
    Smith G. Willcox, Respondent, v. Erie Railroad Company, Appellant.
    First Department,
    May 1, 1914.
    Railroad — common carrier — validity of contract releasing carrier from liability for negligence, to be determined where executed or where injury occurred — injury to passenger by negligence of carrier without this State — effect of Interstate Commerce Law.
    Plaintiff, the owner of cattle shipped from Illinois to a point in this State, in consideration of a free passage, signed a contract and release which expressly exempted the initial and every connecting carrier from liability for personal injuries caused by negligence. Such contract and release are void under the laws of Illinois and Ohio, but are valid in this State. The plaintiff was injured by the negligence of the carrier in the State of Ohio.
    
      Held, that the contract and release must be construed either according to the law of the State of Illinois, where they were executed, or by the law of the State of Ohio, where the injury occurred, and, therefore, the plaintiff is entitled to recover, notwithstanding the release.
    The provisions of the Interstate Commerce Law do not prevent a recovery by the plaintiff under such circumstances.
    A release exempting a common carrier from liability for personal injuries has been declared by the Supreme Court of the United States to be against public policy.
    Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 15th day of August, 1913, upon the verdict of a jury for $2,500.
    
      William C. Cannon of counsel [Stetson, Jennings & Russell, attorneys], for the appellant.
    
      John M. Harrington, attorney [John S. Wise, Jr., with him on the brief], for the respondent.
   Clarke, J.:

Plaintiff, who is a resident of Pine Island, N. Y., owning and running a dairy there, was at Chicago and had twenty-three head of cattle which he desired to ship to his home. At Chicago, under date of June 1, 1911, he entered into á written agreement, designated as the “uniform live stock contract,” with the Erie Railroad Company, by its duly accredited agent, to transport said cattle, of the weight stated, upon a described car, “for transportation from U. S. Yards, Chicago, 111., to destination, if on the said carrier’s line of railroad, otherwise to the place where said live stock is to be received by the connecting carriers for transportation to or towards destination, and that the same has been received by said carrier for itself and on behalf of connecting carriers, for transportation, subject to the official tariffs, classifications and rules of the said Company, and Upon the Following Terms and Conditions Which Are Admitted, and Accepted by the Said Shipper as Just and Reasonable, viz.:

“ That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of 28 per 100 § which is the lower published tariff rate based upon the express condition that the carrier assumes liability on the said Live Stock to the extent only of the following agreed valuation upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employees, or otherwise^ * * *

“ If cattle or cows — not exceeding $75 each. * "x* *

“And in no event shall the carrier’s liability exceed $1,200 upon any car load fjj * * *

“ That the said shipper is at his own sole risk and expense to load and take care of, and to feed and water, said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * *

“ And it is further agreed by said shipper that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge other than the sum paid or to be paid for the transportation of the Live Stock in his or their charge, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims, liabilities and demands of every kind, nature and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or any of its or their employees, or otherwise.

“And S. G. Willcox do hereby acknowledge that [he] had the option of shipping the above described Live Stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said Live Stock, upon their respective roads and lines, but have voluntarily decided to ship the same under this contract at the reduced rate of freight above first mentioned.”

Upon the back thereof was the following:

“Release for Man or Men in Charge.

‘1 In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract, of which live stock I am in charge, the undersigned do hereby voluntarily assume all risk or accident of damage to my person or property, and do hereby release and discharge the said carrier or carriers from every and all claims, liabilities and demands of every kind, nature and description, for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers, or any of its or their employees, or otherwise.

“ (Signed) SMITH G. WILLCOX, Signature of

“J. Markey, Man in charge.

Witness.

Plaintiff having executed said papers, the cattle were shipped thereunder upon a freight train of the defendant, and plaintiff accompanied said cattle thereon to care for, feed, water and unload them. The train proceeded through Illinois and as far as Kent, 0. There it consisted of two cabooses, two engines and about fifty loaded freight cars. The train broke in two, a drawhead having pulled out of one of the cars. This affected the automatic application of the air brakes on .the rear section, causing a sudden stop. The plaintiff was thrown against the desk in the corner of the caboose, another man was piled up on top of him, and he suffered the injuries complained of. Certain decisions of the courts of Illinois and Ohio were received in evidence.

At the close of the plaintiff’s case defendant moved to dismiss.

The motion was denied and exception taken. The defendant thereupon offered certain rates, schedules and classifications filed with the Interstate Commerce Commission. It was conceded that this railroad company had duly filed and complied with whatever the Interstate Commerce Act makes necessary in reference to the conduct of its business and that its rates, schedules and classifications and whatever the statute requires have been duly filed in the several States through which it operates, New York, Illinois and Ohio.

From the matters so offered appear the following:

“Rules and Specifications.

“Unless otherwise provided when property is transported subject to the provisions of the Official Classification, the acceptance and use are required, respectively, of the * * *

‘Uniform Live Stock Contract,’ * * * ‘Contract with man or men in charge of Live Stock ’ '(for use when payment of fare is not required) * * *.

“18. Where the classification provides that man or men in charge of property shall pay full fare, the fare charged will be first (not second) class passenger fare. * * * ” There was inserted the “ Uniform Live Stock contract ” and the form of the “ Contract with Man or Men in charge of Live Stock (for use when payment of fare is not required),” copies of which were attached to the complaint and which the plaintiff signed.

“ Classification. ”

“7. Live Stock-

“ 8. Domestic Animals, Carloads, subject to rates and regulations of individual carriers; also subject to the Uniform Live Stock Contract and the following regulations. * * *

“ Live Stock in carloads will be charged at the following minimum carload weights, subject to the actual weight if greater than the minimum carload weight, * * * Cattle per car, 20,000 lbs. * * *"

“Live Stock will be taken at the reduced rates fixed in the tariff only when a Uniform Live Stock Contract is executed by the station agent and the consignor, and when the release on the back of said, contract is executed by man or men who are to accompany said live stock. If consignor refuses to execute a Uniform Live Stock Contract, the live stock will be charged ten (10) per cent higher than the reduced rates specified herein; provided, that in no case shall such higher charge be less than one (1) cent per one hundred pounds. * * *

“The rates and classification of Live Stock as given in this tariff are based upon the following maximum valuations:

“If Cattle or Cows, not exceeding $75 each. * * *

“ The owner or his agent may accompany each consignment of horses or mules, carloads or less, to care for same, and will be carried free. One man may be carried free in charge of and going with each consignment -of cattle, calves, *hogs, goats or sheep, when in carloads, to care for them. The permit'or authority to ride free to be good only on train with such stock. No free return passage tobe given. Men in charge of live stock, entitled to free transportation under the provisions of the live stock classification, will be carried free only upon presentation of permits therefor signed by the railroad agents at points of shipment; it being understood that railroad companies reserve the right- to reject or refuse, through their agents, to issue such orders or permits for free transportation to any person or party who, in the opinion of said agents, is not considered a responsible party or proper attendant.”

The rate on the schedule filed by the Erie railroad from Chicago to Pine Island, N. Y., for cattle is twenty-eight cents per 100 pounds in carloads.

At the close of the case the defendant moved for the direction of a verdict upon the ground that the release of liability executed by the plaintiff is valid and is a bar to this action under the laws of the United States; that neither the law of Ohio nor the law of Illinois is applicable; that if the law of any State applies it is that of the State of New York by which the release referred to is valid, and on the further ground that the plaintiff was not a passenger for hire on defendant’s train and was not entitled to recover on the evidence. It was consented that the decision on said motion should be reserved, the court stating: “ I will submit the whole question of negligence to the jury. If I subsequently determine that under this Interstate Commerce Law the plaintiff cannot recover, I will so decide, and direct a verdict.”

The case was thereupon submitted to the jury who returned a verdict for the plaintiff for $2,500. Subsequently the motion to direct a verdict for the defendant was denied and an exception granted to the defendant. No motion was made for a new trial. This appeal is taken from the judgment.

So far as this court is concerned, no question of negligence or of the amount of the recovery is argued. The question is one of law; whether, under the provisions of the contract and release exempting" the defendant from liability, the plaintiff can, nevertheless, recover damages for injuries caused by the negligence of the defendant or its employees. I will consider this-under two heads: (1) the State laws; (2) under the Interstate Commerce Act.

1. It is the settled law of the State of New York that a per-i son riding upon a drover’s pass is a gratuitous passenger and /that a- release from liability for injury caused by the negligence Í of the carrier or its servants is valid and bars recovery. (Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442; Poucher v. N. Y. C. R. R. Co., 49 id. 263; Hodge v. Rutland R. R. Co., 112 App. Div. 142; 115 id. 881; affd., 194 N. Y. 570.)

It is the settled law of Illinois that such a person is a passenger for hire; that the release is invalid and the carrier liable for 1 injuries received by reason of its or its employees’ negligence. (Illinois Central R. R. Co. v. Beebe, 174 Ill. 13; Illinois Central R. R. Co. v. Anderson, 184 id. 294.)

The law of Ohio is to the same effect. (Cleveland, Painesville & Ashtabula R. R. Co. v. Curran, 19 Ohio St. 1.)

This contract was made and release executed in Illinois where it was invalid, the injury occurred in Ohio where it was invalid, and the action is brought in New York where, if made, it would have been valid.

In Dike v. Erie R. Co. (45 N. Y. 113) the court said: “ The lex loci contractus determines the nature, validity, obligation and legal effect of the contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other State or government, as when it is to be performed in another place, and then in conformity to the presumed intention of the parties, the law of the place of performance furnishes the rule of interpretation. ”

In Fish v. Delaware, Lackawanna & Western R. R. Co. (158 App. Div. 92) the plaintiff while traveling on a drover’s pass, pursuant to a contract and release, from Jackson, Mich., to Ballston Spa, N. Y., by way of defendant’s railroad from Buffalo to Binghamton, was injured at Elmira in the State of New York. Mr. Justice Lyor writing for the Appellate Division in the Third Department said: ‘c Under the decisions of this State the contract and release are valid [citing the Hodge Case, supra] * * * [It was] conceded that if the law of Michigan controls, the contract is invalid; if the law of New York, it is valid.’ "x" * * A similar contract and release were held to be invalid in the State of Michigan in the case of Weaver v. Ann Arbor Railroad Co. (139 Mich. 590), which was an action brought to recover damages on account of personal injuries sustained by plaintiff who was being transported within the State. * "x" * The court held that the plaintiff was rightfully riding as a passenger for hire, and that the release executed by him was invalid upon grounds of public policjy and that the defendant as a common carrier of passengers could not lawfully stipulate for exemption from responsibility for its own negligence.” The court also quoted from Hughes v. Pennsylvania R. R. Co. (202 Penn. St. 222): “Where;a contract containing a stipulation limiting liability for negligence on the part of a common carrier, is made in one State, but with a view to its performance, by transportation through or into one or more other States, it should be constrúed in accordance with the law of the State where its negligent breach causing injury occurs. * * *” and concluded: I think that no contractual relation existed between the plaintiff and defendant, and that the contract and release did not become binding as between them until the plaintiff was received by the defendant at Buffalo for transportation over its line, and hence that the validity of the contract and release as between the plaintiff and defendant is governed as to the negligence of the defendant by the laws of the State of New York, and that such must be presumed to have been the intention of the parties at the time the contract and release were executed.”

In Grand v. Livingston (4 App. Div. 589; affd. on opinion below, 158 N. Y. 688) plaintiff shipped at Boston a quantity of horses to be transported to Buffalo under a contract or release there executed exempting the carrier from liability for injury caused by its negligence or that of its agents or servants. Mr. Justice Adams said: “This instrument is as broad and comprehensive in its terms as language can possibly make .it, and, if valid] amounts to an absolute release of the defendant from all liability for duty .omitted, as well as for affirmative acts of negligence, however gross may be their character. Such a contract has. never been recognized as possessing any validity in the State of Massachusetts [citing cases]; while, upon the other hand, the courts of this State have held, and . it is now the accepted law of the State, that carriers may, by express stipulation, limit their common-law liability to the extent of relieving themselves from the consequences of their negligent acts. ”

He held that the contract was to be interpreted according to the law of Massachusetts and the plaintiff was entitled to recover.

In Valk v. Erie R. R. Co. (130 App. Div. 446) the action was against a common carrier for the destruction of goods by fire, while in transit, in the warehouse of the defendant on the dock at Buffalo. The goods were being transported from Chicago under a through bill of lading to New York. The bill of lading contained conditions releasing the carrier from liability for damage to the property caused by fire. Mr. Justice Lauohlin" said: “The undisputed evidence showed that by virtue of statutory law of the State of Illinois, as construed by the court of last resort of that State, such provisions in a bill of lading either for a shipment where delivery was to be made within or without the State formed no part of the contract unless accepted in writing by the shipper, or unless it appeared that the shipper expressly assented thereto. There is no evidence of such acceptance or assent in the case at bar. There was no statutory provision in this State forbidding a common carrier to thus limit its liability without the express consent of the shipper, and the rule is here well settled that the shipper becomes hound by the provisions of the bill of lading which is delivered to him or to his duly authorized agent without any express assent thereto oh his part either in writing or otherwise. * * *. We are of opinion that the court erred in applying the law of the State of New York in determining what this contract was. -x- x x The Circuit Court of Appeals of the United States, in an action against this defendant for property destroyed by the same fire, has applied this rule and held that the law of the place of shipment governs upon this precise point as to whether provisions in the bill of lading restricting the common-law liability of the carrier became a binding part of the contract. (Erie R. R. Co. v. Pond Creek Mill & Elevator Co., 162 Fed. Rep. 878.)”

From these cases it clearly appears that the validity of the contract and release is to be construed either according to the law of the State of Illinois, where they were executed, or by the law of the State of Ohio, where the accident and injury occurred. In no event is the law of this State applicable. It, therefore, follows that, considering the case as arising and to be determined under the State laws, the contract and release being invalid both by the laws of Illinois and Ohio, the motion to direct a verdict by the defendant was properly denied and the judgment should be affirmed.

2. The defendant claims that the case comes within the Interstate Commerce Law, which is exclusive; that it had duly filed with the Interstate Commerce Commission its schedules, rates, tariffs and classification; as among said documents appeared the form of the contract and release under consideration, thereby said contract and release became authorized as legal by act of Congress; therefore all State law, statute or common, declaring such provisions invalid was superseded, and hence it is the law of the United States that it as a common carrier can contract to relieve itself from all liability for its own negligence. If the Congress of the United States, by direct enactment, had so legislated, of course there could be no question as to its power. It has been given by the Constitution complete jurisdiction of interstate commerce, if and when it chooses to exercise it. (See U. S. Const, art. 1, § 8, subd. 3.) But it is a startling proposition that, without a word on the subject in any act of Congress, the settled policy of the United States, announced in innumerable cases by the Supreme Court, has been completely overturned by the mere filing of a form of contract and release with an administrative board. Let us see what the policy of the United States has been and in what way the Supreme Court has determined that the power of Congress has been extended over the field of interstate commerce and how far it has gone and what its limitations are. The leading case which has been cited and followed to date, and has never been questioned, is Railroad Co. v. Lockwood (17 Wall. 357). That case went up from the United States Circuit Court for the Southern District of New York. Lockwood was a drover injured while traveling on a stock train of the New York Central Railroad Company proceeding from Buffalo to Albany. He had cattle on the train. He had been required at Buffalo to sign an agreement to attend to the loading, transporting and unloading of said cattle, and to take all risk of personal injury to himself and had received a drover’s pass declaring that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. The Supreme Court flatly refused to follow the decisions of this State, and holding that it was against public policy to permit a railroad company to stipulate relief from the results of its own negligence, came to the following conclusions:

“ 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 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.

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 travelling 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.”

The rule that a person rightfully riding on a drover’s pass is a passenger for hire has been laid down in most of the States of the Union. (See Elliott Railroads, § 1605.) Chicago, Milwaukee, etc., Railway v. Solan (169 U. S. 133), decided in 1898, was an action brought in Iowa where a statute prohibited any contract, receipt, rule or regulation which exempted a common carrier from liability. Plaintiff wa's a drover traveling on a contract expressly stipulating that the company should in no event be liable for any injury to his person in any amount exceeding $500. Plaintiff was injured and recovered a verdict of $1,000. The company took the case tó the United States Supreme Court. In affirming Gray, J., said: “By the law of this country, as declared by this court, in the absence of any statute controlling the subject, any contract by which a common carrier of goods or passengers undertakes to exempt himself from all responsibility for loss or damage arising from the negligence of himself or his servants is void as against public policy, as attempting to put off the essential duties resting upon every public carrier by virtue of his employment, and as tending to defeat the fundamental principle on which the law of common carriers was established — the securing of the utmost care and diligence in the' performance of their important duties to the public. [Citing cases.] In the leading case of Railroad Co. v. Lockwood, above cited, it was accordingly adjudged that an agreement in writing with a railroad company, by which a drover travelling with his cattle upon one of its trains, in consideration of his cattle being carried at less rates, stipulated to take all risk of injury to them and of personal injury to himself, did not exempt the company from all responsibility for injuries to him caused by the negligence of its servants. * * *

1 ‘ The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, like other questions affecting its liability as a common carrier of goods or passengers, one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the State in which the cause of action arises. But the law to be applied is none the less the law of the State; and may be changed by its Legislature, except so far as restrained by the Constitution of the State or by the Constitution or laws of the United States. * * * ”

These, decisions declaring public policy upon the question by the Supreme Court of the United States were delivered before effective and exclusive interstate commerce legislation by Congress. The original Interstate Commerce Act of February 1, 1887, was amended by the act of June 29, 1906, which took effect sixty days thereafter (24 U. S. Stat. at Large, 379, chap. 104, as amd. by 34 id. 584, chap. 3591; Id. 838, Res. No. 47). The 20th section as amended, generally referred to as the Carmack Amendment to the Hepburn Bill, is as follows:

That any common carrier, railroad or transportation, company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed * * (24 U. S. Stat. at Large, 386, § 20; amd. by 31 id. 593, 595, §1)

The effect of that amendment upon stipulations limiting liability for loss of goods by carriers based upon valuation thereof has been considered by the Supreme Court of the United States in a series of cases collected and considered by this court in Barstow v. New York, New Haven & H. R. R. Co. (158 App. Div. 665). Those cases held that such a limitation based upon valuation was valid so far as goods carried as express or freight were concerned. This court held that it was equally valid so far as passengers’ baggage was concerned, though we pointed out that certain decisions in certain State courts were to the contrary, including Hooker v. Boston & Maine R. R. Co. (209 Mass. 598), which case, however, since the writing of the Barstow opinion, has been reversed by the Supreme Court of the United States (Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97). In Boyle v. Bush Terminal R. R. Co. (210 N. Y. 389) Miller, J., said: “Although the rule in the Federal courts, unlike that prevailing in this State, has always been that a common carrier could not exempt himself from liability for negligence even by express words, it is settled hy the decisions of the United States Supreme Court that a contract limiting liability to a value agreed upon for the purpose of fixing the rate is valid, and that holding is based on the principles of the common law, and not, as is said, on the provisions of the so-called Carmack amendment. (Adams Express Co. v. Croninger, 226 U. S. 491, and cases cited on page 510; Kansas Southern Ry. Co. v. Carl, 227 U. S. 639; Mo., Kan. & Tex. Ry. Co. v. Harriman, Id. 657.) The question considered in those cases, as far as that amendment was concerned, was whether it prevented, not whether it permitted the making of such contracts.”

But it is important to examine the basis of the argument in those cases to see whether it is applicable to the case at bar. In the Croninger Case (supra) Lurton, J., said: “ That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Company v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338. The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. "x' * * It has therefore become an established rule of the common law as declared by this court in many cases that such a carrier may by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in case. , of loss or damage to an agreed value made for the purpose of obtaining the lower of two or more rates of charges propotioned to the amount of the risk. * "x" * c The limitation as tó „ value has no tendency to exempt from liability for negligence.’/j * -x- * The statutory liability, aside from responsibility for " the default of a connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the States. * * * The exemption forbidden is, as stated in the case last cited [Bernard v. Adams Express Co., 205 Mass. 254], ca statutory declaration that a contract of exemption from liability for negligence is against public policy and void.’ This is no more than this court, as well as other courts administering the same general common law, have many times declared. ”

In the Carl Case (supra) the court said: “If such a valuation be made in good faith for the purpose of obtaining the lower rate applicable to a shipment of the declared value, there is no exemption from carrier liability due to negligence forbidden by the statute when the shipper is limited to a recovery of the value so declared.”

These cases, therefore, while upholding a limitation of liability based on value, instead of reversing, reassert the public policy steadily announced by the Supreme Court, that a carrier may not relieve himself of all liability for his own negligence. •

In Santa Fe Railway v. Grant Bros. (228 U. S. 177) (decided April 7,1913) the Supreme Court of the United States again announced its position in the most emphatic manner, Mr. Justice Hughes saying: “It is the established doctrine of this court that common carriers cannot secure immunity from liability for their negligence by any sort of stipulation. [Citing cases.] The rule rests on broad grounds of public policy justifying the restriction of liberty- of contract because of the public ends to be achieved. The great object of the law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to be bound to the exercise of care and diligence ‘seeks to put off the essential duties of his employment.’ It is recognized that the carrier and the individual customer are not on an equal footing. ‘ The latter cannot afford to higgle or stand out and seek redress in the courts. * * * He prefers, rather, to accept any ’ bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases, he has no alternative but to do this, or abandon his business.’ Railroad Company v. Lockwood, supra, pp. 378, 379. For these reasons, the common carrier in the prosecution of its business as such is not permitted to drop its character and transmute itself by contract into a mere bailee with right to stipulate against the consequences of its negligence.”

In Missouri, K. & T. Railway v. Harriman (227 U. S. 657) the court said: “ The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.” (Citing cases.)

Because the Interstate Commerce Act makes provision for the filing of tariffs, etc., and contains a provision for passes to drovers, the appellant argues that the release is valid. In addition to the Carmack Amendment, quoted supra, the only provisions of the Interstate Commerce Act of February 4,1887, as amended by the act of June 29,1906, and by the act of June 18, 1910, at all applicable, seem to be the following, which took effect sixty days thereafter:

“Section 1. * . * * And it is hereby made the duty of all common carriers, subject to the provisions of this Act, to establish, observe and enforce just and reasonable classifications of property for transportation, with reference to which rates, tariffs, regulations or practices are or may be made or prescribed, and just and reasonable regulations and practices affecting classifications, rates ór tariffs, the issuance, form and substance of tickets, receipts and bills of lading, the manner and method of presenting, marking, packing and delivering-property for transportation, the facilities for transportation, the carrying of personal, sample and excess baggage, and all other matters relating to or connected with the receiving, handling, transporting, storing and delivery of property subject to the provisions of this Act which may be necessary or proper to secure the safe and prompt receipt, handling, transportation, and delivery of property subject to the provisions of this Act upon just and reasonable terms, and every such unjust and unreasonable classification, regulation and practice with reference to commerce between the States and with foreign countries is prohibited and declared to be unlawful.

“No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; "x‘ * * to necessary care takers of live stock, poultry, milk and fruit * * *. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor moz-e than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such intez-state free ticket, fz-ee pass, or free transportation shall be subject to a like penalty.” (See 24 U. S. Stat. at Large, 379, § 1, as amd. by 34 id. 584, § 1, and 36 id. 544, 546, 547, § 7. See, also, 35 id. 60, chap. 143.)

“Sec. 6. That every common can-ier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. * * * The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect or determine any part or the aggregate of such aforesaid rates, fares and charges, or the value of the services rendered to the passenger, shipper or consignee. * * *

“No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.” (See 24 U. S. Stat. at Large, 380, § 6, as amd. by 34 id. 586, 587, § 2, and 36 id. 548, § 9.)

In Southern Pacific Co. v. Schuyler (227 U. S. 601) the intestate, an employee of the railway mail service, not on duty, was killed by the derailment of the train on which he was riding, with the knowledge of the train agent and conductor, on a certificate signed by the Postmaster-General. The defense was that he was not traveling on official business that entitled him to free transportation under his commission, and that in riding free he was violating the act of Congress of June 29, 1906, which forbids common carriers subject to the provisions of the act after January 1, 1907, to “directly or indirectly issue, or give any interstate free ticket, free pass or free transportation for pa; ' "™ * * to railway mail deceased was a trespasser and the railway company under no legal duty to care for his safety. The case came up from the Supreme Court of Utah, which affirmed a judgment for the plaintiff below, and held that the Hepburn Act did not forbid a carrier from giving free interstate transportation to a railway mail service employee when not. on duty, and ‘“we are of the opinion that when a common carrier accepts a person as a passenger, he is not permitted to- deny that he owes to him the duty of diligence, prudence, and skill, which, as carrying on a public employment, he owes to all his passengers; and that he cannot escape liability for a negligent performance of that duty resulting in injury by urging that the pass or commission was issued, or the gratuitous passage permitted, by him, in violation of law.’” Mr. Justice Pitkey said: “Whether the Hepburn Act prohibits a carrier from giving free interstate transportation to the employees of the Railway Mail Service when they are not on duty but are traveling for their own benefit or pleasure, is of course a Federal question. "ÍBut whether — assuming that question to be answered in the affirmative— the relation of carrier and passenger arises in the case of gratuitous passage under circumstances such as are presented in this case, is (in the absence of an act of Congress regulating the matter) a question not of Federal hut of State lawA * * * We have examined the evidence in the record anSfind that it fairly supports the conclusion of the State court that the deceased was accepted by plaintiff in error as a gratuitous passenger. But, finally, it is argued * * * that it was beyond the power of the State court to ‘ read into the Hepburn Act an exception in favor of gratuitous passengers’; thereby (as is said) enlarging the class to whom Congress limited the right of free interstate transportation. This is ingenious, but, as we think, unsound. As applied to the concrete case, it is equivalent to saying that the operation of the Hepburn Act is such as to deprive one who, in good faith and without fraud, and with the consent of the carrier, but in actual though service employees contended that the unintentional violation of the prohibition of the act, accepts a free passage in interstate transportation, of the benefit of a rule of local law that renders the carrier in such circumstances responsible for exercising care for the passenger’s safety because the carrier has voluntarily undertaken the burden of such care. But the act itself declares what penalty shall be imposed for a violation of its prohibition. * * * This penalty is not to be enlarged by construction. Neither the letter nor the spirit of the act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage. ¡The deceased no moreforféited his life, limb or safety, and no more forfeited his right to the protection accorded by the local law to a passenger in his situation, than the carrier forfeited its right of property in the mail car upon which the deceased rode. His right to safe carriage was not derived, according to the law of Utah, from the contract made between him and the carrier, and therefore was not deduced from the supposed violation of the Hepburn Act. It arose from the fact that he was a human being, of whose safety the plaintiff in error had undertaken the charge/ ] With its consent he had placed his life in its keeping, and the local law thereupon imposed a duty upon the carrier, irrespective of the contract of carriage. £fhe Hepburn Act does not deprive one who accepts gratuitous carriage, under such circumstances, of the benefit and protection of the law of the State in this

We are of the opinion that the appellant derives no help from the Interstate Commerce Law. The act itself only authorizes just and reasonable terms, and every such unjust and unreasonable classification, regulation and practice * * is prohibited and declared to be unlawful.” (See § 1, as amd. supra.)

In the light of the repeated acts of Congress covering the safety of passengers and providing for compensation for employees injured while engaged in interstate commerce, and the repeated declarations of the Supreme Court of the Unitéd States that contracts and releases of liability for the negligence of carriers are against public policy, it is unthinkable that that policy can be held to have been subverted by the mere filing of the form of the papers with the Interstate Oommerce Commission. The “terms” “regulation” and “practice ” were “unjust and unreasonable ” and hence “prohibited ” and “ unlawful.” The respondent was not a gratuitous passenger under the law established by Illinois, by Ohio, and by the United States Supreme Court. The contract was for the conveyance of cattle. It provided -that “the said shipper is at his own sole risk and expense to load and take care of, and to feed and water, said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.” But these things had to be done. The carrier having refused to do them, provided that the plaintiff should be carried on its train to attend to these necessary matters, “without charge other than the sum paid or to be paid for the transportation of the live stock in his ’’ charge. He was allowed to be so carried by the express terms of the Hepburn Act, and the release he was compelled to sign was invalid in the State where executed, in the State where the injury was sustained, and against the public policy declared by the Supreme Court of the United States.

The judgment appealed from should be affirmed, with costs.

Laughlin and Scott, JJ., concurred.

Ingraham, P. J.

(concurring):

I concur in the affirmance of this judgment. By the Interstate Commerce Law, as amended in 1906, 1908 and 1910 (24 U. S. Stat. at Large, 379, chap. 104, as amd. by 34 id. 584, chap. 3591; Id. 838, Res. No. 47; 35 id. 60, chap. 143; 36 id. 539, chap. 309), Congress has, it seems to me, taken control of the subject of interstate commerce, and the action of Congress is, therefore, conclusive. By section 1 of that act it is provided that “ The provisions of this Act 'shall apply to * "x" * any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad * * * from one State or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia * * *; and .it shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto; and to provide reasonable facilities for operating such' through routes and to make reasonable rules and regulations with respect to the exchange, interchange and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto.” (24 U. S. Stat. at Large, 379, § 1, as amd. by 36 id. 544, 545, § 7.) And further: “No common carrier subject to the provisions of this Act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except * * * to necessary care takers of live stock, poultry, milk and fruit "x" "x" *.” (Id. § 1, as amd. by 36 id. 546, § 7.) By this enactment Congress has undertaken to regulate the transportation of passengers and property from one State to another, the charges for such transportation, and prohibited free transportation except in certain specified instances. By expressly allowing the free transportation of ‘ ‘ necessary care takers of five stock,” the agreements or contracts under which such caretakers were to be transported came within the supervision of the Federal government and its regulations and genera] policy and control, and it is expressly provided that “ All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone or cable, as aforesaid,, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.” (24 U. S. at Large, 379, § 1, as amd. by 36 id. 545, § 7.)

The defendant, as a common carrier, was bound to transport for the plaintiff his live stock from .the State of Illinois to the State of New York. For such service, which included the transportation of the live stock and the transportation of -the plaintiff as the caretaker, it was entitled to recover the reasonable compensation as had been established under the provisions of the act of Congress. If the charges for this service were unjust and unreasonable, Congress has declared such a charge to be unlawful. Thus Congress had taken within its control the whole subject of the transportation of passengers and merchandise, including the transportation of a caretaker for live stock, and it imposed upon the carrier certain duties in relation to the rendition of such services and regulated the compensation which it was to receive therefor. It seems to me, according to the principles established in Southern Railway Company v. Reid (222 U. S. 435), this brought the whole subject within the control of the Federal government so that it comes within the third class mentioned in that case, i.e., “ Those in which the action of Congress is exclusive and the State cannot act at all.” In Southern Pacific Co. v. Schuyler (227 U. S. 601) it was held that whether the anti-pass provision of the Hepburn Act prohibits carriers from giving free interstate transportation to employees of the railway mail service when they are not on duty but traveling for their own benefit or pleasure, is a Federal question, but the question whether the relation of carrier and passenger arises in the case of a gratuitous passage is, in the absence of an act of Congress regulating the matter, a question not of Federal but of State law. As it was said, “Neither the letter nor the spirit of the act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage.” These two cases, I think, illustrate the' extent to which by this act now under consideration Congress has taken control of interstate commerce. It has determined who shall and who shall not be carried by carriers engaged in interstate commerce without payment of the fare or charges for the service rendered. It regulates and determines the rates that shall be charged for transportation of persons or merchandise and the contracts under which such service is to be performed; but it has not attempted to relieve the carrier from liability to a person traveling in violation of the act for negligence in the performance of the duty which it has assumed. The agreements or contracts under which interstate commerce is carried on, the rates paid or charges made for such service are, it seems to me, brought within the jurisdiction of the Federal authority, and as to such agreements or contracts the Federal jurisdiction must necessarily control, and the local regulations of the several States or the public policy of the several States are superseded by the law as established and enforced by the general government. The whole matter, so far as the regulation of interstate commerce is concerned, has passed from the control of the States to the control of the Federal government. The validity of any contract for services rendered or to be rendered in the transportation of passengers or property is thus regulated by the law of the general government. By the act every unjust or unreasonable charge for such service is declared to be unlawful. Therefore, the question as to whether a charge is reasonable or unreasonable, is just or unjust, or a contract for transportation is valid or invalid, is a Federal question to be determined by the laws of the United States.

In this case the question is whether the contract signed by the parties is valid or enforcible. Under the act of Congress plaintiff was entitled to have his goods transported. Where a contract was made in the performance of that duty imposed by Congress, such contract was, I think, to be governed and construed by the Federal law under which it was executed.

Assuming, therefore, that the contract under which this shipment was made was under the control of the laws of the United States, the question whether or not such a contract as was made by the plaintiff in this case relieving the carrier from liability for its own negligence was void must, as I [view it, depend upon the laws of the United States and not upon the laws of the State in which the contract was made or the States through which it was to operate. There can be no question but what the Supreme Court of the United States has consistently held such a contract to be void as against its public policy. Since the case of Railroad Co. v. Lockwood (17 Wall. 357) such contracts have been absolutely void and unenforcible in the courts of the United States. In that case the conclusion was based upon the proposition 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; 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; 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. This was reaffirmed in Chicago, Milwaukee, etc., Railway v. Solan (169 U. S. 133), where it was held that by the law of this country, in the absence of any statute controlling the subject, any contract by which a common carrier of goods or passengers undertakes to exempt himself from all responsibility for loss or damage arising from the negligence of himself or his servants is void as against public policy. In Adams Express Company v. Croninger (226 U. S. 491) it was said: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary.” In Santa Fe Railway v. Grant Bros. (228 U. S. 177) the court again announced the general rule, saying: “It is the established doctrine of this court that common carriers cannot secure immunity from liability for them negligence by any sort of stipulation.” Therefore, if the common law as determined by the Supreme Court of the United States is to control interstate shipments, this contract, under which the defendant claims immunity, was absolutely void, and it would be the foundation for no defense against plaintiff’s claim for damages for negligence unless such a contract has been validated by act of Congress.

By section 6 of the Interstate Commerce Act, as amended, it is provided: “That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. * * *

No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless.the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time * * (24 U. S. Stat. at Large, 380, § 6, as amd. by 34 id. 586, 587, § 2.) This section relates solely to the rates, fares and charges for transportation. It does not attempt to validate contracts which were void as against the public policy of the United States at the time that the act was passed. As I read the act, it did not change the public policy of the United States which refuses to enforce such contracts. The common carrier by filing a tariff with the commission created by the act could not, as I view it, change the whole public policy of the United States and validate contracts which-that public policy had declared void and unenforcible. The charge to be collected by the carrier was fixed and from that charge the carrier could not deviate. For that charge the passenger or shipper was entitled to the services rendered, but before the tariff was fixed a contract exempting the carrier from liability for its own or its employee’s negligence was unlawful and it remained unlawful until Congress should by some express provision change the law of the United States and render such a contract enforcible.

/ My conclusion, therefore, is that Congress has taken within its exclusive control all interstate commerce and that thereby the general law of the United States becomes applicable to interstate shipments; that by the law of the United States any contract exempting the carrier from liability for its own negligence or the negligence of its servants is unlawful and void, and that Congress has not by any provision validated such a contract. Therefore, it was no -defense to the action that the shipper had signed a contract relieving the carrier from liability for its own negligence//

It follows that the judgment was right and should be affirmed.

McLaughlin, J., concurred.

Judgment affirmed, with costs.  