Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-02-10
DOES NOT PROTECT,
Judge Putnam Sustains Plea Of
the Maine Central
That it or Any Other Road Is Not
Liable for Injuries
To Person While Riding on Pass Un-
der Roads Conditions.

Portland. Me. Feb. 9.-That the
not liable for injuries TO a person rid
ing on a pass accepted on the passen-
gers agreement to the company's i'm
munity. is the essence Of an important
decision by Judge Putnam in the cir
cult court.
The opinion involves the liability on
the part of common carriers in case of
injury to a passenger travelling on a
free ticket, with the condition attached
that such free passenger will assume
all risk of accidents.
The opinion was rendered in the suit
of John Fish Duncan against the Maine
Central Railroad Co. which was an ac-
ton brought by the plaintiff to recover
from the railroad the sum of $4,000 for
personal injuries received by plaintiff
while travelling on the Maine Central
in New Hampshire.
A special plea was filed by counsel for
the defendant, setting forth as special
matter of defence, that at the time of
the alleged injuries Duncan was not a
defendants train on a free ticket given
him at his own solicitation by the de-
PENDANT and accepted by the plaintiff
as pure gratuity. and upon condition
that the plaintiff would assume all risk
Of injury to the person. and all loss or
injury to his property, while using such
free ticket.
The plaintiff filed an answer in the
form Of demurrer, setting forth that
the plea and special matter of defence
set up by the defendant was not suffi-
cient in law to bar or preclude the
plaintiff from having his action against
the defendant.
Unde, these pIeadings the question
was distinctly raised as to the liability
CT the railroad to passenger travel
ing gratuitous passage and assuming
all risk of accident; and whether the
special contract set forth in the defend
ants answer was valid. and conse-
auently barred the plaintiff from MAIN
tanning his action.
The case was argued before Judge
Putnam in the United States court by
Hon. George E. Bird for the plaintiff
anG by Ex-Governor Cieaves for the
Adlne central
The plaintiff contended that common
carriers of passengers could not ex-
empt themselves from the liability for
negligence; and as it was against the
policy of the law to allow stipulations,
which would relieve railroad COM
pany from the exercise Of care, the
company still remains liable for such
negligence.
Ex-Governor Cleaves' contention was
that when the plaintiff solicited and ac-
cepted. purely as a gratuity, free pas
sage in the defendants train, upon
distinct and written agreement that he
would assume all risks of accident
while travelling on such train. there was
no rule of public policy which required
such contract to be declared invalid
and of no binding force. That in case
of injury during such free passage und-
der the terms of a contract he had
voluntarily made, the plaintiff must
bear the consequences.
Judge Putnam renders an able and
exhaustive opinion in the case, cover
ing the question of liability of common
carriers to free passengers who agree
to assume all risk Of accidents. He
overruleS the demurrer and holds that
the special matter of defence demurred
to is sufficient in law, sustaining the
company.