When a railroad company gives gratuitously, and a passenger
accepts, a pass, the former waives its rights as a common carrier
to exact compensation, and if the pass contains a condition to that
effect, the latter assumes the risks of ordinary negligence of the
company's employees; the arrangement is one which the parties may
make, and no public policy is violated thereby. And if the
passenger is injured or killed while riding on such a pass
gratuitously given, which he has accepted with knowledge of the
conditions therein, the company is not liable therefor either to
him or to his heirs, in the absence of willful or wanton
negligence.
A railroad company is not under two measures of liability -- one
to the passenger and the other to his heirs. The latter claim under
him, and can recover only in case he could have recovered had he
been injured only, and not killed.
A statute of Idaho reads as follows:
"When the death of a person, not being a minor, is caused
Page 192 U. S. 441
by the wrongful act or neglect of another, his heirs or personal
representatives damages against the person causing the death; or,
if such person be employed by another person who is responsible for
his conduct, then also against such other person. In every action
under this and the preceding section, such damages may be given as,
under all the circumstances of the case, may be just."
Revised Statutes of Idaho, § 4100.
Jay H. Adams resided in Spokane, Washington. He was a lawyer and
the attorney of several railway companies, though not in the employ
of petitioner. He was a frequent traveler on petitioner's and other
railways. On November 13, 1898, he, with a friend, started on one
of petitioner's trains from Hope, Idaho, to Spokane. The train
consisted of an engine and eight cars, those behind the express car
being in the following order: smoking car, day coach, tourist
sleeper, dining car, Pullman sleeper. All were vestibuled except
the tourist sleeper immediately in front of the dining car. It had
open platforms, as an ordinary passenger coach. Shortly after
leaving Hope, Mr. Adams, then in the smoking car, went back to the
dining car for cigars. To reach the dining car, he passed through
the day coach and the tourist sleeper. After buying cigars, he left
the dining car and went forward. This was the last seen of him
alive. His body was found the next day opposite a curve in the
railroad track about six miles west of Hope. There was no direct
testimony as to how he got off the train, whether by an accidental
stumble, or by being thrown therefrom through the lurching of the
train, which was going at a high rate of speed. The road from Hope
to the place where the body was found is in Idaho. He was riding on
a free pass containing these provisions:
CONDITIONS
"This free ticket is not transferable, and, if presented by
another person than the individual named thereon, or if any
alteration, addition, or erasure is made upon it, it is forfeited,
and the conductor will take it up and collect full fare. "
Page 192 U. S. 442
"The person accepting this free ticket agrees that the Northern
Pacific Railway Company shall not be liable, under any
circumstances, whether of negligence of agents or otherwise, for
any injury to the person, or for any loss or damage to the
property, of the passenger using the same."
"I accept the above conditions."
"Jay H. Adams"
"This pass will not be honored unless signed in ink by the
person for whom issued."
This action was brought by the plaintiffs, the widow and son of
the deceased, in the Circuit Court of the United States for the
District of Washington. Verdict and judgment were in their favor
for $14,000, which were sustained by the Court of Appeals for the
Ninth Circuit, 116 F. 324, and thereupon the case was brought here
on a writ of certiorari. 187 U.S. 643.
Page 192 U. S. 448
MR. JUSTICE BREWER delivered the opinion of the Court.
As the negligence of the company, found by the jury to have
Page 192 U. S. 449
caused the death, as well as the resulting death, took place in
Idaho, the plaintiffs' right of action rests on the statute of that
state. What is the scope and meaning of that statute? The circuit
court charged the jury:
"You are not to consider what was the duty of this carrier
toward Mr. Adams who was killed, but the duty which the defendant
owed to these plaintiffs, and the duty which they have the right to
exact from the defendant in this case is the same duty which the
defendant company owed to the public in general."
In other words, although it should appear that the company in no
respect failed in its duty to the deceased, it could yet be held
responsible to the widow and son for the damages they suffered by
reason of the death. But that is a misconception. Their right of
action arises only when his death is caused by "the wrongful act or
neglect." If there be no omission of duty to the decedent, his
heirs have no claim. Suppose an individual is wantonly assailed,
and, in order to protect his own life, is obliged to kill the
assailant -- may the heirs of the decedent have that act of taking
life, rightful as against the decedent, adjudged wrongful as
against them, and recover damages from one who did only that which
his duty to himself and family required him to do? The statute does
not provide that, when one's life is taken by another, the heirs of
the former may recover damages, but only when it is wrongfully
taken -- that is, when it is taken in violation of the rights of
the decedent; wrongful as against him. "Neglect" stands in the same
category with "wrongful act." It implies some omission of duty. The
trial court in this case charged the jury:
"Negligence, to create a liability on the part of parties in
fault, must be a failure to observe the degree of care and prudence
that is demanded in the discharge of the duty which the person
charged with the negligence owed under the peculiar circumstances
of the case to the injured party."
As stated in Pollock on Torts, p. 355, quoting from Baron
Page 192 U. S. 450
Alderson in
Blyth v. Birmingham Waterworks Company, 11
Ex. 784, 25 L.J.Ex. 213:
" Negligence is the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a
prudent and reasonable man would not do,"
"provided, of course, that the party whose conduct is in
question is already in a situation that brings him under the duty
of taking care."
The two terms therefore -- wrongful act and neglect -- imply
alike the omission of some duty, and that duty must, as stated, be
a duty owing to the decedent. It cannot be that, if the death was
caused by a rightful act, or an unintentional act, with no omission
of duty owing to the decedent, it can be considered wrongful or
negligent at the suit of the heirs of the decedent. They claim
under him, and they can recover only in case he could have
recovered damages had he not been killed, but only injured. The
company is not under two different measures of obligation -- one to
the passenger and another to his heirs. If it discharges its full
obligation to the passenger, his heirs have no right to compel it
to pay damages.
Did the company omit any duty which they owed to the decedent?
He was riding on a pass which provided that the company should "not
be liable, under any circumstances, whether of negligence of agents
or otherwise, for any injury to the person." He was a free
passenger, paying nothing for the privilege given him of riding in
the coaches of the defendant. He entered those coaches as a
licensee upon conditions which he, with full knowledge, accepted.
He was not a passenger for hire, such as was held to be the
condition of the parties recovering in
Railroad
Company v. Lockwood, 17 Wall. 357, and
Railway
Company v. Stevens, 95 U. S. 655. In
the first of these cases Mr. Justice Bradley, who delivered the
opinion of the Court, closed an elaborate discussion of the
questions with these words:
"We purposely abstain from expressing any opinion as to
Page 192 U. S. 451
what would have been the result of our judgment had we
considered the plaintiff a free passenger instead of a passenger
for hire."
The question, then, is distinctly presented whether a railroad
company is liable in damages to a person injured through the
negligence of its employees, who at the time is riding on a pass
given as a gratuity, and upon the condition, known to and accepted
by him, that it shall not be responsible for such injuries. It will
be perceived that the question excludes injuries resulting from
willful or wanton acts, but applies only to cases of ordinary
negligence. The facts of this case certainly do not call for any
broader inquiry than this. The specific matters of negligence
charged are the placing a nonvestibuled car in a vestibuled train,
and the high rate of speed at which the train passed around the
curve at the place of injury. But nonvestibuled cars are in
constant use all over the country -- were the only cars in use up
to a few years ago -- and further, the deceased, having passed over
the open platform, knew exactly its condition. As the court charged
the jury: "Mr. Adams must be presumed to have known that it was not
vestibuled, and to have acted with perfect knowledge of the fact."
The rate of speed was no greater than is common on other trains
everywhere in the land, and the train was, in fact run safely on
this occasion. We shall assume however, but without deciding, that
the jury were warranted considering the absence of the vestibuled
platform and the high rate of speed in coming around the curve, in
finding the company guilty of negligence; but clearly it was not
acting either willfully or wantonly in running its trains at this
not uncommon rate of speed, and all that can at most be said is
that there was ordinary negligence. Is the company responsible for
injuries resulting from ordinary negligence to an individual whom
it permits to ride without charge on condition that he take all the
risks of such negligence?
This question has received the consideration of many courts, and
been answered in different and opposing ways. We shall
Page 192 U. S. 452
not attempt to review the cases in state courts. Among those
which hold that the company is not responsible may be mentioned
Rogers v. Kennebec &c. Company, 86 Me. 261;
Quimby
v. Boston &c. R. Co., 150 Mass. 365;
Griswold v. New
York &c. Railroad Company, 53 Conn. 371;
Kinney v.
Central Railroad Company, 34 N.J.L. 513;
Payne v. Terre
Haute &c. Railway Company, 157 Ind. 616;
Muldoon v.
Seattle City Railway Company, 7 Wash. 528. This last case was
decided by the supreme court of the state, in which the federal
court rendering the judgment in controversy was held. The English
decisions are to the same effect.
McCawley v. Furness Railway
Company, L.R. 8 Q.B. 57;
Hall v. North Eastern Railway
Company, L.R. 10 Q.B. 437;
Duff v. Great Northern Railway
Company, L.R. 4 Com.Law 178;
Alexander v. Toronto &c.
Railway Company, 33 Up.Can.Q. 474. Among those holding that
the company is responsible are
Rose v. Des Moines Valley
Railroad Company, 39 Ia. 246, though that case is rested
partially on a state statute;
Pennsylvania Railroad Company v.
Butler, 57 Pa. 335;
Mobile & Ohio Railroad Company v.
Hopkins, 41 Ala. 486;
Gulf, Colorado &c. Railway
Company v. McGown, 65 Tex. 640.
Turning to the decisions of this Court, in
Philadelphia & Reading
Railroad Company v. Derby, 14 How. 468, and
Steamboat New World v.
King, 16 How. 469, the parties injured were free
passengers, but it does not appear that there were any stipulations
concerning the risk of negligence, and the companies were held
guilty of gross negligence. In
Baltimore & Ohio &c.
Railway v. Voigt, 176 U. S. 498,
Voigt, an express messenger riding in a car set apart for the use
of an express company, was injured by the negligence of the railway
company. There was an agreement between the two companies that the
former would hold the railway company free from all liability for
negligence, whether caused by the negligence of the railway company
or its employees. Voigt, entering into the employ of the express
company, signed a contract in writing
Page 192 U. S. 453
whereby he agreed to assume all the risk of accident or injury
in the course of his employment, whether occasioned by negligence
or otherwise, and expressly ratified the agreement between the
express company and the railway company. It was held that he could
not maintain an action against the railway company for injuries
resulting from the negligence of its employees. Mr. Justice Shiras,
who delivered the opinion of the Court, reviewed many state
decisions and concluded with these words (p.
176 U. S.
520):
"Without enumerating and appraising all the cases respectively
cited, our conclusion is that Voigt, occupying an express car as a
messenger in charge of express matter, in pursuance of the contract
between the companies, was not a passenger within the meaning of
the case of
Railroad Company v.
Lockwood, 17 Wall. 357; that he was not constrained
to enter into the contract whereby the railroad company was
exonerated from liability to him, but entered into the same freely
and voluntarily, and obtained the benefit of it by securing his
appointment as such messenger, and that such a contract did not
contravene public policy."
In the light of this decision, but one answer can be made to the
question. The railway company was not, as to Adams, a carrier for
hire. It waived its right as a common carrier to exact
compensation. It offered him the privilege of riding in its coaches
without charge if he would assume the risks of negligence. He was
not in the power of the company and obliged to accept its terms.
They stood on an equal footing. If he had desired to hold it to its
common law obligations to him as a passenger, he could have paid
his fare and compelled the company to receive and carry him. He
freely and voluntarily chose to accept the privilege offered, and,
having accepted that privilege, cannot repudiate the conditions. It
was not a benevolent association, but doing a railroad business for
profit, and free passengers are not so many as to induce negligence
on its part. So far as the element of contract controls, it was a
contract which neither party was bound to enter into,
Page 192 U. S. 454
and yet one which each was at liberty to make, and no public
policy was violated thereby.
It follows from these considerations that there was error in the
proceedings of the circuit court and court of appeals. The
judgments of those courts will be reversed, and the case remanded
to the Circuit court, with instructions to set aside the verdict
and grant a new trial.
MR. JUSTICE HARLAN and MR. JUSTICE McKENNA dissent.
