Where, in an action for personal injuries, the trial court
submits to the jury the question whether a person riding on a pass
is or is not a free passenger, and there is a general verdict for
the defendant, that question of fact is settled in favor of the
defendant.
A person may not, through the intermediary of an agent, obtain a
privilege -- a mere license -- and then plead ignorance of the
conditions upon which it was granted.
The duty of ascertaining the conditions on which a free pass is
given and accepted, when the same are plainly printed on the pass,
rests upon the person accepting and availing of the pass, and the
carrier is not bound at its peril to see that the conditions are
made known.
The facts in this case involved the right of the plaintiffs who
were husband and wife to recover for injuries sustained by the wife
while riding upon a pass which contained a stipulation relieving
the carrier from responsibility for injuries whether caused by
negligence of company's agents or otherwise, and are stated at
length in the opinion of the court.
Page 193 U. S. 448
MR. JUSTICE BREWER delivered the opinion of the Court.
This was an action brought in the Supreme Court of the District
of Columbia to recover damages for personal injuries sustained by
Mrs. Boering while riding in one of the coaches of the defendant,
and caused, as alleged, by the negligence of the company. Her
husband was joined with her as plaintiff, but no personal injury to
him was alleged. The defense was that she was riding upon a free
pass, which contained the following stipulation:
"The person accepting and using this pass thereby assumes all
risk of accident and damage to person and property, whether caused
by negligence of the company's agents or otherwise."
A trial before the court and a jury resulted in a verdict and
judgment for the defendant, which was affirmed by the Court of
Appeals of the district, 20 App.D.C. 500, and thereupon the case
was brought here on error.
The contention of the plaintiffs is that the company was liable
in any event for injuries caused by its negligence to one
Page 193 U. S. 449
riding on its trains, and further that, if it were not liable
for such negligence to one accepting a free pass containing the
stipulation quoted, it was liable to Mrs. Boering, because it did
not appear that she knew or assented to the stipulation. The trial
court submitted to the jury the question whether she was, in fact a
free passenger, and as the verdict was in favor of the defendant,
that question of fact was settled in favor of the company. Under
those circumstances, the recent decision of this Court in
Northern Pacific Railway Company v. Adams, 192 U.
S. 440, disposes of the first contention.
With reference to the second contention, the testimony of the
two plaintiffs showed that the husband had attended to securing
transportation; that he obtained passes for himself and wife, and
that they had traveled on these passes before; that she knew the
difference between passes (she called them "cards") and tickets,
for on that day her husband had purchased a ticket for a friend who
was traveling with them, and she had seen him use both ticket and
passes. They further testified that she had not had either pass in
her possession, and that her attention had not been called to the
stipulation. Now it is insisted that the exemption from liability
for negligence results only from a contract therefor; that there
can be no contract without knowledge of the terms thereof and
assent thereto, and that she had neither knowledge of the
stipulation nor assented to its terms; that therefore there was no
contract between her and the company exempting it from liability
for negligence. Counsel refer to several cases in which it has been
held that stipulations in contracts for carriage of persons or
things are not binding unless notice of those stipulations is
brought home to such passenger or shipper. We do not propose in any
manner to qualify or limit the decisions of this Court in respect
to those matters. They are not pertinent to this case. They apply
when a contract for carriage and shipment is shown. When that
appears, it is fitting that any claim of limitation of the ordinary
liabilities arising from such a contract should not be recognized
unless both parties to the
Page 193 U. S. 450
contract assent, and that assent is not to be presumed, but must
be proved. Here, there was no contract of carriage, and that fact
was known to Mrs. Boering. She was simply given permission to ride
in the coaches of the defendant. Accepting this privilege, she was
bound to know the conditions thereof. She may not, through the
intermediary of an agent, obtain a privilege -- a mere license --
and then plead that she did not know upon what conditions it was
granted. A carrier is not bound, any more than any other owner of
property, who grants a privilege, to hunt the party to whom the
privilege is given, and see that all the conditions attached to it
are made known. The duty rests rather upon the one receiving the
privilege to ascertain those conditions. In
Quimby v. Boston
& Maine Railroad, 150 Mass. 365, a case of one traveling
on a free pass, and in which the question of the assent of the
holder of the pass was presented, the court said (p. 367):
"Having accepted the pass, he must have done so on the
conditions fully expressed therein, whether he actually read them
or not.
Squire v. New York Central Railroad, 98 Mass. 239;
Hill v. Boston, Hoosac Tunnel & Western Railroad, 144
Mass. 284;
Boston & Maine Railroad v. Chipman, 146
Mass. 107."
So, in
Muldoon v. Seattle City Railway Company, 10
Wash. 311, 313:
"We think it may be fairly held that a person receiving a ticket
for free transportation is bound to see and know all of the
conditions printed thereon which the carrier sees fit to lawfully
impose. This is an entirely different case from that where a
carrier attempts to impose conditions upon a passenger for hire,
which must, if unusual, be brought to his notice. In these cases of
free passage, the carrier has a right to impose any conditions it
sees fit as to time, trains, baggage, connections, and, as we have
held, damages for negligence, and the recipient of such favors
ought at least to take the trouble to look on both sides of the
paper before he attempts to use them."
See also Griswold v. New York &c. Railroad Company,
53
Page 193 U. S. 451
Conn. 371;
Illinois Central Railroad Company v. Read,
37 Ill. 484, 510. As was well observed by Circuit Judge Putnam in
Duncan v. Maine Central Railroad Company, 113 F. 508, 514,
in words quoted with approval by the Court of Appeals in this
case:
"The result we have reached conforms the law applicable to the
present issue to that moral sense which justly holds those who
accept gratuities and acts of hospitality to perform the conditions
on which they are granted."
We see no error in the record, and the judgment of the Court of
Appeals is
Affirmed.