
    The Cleveland, Painesville and Ashtabula Railroad Company v. Benjamin Curran.
    In making a contract for the shipment of live-stock at a specified rate, a railroad company, without any additional consideration, delivered to the shipper a “drover’s pass” entitling him to go with his stock, and to return on a passenger train. In the written agreement for transporting the stock the holder of the ticket was referred to as “ riding free to take charge of the stock.” On the pass was an endorsement that it was a “free ticket,” and that the holder assumed all risk of accident, and agreed that the company should not be liable under any circumstances, whether of negligence by the company’s agents or otherwise, for any injury to his person or property, and that he would not consider the company as common carriers, or liable as such. Held:
    
    1. That the pass and the agreement for transporting the stock constituted together a single contract, and that the holder, both while going with his stock and returning, was not a gratuitous, but a paying passenger.
    3. That the stipulation in the contract, exempting the company from liability for negligence, constituted no defence to an action brought by the shipper for personal injury caused by the negligence of the servants of the company in the management of its trains, such stipulation being,' against the policy of the law, and therefore void.
    
      . Error to the court of common pleas of Lake county. Reserved in the district court.
    On January 15,1864, Curran, being a drover, shipped on railroad cars, at Finley, Ohio, for Buffalo, New "York, two car loads of hogs. When he arrived with the hogs at Cleveland, Ohio, the cars containing them were transferred from the Cleveland and Toledo Railroad to the railroad of the plaintiff in error. • Thereupon Curran, with other drovers, went to the freight office of the plaintiff in error, and there, with its agent, made a contract “ C ” for the transportation of the hogs, which provides: “ That whereas said railroad company transports live-stock only at first-class rates, as per their tariff, excepting only in the eases where the owner assumes ■certain risks and incidents specified below, in consideration of obtaining the transportation at reduced rates ; and whereas ■said party of the second part [Curran] in the present case, .assumes and takes upon himself said risks and incidents for ¡said consideration. Now therefore, in consideration that said railroad company will transport for the said party such livestock at the reduced rate of . . . fifty-five dollars for double decks per car load from Cleveland to Buffalo and charges advanced, the said party of the second part does .hereby agree to take and does hereby assume all and every the risk of injuries ” to the animals in consequence of a number of specified causes, including the “ burning of hay, straw, or ¡any other material used by the owner for feeding the stock,” ■etc. “And it is further agreed that the said party of the ■second part is to load and unload said stock at his own risk, the said railroad company furnishing the necessary laborers to assist, under the direction and control of said party of the second part,” etc. “ And further it is agreed between the parties hereto, that each and every of the persons riding free to take care and charge of said stock, do so, at their own risk of personal injury from whatever cause; and the said party of the second part, for the consideration aforesaid, hereby releases and agrees to release and to hold harmless .and keep indemnified the said party of the first part, of and from all damages, actions, claims, and suits on account of any and every the injuries, loss, and damages hereinbefore referred to, if any such, occurs or happens,” etc. At the foot of the contract Curran is named as the person “ passed in charge of the stock.”
    The contract was executed in duplicate, each party taking one.
    Immediately after the contract was interchanged, the railroad agent produced a blank drover’s pass, and inquired of Curran what name he should insert therein. Curran told him to insert his name. The agent did so, and handed the pass to Curran, who accepted it, and nothing further was said. He was not in the office more than five minutes. Curran proceeded on the train with the hogs to Buffalo, where they were delivered. On the same or the next day after the hogs were delivered at Buffalo, Curran took passage on a passenger train, and in a sleeping-car, for Cleveland. After he passed on the train over the Buffalo and Erie railroad, he travelled on the road of the plaintiff in error under and by virtue of said drover’s pass, which was taken up by the conductor of that train. At Buffalo, on the train, Curran paid to the sleeping-car conductor, for a berth on that car, four or six shillings. On the morning of the 19th of the same month, the train (an express) on which Curran then was, came to a. stop near the village of Painesville, in consequence of a snowdrift, and was thereby detained for near an hour. During a portion of this time an " accommodation train ” of plaintiff in error was entitled to the track, and came up at a rapid speed, and with great violence, against the train upon which Curran was a passenger, and struck the sleeping car in which he was, destroying it and other cars in that train, and inflicting severe injury upon him.
    In his petition Curran avers that for certain “ reward ” the plaintiff in error undertook to carry him from Erie to Cleveland, and that the collision took place in consequence of the gross carelessness of the conductor and brakemen on the express train in neglecting to signal the accommodation train.
    In the answer of the plaintiff in error the alleged negligence is denied; and it is averred that Curran was a gratuitous passenger, riding in virtue of a free ticket issued to him under an agreement with the company to exempt it from all liability for or on account of any injury to his person.
    The pass on which Curran was travelling and which was taken up by the conductor was lost; but, except as to the name of the person inserted, and the date, the following is a copy of it:
    
      
    
    On the reverse side was printed:
    “ The person accepting this free ticket assumes all risk of accident, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket, and agree that, as for him, he will not consider the company as common carriers, or liable as such.”
    The superintendent of the company testified on the trial that the contract for the transportation of the hogs is in due form, “ and of the kind which was alone used by the company at the time the said stock was transported for Curran; and that the company would not, at that time, have received and transported the hogs except under such contract.”
    There was a general finding by the jury, ripon the issues, in favor of Curran, and they assessed his damages at two thousand dollars. In connection with this general finding, they found specially the following facts:
    1. The company performed its contract for the transportation of the hogs.
    
      2. Curran paid no consideration for the drover’s pass, other' than that expressed in the contract for the transportation of the hogs.
    3. Curran knew the contents of what appeared on the face and back of the drover’s pass when he received it.
    
      4. lie was injured on his return passage.
    The company moved for a new trial. The motion was overruled, and judgment entered on the verdict. Thereupon the company filed its petition in error in the district court, which was reserved to this court for decision.
    
      Wm. L. Perlcms for plaintiff in error:
    1. tinder the circumstances of this case, as shown by the record, the contract of Curran, to exonerate the company from liability for personal injuries occasioned by accidents, is not void, as in contravention of any rule of public policy. Wells v. The N. Y. C. R. R. Co., 24 N. Y. 181; Perkins' Administrator v. Same, 24 N. Y. 196; Smith, Administrator of Ward, v. Same, 24 N. Y. 222, 228, 230, 231, 232; Bissell v. Same, 25 N. Y. 442, 444. The case on trial is stronger for the company than the one last cited.
    As to this case, the company is not a common carrier. “ A common carrier is one who undertakes for hire to transport goods, or convey persons, for such as choose to employ him, from place to place.” 1 Bouvier’s Dic., tit. “Common Carriers; ” Story on Bailments, sec. 195. “ Hire ” — compensation^ — is a constituent condition upon which he becomes, or in the particular transaction is a common carrier, and liable as such. Without this condition, he is not a common carrier, but simply a bailee, or carrier without pay. A mandatary. As such, he would be obligated, not to the care which a prudent father would take, but only to such, according to Sir William Jones, as “ even inattentive and thoughtless men never fail to take of their property,” and according to others, only “ ordinary care,” and liable only for gross neglect, or that species of reckless neglect which would be evidence of fraud or bad faith. Thie is the rule in regard to the carrier of goods, in which he is an insurer. But the carrier of persons is not an insurer. Even with “ hire ” he is not responsible for accidents, when he has used all reasonable skill and diligence. 1 Bouvier’s Dic. 286. But without hire, not being common carriers, and so not liable to the common-law liabilities of common carriers, is it not sufficient that he exercise common and ordinary diligence; and in this case was not common and ordinary diligence and care fully exercised'in having their road track, car, engines, and appliances in complete and perfect condition, and in exercising their best judgment, skill, and vigilance in -the procurement of perfectly competent, experienced, tried,- and trustworthy conductors, brakemen, and all their other employes in charge of the train, of the same character? The-company having done all this, are they not protected by their contract ? Is it not true of this case, as Lord Hale said it was of Manby v. Scott (1 Siderfin, 109), that “ The case is not in itself of general consequence, in as much as it consists of its own particular circumstances; ” and so no consideration of public policy arises.
    2. A carrier may, under the circumstances of this case, contract as against the negligence of its subordinate employes. Wells & Tucker v. Steam Nav. Co., 4 Selden, 375, 381; also the New York cases above cited.
    
      James Mason, also for plaintiff in error :
    The question distinctly presented by the pleadings, special findings, and bill of exceptions is — can a railroad company by any contract voluntarily entered into between it and a passenger permitted to ride on its train under a free ticket or pass, be exonerated from liability to such passenger for injuries which may be suffered by such passenger, for accidents resulting solely from the negligence of subordinate employes of the company, such as brakemen on the train, who have been employed and retained by the company, without fault or negligence on its part ?
    1. Neither the supreme court of the United States, nor the court of last resort in either of the States, has declared that such condition or agreement is in contravention of the rules of public policy and law regulating the duties of carriers of passengers, and without legal validity.
    It has been decided by the Supreme Court of the United States (see 14 How. 483) that a passenger riding on a train, by invitation from the president of the company, and who paid no fare, could recover for injuries which resulted from a collision caused by negligence ; but no conditions or agreement that the passenger should assume all risks, existed in the case. It is said in a-note in Redfield on Railways that the same doctrine has been held in Illinois.
    In Welsh v. Pittsburg, Fort Wayne and Chicago R. R. Co., 10 Ohio St. 76, were involved the obligations of common carriers of goods, and not the obligations of carriers of passengers. Therefore the language used by Judge Scott in that case can have no application to the principles involved in this case.- The distinction is familiar. See Redfield, vol. ii. p. 174.
    In New York the question involved in this case ‘has been several times considered and repeatedly settled. It will not be doubted that in that State the conditions and agreement on the free pass protect the company from liability to a greater extent than it is necessary for us to claim, in behalf of plaintiff in error, that it is protected in the case before the court. Those cases have been referred to by Mr. Perkins, and I do not propose to review them.
    2. The condition and agreement do not contravene any established rule or principle of public policy.
    We have no statute in Ohio (as they have in New York) declaring “ in terms that the corporation shall be liable for any neglect or ref%isaZ in'the premises,” etc., and the contract of exemption, in the comparatively few cases in which passengers are permitted to ride on free passes in Ohio, is not subversive of any policy which is here recognized or established by statute.
    Independent of such statutory provision, I submit that no principle is recognized or declared in the elementary books, or in the reports, which can be shown to be invaded by such conditions and agreements on free tickets.
    
      Tbe argument is, that such contracts of exemption may tend to a relaxation of vigilance on tbe part of railroad companies; and that this would affect tbe security of tbe whole travelling public.
    This argument cannot be sustained by any known and recognized legal principles declared as required by public policy. The legislature has not perceived the necessity of declaring any prohibition to meet the case. The common law has recognized no such principle. Such agreement of exemption is not void for illegality within any rule of law laid down in the books. It is not immoral or in restraint of trade, or in defiance of any obligation imposed by law, but is simply in relief, to the company, of obligations created by contract, or by something of the nature of contract, toward those who travel upon its trains; and it is difficult to understand why the contracting parties may not, by fair agreement, diminish or increase those obligations. Says Parke, B. (14 L. & E. Rep. 340); “We ought not to fritter away the meaning of contracts merely for the purpose of making men careful.”
    The plaintiff in error is not claiming the benefit of an agreement that it should not be liable to Curran in case it should do him a wrong, or commit toward him a fraud. It cannot, indeed, be pretended, that it, as a company, has been guilty of any misconduct or wrong whatever. One' of its employes has been guilty of neglect, and from that neglect Curran has suffered. To a passenger who paid his fare it would, of course, be liable for the negligence of its subordinates, but not to one who, in consideration of a free ride, or, for any sufficient consideration, voluntarily assumed to release the company, not from the consequences of its own misconduct, but from, that which it had no power, by any degree of watchfulness on its part, to prevent.
    
      A. I. *Tinker for defendant in error:
    1. A common carrier of passengers (not of goods) cannot lawfully stipulate, by special contract, so as to exempt himself from liability for his own negligence. Such a contract is against public policy, and therefore void. Jones v Voorhes, 10 Ohio, 145; Davidson v. Graham et al., 2 Ohio St. 131; Graham & Co. v. Davis & Co., 4 Ohio St. 362; Wilsons v. Hamilton, 4 Ohio St. 722; Dissenting opinion of Sutherland, J., in Wells v. N. Y. C. R. R. Co., 24 N. Y. 194; Hollister v. Nowlen, 19 Wend. 247; Cole v. Goodman, 19 Wend. 259, 273, 280; Doran v. Fromont, 4 Campb. 40.
    We are aware that these decisions in the State of New York have since been modified, yet we refer to them for the purpose of showing how resolutely her earliest judges stood by and adhered to what nearly .all of the jurists and lawyers unite in denominating a most salutary rule in the law of carriers.
    But if it be claimed that transportation by rail is of recent date, and that these decisions were made before that mode of transit was known, and before the introduction' of free tickets, and that therefore they do not affect the questions, then I maintain —
    (1) A person rightfully upon the road as a gratuitous passenger, in the absence of any special agreement to exempt the carrier from all liability, can recover for injuries occasioned by the negligence of the carrier; and —
    (2) A free passenger, upon the road, under an express contract to exonerate the carrier from liability, can recover for, and on account of, damages received in his transit by the fault of the carrier.
    The principles upon which this court based its decisions in the cases cited clearly cover and embrace the case at bar. Yet if we are mistaken in this, and the question still remains open, in this State, we say that so far as the highest court in the land is concerned, it has been foreclosed. See Philadelphia and Reading R. R. Co. v. Derby, 14 How. 468. And to the same purport are the decisions in many of the States. Farwell v. Boston and Worcester R. R. Co., 4 Met. 36; McElroy and Wife v. The Nashua and Lowell R. R. Co., 4 Cush. 400; New World v. King, 16 How. (U. S.) 469-474, Coggs v. Bernard, Holt, 13; Tod v. The Old Colony and Fall River R. R. Co., 3 Allen (Mass.), 18. I refer also to: Ind. Cent. Railway v. Munday, 21 Ind. 48; Ohio and Miss. Railway v. Muhling, 30 Ill. 9; 16 How. (U. S.) 469-474; 5 Ind. 340.
    2. The ticket termed a “ drover’s pass ” is not, under tha circumstances, a free ticket, and Curran was not, while being carried on the cars in virtue thereof, a gratuitous passenger.
    The legal purport of contract C evidently is, that, in consideration of the $55 per car load, the hogs were to be transported to their destination, and the persons riding on the train to take care of them were also to have their passage without additional payment.
    The law which imposes upon the plaintiff the absolute duty of a carrier puts it under an incapacity to contract in derogation of that duty. To allow an important public duty to be defeated — to suffer a.great principle of policy and justice and reason to be circumvented — by an empty form of words imposed by one party who has no right to propose them, upon another who has no power to repel them — would be a reproach to the law. (See 1 Smith’s Leading Cases, Com. on Coggs v. Bernard, 5 Am. Ed. p. 322.)
    
      Gatch & Walker, also for defendant in error:
    1. A railroad company can not, by express contract, exempt itself from liability in damages to a passenger travelling on a “ free ticket” for injuries resulting from the negligence of its subordinate employes, such as conductors and brakemen.
    Such contract would be against good morals and public policy, and therefore void. Davidson v. Graham, 2 Ohio St. 140; Graham & Co. v. Davis & Co., 4 Ohio St. 377, 379; Welsh v. The Pittsburg, Fort Wayne and Chicago R. R. Co., 10 Ohio St. 75.
    The doctrine of the foregoing cases when applied to the case at bar, acquires additional force from the circumstance that in each of them the stipulated exemption related to injury to goods, while in this it related to the life and safety of & passenger.
    
    
      2. Should this court recognize a distinction, adopted by the courts of some of the States, between cases of gross negligence, and those involving negligence in a lower degree, it is claimed that the case at bar is one of gross negligence. Any carelessness or negligence, wider the circumstcmces stated, is, in law, gross negligence. See Graham & Co. v. Davis & Co., supra, pp. 378-80.
    3. But this court has expressly refused to recognize degrees of negligence in such cases. Davidson v. Graham, supra, p. 139; Graham & Co. v. Davis & Co., supra, p. 380; 10 Ohio St. 73.
    4. The reason of the invalidity of suc]j. contracts being that they are against public policy, the fact that the carrying is gratuitous is wholly immaterial.
    5. The existence of a distinction, in this respect, between the negligence of superior and subordinate agents, is denied in Ill. Cent. R. R. Co. v. Reed, 37 Ill. 484. See also Welsh v. Pittsburg, Fort Wayne and Chicago R. R. Co., supra, p. 76.
   White, J.

The controversy arising on the record in this case is embraced in two general questions.

The first we will consider is, whether Curran, the plaintiff below, was, at the time he received the injury complained of, a gratuitous passenger.

We think he vjns not. The ticket called a drover’s pass ” entitled him to ride from Cleveland to Erie with his stock, and to return on a passenger train. A single consideration was paid to the company for this privilege and for the transportation of his stock, and the one service can no more be said to have been gratuitous than the other. It is true, the person using the ticket is referred to in the contract as riding free, ” and in the endorsement on the ticket it is called a “ free ticket; ” but' these expressions can, in fact, only mean that the holder was to be subjected to no additional charge, and that he was to pass free of the usual fare exacted of passengers. The writing “ O ” and the ticket were delivered at the same time, and, together, constitute one contract.

The next question is, whether the stipulation in the contract exempting the company from all liability for negligence, constitutes a defence to the action.

In our opinion it does not. "We regard it as settled in this State, by former decisions, that no such stipulation would exonerate the company from responsibility as a common carrier for the loss of goods caused by its own negligence; and from the principle thus established we are not inclined to recede. Welsh v. Pittsburg, Fort Wayne and Chicago R. R. Co., 10 Ohio St. 65; Graham & Co. v. Davis & Co., 4 Ohio St. 362; Davidson v. Graham et al., 2 Ohio St. 131.

It is true, that common carriers are not insurers of the safety of passengers as they are of goods which they undertake to carry; but the principle of. law which forbids, their being allowed to exempt themselves from liability for the consequences of their negligence in respect to goods, applies with still greater force in the case of passengers.

The common law has a peculiar regard for human life; and for this reason exacts a greater degree of care in respect to it than in relation to any matter of mere property. Shear-man & Redf. on Negligence, § 24.

Carriers, of the class of the plaintiff in error, are creatures of legislation, and derive all their powers and privileges by grant from the public. They are created to effect public purposes, as well as to subserve their own interest. They are intended, by the law of their creation, to afford increased facilities to the public for the carriage of persons and property, and, in performing this office, they assume the character of public agents, and impliedly undertake to employ in their business the necessary degree of skill and care.

This obligation arises from the public nature of the employment, and is founded on the policy of the law.for the protection of the persons and property of the public, which must of necessity be committed, to a very great extent, to the care of public carriers.

In the case of the Philadelphia and Reading Railroad Company v. Derby (14 How. R. 486) it was laid down that, “ when" carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of Careless agents. Any negligence, in such cases, may well deserve the epithet of gross.” And in delivering the opinion in the case of the Steamboat New World et al. v. King (16 How. R. 474), Mr. Justice Curtis declared that the court desired to be understood as reaffirming that doctrine, as resting, not only on public policy, but on sound principles of law.”

Eecovery is allowed for the breach of this duty where no privity of contract exists between the injured passenger and the carrier. Thus, in Collett v. London and Northwestern Railroad Company (16 Q. B. R. 984), where a duty was cast by act of parliament upon a railway company to carry any officer of the post-office, whom the postmaster-general might elect, for which services the company was to be re- . numerated by the postmaster-general, and the plaintiff was the officer elected, and was injured by the defendants’ negligence in carrying him, it was held, that it was the defendants’ duty to carry the plaintiff with proper care and diligence, and for the breach of such duty, to the injury of the plaintiff, he might sue the companyin an action on the case, though there was no contract between him and the defendants, but the duty arose simply from the obligation imposed upon the defendants by the statute. Same case, cited in Shearman & Redf. on Negligence, note to § 261. And to the same effect is Nolton v. Western Railroad Co., 15 N. Y. 444; see, also, Marshall v. The York, Newcastle and Berwick Railroad Co., 2 C. B. (73 E. C. L.) 655.

Whether the general obligation resting on the company as to the care to be exercised in the management of its trains may be qualified by special contract in cases of gratuitous services rendered in the carriage of a passenger, or of goods, is a question we are not called on to consider. Such cases are exceptional in their nature, and whether the fact that they do not practically contribute to furnish the standard by which the business is conducted should withdraw them from the operation of the general rule, is a question not raised in the case before us, and in respect to which we express no opinion.

It cannot be denied that pecuniary liability for negligence promotes care;' and if public carriers in conducting their business can graduate their charges so as to discharge themselves from such liability, the direct effect will be to encourage negligence by diminishing the motives for diligence.

In New York it has been held by the court of appeals, three judges dissenting, that a common carrier, in consideration of an abatement in whole or in part of his legalfare, may lawfully contract with a passenger that the latter will take upon himself the risk of damage from the negligence of agents and servants, for which the carrier would otherwise be liable. Bissell v. The New York Central R. R. Co., 25 New York, 442.

The contract in that case was similar to the one in the case now before us, and the railroad company was held not to be liable.

But in the case of the Pennsylvania Railroad Company v. Henderson (51 Penn. St. Rep. 315) it was decided by the supreme court of Pennsylvania, that such a contract for exemption from liability for negligence was void, as being against the policy of the law.

In that case it appeared that Henderson, on the trip on which he was killed, shipped some live-stock to Philadelphia and received a “ drover’s pass,” being a ticket given to the person in charge of stock, there being no charge for the ticket, and the freight on the stock being the same whether any person went with it or not.

Oh this ticket was the following endorsement: “ The person accepting this free ticket assumes all risks of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by its agents, or otherwise, for any injury to the person, or for any loss or injury to the personal property of the party using this ticket.” In an elaborate opinion by Read, J., the late New York cases were reviewed and disapproved, and it was held that the contract imported by the endorsement was no excuse for negligence.

The former decisions of the supreme court of Pennsylvania on the subject of such agreements, accord with the former decisions of our own court; and the decision in the case of Henderson and the- decision we make in the present case are but the logical application of principles established in former cases.

If the distinction as to the different degrees of negligence should be recognized as applicable to this class of cases, a matter which has been questioned in some cases and denied in others, yet the act of negligence charged in this case, and which the jury must have found to have been proved, would, in its nature, clearly be an act of gross negligence.

Judgment affirmed.

Day, O..J., and Bbinkerhoff, Scott, and Welch, J.J., concurred.  