
    SULLIVAN-SANFORD LUMBER CO. v. WATSON et al.
    (Supreme Court of Texas.
    March 26, 1913.)
    1. Death (§ 33) — Beesons Liable — “Railroads.”
    A logging railroad, owned and operated by a lumber company solely in its own business, is a railroad within Rev. Civ. St. 1911, art. 4694, § 1, providing that, when the death of any person is caused by the negligence or carelessness of the owner or any person in charge of a railroad, the liability of the owner shall be the same as if the railroad were being operated by a railroad company.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.
    
    For other definitions, see Words asd Phrases, vol. 7, pp. 5899-5908; vol. 8, pp. 7777, 7778.]
    2. Death (§ 15) — Actions eok Wrongful Death — Statutes.
    Under the direct provisions of Rev. Civ. St. 1911, art. 4695, no action for the wrongful killing of one who lost his life on a railroad can be maintained if the deceased would not have been entitled to maintain an action himself.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 17; Dec. Dig. § 15.]
    3. Carriers (§ 307) — Carriage of Passengers — Passage—Liability.
    While a condition in a pass issued by a common carrier of passengers exempting the carrier from liability for negligence, is invalid because against public policy, such a condition in a pass issued by the private owner of a logging railroad, which was not a common carrier, is valid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1252-1259, 1491; Dec. Dig. § 307.]
    4. Carriers (§ 239*) — Carriage of Passengers — Consideration for Passage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 974, 975; Dec. Dig. § 239.]
    Where the owner of a logging railroad carried, without compensation, one seeking employment with a contractor extending the line, the possibility that the owner might be benefited by the employment is too remote to afford any consideration for the transportation.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. Beulah Watson and others against the Sullivan-Sanford Lumber Company. A judgment for plaintiff was affirmed on appeal to the Court of Civii Appeals (135 S. W. 635), and defendant brings erre*.
    Reversed.
    Chas. S. Todd, of Texarkana (Harry P. Lawther, of Dallas, of^counsel), for plaintiff in error. 1-Iart, Mahaffey & Thomas, of Tex-arkana, S. I. Robison, of Daingerfield, and J. M. Terrell, of Dallas, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

The honorable Court of Civil Appeals made an excellent and-full statement of the case and findings of facts in this case, which we adopt (135 S. W. 635).

It has been decided in this state that “a logging road,” such as that of plaintiff in error, is a railroad within the terms of section 1 of article 4694, Revised Statutes 1911, which reads: “1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charter, hirer, of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents; when the death of any person is caused by the negligence or carelessness of the receiver or receivers or other person or persons in charge or control of any railroad, their servants or agents; and the liability of receivers shall extend to cases in which the death may be caused by reason of the bad or unsafe condition of the railroad or machinery, or other reason or cause by which an action may be brought for damages on account of injuries, the same as if said railroad were being operated by the railroad company.”

The private corporation which owned and operated the logging road on which the death of John A. Watson occurred was “owner” of that road and liable, under the statute above copied, to the same extent as any other corporation or person would be. Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479.

After careful examination, we are of opinion that the judgment must be affirmed unless the exemption from liability for injuries embraced in the pass on which Watson was riding is valid and defeats the right of recovery.

The wife and children cannot recover if Watson could not have recovered if he had survived his injuries.

Article 4695, Revised Statutes 1911, reads: ‘The wrongful act, negligence, carelessness, unskillfulness, or default mentioned in the preceding article, must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”

The terms of the pass pleaded here were denounced in G., C. & S. F. Ry. Co. v. McGown, 65 Tex. 640, as contrary to public poiley, therefore void when issued by a public carrier. There are a number of cases decided by the Courts of Civil Appeals to the same effect as the case cited. The courts of the different states are much divided on the question; but we accept tbe opinion of Judge Stayton in tbe case cited as conclusively settling tbe question in tbis state, so far as tbe carriage of passengers upon public passenger trains may be involved. But tbe question remains, Does it apply to cases like tbis, where no passengers, as sucb,. were carried at any time? Tbe opinion of Judge Stayton in G., C. & S. F. Ry. Co. v. McGown, supra, is sustained 'by many cases, 'and is perhaps adverse to tbe weight of authority; but it is a strong presentation of tbe position taken by that court. ■ Tbe remaining question is, Do tbe facts of tbis case bring it within tbe reason of that ease so as to render void tbe limitation of liability contained in tbe pass issued to Watson?

Tbe opinion in Railway Co. v. McGown presents tbis state of facts: Tbe railroad was a public carrier of passengers. McGown bad a legal right to purchase a ticket and to ride upon the train. The railroad company was under tbe duty by law to carry McGown. Tbe public are interested in preserving tbe utmost diligence on tbe part of tbe carrier. McGown, one of the public, could not contract for a relaxation of diligence on tbe part of tbe public carrier, because negligence as to one passenger would be negligence to all who'were riding in tbe same car or on tbe same train. In tbe instant case tbe plaintiff in error was a private carrier, carrying no freight except its own, nor passengers but its employes and tbe contractor’s bands, just as a farmer often carries bis laborers to the cotton fields and returns them to tbe bead-quarters. Watson bad no right to ride upon that train; tbe plaintiff owed him no duty of carriage; it was strictly a private matter in which tbe public was not concerned. Tbe distinction is clearly shown by Judge Stayton in Railway Co. v. McGown in tbis language: “Tbe relation of passenger and carrier is created by contract, express or implied, but it does not follow from tbis that tbe extent of liability or responsibility of tbe carrier is, in any respect, dependent on a contract. In reference to matters indifferent to tbe public, parties may contract as they please, but, not so in reference to matters in which tbe public has an interest.” Tbe public had no interest in the carriage of Watson, who had no right to ride on the train, and tbe plaintiff in error was under no duty to carry Watson; therefore it was a proper subject of contract between.

The case- nearest in point that we have found is Shoemaker v. Kingsbury, 12 Wall. 369, 20 L. Ed. 432. Shoemaker was a contractor for building a railroad, and operated a construction train to transport material and employés. Kingsbury sought tbe privilege of riding on tbe construction train, and was permitted to do so for a compensation paid, and was injured. He sued tbe contract- or for damages and had judgment in tbe trial court which, upon removal to the Supreme Court of tbe United States, was reversed. Justice Field, delivering tbe opinion, said: “From tbe whole evidence in tbis case, it is plain that tbe defendants were not common carriers of passengers at the time tbe accident occurred which has led to tbe present action. They were merely contractors for building the Eastern division of the Union Pacific Railway, and were running a construction train to transport material for tbe road. Tbe entire train consisted, besides tbe engine and its tender, of cars for sucb material and what is called in tbe testimony a ‘caboose car.’ Tbis latter car was intended solely for tbe accommodation of tbe men connected with tbe train; it contained their bunks and mattresses; they slept in it, and deposited in it tbe lamps of the cars and the tools they used. It was not adapted for passengers; and, according to tbe testimony of the conductor, tbe defendants did not wish to carry passengers, although, when persons got on to ride, tbe defendants did not put them off, and sometimes, though not always, fare was charged for their carriage.” That case is quite analogous in its main features to tbis, and sustains tbe position that a private carrier for hire is not liable for sucb injuries.

It is urged upon tbis court that the lumber company was to be benefited by Watson’s trip through his employment by tbe contractor; therefore it was carrying him for hire. If we admit that to be correct, it would not make it a public carrier, therefore, obliged to carry Watson. Tbe benefit to be derived to tbe lumber company was so remote that it could not be regarded as a consideration. If tbe contractor bad employed Watson, and be labored to carry out tbe contract, .the company would have bad the privilege of paying tbe contractor for tbe result of Watson’s labor.

We deem it unnecessary to cite other authorities or to state other reasons to sustain our conclusion that Watson and tbe lumber company had the right to make tbe contract of exemption; therefore tbe contract was valid. If Watson had lived, he could not have recovered; hence tbe plaintiffs cannot recover.

It is ordered that tbe judgments of the district court and Court of Civil Appeals be reversed, and that judgment be here entered for plaintiff in error with all costs.  