the company fairly obtained, he is a passenger, and entitled to all rights and privileges as such.' So, where he rides free at the invitation of an agent of the carrier, although the agent has violated his duty by inviting him, yet, if there is no collusion on his part with the agent to defraud the company, he is not deprived of his rights of remedies as a passenger as to injuries received through the negligence of the company." A person lawfully on a car and entitled to transportation is a passenger entitled to recover for an injury through the negligence of the carrier or its servants, whether the carrier receives an agreed compensation for his transportation or is compensated therefor by the charge for the car, or for transportation of property in his charge, or receives no compensation whatever." In an action against a railroad company by a person injured in a collision, the fact that the plaintiff was a stockholder on the road riding at the invitation of the president of the company, paying no fare, constituted no defense, where the collision was occasioned by the gross negligence of the defendant's servants, although plaintiff was not in a passenger car.* In an early Minnesota case," the considerations upon which the liability of the carrier is placed,—that of his safety as an individual, and his security as a citizen, the latter being founded upon public policy are held to be superior to any right of contract. Especially is this insisted upon as to the protection of the citizen. And this interest of the government is alike, whether the passenger travel free, conditionally or for hire. The sternness with which the rule of liability is enforced, the more diligent will be the care 1Feinberg v. Delaware, L. & W. R. Co. 52 N. J. L. 451; Files v. Boston & A. R. Co. 149 Mass. 204; Com. v. Vermont & M. R. Co. 108 Mass. 7; Littlejohn v. Fitchburg R. Co. 2 L. R. A. 502, 148 Mass. 478; Austin v. Great Western R. Co. L. R. 2 Q. B. 442; Todd v. Old Colony & F. R. R. Co. 3 Allen, 18; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; Jacobus v. St. Paul & C. R. Co. 20 Minn. 125; Rose v. Des Moines Valley R. Co. 39 Iowa, 246: Little Rock & Ft. S. R. Co. v. Miles, 40 Ark. 298; Blair v. Erie R. Co. 66 N. Y. 313; The New World v. King, 57 U.S. 16 How. 469, 14 L. ed. 1019. 'Brennan v. Fairhaven & W. R. Co. 45 Conn. 284, 29 Am. Rep. 679. Gulf, C. & S. F. R. Co. v. Wilson, 11 L. R. A. 486, 79 Tex. 371; Wilton v. Middlesex R. Co. 107 Mass. 108; Pittsburg, A. & M. Pass. R. Co. v. Caldwell, 74 Pa. 421; Washburn v. Nashville & C. R. Co. 3 Head, 638; Creed v. Penn sylvania R. Co. 86 Pa. 139; 2 Wood, Railway Law, 1039. Philadelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. ed. 502. Jacobus v. St. Paul & C. R. Co. 20 Minn. 125. exercised. The argument that a carrier will not relax his care because only a few passengers are unable to call him to account for its neglect, would release the carrier in case of a gratuitous passenger, where no stipulation of exemption was made. The reason for the rule failing, and no consideration having been paid, the rule of liability would not be enforceable. And in case of a train of free excursionists, is the carrier to be relieved of all sense of responsibility, and if so, is not the public policy of the state, in securing protection to the citizen, lost sight of? Although there be but few passengers traveling on a train, the chance, in case of accident from negligence, that only some of these will be injured is a present fact, and reduces the absolute certainty of liability as does any relaxation of the rule. The law cannot permit the carrier to speculate upon his chances of escape from liability for neglect of duty. "It is the enforcement of the rule and the liability imposed the mulcting of the carrier for his negligence—which brings home to him in the most practical, forcible, and effectual way, the necessity for strictly fulfilling his obligations.' In all cases when free tickets are given, it may be reasonably assumed, there are some considerations of interest, on profit or advantage, received or expected which constitutes the inducemennt to the giving of the ticket. In this view, there would probably seldom, if ever, be given by a carrier a strictly free ticket.' The possibility of an exception would not justify a departure from a rule of law resting upon public policy. Reviewing the decisions and the reasoning on which they rest, the weight of authority seems to be opposed even in case of a free passenger, to permitting advantage to be taken of the release in the event of injury from the carriers negligence. In the Supreme Court of the United States, it is ruled that the common law liability of a common carrier may be limited and qualified by special contract with the owner, provided such special contract does not attempt to cover losses by negligence or misconduct. And in a still later case,' where the decisions are extensively reviewed, the same doctrine is asserted. The latter case, it is true, involved mainly an inquiry into the reasonableness of 'Bissell v. New York Cent. R. Co. 25 N. Y. 442. "York Mfg. Co. v. Illinois Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170. New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. an exception stipulated for; but it unequivocally accepted the rule asserted in the first mentioned case. A person riding upon a pass on which was indorsed this condition: "The person who accepts and uses this free ticket, thereby assumes all risk of accident, and that the company shall not be liable under any circumstances, whether by neglect of its agents or otherwise, for any injury of the person, or for any loss or injury to his property." etc., can recover for an injury received through the negligence of defendant's employés.' 2 A carrier cannot exempt itself from liability for negligence by a stipulation in a free pass, notwithstanding a contrary rule was intimated,' which the court refused to follow. But a person traveling upon a free pass, cannot recover from the railroad company upon proof of the mere fact that, as he was standing upon the platform of a car, the porter shut the door so violently that he was thrown down and sustained injury; as such proof, taken alone, does not show negligence on the part of the carrier sufficient to make it liable to a gratuitous passenger." Usually the rule is equal care toward the passenger, whether he travel free or for a consideration, where the right to limit the responsibility is denied. Where carriers undertake to convey persons by the agency of steam, they should be held to the greatest possible care and diligence whether the considerations for such conveyance be pecuniary or not. The rule in this country, with the exceptions 'Jacobus v. St. Paul & C. R. R. Co. 20 Minn. 125, 18 Am. Rep. 360; Bryan v. Missouri Pac. R. Co. 32 Mo. App. 228; Rose v. Des Moines Valley R. Co. 39 Iowa, 246; Mobile & O. R. Co. v. Hopkins, 41 Ala. 486; Pennsylvania R. Co. v. Butler, 57 Pa. 335; Pennsylvania R. Co. v. McCloskey, 23 Pa. 526; Indianapolis, B. & W. R. Co. v. Beaver, 41 Ind. 493; Illinois Cent. R. Co. v. Morrison, 19 Ill. 136; Illinois Cent. R. Co. v. Read, 37 Ill. 484; Hospes v. Chicago, M. & St. P. R. Co. 29 Fed. Rep. 763; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 486, 14 L. ed. 502, 509; The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Pennsylvania R. Co. v. Henderson, 51 Pa. 315. Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362; Ohio & M. R. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719. Sturgeon v. St. Louis, K. C. & N. R. Co. 65 Mo. 569; Rice v. Kansas Pac. R. Co. 63 Mo. 314. Bissell v. New York Cent. R. Co. 25 N. Y. 442. 4 Carroll v. Missouri Pac. R. Co. 3 West. Rep. 842, 88 Mo. 239. Hospes v. Chicago, M. & St. P. R. Co. 29 Fed. Rep. 763. The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Hospes v. Chicago, M. & St. P. R. Co. 29 Fed. Rep. 763; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 486, 14 L. ed. 502. noted, does not distinguish between the care required in case of a free passenger and one for hire.' But there are exceptions to the rule holding that only ordinary care is required toward a free passenger. One fraudulently using a free pass issued to another, and not assignable, can only recover for injury in case of gross negligence even when a recovery is permitted." 'Flint & P. M. R. Co. v. Weir, 37 Mich. 111; Fay v. The New World, 1 Cal. 348; Flinn v. Philadelphia, W. & B. R. Co. 1 Houst. (Del.) 469; Ohio & M. R. Co. v. Muhling, 30 Ill. 9; Illinois Cent. R. Co. v. Read, 37 Ill. 484; Indiana Cent. R. Co. v. Mundy, 21 Ind. 48; Williams v. Taylor, 4 Port. (Ala.) 234. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450. 3 Toledo, W. & W. R. Co. v. Harrison, 10 Exch. 376. 505. Beggs, 85 Ill. 80. See Great Northern R. Co. v. CHAPTER XV. VESSEL CARRYING PASSENGERS-LIMITED LIABILITY. $85. Duty of Master of Vessel to Accept and Care for Passengers. § 86. Responsibility for Errors of Ship's Physician. § 87. Statutory Duty to Provide Qualified Physician. §88. Seaworthiness of Vessel and Competency of Officers-Statute Limiting Liability. § 89. Quarantine-Injury from Negligence. $85. Duty of Master of Vessel to Accept and Care for Passengers. A sailing vessel, steamboat or steamship which is a common carrier of passengers, is obliged to carry all persons who apply for passage if the accommodations are sufficient, unless there is a proper excuse for refusal. The refusal to take a passenger should precede the sailing of the ship. After the ship has gone to sea it is too late to take exceptions to the character of a passenger or to his peculiar position if he violate no inflexible rule of the boat in getting on board. Although a steamboat company or other carrier may properly refuse to transport a drunken or insane man or one whose character is bad, they cannot expel him after having admitted him as a passenger and received his fare unless he misbehaves during the journey. Where a passenger behaves himself properly and his fare is tendered, he is entitled to the same rights as other passengers, and a refusal to carry him is contrary to law, and although an apprehended danger mitigates the act, it has been said that it affords no legal justification for it. Where the captain of a vessel excludes a passenger from his boat in the well grounded fear that, if returned to the port to which the ship was bound he would be put to death, the legal injury suffered can be compensated by a small amount of money.' 1Pearson v. Duane, 71 U. S. 4 Wall. 605, 18 L. ed. 447. See also Jencks v. Coleman, 2 Sumn. 221; Bennett v. Peninsular & O. S. B. Co. 6 C. B. 775; Hancroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362: Elmore v. Sands, 54 N. . 512; Bennett v. Dutton, 10 N. H. 481; Day v. Owen, 5 Mich. 520; Sallonstall v. Stockton, Taney, 11; Cook v. Gourdin, 2 Nott. & McC. 22. |