Year: 1878

court of the United States, delivered by Mr..


Justice Bradley, in the case of Ausel Stevens
against the Grand Trunk Railway, a suit


DrousRt to recover damages for injuries sus.


tanned while riding on a free pass. 1t appeared


OF the trial that the plaintiff was the owner
of patented car-coupling ard that the pass


was given him in order that he might 90 to


Montreal and show the coupling to the road
officials there. The defendant offered no evil
dence, but requested the court to instruct the
Jury as follows:


First That If the plaintiff at the time of
SUSTAINING the injury was travelling under and


by virtue of the pass produced in evidence in


the case, he was travelling upon the conditions
annexed to it.


Second. That if the plaintiff at the time of


sustaining the injury was travelling under and


by virtue of the pass produced in evidence in


the case, the defendants are not liable.


Inird. That If the plaintiff at the time Of
sustaining the injury, travelling as free pas
senger, the defendant are not liable.


Fourth. That IT the plaintiff at the time
Oh sustaining the injury, was travelling as
gratuitous passenger, without any considsra-


ton to the defendants for his transportation,


the defendants are not liable.


The court refused these instructions as in
applicable to the evidence produced, and in-
structed 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 anxious that the plain
till 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 Mc-sEsal,


and ne agreed 80 to do, and took passage on


defendants cars, and was by the reckless mis-
conduct and negligence of the defendant, and
without any negligence on his part, injured


whist thus passenger In defendants car, the
Defendants are not exonerated from liability to
plaintiff for his damages occasioned by such
negligence, by reason of the endorsement
upon the pass produced 10 evidence


Upon this the higher court says:


IL IS evident that the court below regarded


the 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 ad-
duced to show the contrary; and, hence, that
under the ruling of this court 10 the case Of


Railroad Company vs. Lockwood, (17 Wallace,
500 it was case in which the defendant, as q
common carrier of passengers, could not law
fully 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 defend
ants cars, though not paid for by him in money


was not matter Of charity nor of gratuity ia
any sense. 1t was by virtue of an agreement
in which the mutual interest of the parties
was consulted. 1t was part of the con-
| oiucrdbiUu iOE WntCu the DlA1ntlu con-
| sented to take the journey to Montreal.
His expenses in making that journey were to
| be paid by the defend ant and of these the ex-
pense OF his transportation was a part. The
giving him free pass did not alter the nature
of the transaction. The pass was a mere ticket,
or voucher, to be shown to the conductors of
tee train, as evidence of his right to be trans
ported therein. 1t was not evidence of any con-
tract by which the plaintiff was to assume all


the risk; and it would not have been valid If it


lh fxrra1


than that of Lockwood's. There the pass was
what is called "droveI's pass" and an agree
ment was actually signed, declaring that the
acceptance OF the pass was to be considered as
waiver Of all claims for damages or injury re-
ceived on the train. The court rightly refused,
therefore, in the present case, to charge that the
plaintiff was travelling upon the conditions en-
dorsed on the pass; or that, If he travelled on
that pass, the defendant was free from liability.
And the court was equally right in refusing to
charge that If the plaintiff was free, or gratu-
itOus passenger, the defendant was not liable.
The evidence did not sustain any such hypothe-
sis 1t was uucontradicted, 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. 1t stated the law


as favorably for the defendant as the latter had


right to ask. Ii subject to any criticism. it
is in that part in which the court supposed that
the jury might find that the plaintiff was in
jured by the reckless misconductand negligence
of the defendant. II this degree of fault had


been necessary to sustain the action, there
might have been some difficulty in deducing 1t
from the evidence. However, the condition of
the track where the accident took place, with
| out any explanation of its cause, was perhaps
| sufficient even for such an inference. II the
defendant could have shown that the injury to
the rails was the result of an accident oc-


curing SO shortly before the passage of the


train as not to give an opportunity of ascertain
ing its existence. it did not do SO bat 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 abun-
dant evidence to go to the jury. On the whole,


therefore, we think that the charge presents


no sufficient ground for setting aside the ver-
dict The charge, if not formally accurate,


was not such as to prejudice the defendant
1t is strongly urged, however, that the plain
tiff, By accepting 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 IL not
conclusive evidence that such pass was 10 the
contemplation of the parties when the arrange
ment for his going to Montreal was made But,


we have already shown that the carrying of
the plaintiff from Portland to Montreal was
not g mere gratuity. To Call it such would be
reDugnant to the essential character of the
whole transaction. There was a consideration
for it both good and valuable. 1t necessarily
fellows. therefore, that 1t was a carrying for





defendant, as common carrier, to stpulat


for the immunity expressed on the back of the
pass. This is sufficient answer to the argu-


ment propouuded. The defendant being, BY
the very nature of the transaction q common
| carrier tor 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
rest our decision upon the case of the Railroad
Company vs.. Lockwood. 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 different con-
clusion had the plaintiff been free passenger
instead of a passenger for hire. We are aware
| that respectable tribunals have asserted the
| right to stipulate for exemption in such case;
| and it is often asked with apparent confidence,
MAY not men make their own contracts, or in
other words, may not man do what he will
with his own?" The question, at first sight,
seems simple one But there Is o question
| lying behini that; "Can man call that abso-
| lutely his own which he holds great public
trust, by the public grant, and for the public
| use as well as his own proht?" The business
| of the common carrier, in this country at least,
| is emphatic lily 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 safe
| est plan not to anticipate questions until they
| fairly arise and become necessary for OUT de-
csion.


The Judgment of the circuit court is affirmed.
Rand Mattocks
Fer PPfs in error for de'fts in error