interfere and substitute assumed judicial knowledge for actual practical railroad experience in the management of trains. There are rulings upon the subject in which expressions are used which cannot be sustained as sound law. But an examination of the cases will sustain the views herein expressed as in accordance with reason and well considered decisions. Of course as the train partakes more or less of a passenger train, the rule will be rigidly enforced or relaxed.

Where a passenger freight train stopped at an inconvenient place, and a female passenger was justified in supposing it would stop at the platform, and her presence being discovered as the

Norfolk & W. R. Co. v. Groseclose (Va.) 15 Va. L. J. 645.

Olson v. St. Paul & D, R. Co. 45 Minn. 536.
3Pitcher v. Lake Shore & M. 8. R. Co. 40 N. Y. S. R. 896.
Browne v. Raleigh & G. R. Co. 108 N. C. 34; Murch v. Concord R. Corp. 29

N. H. 9, 42; Dillaye v. New York Cent. R. Co. 56 Barb. 30; Alender v.
Chicago, R. I. & P. R. Co. 37 Iowa, 264; Hazard v. Chicago, B. & Q. R. Co. 1
Biss. 503; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed.
898; Ohio & M. R. Co. v. Dickerson, 59 Ind. 317; McGee v. Missouri Pac.
R. Co. 10 West. Rep. 282, 92 Mo. 208; Shoemaker v. Kingsbury, 79 U. S.
12 Wall. 369, 20 L. ed. 432; New York, C. & St. L. R. Co. v. Doane, 1 L.
R. A. 157, 115 Ind. 435; White Water Valley R. Co. v. Butler, 12 West.
Rep. 207, 112 Ind. 598; Wooler v. Louisville, N. A. & C. R. Co. 5 West.
Rep. 667, 107 Ind. 381.

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train passed the station, it was negligence in the company in not returning to the station or assisting her to alight from the train when it stopped or in reaching the station in safety, and she was not guilty of negligence in not discovering gates into a private enclosure through which the station might be reached by an unmarked route; and the company is liable for injuries suffered by her falling into a cattle guard while attempting to cross it.'

New York, C. & St. L. R. Co. v. Doane, 1 L. R. A. 157, 115 Ind. 435.

CHAPTER XIV.

CONTRACT RELEASING LIABILITY-FREE TRANSPORTATION

REDUCED FARE.

$ 79. Contract Erempting from Liability for Negligence. $ 80. Limitation of Liability by Contract. 8 81. Liability to One Holding Drover's Pass. '$ 82. Invalidity of Stipulations on Drover's Pass to Release Liability. $ 83. Free Transportation on Condition of Exemption from Liability

for Negligence. $ 84. Free Transportation will not Sustain Contract Excusing Neg

ligence.

$ 79. Contracts Exempting from Liability for

Negligence.

The general rule is that a common carrier cannot by contract exempt itself from liability for injuries and damages resulting from its own negligence or negligence of its servants. The public have an interest in the contract which a private individual cannot waive.'

Common carriers may limit their common law liability by express contract against risks not arising from their own negligence. But courts will look to the real relations of the carrier and passenger, regardless of any fiction or pretense of agreement and declare the liabilities arising from the actual relation of the parties as the law and public policy demand. Mr. Justice Bradley, after full discussion of the question and a clear review of the authorities, both in America and England, has declared such contracts are in contravention of public policy, and reaches the following conclusions: “First, that a common carrier cannot lawfully 1 Willis v. Grand Trunk R. Co. 62 Me. 458; Mann v. Birchard, 40 Vt. 326;

Squire v. New York Cent. R. Co.98 Mass. 239, 246; Louisville & N. R. Co. v. Oden, 80 Ala. 38: Wallingford v. Columbia & G. R. Co. 26 S. C. 258;

Grogan v. Adams Exp. Co. 5 Cent. Rep. 298, 114 Pa. 523. Merrill v. American Exp. Co. 62 N. H. 514; Rand v. Merchants Dispatch

Tranxp. Co. 59 N. H. 363; Barter v. Wheeler, 49 N. H. 930; Moses v. Bostom 4: M. R. Co. 24 N. H. 71, 90.

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stipulate for exemption from liability when such exemption is not just and reasonable in the eye of the law; secondly, that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for negligence of himself or his servants; thirdly, that these rules apply both to common carriers of goods and carriers of passengers for hire, and with special force to the latter; fourthly, that a drover. traveling on a pass, snch as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire."

In another case, where the owner of a patented car coupling negotiating for its sale, was requested by the company to see the superintendent of its car department, with an offer to pay his expenses, and in pursuance of this arrangement was su furnished with a free pass to carry him, it was not a case of gratuitons carriage, but a carriage for hire and it was not proper for the carrier in such

а a case to stipulate for freedom from liability for negligence, even if he could have done so in the case of gratuitous carrying. The decision in the former case was approved, and it was added "we do not mean to imply, however, that we should have come to different conclusions had the plaintiff been a free passenger instead of a passenger for hire," and it is questioned whether what is held as a great public trust can be said to be absolutely the property of the carrier, and in this country it is said the business of a common carrier is emphatically a branch of the public service, and the conditions on which public service should be performed by private enterprise are not yet entirely settled. And in a still later case,' it is held that the stipulation in the bills of lading, then in question, that the carriers “shall not be liable for loss or damage by fire, collision, or the dangers of navigation,” clearly does not protect them from liability for any loss occasioned by their own negligence; that the settled doctrine of the Supreme Court of the United States is that even an express stipulation in the contract of carriage, that a common carrier shall be exempt from liability for losses caused by the negligence of himself and his servants, is

1

New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. 'Grand Trunk R. Co. v. Sterens, 95 U. S. 655, 24 L. ed. 535. Phænir Ins. Co. of Brooklyn v. Erie & W. Transp. Co. 117 C. S. 312, 29 L.

ed. 873.

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