Peterson v. Seattle Traction Co.

Opinion on Rehearing.

White, J.

The opinion in this case, ante, p. 615 (63 Pac. 539), was filed December 27, 1900. A rehearing was granted. It is necessary only to modify our views in one respect. In the original opinion we said:

“The carrier was not required by law or duty to give the plaintiff work as a track layer, and, when he sought to obtain such work, it seems to us that he had a perfect right to contract, as an incident to the principal contract, that he should be carried by the defendant over its lines to and from his work, subject to the condition that the plaintiff would assume, while being so transported, all risk of accidents, etc., contained in the conditions which the defendant-sought to prove.”

A more critical examination of the pleadings in this case satisfies us that the question whether the plaintiff and defendant could so contract is not involved, and that point may still be considered open and undecided. The fourth affirmative defense, in substance, is that, if the plaintiff was traveling on one of the cars of the defendant at the time mentioned in said complaint, and if he then received any such injuries as are therein alleged, said plaintiff was then traveling on one of the defendant’s cars, along one of its lines of street railway, not as a passenger paying fare for transportation of himself on said ear, but by virtue of a free pass ticket, which the defendant had theretofore furnished him and which was accepted by the plaintiff under an agreement that he, the plaintiff, would assume all risks of damages and loss sustained by him while using it, and that the plaintiff expressly agreed with the defendant that the defendant should not be liable under any circumstances, whether by reason of negligence of its agents or otherwise, for any injury or loss to the plaintiff; that the same had been furnished by the defendant to the plaintiff gratuitously, without any consideration therefor, and not in pursuance of any' contract, express or implied, of the defendant with the plaintiff to' furnish the same to him on account of his being in the employ of the defendant, and the same was so furnished to him, not as a compensation or partial compensation for any work or labor performed or to be performed, but solely as a donation by tbe defendant to tbe plaintiff of the privilege, of free transportation. It is alleged that the tickets so furnished, on which the plaintiff was traveling, were put up in books, on the back of which the agreement was indorsed. The answer also specifically denied that the defendant agreed to pay the plaintiff the sum of one and a half dollars per day and transportation to and from his work on the cars of the defendant. The evidence rejected was offered to sustain the facts pleaded in the fourth affirmative defense, and we think it was admissible for that purpose, under the rulings of this court in Muldoon v. Railway Co., 7 Wash. 528 (35 Pac. 422, 22 L. P. A. 794). But we expressly hold that if the respondent’s transportation constituted a portion of the consideration for his services, he became a passenger for hire, just the same as anybody else who parts with anything of value for transportation; but if the consideration for his services is independent of his transportation, and his transportation is a mere gratuity bestowed upon him by his employer, as pleaded in the fourth separate defense herein, he stands like any one else traveling on a free pass so conditioned, notwithstanding his employer would not probably have bestowed the transportation if the recipient had not been in his employ.

The original opinion is modified as herein expressed, the judgment of the court below is reversed and this cause remanded for a new trial.

Fullerton, Anders, Mount and Hadley, JJ., concur.