A., who was the owner of a patented car-coupling, for the
adoption and use of which by a railway company he was negotiating,
went, at the request and expense of the company, to a point on its
road to see one of its officers in relation to the matter. A free
pass was furnished by the company to carry him in its cars. During
the passage, the car in which he was riding was thrown from the
track by reason of the defective condition of the rails, and he was
injured.
Held:
1. That the pass was given for a consideration, and that he was
a passenger for hire.
2. That, being such, his acceptance of the pass did not estop
him from showing that he was not subject to the terms and
conditions printed on the back of the pass, exempting the company
from liability for any injury he might receive by the negligence of
the agents of the company, or otherwise.
This was an action on the case for negligence, brought against
the Grand Trunk Railway of Canada, to recover damages for injuries
received by Stevens whilst a passenger in its cars. The plaintiff,
being owner of a patented car-coupling, was negotiating with the
defendant, at Portland, Me., for its adoption and use by the
latter, and was requested by the defendant to go to Montreal to see
the superintendent of its car department in relation to the matter,
the defendant offering to pay his expenses. The plaintiff consented
to do this, and, in pursuance of the arrangement, he was furnished
with a pass to carry him in the defendant's cars. This pass was in
the usual form
Page 95 U. S. 656
of free passes, thus, "Pass Mr. Stevens from Portland to
Montreal," and signed by the proper officer. On its back was the
following printed endorsement:
"The person accepting this free ticket, in consideration
thereof, assumes all risk of all accidents, and expressly agrees
that the company shall not be liable, under any circumstances,
whether of negligence by their agents or otherwise, for any injury
to the person, or for any loss or injury to the property, of the
passenger using the ticket. If presented by any other person the
individual named therein, the conductor will take up this ticket
and collect fare."
The plaintiff testified that he put the pass into his pocket
without looking at it, and the jury found specially that he did not
read the endorsement previous to the accident, and did not know
what was endorsed upon it. He had been a railroad conductor,
however, and had seen many free passes, some with a statement on
the back, others without.
During the passage from Portland to Montreal, the car in which
the plaintiff was riding ran off the track and was precipitated
down an embankment, and he was much injured. The direct cause of
the accident, according to the proof, was that, at the place where
it occurred, and for some considerable distance in each direction,
the bolts had been broken off the fishplates which hold the ends of
the rails together, so that many of these plates had fallen off on
each side, leaving the rails without lateral support. The
consequence was that the track spread, and the cars ran off, as
before stated. There was also evidence that at this place the track
was made of old rails patched up.
The above facts appeared on the plaintiff's case, and the
defendant offered no evidence, but requested the court to instruct
the jury as follows:
First, that if the plaintiff, at the time of sustaining
the injury, was traveling under and by virtue of the pass produced
in evidence in the case, he was traveling upon the conditions
annexed to it.
Second, that if the plaintiff, at the time of
sustaining the injury, was traveling under and by virtue of the
pass produced in evidence in the case, the defendant is not
liable.
Third, that if the plaintiff, at the time of sustaining
the
Page 95 U. S. 657
injury, was traveling as a free passenger, the defendant is not
liable
Fourth, that if the plaintiff, at the time of
sustaining the injury, was traveling as a gratuitous passenger,
without any consideration to the defendant for his transportation,
the defendant is not liable.
The court refused these instructions, as inapplicable to the
evidence produced, and instructed the jury as follows,
viz.:
That if the jury find that in May, 1873, the plaintiff was
interested in a car-coupling, which had been used on the cars of
the defendant since December previous, and that the officers of the
company were desirous that the plaintiff should meet them at
Montreal to arrange about the use of such couplings on their cars
by defendant, and they agreed with him to pay his expenses if he
would come to Montreal, and he agreed so to do, and took passage on
defendant's cars, and was, by the reckless misconduct and
negligence of the defendant, and without negligence on his part,
injured whilst thus a passenger in defendant's car, the defendant
is not exonerated from liability to plaintiff for his damages
occasioned by such negligence, by reason of the endorsement upon
the pass produced in evidence.
There was a verdict and judgment for the plaintiff. The
defendant then sued out this writ of error.
Page 95 U. S. 658
MR. JUSTICE BRADLEY delivered the opinion of the Court.
It is evident that the court below regarded this case as one of
carriage for hire, and not as one of gratuitous carriage, and that
no sufficient evidence to go to the jury was adduced to show the
contrary, and hence that under the ruling of this court in
Railroad Company v.
Lockwood, 17 Wall. 357, it was a case in which the
defendant, as a common carrier of passengers, could not lawfully
stipulate for exemption from liability for the negligence of its
servants. In taking this view, we think the court was correct. The
transportation of the plaintiff in the defendant's cars, though not
paid for by him in money, was not a matter of charity nor of
gratuity in any sense. It was by virtue of an agreement, in which
the mutual interest of the parties was consulted. It was part of
the consideration for which the plaintiff consented to take the
journey to Montreal. His expenses in making that journey were to be
paid by the defendant, and of these the expense of his
transportation was a part. The giving him a free pass did not
alter
Page 95 U. S. 659
the nature of the transaction. The pass was a mere ticket, or
voucher, to be shown to the conductors of the train, as evidence of
his right to be transported therein. It was not evidence of any
contract by which the plaintiff was to assume all the risk, and it
would not have been valid if it had been. In this respect it was a
stronger case than that of Lockwood's. There the pass was what is
called a "drover's pass," and an agreement was actually signed,
declaring that the acceptance of the pass was to be considered as a
waiver of all claims for damages or injury received on the train.
The court rightly refused, therefore, in the present case, to
charge that the plaintiff was traveling upon the conditions
endorsed on the pass, or that, if he traveled on that pass, the
defendant was free from liability. And the court was equally right
in refusing to charge, that, if the plaintiff was a free or
gratuitous passenger, the defendant was not liable. The evidence
did not sustain any such hypothesis. It was uncontradicted, so far
as it referred to the arrangement by virtue of which the journey
was undertaken.
The charge actually given by the court was also free from
material error. It stated the law as favorably for the defendant as
the latter had a right to ask. If subject to any criticism, it is
in that part in which the court supposed that the jury might find
that the plaintiff was injured by the reckless misconduct and
negligence of the defendant. If this degree of fault had been
necessary to sustain the action, there might have been some
difficulty in deducing it from the evidence. However, the condition
of the track where the accident took place, without any explanation
of its cause, was perhaps sufficient even for such an inference. If
the defendant could have shown that the injury to the rails was the
result of an accident occurring so shortly before the passage of
the train as not to give an opportunity of ascertaining its
existence, it did not do so, but chose to rest upon the evidence of
the plaintiff. In fact, however, negligence was all that the
plaintiff was bound to show, and of this there was abundant
evidence to go to the jury. On the whole, therefore, we think that
the charge presents no sufficient ground for setting aside the
verdict. The charge, if not formally accurate, was not such as to
prejudice the defendant.
It is strongly urged however, that the plaintiff, by
accepting
Page 95 U. S. 660
the free pass endorsed as it was, was estopped from showing that
he was not to take his passage upon the terms therein expressed, or
at least that his acceptance of the pass should be regarded as
competent, if not conclusive, evidence that such a pass was in the
contemplation of the parties when the arrangement for his going to
Montreal was made. But we have already shown that the carrying of
the plaintiff from Portland to Montreal was not a mere gratuity. To
call it such would be repugnant to the essential character of the
whole transaction. There was a consideration for it, both good and
valuable. It necessarily follows, therefore, that it was a carrying
for hire. Being such, it was not competent for the defendant, as a
common carrier, to stipulate for the immunity expressed on the back
of the pass. This is a sufficient answer to the argument
propounded. The defendant being, by the very nature of the
transaction, a common carrier for hire, cannot set up, as against
the plaintiff, who was a passenger for hire, any such estoppel or
agreement as that which is insisted on.
Since, therefore, from our view of the case, it is not necessary
to determine what would have been the rights of the parties if the
plaintiff had been a free or gratuitous passenger, we rest our
decision upon
Railroad Company v. Lockwood, supra. We have
no doubt of the correctness of the conclusion reached in that case.
We do not mean to imply, however, that we should have come to a
different conclusion had the plaintiff been a free passenger
instead of a passenger for hire. We are aware that respectable
tribunals have asserted the right to stipulate for exemption in
such a case, and it is often asked with apparent confidence "May
not men make their own contracts, or, in other words, may not a man
do what he will with his own?" The question at first sight seems a
simple one. But there is a question lying behind that: "Can a man
call that absolutely his own which he holds as a great public
trust, by the public grant, and for the public use as well as his
own profit?" The business of the common carrier, in this country at
least, is emphatically a branch of the public service, and the
conditions on which that public service shall be performed by
private enterprise are not yet entirely settled. We deem it the
safest plan not to anticipate questions until they fairly arise and
become necessary for our decision.
Judgment affirmed.
