existed in either case, in the opinion of the court, that the ticket of the passage was strictly a gratuity; and it was held by the former court that under these circumstances the carrier and the passenger might lawfully agree that the passenger should bear the risks of transportation, and that such agreement would be enforced, while the reverse was held by the court of Texas.'

Where a minor accepted a free pass on a railroad, upon the express condition that he would make no claim for damages, for or on account of any personal injuries received while using it, in consequence of the negligence of the defendant's servants, and by such negligence he is killed in a collision, his personal representative is bound by the condition, and cannot maintain suit for damages for his death. It is insisted that while the carrier may not by contract release himself from liability for his negligence, where a compensation is paid him, yet where free transportation is accepted the arrangement between the parties ought not to be regarded as a contract with the railroad company, in its character as a common carrier, and therefore the stipulated exemption is no abdication of that rigid responsibility which the law imposes on common carriers. The gratuitous accommodation concerns only the immediate parties, unless in a very indirect way, by making the fare of other passengers higher, and to this it is answered that if the charges are unreasonable they may be subjected to governmental regulations, but that at all events such remote and indirect effect will not make the exemptions void on the ground of public policy, and it is pointed out that the reason sometimes assigned for denying exemption in case of negligence, that the carrier stands in a superior position and can compel acceptance of his terms, does not apply in the case of one holding a free pass. It is insisted that where, as in that case, the jury had found that the injury resulted from the gross negligence of the defendant's servants, confining such negligence exclusively to the servants, that the corporation should not be responsible in any moral sense, and that therefore no principle of public policy in that regard applied, and that in case of gross negligence the corporation can be no more culpable for the act of its servants than where their

Griswold v. New York & N. E. R. Co. 53 Conn. 371 (1885), and that of Gulf, C. & S. F. R. Co. v. McGown, 65 Tex. 643 (1886). See also Bryan v. Missouri Pac. R. Co. 32 Mo. App. 228.

negligence is slight, and that if the rule of respondeat superior is waived by the special contract, the protection of the corporation should be complete.'

When the injury occurred through the negligence of defendant's servants, and not through any failure on the part of the corporation to prescribe proper rules or furnish proper appliances for the conduct of its business, it has been decided that where one accepts purely as a gratuity a free passage upon a railroad train upon the agreement that he will assume all risk of accident which may happen to him, while traveling on such train, by which he may be injured in his person, no rule of public policy requires such contract shall be held invalid and without binding force."

It is urged on behalf of the plaintiff in the last case that while the relation of passenger and carrier is created by contract, it does not follow that the duty and responsibility of the carrier is dependent upon the contract; that while, with reference to matters indifferent to the public, parties may contract according to their own pleasure, they cannot do so where the public has an interest; that as certain duties are attached by law to certain employments, these cannot be waived or dispensed with by individual contracts; that the duty of the carrier requires that he should convey his passengers with safety; that he is properly held responsible in damages if he fails to do so by negligence, whether the negligence is his own or that of his servants, in order that this safety may be secured to all who travel. It is also said that the carrier and the passenger do not stand upon an equality; that the latter cannot stand out and higgle or seek redress in courts; that he must take the alternatives the carrier presents, or practically abandon his business in the transfer of merchandise, and must yield to the terms imposed on him as a passenger; that he ought not to be induced to run the risks of transportation, being allowed to travel at a less fare or for any similar reason, and thus to tempt. the carrier or his servants to carelessness which may affect others as well as himself; and that, in a few words, public policy forbids that contracts should be entered into with a public carrier by which he shall be exonerated from his full responsibility.

'Griswold v. New York & N. E. R. Co. 2 New Eng. Rep. 315, 53 Conn. 371. "Quimby v. Boston & M. R. Co. 5 L. R. A. 846, 150 Mass. 365.

Most of this reasoning, it is said in the opinion, can have no application to a strictly free passenger, who receives a passage out of charity or as a gratuity. That the carrier is not likely to urge upon others the acceptance of free passes, as the success of his business must depend on his receipts. That there can be no difficulty in the adjustment of terms where passes are solicited as gratuities. When such passes are granted by such of the railroad officials as are authorized to issue them, or other public carriers, it is in deference largely to the feeling of the community in which they are exercising a public employment. The instances, it is thought, cannot be so numerous that any temptation will be offered to carelessness in the management of their trains or to an increase in their fares, in both of which subjects the public is interested. The theory is advanced, that in such instances one who is ordinarily a common carrier does not act as such, but is simply in the position of a gratuitous bailee. The definition of a common carrier, which is that of a person or corporation pursuing the public employment of carrying goods or passengers for hire, does not apply under such circumstances. The service which he undertakes to render is one which he is under no obligation to perform, and is outside of his regular duties. In yielding to the solicitation of the passenger, he consents, for the time being, to put off his public employment and to do that which it does not impose upon him.

The plaintiff was in no way constrained to accept the gratuity of the defendant; it had been yielded to him only on his own solicitation. When he did this, there was no rule of public policy, in the judgment of the court, that prevented the carrier from prescribing, as the condition of it, that it should not be compelled, in addition to carrying the passenger gratuitously, also to be responsible to him in damages for the negligence of its servants.

It is well known that with all the care that can be exercised in the selection of servants for the management of various appliances of a railroad train, accidents will sometimes occur from momentary carelessness or inattention. It is regarded as unreasonable that, besides the gift of free transportation, the carrier should be held responsible for these, when he has made it the condition of his gift that he should not be. Nor, in holding that

he need not be under these circumstances, is any countenance given to the idea that the carrier may contract with a passenger to convey him for a less price on being exonerated from responsibility for the negligence of his servants. In such a case the car. rier would still be acting in the public employment exercised by him, and should not escape its responsibilities or limit the obligations which it imposes upon him.

A railway company is as much bound in its duty toward a passenger, who is an employé and has a pass over its road-bridge, as though it had received him for pay. And a railroad company bound by its contract to carry a mail clerk free, cannot contract afterwards with such clerk for exemption from liability.'

In some cases it has been held that while a carrier cannot limit his liability for gross negligence, which has been defined as his own personal negligence, (or that of the corporation itself where that is the carrier), he can contract for exemption from liability for the negligence of his servants. And it is sometimes ruled that an agreement, in consideration of a free pass over a railroad, that the company shall not be liable in case of personal injuries except for gross negligence, is binding on the passenger. But a doubt has been expressed whether any such distinction in degrees of negligence, and the right of a carrier to exempt himself from responsibility therefor, can be profitably made or applied.* There are other decisions to the effect that a contract by a gratuitous passenger waiving the liability of the carrier for injury from negligence, is not against public policy and is valid."

A contract by which an express messenger is exposed to substantially the same risk as those to which railroad baggagemen 1Pembroke v. Hannibal & St. J. R. Co. 32 Mo. App. 61. 'Seyboldt v. New York, L. E. & W. R. Co. 95 N. Y. 562.

Chicago, B. & N. R. Co. v. Hawk, 36 Ill. App. 327.

Quimby v. Boston & M. R. Co. 5 L. R. A. 846, 150 Mass. 365. See also The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019.

Elliott v. New York Cent. & H. R. R. Co. 33 N. Y. S. R. 861; Rice v. Illinois Cent. R. Co. 22 Ill. App. 643; Poucher v. New York Cent. R. Co. 49 N.Y. 263, 10 Am. Rep. 364; Welles v. New York Cent. R. Co. 26 Barb. 641; aff'd 24 N. Y. 181; Sunderland v. Westcott, 4 How. Pr. 468; Welles v. New York Cent. R. Co. 24 N. Y. 181; Perkins v. New York Cent. R. Co. 24 N. Y. 196; Bissell v. New York Cent. R. Co. 25 N. Y. 442; Kinney v. New Jersey Cent. R. Co. 34 N. J. L. 513, 3 Am. Rep. 265; Seybolt v. New York, L. & W. R. Co. 95 N. Y. 562; Higgins v. New Orleans, M. & C.R. Co. 28 La. Am. 133.

are regularly exposed, including that as to the negligence of the company's servant, is not unreasonable or against public policy.'

By the English decisions it is clear that the carrier has full power to provide by contract, subject by statute to the approval of the trial judge (Railroad and Canal Traffic Act of 1854), against all liability for negligence, where the passenger expressly contracts in consideration of a free pass or reduction of fare; but the carrier is liable for losses and injury in case no contract is made, occasioned not only by gross negligence, but by ordinary negligence.'

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

As the carrier discharges his duties as a public trust, holding his position by a public grant, and for the public use, as well as for his own profit, and as the obligation of the carrier is imposed to protect the passenger, as a citizen of the state, as well as for the traveler's personal benefit, it has been held generally that carriers are subject to the same liabilities for injuries resulting from negligence to persons riding on a free pass and those paying full fare. A person invited to ride free, may recover for injuries from negligence. A person riding free who has not assumed the risk of accident, may recover for injuries received through negligence of the carrier.' Where a person is riding free, by the consent of

5

1Bates v. Old Colony R. Co. 6 New Eng. Rep. 583, 147 Mass. 255. Duff v. Great Northern R. Co. L. R. 4 Ir. 178; Hall v. North Eastern R. Co. L. R. 10 Q. B. 437; Neville v. Cork etc. R. Co. 9 Ir. L. T. 69.

3 McCauley v. Furness R. Co. L. R. 8 Q. B. 57; Hall v. North Eastern R. Co. L. R. 10 Q. B. 437; Duff v. Great Northern R. Co. L. R. 4 Ir. 178; Alexander v. Toronto & N. R. Co. 33 U. C. Q. B. 474; Wyld v. Pickford, 8 Mees. & W. 460; Hinton v. Dibbin, 2 Q. B. 661; Wilson v. Brett, 11 Mees. & W. 115; Beal v. Southern Deron R. Co. 3 Hurlst. & C. 337; Grill v. General Iron Screw Collier Co. L. R. 1 C. P. 600; Gallin v. London & N. W. R. Co. L. R. 10 Q. B. 212, 12 Moak, Eng. Rep. 268, 35 U. C. Q. B. 453. Grand Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. ed. 535. Louisville, N. A. & C. R. Co. v. Faylor, 126 Ind. 126, and authorities cited. Wilton v. Middlesex R. R. Co. 107 Mass. 108, 9 Am. Rep. 11; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Files v. Boston & A. R. Co. 149 Mass. 204.

"Quimby v. Boston & M. R. Co. 5 L. R. A. 846, 150 Mass. 365; Littlejohn v. Fitchburg R. Co. 2 L. R. A. 502, 148 Mass. 478; Hurt v. Southern R. Co. 40 Miss. 391; Nolton v. Western R. Corp. 15 N. Y. 444; Perkins v. New York Cent. R. Co. 24 N. Y. 196; Todd v. Old Colony & F. R. R. Co. 3 Allen, 18; Carroll v. Staten Island R. Co. 65 Barb. 32; aff'd 58 N. Y. 126.