McNeill v. . R. R.

This is a rehearing of the case originally decided in 132 N.C. 510, 95 Am. St. Rep., 641. We fully concur in our former opinion as to the illegality of the contract by which the defendant agreed to give to the plaintiff free personal transportation to an unlimited extent in consideration of certain advertising. The only ground on which we allow the petition is that the plea in pari delicto, applying solely to the contract of carriage, is not a defense to an action for personal injuries caused by the negligence of the defendant.

The plaintiff testified as follows: "Marshburn called on me for my ticket. I told him I had a pass for 1899, and showed it to him, and told him I would pay the regular fare if he wanted it. He said it was all right. I was the editor of the Carthage Blade, a newspaper published at Carthage. In 1899 I made a contract with the defendant to publish its time-table in my paper as the consideration for the (683) pass. I did publish the time-table, and the defendant agreed to contract and renew the pass for 1900. The contract was not in writing."

the superintendent of the defendant company testified that there was no such contract, but that the pass was a gratuity. This raised a question of credibility which, in the view we take of the case, becomes of no practical importance. In any event, it would be a question of fact for the jury. The contract for transportation was rendered absolutely void by the statute, founded upon public policy, whether based upon no consideration or upon the inadequate consideration of printing a timetable. The pass issued in pursuance of an alleged contract, and for the purpose of carrying out its unlawful purpose, inherits its invalidity. The defendant was free at all times to decline to carry the plaintiff except upon the payment of the usual fare, and to eject him from its train upon his refusal to pay. The fact that the pass had expired makes no difference, as in its character as a contract it never had any legal existence. Being without legal existence, it was equally void of legal effect; and conferring no rights upon the plaintiff, imposed upon him no obligations which the law will enforce. A void contract is thus defined in Lawson on Contracts, sec. 350: "A void contract is one destitute of legal effect. It is a mere nullity and good for no purpose whatever. It is binding upon neither party and may be attacked as invalid by strangers. It does not require any disaffirmance to avoid it, but may be simply disregarded and it cannot be ratified and made valid."

The pass itself being worthless, the conditions on the back thereof could have no application. They were not independent contracts, and if they had been, were totally wanting in a legal consideration. Therefore this case does not come within the principle laid down in R. R. v.Adams, 192 U.S. 440, where the pass was recognized as a lawful and valid contract for free transportation. By citing and (684) distinguishing that case, decided by a divided court, we do not mean to express our approval of its argument or conclusion. It is not necessary for us to consider it in the case now before us.

We may here repeat that it is not the unlawful contract for free transportation which renders a railroad company liable to the penalty, but it is the transportation itself. In view of this statute a free pass is a mere incident, as the same result could be obtained by issuing a thousand-mile ticket or one in ordinary form. The offense consists in the free carriage of a passenger, whether with or without a pass or ticket; and the offense is complete when such passenger is carried any appreciable distance. The railroad company may have issued to him a free pass or ticket from Raleigh to New York with impunity, but would become liable to the full penalties prescribed by the statute as soon as it had transported such passenger to the first station out of Raleigh. In using the term "free transportation," we mean to include all transportation which justly comes within the forbidden principle of discrimination. A mere colorable consideration will neither evade the penalties of the statute upon the one hand nor confer any rights upon the other.

We must bear in mind that while the statute renders absolutely void any contract for free transportation, so that neither party thereto can acquire any rights thereunder, it imposes the penalty only upon the transportation company. The act of free transportation alone is criminal. The party accepting such transportation is not guilty of a criminal act, whatever moral blame may attach to the reception of unlawful favors. Therefore, in contemplation of law, the parties cannot be considered in pari delicto. This difference is well expressed byPearson, J., speaking for the Court in Melvin v. Easley,52 N.C. 356. That was an action for deceit and false warranty in the sale of a horse on Sunday by a horse-trader, in violation of Rev. (685) Statutes, ch. 118, sec. 1. The Court says, on page 358: "It is said that the plaintiff knew the defendant was a horse-trader and concurred in his violation of the statute, and, consequently, was particepscriminis. Does this consequence follow? In crimes, there are accessories; in misdemeanors, all who aid or concur are held to be equally guilty, and are subject to like punishment with the party who commits the offense. This plaintiff is not guilty of violating the law, and is not subject to a penalty, so he cannot be particeps criminis in the legal sense of the term. He is not in pari delicto, and it is against the policy of the law and will defeat its object so to consider him. The Court will not aid any person who violates the law; therefore, the defendant could not maintain an action. This rule is adopted on the ground of policy, for the purpose of preventing a violation of the law, and if confined in its operation to the actual offender its application will be salutary, but if it be extended to the party who is not an offender, so far from checking it will encourage a violation of it by letting it be known to `horse-traders,' `shop-keepers' and `all whom it may concern,' that they may cheat with impunity, provided always, it may be done on the Lord's Day."

The plaintiff was lawfully upon the defendant's train, and testifies that he offered to pay his fare if required by the conductor. The conductor permitted him to ride free, not as a personal favor to him, but in furtherance of a contract between him and the company itself acting through its superior officers. There is no suggestion that the plaintiff was seeking to defraud the company in any manner or that there was any collusion between him and the conductor. He was in every respect a bonafide passenger, and entitled to all the protection incident thereto unless deprived thereof by the acceptance of free transportation.

The cases relied on to sustain the defense of in pari delicto (686) are chiefly of two classes, those involving a violation of the Sunday laws, and those growing out of the relation of the plaintiffs towards the National Government during the Civil War. The latter class, evoked from conditions now happily passed away forever, furnishes no criterion for the determination of the case at bar. It is enough to say that in both classes of cases the plaintiffs were actually engaged in the performance of an act expressly denounced as criminal by the law of the land as construed by the courts in which the actions were necessarily brought. Following are illustrative cases: Turner v. R. R., 63 N.C. 522;Martin v. Wallace, 40 Ga. 52; Wallace v. Cannon,38 Ga. 199, 95 Am. Dec., 385; R. R. v. Redd, 54 Ga. 33;Connolly v. Boston, 117 Mass. 64, 19 Am. Rep., 396; Smith v.R. R., 120 Mass. 491, 21 Am. Rep., 538; Lyons v. Desotello,124 Mass. 387; Holcomb v. Danby, 51 Vt. 428.

While entertaining the highest respect for the Lord's Day, the Sunday of the new law, we have not deemed it our duty to enforce its observance, so as to make it the shield of wrong. Rodman v. Robinson, at this term.

In the case at bar the plaintiff is certainly neither a tramp nor a trespasser, as both those terms imply an unlawful presence against the will of the owner. Hence it is needless to examine the cases dealing with such relations.

If the plaintiff's evidence be true, he was not a gratuitous passenger in the full sense of the term, inasmuch as he printed in his paper the schedule of trains in consideration of his otherwise free carriage. This was an inadequate consideration which rendered the contract void as an unlawful discrimination, but it was none the less a consideration of some actual value. But while this might, as between the plaintiff and the defendant, bring the case within the principle of R. R. v.Lockwood, 17 Wall., 357, we deem it proper to treat the plaintiff as a gratuitous passenger, in view of the unlawful consideration, and will cite the able opinion in that celebrated case only in so far as it (687) relates to this view of the case at bar.

It is often said that one becomes a passenger by virtue of a contract. This is not always so. A contract is a voluntary agreement between two parties, a coming together of two minds to a common intent, and yet a passenger may become such without a contract and indeed against the will of the carrier. A common carrier has no right to refuse a passenger without sufficient reasons, and such reasons so rarely occur and are so exceptional in their nature as to vary the general rule too slightly for practical consideration. Suppose the carrier without legal excuse should refuse to sell a ticket to one having the bona fide intention of becoming a passenger, and that the passenger should then enter the carrier's train in an orderly manner, take his seat in the proper car and tender his fare to the conductor, would the refusal of such fare deprive him of his legal status as a passenger? Assuredly not. He would be a passenger in the fullest meaning of the term, entitled to all rights, privileges and protection attaching to that relation; and yet there would be no actual contract between him and the carrier. But it may be said that the law raises an implied contract. even if we accept that form of expression, it simply means that the law imposes upon a common carrier certain duties and liabilities which adhere to the nature of his calling. We prefer to adopt the more direct expression, and say that those duties and liabilities are imposed by law upon common carriers upon considerations of public policy independent of contract and arise from the nature of their public employment. Contracts may be made with the carrier, but into all such contracts certain conditions are written by the hand of the law. One such condition is the inherent liability of the carrier for all injuries (688) proximately resulting from its own negligence or that of its servants.

But as we have already said, in the case at bar there was no legally existing contract, which is equivalent to saying there was no contract at all.

Viewing the plaintiff as a gratuitous passenger, and it appearing from the verdict that he was injured through the negligence of the defendant, we think that he is entitled to recover.

We have given this case most careful consideration, and have examined a very large number of authorities, but will cite those only which directly bear upon the case in the view we take of it, omitting needless repetitions from the same State. Neither time nor space will permit the discussion of cases having no essential relation to that at bar.

It is significant that the greater weight of authority is to the effect that a passenger may recover for injuries received from the negligence of a common carrier or its servants even when unlawfully traveling on Sunday or on a lawful pass with conditions endorsed thereon releasing the carrier from all liability. In both cases the cause of action is attributed to injuries resulting from the breach of a public duty. A fortiori, the plaintiff can recover for such negligence when the defendant alone is in the commission of an unlawful act and when there is no release of liability.

We will begin our citations from the Supreme Court of Pennsylvania, a Court which is not addicted to emotional jurisprudence, and has never shown any disposition to burden railroad management with unnecessary conditions or restrictions. In R. R. v. Butler, 57 Pa. St., 335, the intestate was killed while riding on a free pass on which a release was endorsed. Sharswood, J., speaking for the Court says, on page 337: "The first error assigned has been properly abandoned, as it is too well settled to be now controverted that a stipulation by a common (689) carrier that he shall not be liable for damages does not relieve him from responsibility for actual negligence by himself or servants." This case is cited with approval upon the same point in Burnett v. R. R., 176 Pa. St., 45, the latest case upon the subject.

In Carroll v. R. R., 58 N.Y. 126, 17 Am. Rep., 221, where the plaintiff was traveling on Sunday contrary to the statute, it was held that: "The duty imposed by law upon the carrier of passengers to carry them safely, as far as human skill and foresight can go, exists independently of contract. For a negligent injury to a passenger an action lies against the carrier, although there be no contract, and the service he is rendering is gratuitous; and whether the action is brought upon contract or failure to perform the duty the liability is the same. One violating the statute prohibiting travel upon Sunday (1 R. S., 628, sec. 70), is not without the protection of the law. The carrier owes to him the same duty as if he were lawfully traveling, and is responsible for a failure to perform it the same in the one case as in the other."

The Court says, pages 133, 154: "But we deem it unnecessary to decide the question, which was argued with great ability by counsel, touching the liability of the defendant in the action, treating it as founded upon the contract between the parties the gravamen of the action is the breach of the duty imposed by law upon the carrier of passengers to carry safely, so far as human skill and foresight can go, the persons it undertakes to carry. This duty exists independently of contract, and although there is no contract in a legal sense between the parties. Whether there is a contract to carry, or the service undertaken is gratuitous, an action on the case lies against the carrier for a negligent injury to a passenger. The law raises the duty out of regard for human life, and for the purpose of securing the utmost vigilance by carriers in protecting those who have committed themselves to (690) their hands. The liability of the carrier is the same whether the action is brought upon contract or upon the duty, and the evidence requisite to sustain the action in either form is substantially the same, and when there is an actual contract to carry it is properly said that the liability in an action founded upon the public duty is coextensive with the liability on the contract. This case, therefore, is not within the principle of many of the cases cited, which forbid a recovery upon a contract made in respect to a matter prohibited by law, or for a cause of action which requires the proof of an illegal contract to support it."

In Railroad v. Trautwein, 52 N.J. L., 169, 7 L.R.A., 435, 19 Am. St. Rep., 442, it was held that the plaintiff could recover although unlawfully traveling on Sunday, the Court saying, on pages 171, 172: "A contract to carry made on Sunday, or to be performed on Sunday, is, by force of the statute, illegal and void. No action could be maintained for the breach of such a contract, nor for services performed under it, where the right of action rests exclusively upon a contract, express or implied. It is also clear that a plaintiff will fail where, to make a cause of action, he is compelled to rely upon an illegal contract. But the duty of persons engaged in these public employments to safely carry is independent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons or property are received in the course of the business of such employments. Nor was the plaintiff's violation of the Sunday law, in a legal sense, the cause of her injury. It was only the occasion for an injury by the defendant's wrongful act, and hence her wrong-doing did not contribute to the injury in such a sense as to deprive her of her right of action; it was merely a condition and not a contributory cause of the injury."

(691) In State, use of Abell, v. R. R., 63 Md. 433, it was held that: "When a carrier undertakes without any special contract to carry a passenger gratuitously, the passenger is entitled to the same degree of care as if he had paid his fare." The Court says, on page 443: "The principle announced in this decision, that the duty of the carrier to convey safely, does not result from the consideration paid, but is imposed by law, has been recognized by this Court on the motion to reargue the case of Baltimore City Pass. Ry. Co. v. Kemp and Wife, 61 Md. 619, 480 Am.Rep., 134, where the Court says that a common carrier who accepts a party to be carried owes to that party a duty to be careful irrespective of contract, and this Court illustrates the principle by the example of a child for whom no fare is charged but who would recover in case of injury the result of negligence."

In Lemon v. Chanslor, 68 Mo., 340, 30 Am. Rep., 799, a gratuitous passenger injured by the breaking down of a hack was allowed to recover. The Court says, on page 357: "This, we think, was sufficient to authorize the instruction. The principle announced in it, that although plaintiff might have been a gratuitous passenger such fact constituted no defense, is supported by all the authorities which have come under our observation. While in some of them intimations are made that in the case of a gratuitous passenger the carrier may only be liable for gross negligence, it has not been held in any of them that such fact would exempt the carrier from all liability. On the contrary, the weight of authority favors the doctrine of holding the carrier of passengers to the same degree of diligence in all cases where one has been received as a passenger, on the principle that if "a man undertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence."

(692) In Jacobus v. Ry., 20 Minn. 125, 18 Am. Rep., 360, it was held that the plaintiff could recover although riding on a pass, as the same degree of care was required of the common carrier as if the plaintiff had been a passenger carried for hire. The Court says, on page 129: "In the case at bar, however, the plaintiff was not merely a gratuitous passenger, i.e., a passenger carried without payment of fare or other consideration. He was a passenger upon a free pass expressly conditioned that the defendant should not be liable to him for any injury of his person while he was using or having the benefit of such pass. Does this circumstance distinguish his case from that a merely gratuitous passenger? . . . There are two distinct considerations upon which the stringent rules as to the duty and liability of carriers of passengers rests. One is a regard for the safety of the passenger on his own account, and the other is a regard for his safety as a citizen of the State. The latter is a consideration of public policy growing out of the interest which the State or government asparens patriae has in protecting the lives and limbs of its subjects. . . . So far as the consideration of public policy is concerned, it cannot be over-ridden by any stipulation of the parties to the contract of passenger carriage, since it is paramount from its very nature. No stipulation of the parties in disregard of it, or involving its sacrifice in any degree, can, then, be permitted to stand. Whether the case be one of a passenger for hire (a merely gratuitous passenger) or of a passenger upon a conditioned free pass, as in this instance, the interest of the State in the safety of the citizen is obviously the same. The more stringent the rule as to the duty and liability of the carrier, and the more rigidly it is enforced, the greater will be the care exercised and the more approximately perfect the safety of the passenger. Any relaxation of the rule as to duty or liability naturally, and, it may be said, inevitably, tends to bring about a corresponding relaxation of care and diligence upon the part of the carrier. We can conceive of no reason why these propositions are not equally applicable to passengers (693) of either of the kinds above mentioned."

In Tibby v. Ry., 82 Mo., 292, the intestate was killed riding on a free pass on top of a cattle car. The plaintiff was allowed to recover, the Court saying, on page 300: "The contract of exemption from damages was properly excluded. A common carrier is not permitted to stipulate against its own negligence (citing cases). This rule, in its application to the carriage of passengers, has never been relaxed."

In Opsahl v. Judd, 30 Minn. 126, the plaintiff unlawfully traveled on Sunday was permitted to recover. The Court says, on page 128: "It is further contended that the deceased was, by accepting passage upon the steamboat, engaged in an unlawful act, and was particeps criminis with the defendants and their agents in violating the Sunday law. It is a sufficient answer to this objection that the defendants on that day occupied the relation of common carriers of passengers and their general obligation to use such care and diligence as the law enjoins is not limited by the contract with the passengers, nor with the person who engaged the use of the boat and the service of the crew for that day, but is governed by considerations of public policy. That the undertaking was unlawful does not touch the question. Carroll v. R. R.,58 N. Y., 126; Jacobus v. R. R., 20 Minn. 110. As remarked by the Court in that case, "any relaxation in the rule as to duty or liability naturally, and, it may be said, inevitably, tends to bring about a corresponding relaxation of care and diligence upon the part of the carrier."

In Rose v. R. R., 39 Iowa 246, it was held, quoting the headnote, that: "The payment of fare is not necessary to create the relation of common carrier and passenger. A railroad company was (694) held to be liable for causing the death of a passenger by the negligence of its employees, notwithstanding he was at the time riding upon a free pass, upon which was a stipulation, signed by himself, releasing the company from all liability for injury to his person or property while using the same." In its opinion the Court adopts the language used R. R. v. Derby, 14 How., 483.

In Russell v. R. R., 157 Ind. 305, 56 L.R.A., 253, 87 Am. St. Rep., 214, the release from liability given by a Pullman porter was held valid on the ground that he was not a passenger; but the Court uses the following language, on page 309: "The decisions of this State firmly establish that a common carrier of goods or passengers cannot contract with a customer for a release of the carrier from liability resulting from the latter's negligence" (citing cases).

The grounds upon which this prohibition rests are variously stated by the courts. It has been said that such exemptions are against public policy; that the public is interested in the exercise of care and diligence on the part of the carrier; that it is unreasonable for any person or corporation to contract for the privliege [privilege] of being negligent, and that the public is concerned with the life and security of every citizen. The fundamental reason, however, for holding common carriers, such as the appellee, liable for the results of their negligence, notwithstanding contracts exempting them therefrom, is that the State has granted them privileges which they exercise for the benefit of the public; in return for these, the common carrier impliedly undertakes to use due care and diligence in the transportation of both goods and passengers. This being a main inducement for the grant of its special rights, the carrier cannot by any special contract rid itself of the burden of responsibility, which is one of the conditions of its creation. Were it permitted to escape liability by entering into exonerating agreements, its position of advantage over its patrons would, in almost every (695) instance, enable it to force them such stipulations as it desired, and the object of the State in creating the carrier would be virtually defeated, the carrier thus being able to abandon the duty imposed upon it by the State. As said in the case of R. R. v. Faylor,126 Ind. 126, at page 130: "A stipulation that the carrier shall not be bound to the exercise of care and diligence is in effect an agreement to absolve him from one of the essential duties of his employment, and it would be subversive of the very object of the law to permit the carrier to exempt himself from liability by a stipulation in his contract with a passenger that the latter should take the risk of the negligence of the carrier or of his servants. The law will not allow the carrier thus to abandon his obligation, to the public, and hence all stipulations which amount to a denial or repudiation of duties, which are of the very essence of his employment, will be regarded as unreasonable, contrary to public policy, and therefore void."

In R. R. v. Curran, 19 Ohio St. 1, 2 Am. Rep., 362, at page 12, the Court says: "Carriers, of the class of the plaintiff in error, are creatures of legislation and derive all their powers and privileges by grant from the public. They are created to effect public purposes, as well as to subserve their own interest. They are intended by the law of their creation to afford increased facilities to the public for the carriage of persons and property, and, in performing this office, they assume the character of public agents, and impliedly undertake to employ in their business the necessary degree of skill and care. This obligation arises from the public nature of the employment, and is founded on the policy of the law for the protection of the persons and property of the public, which must of necessity be committed, to a very great extent, to the care of public carriers. . . . It cannot be denied that the pecuniary liabilities for negligence promotes care; and (696) if public carriers in conducting their business can graduate their charges so as to discharge themselves from such liability, the direct effect will be to encourage negligence by diminishing the motives for diligence."

In Davis v. Ry., 93 Wis. 470, 33 L.R.A., 654, 57 Am. St. Rep., 935, it was held: "A stipulation in a contract for the carriage of a passenger exempting the carrier from liability for injuries caused by its negligence or the negligence of its agents or employees is void as against public policy," the Court saying, on page 479: "It is very well established in this State that a contract for such an exemption from liability by a common carrier is void, as against public policy. The defendant could not, by any agreement, however plain and explicit, wholly relieve itself from liability for injuries caused by its negligence or the negligence of its agents or employees."

In Ry. v. McGown, 65 Tex. 640[65 Tex. 640], it was held, quoting the headnotes, that: "A common carrier of passengers cannot by contract relieve itself from responsibility, or even limit its liability, for injuries to a passenger resulting from the negligence of itself or its employees, or agents, in the scope of their employment; and this is so with reference as well to passengers traveling free of charge as to those paying full fare. The liability of the carrier of passengers does not depend on the fact that compensation for the passenger has been paid to it, but the same degree of care is incumbent on the carrier in the case of a passenger traveling on a free pass as in the case of one paying full fare."

The Court says, on page 646: "The relation of passenger and carrier is created by contract, express or implied, but it does not follow from this that the extent of liability or responsibility of the carrier is, in any respect, dependent on a contract. In reference to matters (697) indifferent to the public, parties may contract as they please; but not so in reference to matters in which the public has an interest. For the purpose of regulating such matters, rules have been established, by statute or the common law, whereby certain duties have been attached to given relations and employments. These duties attach as matter of law, and without regard to the will or wish of the party engaged in the employment, or of the person who transacts business with him in the course thereof; and this is so for the public good. Duties thus imposed are not the subject of contract. They exist without it, and cannot be dispensed with by it. The violation of such a duty is a tort. The law declares that it is the duty of a public carrier of passengers to use the highest degree of care to insure their safety. Why was not this left to be settled by the contract of the carrier and passenger? Certainly for no other reason than that the employment itself was of such a nature as to make it a matter of public concern. None could be of greater public concern, at the present day, than these employments by which men, women and children are transported by millions by agencies of a most dangerous character and with a speed heretofore unknown."

In R. R. v. Crudup, 63 Miss. 291, it was held that a mail agent traveling on a "free ticket" could recover, the Court saying, on page 302: "The Court properly excluded the evidence proposed by the defendant to show that the deceased had accepted a `free ticket' by which he relieved the company from liability for the negligence of its servants. By their contract with the government the company received compensation for transporting both the mail and its custodians, and there would have been no consideration for the obligation entered into by the deceased to waive damages, and in addition to this it may be added that such a contract is against public policy; the duty which (698) common carriers owe to all persons carried by it, viz., not to be guilty of negligent injury, is one against the breach of which they may not protect themselves by private contract."

In R. R. v. Hopkins, 41 Ala. 486, 94 Am. Dec., 607, the Court says: "We do hold, however, that it makes no difference whether the service is performed gratuitously or not, in regard to the obligation to perform it well, after it is once entered upon; for ever since the decision of the leading case of Coggs v. Bernard, 2 Smith's Lead. Cas., 82, it has been regarded as sound law that `the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.' And we hold further, that in undertaking the performance of gratuitous transportation the common carrier can no more stipulate for exemption from liability for damage occasioned by the negligence, or willful default, or tort, of himself or his servants, than he can when he receives a reward for the service to be performed. Both are alike prohibited by a sound public policy, which also forbids a gratuitous bailee not bound by the considerations of public duty attached to the office of a common carrier from stipulating that he may be fraudulently negligent or safely dishonest. Railroad companies are incorporated in part, at least, from public considerations and for the public good. As carriers of persons and property it has been held they may be considered as acting in a public capacity and as a kind of public officers. The exercise of honesty, care and diligence by them or their agents and employees is a public duty resulting from their position, the obligation to perform which cannot be thrown off by contract. If thus thrown off the effect would be to relax or modify the performance of the duty and to promote a relaxation of proper care in the selection of agents and servants for its performance."

In Waterbury v. R. R., 17 Fed. Rep., 671, it was held (699) that: "The right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the company to carry him safely. It suffices to enable him to maintain an action for negligence if he was being carried by the railroad company voluntarily, although gratuitously, and as a mere matter of favor to him."

Wallace, C. J., says, on page 672: "A careful examination of the evidence shows quite satisfactorily that the case did not justify the assumption in any aspect of it that the plaintiff was entitled to be carried as a passenger as an implied condition of the contract to carry his cattle. The most that can be fairly claimed for the plaintiff upon the evidence is that he was riding upon the engine permissively. If he was riding there with the consent of the defendant, express or implied, it is not material, so far as it affects the defendant's liability for negligence, whether he was there as a matter of right or a matter of favor, as a passenger or a mere licensee. It suffices to enable him to maintain an action for negligence if he was being carried by the defendant voluntarily. If the defendant undertook to carry him, although gratuitously, and as a mere matter of favor to himself, it was obligated to exercise due care for his safety in performing the undertaking it had voluntarily assumed.R. R. v. Derby, 14 How., 468; Steamboat v. King, 16 How., 469. The carrier does not, by consenting to carry a person gratuitously, relieve himself of responsibility for negligence. When the assent to his riding free has been legally and properly given, the person carried is entitled to the same degree of care as if he paid his fare.Todd v. R. R., 3 Allen, 18, 80 Am. Dec., 49. As is tersely stated by Blackburn, J., in Austin v. R. R., 15 Weekly Rep., 863, `the right which a passenger by railway has to be carried (700) safely does not depend on his having made a contract, but the fact of his being there creates a duty on the part of the company to carry him safely.'"

In R. R. v. Derby, 14 How., 468, it was held that a gratuitous passenger could recover, the Court saying, on page 484: "The liability of the defendants below for the negligent and injurious act of their servant is not necessarily founded on any contract or privity between the parties, nor affected by any relation, social or otherwise, which they bore to each other. It is true a traveler by stage coach or other public conveyance who is injured by the negligence of the driver has an action against the owner founded on his contract to carry him safely. But the maxim of `respondeatsuperior,' which, by legal imputation, makes the master liable for the acts of his servant, is wholly irrespective of any contract, expressed or implied, or any other relation between the injured party and the master. If one be lawfully on the street or highway, and another's servant carelessly drives a stage or carriage against him and injures his property or person, it is no answer to an action against the master for such injury, either that the plaintiff was riding for pleasure, or that he was a stockholder in the road, or that he had not paid his toll, or that he was the guest of the defendant, or riding in a carriage borrowed from him, or that the defendant was the friend, benefactor, or brother of the plaintiff. These arguments, arising from the social or domestic relations of life may, in some cases, successfully appeal to the feelings of the plaintiff, but will usually have little effect where the defendant is a corporation, which is itself incapable of such relations or the reciprocation of such feelings. In this view of the case, if the plaintiff was lawfully on the road at the time of the collision the Court were right in instructing the jury that none of the antecedent circumstances or accidents of his situation could affect his right to recover. . . . This duty does not result alone from the (701) consideration paid for the service. It is imposed by the law, even where the service is gratuitous." "The confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it. (See Coggs v. Bernard, and cases cited in 1 Smith's Leading Cases, 95). It is true a distinction has been taken in some cases between simple negligence and great or gross negligence, and it is said that one who acts gratuitously is liable only for the latter. But this case does not call upon us to define the difference (if it be capable of definition), as the verdict has found this to be a case of gross negligence." "When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross."

The citations of this celebrated case will be found in 5 Rose's Notes, pages 275, 284.

In Steamboat v. King, 16 How., 469, Curtis, J., speaking for the Court, says on page 474: In R. R. v. Derby, 14 How., 486, which was a case of gratuitous carriage of a passenger on a railroad, this Court said: `When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of gross.' We desire to be understood to reaffirm that doctrine as resting not (702) only on public policy but on sound principles of law."

In the celebrated case of R. R. v. Lockwood, 17 Wall., 357, than which there are few opinions more able or more widely cited and approved, it was held, quoting the language of the Court at the conclusion of its opinion on page 384, that:

"First. That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law.

"Secondly. That it is not just and responsible in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.

"Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.

"Fourthly. That a drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.

"These conclusions decide the present case, and require a judgment of affirmance. We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire."

The plaintiff was traveling on what was called a drover's pass, which expressly stipulated that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. The Court held that while the pass was professedly gratuitous on its face, it was in fact given as part of the original contract for shipping the cattle. The case is treated as a carriage for hire, but the reasoning of the opinion clearly applies to all classes of passengers. Justice Bradley, speaking for the Court, says, on page 376: (703) "It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character and becomes an ordinary bailee for hire, and, therefore, may make any contract he pleases. That is, he may make any contract whatever, because he is on ordinary bailee; and he is an ordinary bailee because he has made the contract.

"We are unable to see the soundness of this reasoning. It seems to us more accurate to say that common carriers are such by virtue of their occupation, not by virtue of the responsibilities under which they rest."

Again, the Court says, on page 377: "In regulating the public establishment of common carriers the great object of the law was to secure the utmost care and diligence in the performance of their important duties, an object essential to the welfare of every civilized community. Hence the common law rule which charged the common carrier as an insurer. Why charge him as such? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence and fidelity underlies the law, and is the reason for it; in the other it is directly and absolutely prescribed by law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be a liberty to indulge in the contrary, he seeks to put off the essential duties of his employment. And to assert that he may do so seems almost a contradiction in terms."

And again, on page 381: "Hence, the exemptions referred to were deemed reasonable and proper to be allowed. But the proposition to allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages (704) of the law."

The extent to which this case has been cited and approved will be shown by reference to 8 Rose's Notes, page 48.

In Ry. v. Stevens, 95 U.S. 655, the Court says, on page 660: "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 R. R. 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."

In R. R. v. Sullivan, 120 Fed. Rep., 799, 61 L.R.A., 410, it was held that: "Riding in the coach set apart for colored passengers, contrary to the rules of the carrier and provisions of the statute, is not negligence on the part of a white person which will prevent a recovery for his death through the negligence of the carrier, although he would not have been injured had he not been in that coach."

In the earlier English reports the doctrine was uniformly held (705) that an action to recover damages for negligent injury by a common carrier arose from a breach of duty imposed by the common law and needed no contract to support it. In course of time, by some unexplained change of judicial sentiment, the courts began to recognize stipulations for release of liability, until finally common carriers were practically allowed to absolve themselves, by stipulation, from liability for all negligence, however gross. This led to the passage of the act of 1854, called the "Railway and Canal Traffic Act," declaring that railway and canal companies should be liable for the negligence of themselves or their servants, notwithstanding any notice or condition, unless the judge or court trying the cause should adjudge the condition just and reasonable. The practical effect of this statute was to bring the law back to its original status. However, all the cases seem to hold that there is no implied release in the absence of written stipulations or fraudulent concealment of material facts. This is shown by the following cases, which are typical of others. In Brotherton v. Wood, 7 E. C. L., 345, the Court says, on page 348: "This action is on the case against a common carrier, upon whom a duty is imposed by the custom of the realm, or in other words, by the common law, to carry and convey their goods or passengers safely and securely, so that by their negligence or default no injury or damage happen. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it."

In Marshall v. Ry., 11 C. B., E. C. L., 73, Jervis, C.J., says, on page 661: "But, upon what principle does the action lie at the suit of the servant for his personal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely." In the same case Williams, J., (706) says, on page 663: "I am of the same opinion. . . . It seems to me that the whole current of authorities, beginning with Govett v.Radnidge and ending with Pozzi v. Shipton, establishes that an action of this sort is, in substance, not an action of contract, but an action of tort against the company as carriers. That being so, the question is whether it was necessary to allege any contract at all in the declaration. The earliest instance I find of an action of this sort is in Fitzherbert's Natura Brevium, `Writ de Trespass sur le Case,' where it is said (9b): `If a smith prick my horse with a nail, etc., I shall have my action upon the case against him without any warranty by the smith to do it well; for it is the duty of every artificer to exercise his art rightly and truly as he ought.' There is no allusion there to any contract. That being so, it seems to me to follow that the allegation of a contract in a case of this kind is altogether unnecessary."

In Austin v. Ry., 2 Q. B., 442, it was held that a child over the free age prescribed by statute, and having no ticket, and no fare having been asked or paid, could recover for injuries received. Blackburn, J., concurring, says, on page 444: "I am also of opinion there should be no rule. I think that what was said in the case of Marshall v. Newcastle andBerwick Railway Co. was quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely."

A large number of authorities could be cited in addition to those above, but it is needless to do so. We have already quoted at greater length than we should but for the fact that we wished to show, not simply the decision of the cases, but especially the essential principles by which those results were reached. We will now close by citations from the leading text-books. (707)

In 5 A. E. Ency., 507, it is said: "The carrier is liable to persons whom it accepts for transportation over its line, and from whom it demands no fare, to the same extent that it is liable to passengers who pay fare. . . . A person riding on a free pass is as much a passenger as if he were paying full fare, and if the pass is given for a valuable consideration he is a passenger for hire. . . . The fact that the carrier is prohibited by law from issuing free passes does not render a person a trespasser who travels upon such a pass unlawfully issued to him. If the pass is unlawful, the conductor should demand the regular fare, and his failure to do so will not make the passenger a trespasser nor destroy his right as a passenger."

In 6 Cyc., 544, it is said that: "While it is no doubt true, as indicated in the definition, that public carriers of passengers are those who carry passengers for hire, there is not in the case of carriers of passengers a distinction as to liability between passengers carried for compensation and those carried gratuitously analogous to that recognized as to carriers of goods between cases where goods are carried for compensation and those where they are carried free. One who is accepted for transportation as a passenger, without any compensation to be rendered, is nevertheless entitled to all the care and protection which the carrier is under obligation to furnish to paying passengers."

In Lawson on Contracts it is said in section 335: "A carrier of a passenger who has paid a consideration for his passage cannot exempt himself from liability for damages caused by his own negligence or that of his servants, by any contract which he may have induced his customer to approve. Such a contract is void as against the policy of the law, even though the passenger is a gratuitous one, riding (708) free and paying no fare."

In 2 Beach Mod. Law of Contracts is is said, in section 1502: "The weight of authority in this country favors the rule that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law; and that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants."

In Fetter on Carriers of Passengers, sec. 220, it is said: "It is now well settled that a carrier, by its acceptance of a passenger as a passenger, comes under an obligation to take due and reasonable care for his safety, which obligation arises by implication of law, and independent of contract, so that it may exist though the contract of carriage is illegal, or though there is no express contract of carriage. Hence the fact that a contract of carriage is entered into on Sunday, and that plaintiff, when injured, was traveling on Sunday, in violation of a statute, does not preclude him from maintaining an action against the carrier for the injuries. It the language of the New York Court of Appeals, `It is certainly a startling proposition that the thousands and tens of thousands of persons who travel on business or for pleasure on Sunday, upon railroads and steam and ferry boats in this State, are at the mercy of incompetent or careless engineers and servants, and that there is no remedy for loss of life or limb resulting from this negligence.'"

In Bishop on Non-contract Law, section 1074, it is said: "Such, therefore, is both the policy of the law and the law itself, in the highest sense fundamental and unyielding. The result of which is that, in just legal reason, it will under no circumstances be competent for a railroad or other common carrier, whether of goods or passengers, (709) to cast off this responsibility by any resort to a by-law, to a usage, or even to an express contract with the party. Particularly in the carriage of passengers, if the road could by contract exempt itself from responsibility for its own negligence, its next step would be to refuse all passengers who would not enter into the contract; thereupon the railroad corporations, freed from the only motive to carefulness which they could appreciate, the danger of being mulcted in damages, would conduct their business with a recklessness rendering travel a horror to every person not permitted to remain at home." See also, section 1076.

In Cooley on Torts, on page 826 (685), it is said: "Carriers of passengers, it is also held, cannot relieve themselves from the obligation to observe ordinary care by any contract whatsoever, even in the case of `drovers' passes,' which are given without charge to those who accompany consignments of cattle, or in cases where free passage is given as mere matter of courtesy of favor. The learned authority then proceeds to say that, while there are certain exceptions permitted in two States, "the weight of authority is most distinctly the other way, both in this country and in England"; that is, in favor of the rule as stated above.

In Hutchinson on Carriers it is said, in section 566: "It is enough that the person is being lawfully carried as a passenger to entitle him to all the care which the law requires of the passenger carrier; and the same vigilance and circumspection must be exercised to guard him against injury when he is carried gratuitously, as upon what is known as a free pass, or by the carrier's invitation, as when he pays the usual fare." See also, sections 565 and 567.

In Wharton's Law of Negligence it is said, in section 355: "Is a free passenger to be placed in a different position, so far as concerns his rights to protection from neglect, from a pay passenger? This question, also was at one time answered in the affirmative; the (710) courts being led astray by the mistaken view of mandates which will be hereafter pointed out. But there is now an almost uniform acquiescence in the true view that a person who undertakes to do a service for another is liable to such other person for want of due care and attention — The diligentia of the bonus et diligenspaterfamilias — in the performance of the service, even though there is no consideration for such undertaking. Or, as the question is elsewhere put, the confidence accepted is an adequate consideration to support the duty. Eminently is this the case with what are called `free' passengers on the great lines of common carriage. As has already been observed, there is, in such cases, not merely confidence tendered and accepted, but some sort of business consideration, though this be amere courteous interchange of accommodations. For these and other reasons noted under the last head, the carrier is bound to exhibit the same diligence and skill towards passengers of this class as he is to passengers who pay money for their tickets."

Again the same author says, in section 354: "But if a trespasser take his seat openly in a carriage, in the place assigned to passengers generally, there is no reason why a different standard of care should be applicable to him than is applicable to other passengers. Waiving for the present the point elsewhere discussed, that even a trespasser, supposing him to continue such, is not withdrawn from the protection of that law which requires that no man shall negligently injure another; the carrier, if he permits such trespasser to continue in the carriage, cannot regard him, after such permission, as a trespasser. The carrier has a right to expel the trespasser at once from the carriage. If the carrier omits to do this, and if the person in question remains voluntarily with the carrier's assent, then the trespass passes into a quantum meruit contract of carriage. On the one side, the person so (711) entering the carriage is bound to the carrier for reasonable pay for the carriage. On the other side, the carrier is bound, from the time he assents thus to carry such person, to exercise towards him diligence, prudence and skill of a good carrier in that particular kind of transport; in other words, the particular kind of diligence, prudence and skill which the carrier is bound to exercise towards all other passengers."

In Watson on Dam. for Personal Injuries it is said, in section 230, page 279: "At the outset it may be stated, as a general rule, that the mere fact that the plaintiff, at the time of the injuries received, is engaged in the commission of an unlawful act, is not sufficient to relieve the author of the wrong of liability in damages therefor. `The question how far a person can defend an otherwise indefensible act,' it has been said, `by showing a criminal or unlawful act on the part of the party injured, has of late years been fully discussed in the courts of this country and of England. The result generally reached is that no man can set up a public or private wrong committed by another as an excuse for a willful or unnecessary or even negligent injury to him or his property. This principle is defended on the grounds of morality and law, and it reaches and determines a great variety of cases.'" The same author further says, in section 238: "The liability of the owners of a steamboat for injuries to a passenger is not affected by the fact that the person injured was, at the time the injuries were received, engaged in an excursion with other passengers upon defendants' steamboat in violation of a statute prohibiting, is not, by reason thereof, without the protection of the law. The carrier owes him the same duty as if he were lawfully traveling, and is liable in damages for personal injuries resulting from a failure to perform it."

(712) In section 231, the author adopts the language of an able and elaborate opinion by Dixon, C. J., in Sutton v.Wauwatosa, 29 Wis. 27, 9 Am. Rep., 534, as follows: "Himself guilty of a wrong, not dependent on nor caused by that charged against the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the State, and thus to impose upon him a penalty many times greater than what those laws prescribed. Neither justice nor sound morals require this, and it seems contrary to the dictates of both that such defense should not be allowed to prevail. It would extend the maxim, ex turpi causa non oritur actio, beyond the scope of its legitimate application, and violate the maxim equally binding and wholesome, and more extensive in its operation, that no man shall be permitted to take advantage of his own wrong. To take advantage of his own wrong and to visit unmerited and over-rigorous punishment upon the plaintiff, constitute the sole motive for such defense on the part of the person making it."

In 3 Thompson's Law of Neg., section 3326, it is said: "It is thoroughly settled in the American law that a common carrier of passengers cannot, by a contract with one who is a passenger for hire, relieve himself from liability for damages caused by the negligence of himself or his servants."

The same author says in section 3328: "The principle is well settled that a carrier owes the same duty of protection to a simply gratuitous passenger as to a passenger for hire."

In Buswell on Law of Pers. Injuries, the author, in laying down the rule that a breach of public duty is the foundation of the action for personal injuries, says in section 3: "The custom of the realm of England, long made a part of the common law, imposes upon common carriers of passengers certain public duties in respect of such passengers for a breach of which a passenger injured may have his (713) remedy by an action of tort."

Again the author says, in section 116: "In the United States, the weight of authority is in favor of the rule that, as to passengers for hire, the stipulation by a common carrier that he will not be liable for damages in case of injury to the passenger, will not relieve him from responsibility for the results of the negligence of himself and his servants."

Again, the same author says, in section 117: "If a common carrier accepts a person as passenger, there being no contract to relieve the carrier from the legal consequences of his negligence in the case of accident, it is held generally, in the United States, that the carrier remains liable for such negligence, although the plaintiff was to be transported gratuitously. For, having admitted the plaintiff to the rights of a passenger, the defendant is not permitted to deny that he owes to him the duty which, as carrying on a public employment, he owes to all his passengers."

In 2 Parsons on Contracts, the author, after referring to various authorities, says, on page 222: "Whether a common carrier is liable to a passenger to whom he has given passage, and from whom he has, therefore no right to demand fare, is not so certain; but he would certainly be liable for gross negligence, and probably liable for any negligence. He is certainly not excused by mere nonpayment, unless payment has been demanded and refused. In note X it is said: "It is now quite generally held that for negligence there is the same liability to persons riding on free passes as to those who pay full fare."

In 2 Wood on Railroads, it is said, on page 1207: "In all cases where the company is required by law to carry a person free, or where he is riding free by the consent of the company fairly obtained, he is a passenger, and entitled to all rights and privileges as such. (714) In the case of a free pass, the carrier is under the same obligations as to care and vigilance as he is to a passenger for hire; and as to passengers to whom passes are given which are predicated upon any consideration, he cannot absolve himself from liability for injuries resulting from gross negligence by any notice to that effect printed upon the pass, as such conditions are against the policy of the law. It has been held, however, that when tickets or passes are purely gratuitous, the person receiving may by special agreement assume all risks of the journey incident to the mere negligence of the company."

In Whitaker's Smith on Negligence, while the text does not seem to treat the subject, there are full notes on page 309 showing that the rule is that a common carrier "must execise [exercise] the same care and attention in the transportation of gratuitous passengers as of those who have paid their fares, and is liable to the same extent for negligence." These authorities tend to show that this rule is generally held even in the face of express stipulations of exemption, and universally so in the absence of such stipulations.

In 4 Elliott on Railroads, it is said in section 1497: "the rule supported by the weight of authority is that a common carrier cannot by any kind of a contract exempt itself from liability as such for loss or injury occasioned by its own negligence or that of its servants. This rule `rests upon considerations of public policy and upon the fact that to allow the carrier to absolve himself from the duty of exercising care and fidelity is inconsistent with the very nature of his undertaking.' The employment of a common carrier is a public one, and the fundamental principle upon which the law of a common carrier was established was to secure the utmost care and diligence in the performance of their duties. For this reason they are held to the extraordinary liability of insurers. To permit them to contract against (715) liability for their own negligence or that of their servants would be contrary to the whole spirit and policy of the law governing common carriers, and would, in effect, authorize them to abandon the most essential duties of their employment. When we also consider that the parties do not stand upon an equal footing and that railroad companies are given many special priveleges [privileges] as corporations for the very reason that they have such duties to perform for the public, there can be no doubt of the justice of this rule, especially as applied to such corporations."

The same author says, in section 1578: "We think it is safe to say that the general rule is that every one on the passenger trains of a railroad company and there for the purpose of carriage with the consent, express or implied, of the company, is presumptively a passenger. . . . Persons who pay a consideration for passage, no matter in what form, are generally regarded as passengers."

And again, in section 1004, he says: "The general rule is that a person riding on a railway train on a free pass, the possession of which was lawfully and rightfully obtained, is a passenger. The possession of the pass must be lawful for if it was obtained by fraud or the wrong of the person attempting to use it, he is not a passenger, and the carrier owes him no duty as such." And again in section 1606, he says: "But where the person riding on a pass is regarded as a passenger the carrier usually owes to him the same degree of care that it owes to a passenger paying full fare." Again, he says in section 1608: "Passes usually contain a stipulation which in terms exempts the carrier from liability for negligence. As to the validity of such stipulations the authorities are not agreed, some holding that they are valid and binding upon the persons using the pass, others that they are not. In the majority of the States the courts hold that such a stipulation is void and not binding upon the person using the pass, and that the carrier is liable for injuries negligently inflicted (716) upon a person using a pass containing such a stipulation."

Again he says, in section 1609: "The relation which the person using the pass bears to the railroad company is also an important element in determining the liability. If he is regarded as a passenger, then the company is bound to use the highest practical degree of care, and, for a failure to use such care, it will be liable for all injuries approximately caused thereby. But where the person using the pass is an employee, then the carrier will only be liable for such injuries as result from negligence in failing to perform the duties owing to such employees. . . . The general rule is that where the holder of the pass is to be regarded as a passenger any act of negligence may give a right of action."

We cannot better close these citations than by the following clear and terse statement of the principles from 2 Shearman Redfield on Negligence, which is fully sustained by the authorities we have examined. The eminent authors say, in section 491: "It is well settled that, in the absence of a special contract, a passenger traveling gratuitously has a perfect right of action for injuries suffered by him through the carrier's negligence. The fact that a traveler who ought to pay has not paid, and does not intend to pay his fare, does not, in the absence of actual fraud, deprive him of redress for injuries. There is no practical difference between the degree of care which a free passenger has the right to claim, and that to which a paying passenger in entitled."

To our minds these authorities, taken in connection with the cases cited in them, are conclusive of the questions before us. The greater weight of authority is decidedly in favor of the doctrine that a common carrier cannot in any event stipulate against its own negligence, including that of its servants; while it is overwhelming to the (717) effect that, in the absence of such stipulations, it owes to a gratuitous passenger the same degree of care that it does to those that pay. In the case at bar the plaintiff appears to have been a bonafide passenger, and was so recognized by the conductor in charge of the train. Both are conclusively presumed to have known that the contract for a pass was illegal and void; but there is no evidence that either acted in fraud or bad faith. There is evidence that the plaintiff gave some consideration, although legally inadequate; but in any event the worst position in which he can be placed is that of simply a gratuitous passenger. There were no existing stipulations of exemption between him and the defendant. None had ever existed except the conditions on the back of the pass. These conditions can have no effect because, in the first place, the pass had expired; and, secondly, had no legal existence before its expiration. A condition, like the leaf on a tree, must be attached to something from which it can draw its life and strength. By practically all the authorities, in the absence of such express conditions, the plaintiff is held entitled to recover. What would have been the legal effect of such conditions if they existed is not strictly before us. We have shown that the decided weight of authority is against their validity, but we did so to show that if the liability of a common carrier to a gratuitous passenger could not be waived by an express stipulation, it certainly existed in the absence of any such stipulation. Even those courts that hold it may be waived necessarily admit its existence in the absence of waiver. If it exists in the absence of contract and. cannot be waived by contract, it must necessarily owe its existence to the policy of the law.

It is contended in behalf of the defendant that there was error in the Court below refusing to charge: "That there is no evidence to support the plaintiff's allegation (in the complaint) that he was traveling on the defendant's road, on the occasion complained of, as a passenger for hire or compensation." We see no error in its (718) refusal, as in our view of the case it was immaterial. The defendant also contends that its exception to the following charge of the Court should be sustained, to wit: "If when the plaintiff was called on for his fare he produced to the conductor the pass which had been exhibited in evidence, and the conductor accepted it, the plaintiff was a passenger on the train."

We think that whatever error may be found in this instruction is harmless. The pass was in legal effect a blank piece of paper. It had expired by its own limitation, if that can be said to have expired which has never legally existed. Its only effect could have been to convince the conductor of the truthfulness of the plaintiff's statement that he had a contract with the company under which he was entitled to ride free. The result seems to have been his acceptance as a passenger by the conductor who, being in control of the train, is in the very nature of things the only officer or servant of the company who can accept a passenger. He is charged with that duty by the defendant, who must therefore abide the consequences of his act, especially as there is no evidence of fraud or deception on the part of the plaintiff. The evidence tends to prove that the plaintiff was on the train as a bona fide passenger under an agreement for so-called free transportation, but ready to pay his fare if demanded. The fact that the previous contract was illegal, and no fare was either demanded or paid, can have no further effect than to reduce the plaintiff to the condition of a merely gratuitous passenger, having no binding contract and therefore subject to no limitations of liability. As such we now think he was entitled to recover. The petition to rehear is allowed, and the judgment below affirmed.

Petition allowed.