
    John Flinn v. The Philadelphia, Wilmington, and Baltimore Railroad Company.
    Depositions taken on a commission out of the State may be read in evidence, notwithstanding the deponent is present in court and ready to testify as a witness at the trial of the case.
    A master is not liable to his servant for injuries occasioned to him by a fellow-servant in the course of their common employment, provided the latter is a person of competent skill and care; because when the former engages in the service of the master, he undertakes, as between himself and the master, to incur all the ordinary risks of the service, which includes the risks incurred from the negligence of his fellow-servants in the same employment.
    But a drover travelling in a freight train of a railroad company with live stock, for the purpose of taking care of his live stock in its transportation over the road of the company in such train, although it may be the established usage of the company in such cases to grant to the owner of such live stock a drover’s ticket, for the purpose of accompanying and taking care of his own stock in such train, on his releasing . the company from any risk or liability to him for the safe transportation of such stock, and paying the rate of freight charged for it, and without his paying any fare or compensation to the company for his own passage in the train, other than what was included in the amount of freight charged and paid on his stock, which by the regulations and practice of the company was twenty-five per cent, higher in rate, when neither the owner nor any agent of his accompanied the stock on the train for the purpose of taking care of it, will not constitute in law the relation of employer and employee, or of master and servant, for the occasion, between the company and such drover and owner or agent so travelling under such circumstances and upon such terms and for such a purpose, on such a train. But, on the contrary, where it is the usage and practice of the company, in such cases, to issue to such a person a special ticket, called a drover's ticket, on his paying the freight on his stock, and executing a release to the company from any liability to him for the safety of its transportation, containing a notice that the company will not be responsible for the personal safety of the holder of it in travelling over their road by such train, and restricting his right and privilege to travel under it to the freight trains of the company only, it was held that a drover travelling on such train with his live stock, and who had paid the usual freight chargeable under such circumstances upon it, and released the company from its liability for the safe transportation of it, whether he had or had not such a ticket as a drover's ticket at the time, was rightfully and lawfully a passenger on such freight train; and although he had paid no fare or compensation for his own passage, except such as, may have been embraced in the freight paid on his stock, under the circumstances and in the advantages and exemptions accruing to the company from his presence and personal attention to his own property on the train, and notwithstanding he was travelling, not in a passenger train, but in a freight train, in which the company never carried, or advertised, or held itself out as prepared to carry passengers, or any class of persons other than drovers, or their agents travelling with their live stock, and then only on the terms and conditions as to their personal safety before stated, still the company stood in the relation and sustained the obligations of a common carrier of passengers for hire towards him, and were liable as such to him for injuries suffered by him in a collision between such train and another freight train of the company, occasioned by the negligence or want of skill on the part of its servants in charge of either or both of such trains; and that an action on the case would lie against the company by reason of its liability as a common carrier of passengers for hire under such circumstances, to recover damages for such injuries; because under such circumstances it would not be the case of a special undertaking by the company as ordinary bailees for hire, to carry the party over its road on an express contract that the company should not be liable for his personal safety, and if liable at all would only be liable as such ordinary bailees, or as a private carrier for compensation in another form of action, that is to say, in an action of assumpsit based specifically on such express contract.
    Common carriers consist of two classes,—common carriers of goods, and common carriers of persons for hire; and railroad companies being incorporated by law for the transportation of passengers as well as property, for hire, are common carriers of both descriptions. But if, as a general thing, they confine the transportation of goods to their freight trains, and the conveyance of passengers to their regular passenger trains, they are common carriers of goods as to the former, and of passengers as to the latter; nevertheless, if by the latter they are in the habit of carrying goods for hire, they may become common carriers of goods by such trains, and if by the former they are in the practice of carrying passengers for hire, such as emigrants, or drovers, or any other class of traders with their property, they may also become common carriers of passengers as to such persons by such trains, as well as of property, and may thus assume the obligations and liabilities of common carriers indifferently both of persons and property by such trains. There is a wide distinction, however, between the liability of common carriers of goods and a common carrier of persons for hire. The former are responsible for all injuries to the goods,' except such as are caused by the act of God, or the public enemies, even in the absence of negligence; because the former are regarded in law in the light of insurers of the goods committed to their charge, against all other injuries ; whilst a common carrier of passengers is liable for injuries to the latter only in case of negligence. But the law in its beneficence will not allow of any trifling with the lives or personal safety of human beings, and therefore exacts great care, diligence, and skill from those to whom, as common carriers, they commit themselves. The degree of skill, care, and diligence required of common carriers of passengers and of their servants, and especially of railroad companies, employing as the^r do the powerful and dangerous agency of steam, in such cases, is none the less, but only the greater for tips reason.
    If it was the practice of the company to receive and carry the owners of live stock with their stock on its freight trains, upon their paying the freight charged in such cases, arid the plaintiff had paid the freight on his stock and was travelling in such a train in conformity with such usage, then he was there rightfully and lawfully, and the company and its servants were bound to exercise the same degree of care and diligence in conveying him over the road in the train in question as would be incumbent by law on common carriers of passengers for hire generally ; and so far as this duty was concerned, they stood in a no less responsible relation to him/ For it would be inconsistent with this relation and utterly at variance with the duty which the law, on the ground of public policy and as the conservator of the lives and security of passengers, imposes on common carriers of persons, to allow of an exemption, or limitation of the responsibility of the company, such as was contained in the notice indorsed on its drovers’ tickets, for the personal safety of such passengers against injuries resulting from its own, or the negligence of its servants. On the contrary, if the injuries complained , of by the plaintiff were the result of such negligence, the company would be liable for them notwithstanding such notice and limitation of its liability in such cases.
    If, however, the injuries complained of by the plaintiff were occasioned ■ by his own fault or negligence, or if his own conduct or imprudence cooperated with the negligence or misconduct of the servants of the company to produce them, he could not recover for them; because he could not hold others liable for the consequences of his own negligence or misconduct. But the detention of the train in which he took passage, by his- request, beyond its usual time of starting, for the purpose of accommodating him in getting his live- stock upon it, without which it was alleged and contended the collision in question would not have happened, was not a circumstance of this nature, or such as would throw upon him the responsibility for the disaster; because the delay in the departure of the train was not his' act, but the act of the company, or its servants, and the original detention itself was altogether immaterial, if the accident was-the result of subsequent negligence on the part- of the latter, at any time after the train started, as it must have been, if it was the result of negligence at all on the part of the - company, or its servants.
    This was an action on the case, tried before Wootten and Houston, Justices (Gilpin, Oh.’ J.1, not sitting, in consequence of his being a stockholder in the company), brought by John Minn against the Philadelphia, Wilmington, and Baltimore Railroad Company, to recover damages for personal injuries sustained by him on the night of the 18th of March, 1856, in a collision between two freight trains of the company, while he was on his passage in one of them from Baltimore to Philadelphia.
    The plaintiff resided in Wilmington, and was a drover and butcher, and was engaged in the business of buying and transporting sheep and cattle, over the road of the company, from Baltimore to Philadelphia. In the afternoon of the day mentioned he arrived at the depot of the company in Baltimore, with a flock of sheep, a short time before the hour of starting the regular freight train for Philadelphia, which was five o’clock; • and as he was anxious to get on with them that night to Philadelphia, he applied to the proper officer of the company for that'purpose, and obtained his consent to delay the departure of the train until he could get his sheep on board. After a detention of half an hour beyond the-usual time of leaving, the sheep were got on board and the train started, the plaintiff' taking passage in it with his stock for Philadelphia, for which he paid $73 freight, the usual rate charged when the owner accompanied his stock on the trains of the company, but without paying any fare for his own passage; as it was the custom and regulation of the company in such cases, to charge twenty-five per cent, less freight on the transportation of live stock when the owner or his agent went with them to take care of them, and in consideration of this fact, to ask no fare or additional pay for the passage of such owner, or his agent. It was also a further regulation and practice of the. company in such cases, to require of the owners of live stock transported over the road, a release to the company from any liability for the safety of it, and to issue to the owner a special ticket, entitled a “ drover’s ticket,” which stated on its face that it entitled the holder to pass from and to the points indicated in it, only on freight trains, for the purpose of taking care of his stock, and on the reverse of it was contained a printed notice to drovers, that no risk would be assumed by the company, nor would any damage be allowed, unless specially agreed to when the stock was taken for transportation, and an additional price of twenty-five per cent, on tariff rates paid; one driver free when accompanying the stock, to take care of it and paying the regular price, but in no case to be allowed to ride in passenger trains on such tickets; and no risk- would be assumed by the company for the safety of such person. But whether the plaintiff had executed such a release, or had such a ticket on the occasion in question, did not appear from the evidence. It was proved, however, that he had executed such releases to the company on previous occasions, when transporting stock over their road, and that he was aware of the conditions contained in the notice to drovers, as above stated.
    It was not the practice, but contrary to the instructions and regulations of the company to carry passengers generally, or any other persons than drovers, by their freight trains from Baltimore to Philadelphia, and without such a ticket, a drover would have no right, according to the regulation, to travel even on a freight train; and even then, he was not considered by the company a passenger, but only as a person on the train to take care of his stock, for the equal benefit of himself and the company.
    The train in which the plaintiff took passage with Ms stock was termed the regular or through freight train from Baltimore to Philadelphia, and consisted that evening entirely of stock and freight cars, with the exception of a common storage car, in which the men employed on the train sometimes rode when the weather was cold or inclement, and an emigrant car attached to the rear of the train on that occasion, for the purpose of being taken back to Philadelphia, and which was the only car in the train which had a stove or fire in it that evening.
    There were two other trains wMch left Baltimore the same evening for Philadelphia, after the departure of the regular freight train above mentioned. The mail train, which left at forty-five minutes after six o’clock, and an extra freight train, which left at half past seven o’clock; of the latter of which the conductor and engineer of the regular freight train had due notice before leaving Baltimore, and that it would follow them after the departure of the mail train, though the time of its starting was not stated to them.
    The weather was threatening, and snow began to fall before the first train left Baltimore'; it made, however, its usual time.to the customary turn-out, where it halted, for the next succeeding or mail train to pass it, and which soon afterwards passed, displaying a signal light, denoting that there was still another, or extra train, to follow it that evening in the same direction over the road. After the passage of the mail train, the regular freight train resumed the track and proceeded on its course, but owing to the increased fall of the snow and the force of the wind, which was ahead, it was retarded in its usual rate of speed, and was unable to make more than eight miles an hour over the ascending grades of the road; and whilst upon one of these grades it was overtaken and run into, thirty miles from Baltimore, by the extra freight train, which had followed it, but had not been impeded in its progress by the prevailing snow-storm, in about two hours after it had left that city.
    At the time of the collision, the foremost train had two lights set, one on the engine and another on the rear end of the hindmost car, but owing to the falling snow and the thickness of the atmosphere, the engineer of the extra train did not discover the regular train until he was within a hundred yards of it, when he immediately ordered down the brakes, but not in time to prevent the collision. The engineer of the forward train did not observe the other train, and had no intimation of its approach, until he felt the concussion produced by the collision. The plaintiff, together with the conductor and one of the brakesmen of the regular freight train, was at the time in the emigrant car attached to the rear; of that train, which was badly stove and crushed by the engine of the extra train, and by which the conductor and brakesman were instantly killed, and the plaintiff was severely injured. He was so severely scalded by the escape of steam from the engine of the rear train into the car in which he was seated, that he was now entirely blind, and was literally without eyes. In consequence of the intense scalding of his head and face, they had both been incurably injured internally, and in a short time the interior portions of them began to suppurate, and the entire balls had since flowed from their sockets. From the same cause the skin of his head had more than once sloughed off with both of his ears, and he was permanently injured in other portions of his body. He had also by the burning and scalding of his left hand been entirely bereft of the use of it for life; and it is perhaps allowable for the reporter to add, that it was still a marvel to all who even then beheld him that he had survived such a catastrophe and the injuries which he had suffered from it.
    
      Evidence was also adduced on 'behalf of the plaintiff* to prove his circumstances; his sober and industrious habits, the number and the expenses of his family, the profits of his business, and his strict attention to it, previous to the disability entailed upon him by this misfortune.
    During the examination of the testimony, the counsel for the plaintiff also offered in evidence the deposition of a witness taken out of the State on a commission issued for that purpose, which was objected to on the other side, because the witness was then in court for the purpose of being s^vorn and examined, and was ready to testify in the case in the regular and usual method, if his testimony was desired.
    
      James A. Bayard, for the plaintiff:
    The commission, which was absolute in its terms, was duly executed in conformity with the authority of the Court, and the party taking it had a right to have the deposition,read in evidence, although the witness may have since come into the State, and may even now be present in court. It is distinguishable under the provisions of the Constitution from a commission de bene esse, that is to say, a commission for taking the testimony of aged, infirm, or departing witnesses, as to which the Constitution provides that the deposition shall be read in the event of the death, departure out of the State, or inability of the witness to attend at the time of the trial. But there is no such provision in the case of a commission dedimus potestatem, or a commission to take depositions out of the State, which is absolute on its face and not subject to any such condition. When a deposition has thus been taken, the party is never bound to call the witness, even though he may be in Court, but may read his deposition in evidence; the opposite party, however, may,, if he chooses, have the witness called and sworn and may examine him on his side, notwithstanding he may have omitted to file cross-interrogatories on the issue of the commission. 4 Phil. Ev. 130; Phenex v. Baldwin, 14 Wend. 62.
    
      
      D. M. Bates, for the defendant:
    The taking of testimony on commission in any instance, is a departure from the common law method, and is regarded in courts of common law as an inferior mode of eliciting evidence, and is only to be resorted to from necessity, when .the witness is beyond the reach of the process of the Court, and his testimony cannot be had in the usual and better method. But the very reason and necessity for its admission in the case just mentioned, will and ought to exclude it when the witness is actually in Court and can be examined in its presence, in a much more complete and satisfactory manner. It is an invariable rule of law to require the best evidence which the nature of the case will admit of, and this mode of adducing testimony is acknowledged to be contrary to the course of the common law, and necessarily inferior in its nature; and it must therefore be understood as an implied or necessary condition of the commission, that the deposition shall only be used as a substitute for the testimony of the witness in the usual and better method, when he cannot be produced and examined.
    
      By the Court:
    
    We recognize the distinction between a commission of this kind and a commission de bene esse to take the depositions of aged and infirm witnesses within the State, under the provisions of the Constitution, as the latter are only to be read in evidence in case the witnesses are unable to attend, while the former are without any such condition or qualification; and as this is a document duly connected with the case, returned and filed under the rules and authority of the Court, we think, in accordance with the cases cited, that the party is entitled to read it in evidence to the jury.
    The counsel for the defence then proceeded to examine their witnesses, and the testimony being closed, the argument commenced before the jury.
    
      Bradford, for the plaintiff:
    This is an, action against a corporation, which is a common carrier for hire, made so by public statute and incorporated for that purpose, over-whose road it is necessary for us all to pass, whenever we have occasion to travel to or from the great cities which it connects; for by the great improvement which it has constructed, and the superior facilities for travel which it affords, it has long since superseded all other modes of public conveyance, especially for the transportation of passengers between those two points, as well as between all intermediate places on the line of this railroad; and the consequence is, that it now enjoys almost the sole and exclusive benefits of that travel, and reaps the rich profits and rewards accruing to it from the large and lucrative business which it has thus established and secured to itself as common carriers of passengers, at least, between these various points. This suggestion, however, is made for no improper purpose, but simply'to show, that if the genéral remark so often made at the present day be true, that the railroad has become a public necessity, this has proved to us a necessity in more senses than one; and hence the duty enjoined upon those who own and have the management of such works and improvements as common carriers, to exercise the strictest vigilance to protect the lives of passengers and to guard against accidents and injuries to their persons,, while travelling by this dangerous mode of conveyance, is all the greater and the more obligatory upon them, in consideration of the facts to which I have just adverted. Without intending, however, to disparage, or complain of the general management and conduct of this company, whose road, up to the time of the catastrophe in question, had been operated with more than ordinary safety and security, perhaps, to passengers, he should contend that in the ease now before them, and on the melancholy occasion when the plaintiff sustained the great and irreparable injury, the damage of which they were to estimate, the servants of the company having the conduct and control of the train in which he was travelling, were .guilty of gross and culpable negligence, in consequence of which he sustained that injury; and that being at the time a passenger on the train for hire, as he should insist, he is clearly entitled to maintain the suit, and to recover in this action. Every person who takes his seat in a train of railroad cars commits himself to the custody of the company and its servants for safe transit over the road, and in proportion to the implied trust and confidence necessarily reposed in their prudence and discretion, is the diligence and- foresight which the law imperatively imposes as an obligation upon them; and such is the character of that obligation, that he should take the ground, that in order'to exonerate the defendants from any liability on account of the injuries sustained by the plaintiff, it would be necessary for them to show that the accident was one which no human foresight could have prevented.
    But before he proceeded to the consideration of this point, he would inquire, what was the relation subsisting between the plaintiff and defendants at the time of the accident ? The defendants, as he had before said, were common carriers of persons as well as goods, and the plaintiff stood in the relation to them of a passenger for hire. He was on the ill-fated train as a drover with his flock; that is to say, he was in a train particularly designed for the accommodation and transportation of that class of persons passing over the road with such property. By the regulation of the company he had a right to travel in that train without further compensation to the company, on paying the freight for his stock according to the rates charged under the circumstances; and having paid the freight according to the rate required, he could not justly be denominated a free passenger, as might be contended for on the other side, because his passage was included and paid for in the price of the freight. Assume it as a fact, although it had not been proved, that he had executed no release to the company from liability for the safety of his stock, and that he had at the time no drover’s ticket, as required by the custom and usage of the company, could that affect his right to recover in this action ? And if he had not, whose fault was it? He had paid-for his right in the manner stated, and in the mode required hy the company, to go in that train, and he had a right to be there and to travel in it, whether he had such a ticket or not; for-the ticket, after all, was only evidence for the conductor that the passage had been paid for; and if he permitted a passenger to remain in the train without demanding the production of his ticket, it was omission of duty on his part, but it 'could not make the passenger a trespasser, or exonerate the company and its agents from their obligation to carry him safely and securely, so far as human diligence and foresight, under the circumstances, would permit.
    As to the degree of .diligence required of railroad companies under such circumstances, there was a difference between a contract to carry passengers and a contract to carry goods. For the safety of goods, a common carrier was absolutely bound at all hazards; but for the safety of passengers, he was not liable, if the accident was one which human foresight could not have prevented. Christy v. Griggs, 2 Camp. Rep. 80; 2 Kent Com. 600; Ang. & Ames on Corp. 492; Stokes v. Saltonstall, 13 Peters, 115. Common carriers of passengers were bound to the utmost care and diligence, and the slightest neglect, or accident against which human foresight could guard, would render them liable. McIlroy & Wife v. The Nat. & Lowell R. R. Co., 1 Amer. Railway Cases, 591; Laing v. Colder, 2 Ibid. 378. And when the accident occurred by a collision between trains belonging to the same company, it was prima facie the result of negligence on the part of the company, or its servants. Skinner v. The London & Brighton R. Co., 2 Eng. Law & Eq. Rep. 360; Carpean v. The same Co., 48 Eng. C. L. R. 751. Nor is it necessary, in such a case, that the person injured should have been a passenger on the road for. hire, or in a passenger car, if he was lawfully on the road hy the license or invitation of the company. 1 Amer. Railway Cases, 109; 14 Howard, 468; 16 Howard, 469. If the party was not a trespasser at the time on the train, he is entitled to ‘recover for any injury resulting from the negligence of the agents of the company. 26 Eng. L. & E. 
      
      Rep. 444; 6 Eng. L. & E. Rep. 305. Neither can common carrier^ limit their liability, or responsibility for negligence or misconduct, either by notice, or special contract to the contrary. Laing v. Colder, 2 Amer. Railway Cases, 378; 1 Amer. Railway Cases, 171, 358; Hollister v. Newlin, 19 Wend. 235; Cole v. Goodwin, 19 Wend. 251; Gould v. Hill, 2 Hill, 623; Coggs v. Bernard, 1 Smith’s Lead. Cases, 279. And negligence, whether gross or slight, is a question of fact, under the circumstances of the case, to be' determined by the jury. Idem, 289, note 3.
    Such being the principles of law which he considered applicable to this case, it only remained for the jury to inquire and determine whether the injuries sustained by the plaintiff on the occasion in question, were or were not attributable to the negligence, or the want of proper vigilance and foresight under the circumstances, on the part of the agents and servants of the company. He then proceeded to review and comment at length on the facts proved in the case, and contended that the collision of the two trains, by which the plaintiff had been so seriously and severely inj ured that it was' even still a wonder that he had survived it, was entirely owing to the negligence and neglect of the servants of the company on the preceding, or general freight train, in failing to exercise the proper care and diligence, under the peculiar circumstances of the occasion, to avert the disaster and avoid the collision, by preventing, the succeeding or extra freight train from overtaking-and running into the former, duly apprised as they were before leaving the depot at Baltimore, that they would he followed by the latter train that evening; and admonished,as they should have been, by the snow-storm of that night, the violent head wind and the thick atmosphere, their dilatory time and the extraordinarily slow speed they were making, under the well-known impediments which opposed their progress, it was their duty to have kept the strictest lookout for the approach of the extra train, and to have left some notice for it on the route at some point where it would halt, of the obstructions and delay which it had encountered, and the unusually slow progress which it was making. Instead of which, and notwithstanding these admonitions, however, no notice or intimation whatever, was left for the officers of the succeeding train, which was in the meanwhile, with fatal speed and unimpeded progress, making the usual time for such trains over the road, in swift pursuit of them, running two miles to their one, and so far from keeping a vigilant lookout for its coming, it, was in proof that every employee on the first train was shut up under cover at the time of the contact, and even the engineer at his post on the foremost train, had no idea and no conception of the near approach of the other train until he felt the shock of the actual collision. Such accidents could not occur without gross and criminal negligence in some quarter; and for his own part the responsibility for this sad disaster rested, he believed, under the circumstances, with those who had the control and running of the regular freight train on which the unfortunate plaintiff was a passenger. But whether that responsibility was justly imputable to them alone, or was in part, or on the whole, attributable to the misconduct, mismanagement, or want of care and foresight on the part of the officers of the other train, was altogether immaterial, as they were alike agents and servants of the same company, which was equally answerable for the injuries resulting from their neglect and negligence, viewed in either aspect; and in either case, the plaintiff was entitled to recover.
    
      D. M. Bates, for the defendant:
    The question in this case was, whether the defendant in this action, which was an action on the case, and not assumpsit upon an implied contract, was liable to the plaintiff for the breach of a legal duty imposed on the defendant by law ? He should contend that the defendant had been guilty of no such delinquency in this case; and he might go further and say, that it had never been guilty of any such delinquency in any other case. For it was a remarkable fact, that since this company went into operation, some twenty years since, no passenger keeping his proper place, had ever suffered any injury on any part of its railroad.
    What were the legal obligations imposed upon railroad companies as common carriers of passengers? For the purposes of this case, and so far as their liability for personal injuries was .concerned, this question might be considered in two aspects. First, as common carriers of passengers for hire, as in the case of the .conveyance of a passenger in a passenger train for a reward; and secondly, in case of a special undertaking to convey the individual safely for a compensation, but not in the character.of common carriers; in which case this action would not lie, the remedy being by assumpsit on the promise or special undertaking, and not for the breach of any general duty or obligation imposed by law.
    What then were common carriers ? For a general definition he would refer to an unquestionable authority, 2 Kent's Com. 598. How according to this definition a common carrier is one who holds himself out to the world generally to carry all persons indifferently for hire. But did the defendants do this by their freight trains ? Did they hold themselves out to the world to carry all persons indifferently by their freight trains for hire, or without it ? All the proof in the case expressly negatived such an idea, and all the regulations of the company positively forbade such a thing. How, if the plaintiff had been on a passenger train at the time of the injury received by him, the relation of common carriers towards him would have attached to the defendants. But he was on a freight train with a passenger car attached, but not, as was clearly proved, for the conveyance of passengers at all from Baltimore to Philadelphia, but only to be taken back to the latter city on that occasion; and as to which train the defendants were common carriers merely for the transportation of freight or merchandise, and not for the conveyance of passengers. And he was not only on such a train, buf he was there upon a condition which expressly exempted the company from any liability for his safe conveyance as a passenger, on that train. In a case like this, whatever obligations the company may have assúmed in regard to him, they were not the obligations of common carriers. Railroad companies are not common carriers of goods by their passenger trains, and if they carry goods by such trains, it must be proved and will not be assumed. Pierce on Amer. Railr. Law, 408; 3 Foster’s Rep. 75. So the occasional taking of passengers by freight trains, particularly when they do not open their office for the sale of passenger tickets, or hold themselves out as common carriers of passengers by such trains, will not render or constitute them common carriers of passengers by such trains, or subject them to the obligations and liabilities of common carriers of passengers by freight trains. Murch v. The Concord R. R. Co., 9 Foster’s Rep. 41. But it may be said that the present defendants were common carriers of drovers for hire, and as to an individual of that class, they assumed and were bound by the obligations of common carriers. This, however, did not come within the definition before cited; besides, the plaintiff in this case did not go as a passenger, but in charge of ,his stock, and in connection with an object subsidiary to the transportation of freight, and in the employ of the company for tliat purpose and upon terms which exempted the company from any liability for his personal safety. He was not in that train as a passenger, or as a traveller, but he was simply there by the permission of the company for his own purposes, lawfully he would admit, but without paying any charge or fare for his passage, except what he paid for the ¡ transportation of his live stock, in consideration of releasing the company from the obligation of taking care of it, and on the condition that the company should be at no risk for his personal safety. Would it be pretended that he had no actual notice of this condition ? Had it not been proved that he had no right to be there without a drover’s ticket, which contained that express condition ? And if he had no such ticket, then he was there unlawfully, and if he was there lawfully, then he must have had such a ticket and had actual notice, and the other side might take either horn of the dilemma at their option and pleasure. He was there, as he had said before, to take, charge of his own stock, and not as a passenger, not as a traveller, for another condition of the drover’s ticket which he had, expressly excluded him from the passenger trains of the company upon that ticket. He was there then that night by the permission of the company, not as a passenger or traveller, or for any purpose whatever, so far as the company was concerned, pertaining to his own passage from one place to another, hut solely to take care of his own property and to relieve the company of that duty, which otherwise would have devolved upon it.
    But was it competent for the company to exempt themselves from such a liability; the liability, he meant, for his personal safety under such circumstances ? He had already shown that the company in this transaction was not acting as a common carrier, and therefore it did not present or involve the nice and frequently-mooted question, whether a common carrier can exempt himself from his general duty and common-law liability, by notice or special agreement, as against public policy. On the contrary, this was a case upon the facts proved, of a special undertaking by a privaté carrier, or ordinary bailee for hire, in relation to which it had been uniformly held, both in this country and in England, that such a carrier or bailee may exonerate himself from such a liability by notice, or agreement. Ang. & Ames on Carriers, sec. 59; Alexander v. Green, 3 Hill, 9; Pierce on Amer. Railr. Law, 484. As to the other question, he would here take occasion to say, that he thought the rule which forbids, on grounds of public policy, common carriers to restrict or limit their legal responsibility for gross negligence, by notice or agreement, as recognized and established in the cáse of The N. J. Steam Nav. Co. v. The Merchants’ Bank, 6 How. 344, was a wise rule and sound in principle. But to return to the point which he was considering, he would go further and contend that even if the plaintiff did pass on the train that night, for the purpose before stated, under a usage or custom of the company, not as a passenger, hut for an object f incident to the freighting business by that train, and without .any condition or stipulation on the .part of the company, that it would not assume any risk for his personal safety, still he could not recover in this action; because the company, did not stand in the relation of - a common carrier to him for his conveyance as a passenger, and therefore it did not assume or become in law liable to the obligation to carry him safely. He would not say that he was on the train as an employee of the company, although he was there, as he would maintain so far as the company was concerned, solely for the purpose of taking care of his stock which it had contracted to transport over the road; and viewed in this light, he would say that he was pro hac vice, in the employment of the company, and was associated with the regular and ordinary servants in and about the business of the company in transporting his stock over the road; and whether he was so employed gratuitously or for hire, he should hold that he had no cause of action, whatever, against his employer, the company, for any injury sustained by him while so employed, in the absence of any proof that the injury resulted from a, want of reasonable diligence on the part of the, company in providing suitable cars, engines, road, and machinery for the business. Because if he stood on this occasion, and for the purpose of this passage .over the road, in the relation of a servant, or person in the employment of the company, and the acci-, dent was the result of the negligence of, the servants of the company while engaged in the same employment with him, then the company was' not liable to him for the injury resulting to him from such negligence; for every servant is presumed to assume the risks necessarily incident to his service, and those arising from the negligence of his fellow-servants employed with him; at all events, his employer is not responsible to him for any injury so arising to him. Carwell v. The Bost. & Woost. R. R. Co., 1 Amer. Railw. Cases, 
      347; Hutchinson v. The Railway Company, 1 Exch. Rep. 351; Degg v. The Midland Railw. Co., 1 Exch. R. (N. S.) 779.
    But there was one important fact proved in the cause which had not .been adverted to in the opening argument, to which he now wished to call the attention of the Court and jury. The fact to which he alluded was the detention of the regular freight train, at the instance and request of the plaintiff, on the occasion in question, till after the usual time of its departure from the depot in Baltimore. It would be remembered, for it was proved by several of the witnesses, that the plaintiff reached the depot with his sheep that afternoon, only a short time before the hour for the through freight train to start; but being anxious to get on with them that evening, to Philadelphia, he applied to and obtained the consent of the proper officer to detain the train until his sheep could be placed in it, which was done for his especial accommodation. This delayed the train half an hour after its usual and appointed time of leaving, and which should not have been done for his or anybody else’s benefit or convenience; and had it not been done, this melancholy accident (more melancholy and fatal, however, to some others than to this plaintiff, sad as it proved to him, for two others were instantly killed by it), never would have happened either to him or them, or to any other person. For it had been shown in the evidence, that jmt for this delay of half an hour at the starting, the regular or through freight train would have reached Havre de Grace, or the Susquehanna River, before the extra freight train «could have overtaken it. Indeed, it was proved that in a. few more minutes, the former train, which at the time of the collision was moving with diminished speed up an ascending grade in the road, would have been over it, and would then have been on a descending grade almost the entire way from there to the Susquehanna River; and once upon that grade, which it would have reached in five minutes more, the accident would have been altogether avoided. Well, now, when viewed in this aspect, and when we consider all the facts and circumstances in connection with; and especially the primary cause of it, who was most accountable, the plaintiff or the defendant, for this sad and accidental calamity ? So far as human agency was responsible for it, no one, he apprehended, who was cognizant of all the circumstances, and particularly the one which laid the foundation for it, even if he should be disposed to charge it in any measure -to the mismanagement and misconduct of the servants of the company, would presume to say that the plaintiff was not equally accountable with them for it. But if the plaintiff and the company, or their servants, were equally at fault, or the plaintiff' contributed by his own act to produce the accident, he could not maintain an action for the injury which he hád sustained by reason of it. Pierce on Railr. Law, 276; Murch v. The Concord, R. R. Co., 9 Foster Rep. 41.
    
      Gordon, for the defendant,
    then addressed the jury, holding in the main the same line of legal argument.
    
      James A. Bayard, for the plaintiff:
    The question in- this case was, whether the defendants, on the facts proved, were hound to compensate the plaintiff in damages for the suffering, injury, expense, and loss sustained by him in a collision between two trains of the company, both managed and operated by the servants or agents of the company, and if so bound what those damages should he ? ,
    In our view of the case, the plaintiff’s right to .recover depended on three facts: First, was he lawfully on board of the cars of the- defendants; to he transported Over the road, or any part of it, at the time of the collision ? Or, in other words, was he a trespasser on the train of the company at that time ? Secondly, was the injury which he received the result of the actionable negligence of the servants of the defendants ? Thirdly, what damages were recoverable in consequence, of the injury sustained by him ? Under the first material fact, or point .stated, several questions of law had been raised on the other side, which he should present as he understood them, and endeavor to answer them. And, in the first place, he would remark, that if the plaintiff was on the train by the permission of the agent or servant of the company, who. had the authority to control the admission of passengers,—to exclude and eject them when unlawfully there, and to collect their tickets and exact their fare, then, whether the plaintiff had or had not paid for his passage, or whether the permission to be there was gratuitous, or for hire, he was lawfully there; and if he was there in good faith, and not by collusion with the agent who had the authority to admit or exclude him, it was immaterial whether the officer had, or had not, disobeyed his particular orders in such a case; .the defendants were liable, provided the injury was the result of the negligence of their servants. Phil. & Reading R. R. Co. v. Derby, 20 Curt. C. S. C. Rep. 291. The plaintiff was also there lawfully, if he was there as the owner of live stock, with such stock on the train, whether he had or had not released the company from risk on account of it, and with or without a drover’s ticket, if the conductor permitted him to remain upon it; and being lawfully there, it was immaterial what kind of a train it was, whether a passenger or freight train; the company stood in the relation of a common carrier of persons towards him, and was bound by law to carry him safely, and could not relieve itself of its liability for injuries to him resulting from the negligence of its servants, by any notice, condition, or limitar tian, which it might choose to adopt, as against public policy. Phil. & Reading R. R. Co. v. Derby, 20 Curt. C. S. C. Rep. 291; Collet v. The Lond. & Bright. R. Co., 6 Eng. Law & Eq. Rep. 306; 26 Eng. Law & Eq. Rep. 421; Skinner v. The Lond. & Bright. R. Co., 2 Eng. Law & Eq. Rep. 360; Northern Railway Co. v. Harrison, 26 Eng. Law & Eq. Rep. 443. He had cited these cases for the purpose of showing, that if the plaintiff was not a trespasser, but was lawfully on the train, in the cars of the company, it matters not what kind of a train or car it might have been; whether a freight or passenger train, a regular or an excursion train, or a president’s car, used only to convey the officers and their guests over the road on special qccasions, he was there as a passenger over the road, and the company was bound as common carriers of passengers as to him, and it was their duty and their engagement to carry him safely, and they were liable for any injury which befell him in consequence of the negligence of its servants, and the company could not relieve or divest itself of this responsibility. On the other side.it had been contended, that though the defendants are general carriers both of persons and property, this was a freight train from Baltimore to Philadelphia, by which they were common carriers of goods only, and that the plaintiff had no right to be there, except by special authority and on terms agreed upon; and a distinction was taken between a freight and passenger train, that if they do not make a practice of carrying passengers by the former, the occasional carriage of passengers by such trains does not make them liable as common carriers to such persons by such trains. But his answer to this was, that although the distinction may be sound to this extent, that the defendants were not bound to carry persons in a freight train, which, in general, was- not provided with accommodations for that purpose; yet, being general carriers of persons and goods by occupation, if they do carry a passenger, it is as common carriers; and if they undertake to carry, the obligation is to carry safely, so far as their own negligence, or that of their servants, is involved. The authorities which he had before cited would sustain him in this position. The cases cited from “ Poster’s Reports,” on the other side, were, in fact, but one and the same case, and no such doctrine could be found elsewhere. The analogy of the wagoner was unsound, when applied to a company which is a general carrier of persons as well as goods. It might be doubted even, whether a wagoner,,who occasionally carries a passenger, is not liable, as a common carrier, for his safety. 2 Kent Com. 598.
    But it was'further argued on the” other side, that by a freight train established for that purpose by the defendants, they might agree specially to transport a class of persons at their own risk, and without the responsibility of a copimon carrier as to persons, and that if the condition contained in the special agreement exempted them from liability for negligence, it was not invalid. Such a conditian, however, was utterly void; for, as he had before said, if they carry at all, they must carry safely, so far, at least, as due and proper diligence could insure it, and so carrying, they carry as common carriers, and are responsible for negligence. Such a condition, he would repeat, was utterly and absolutely void, as against public policy; and common carriers cannot contract against public policy, although they were often scheming and endeavoring to do so. 1 Smith’s Lead. Cases, Hare & Wal. Notes, 279. And he would ask the Court to charge the jury, that the notices on the drover’s tickets, that no risk would be assumed by the company for the personal safety of such persons, were void in law and no defence in this action. Also, that the defendants could make no valid contract for the transportation of a person over their road, unless subject to their legal liability as common carriers, or to exempt themselves from their responsibility as such, for the negligence.or want of skill of their agents, whether the person was to be transported in a passenger or in a freight train; and if the payment of the price for freight on his live stock, and "the execution of the release by the plaintiff, gave him a right to a drover’s ticket, by the practice and usage or regulations of the company, the notice indorsed on it, so far as regarded the exemption of the defendants from all risk to the person of the drover, could not, and would not, protect them from liability for a personal injury caused by the negligence of their servants.
    It had also been said that if the company did not hold itself 'out to the public as a common carrier of persons by its freight trains, it was not liable as such. But this was a question of fact for the jury; for although the company might make no publication and sell no tickets in Baltimore, it might nevertheless hold itself out as a common carrier of persons by its freight trains; and so far as this class of persons were concerned, it certainly did so. But these defendants were a corporation created by law and were limited to the objects of their charter, to construct a railroad and to transport either persons or goods, as common carriers. By the law of their existence, they engaged in the business of transporting passengers, or goods, as common carriers alone, and unless an express authority was given to carry by special agreement, they do not possess it, for the settled rule of law is that corporations can claim no implied powers, except such as are essential to carry into effect the objects for which they are created. Where then did this corporation obtain the power to carry either persons or property, except as common carriers? The distinction suggested in the argument on the other side, that the plaintiff was on the freight train in question, for his own personal convenience and advantage, attending to his own business and to take care of his own stock, was both ingenious and unsound; for the answer ‘to it was, that the company, to increase their freighting business in this particular line and for their own benefit, and to relieve themselves from the necessity of employing,' at their own expense, a person to take charge of the stock, transported the owner or drover in the same train with it, to attend to the loading and unloading of it, which rendered a special agent necessary for that purpose; and for this reason, they could well afford to carry him free, as it was termed, in consideration of the benefit which they derived from it and the liberal compensation which they received as freight for the transportation of himself and his stock. The two rates of charge in this respect, the larger of which one of the witnesses, an agent of the company, had testified that he never knew to be paid, was but another contrivance to get rid of their legal liability as common carriers. But the company, as common carriers of persons and goods, published that they would carry a class of persons, that was to say, drovers with their stock, on their freight trains. Could that be in any other mode than as common carriers? It was not a special agreement with an individual, but merely a general notice, and that, too, against the policy of the law and the interests of' the public. If they carry persons at all, they must carry them -as men, as human beings, and it was the first time he had ever heard of the attempt to carry a class, and at the same time to claim exemption from their liability as common carriers for negligence. If this should be sanctioned, the next contrivance might be to obtain exemption from liability as to passengers generally, by a similar system of' two rates of charge, go far as the obligation rested on the company and its servants to exercise due skill, care, and diligence, he knew no distinction in law between a freight train and a passenger train. It was true that a person lawfully travelling by a freight train, could not expect the same accommodations as by a passenger train, but he was entitled to the same care and diligence for the avoidance of collisions and injuries on the one train as on the other. There was nothing in the suggestion that the plaintiff went on the train in the service and as an employee, pro hac vice, of the defendants; and there was no reason, either in fact or in law, for assigning him such an impossible position in connection with e the case, and. therefore, the cases cited on the other side upon that point had no application to it. For the plaintiff stood in no' relation of a servant to the defendants; on the contrary, they were his servants for the timé being, and undertook safely to convey him over their road with his stock for the liberal reward which they had already been paid for it. if or was there anything more real or substantial, in the further objection taken by them, that the plaintiff, by his own act in delaying the departure of the train from Baltimore, contributed to produce the disaster. Because it was wholly the act, and the voluntary act of the company, or their servants, although it was done at the request of the plaintiff. But how could this have the effect to exonerate them from their liability for negligence occurring afterwards ? Or from their obligation to exercise due care and diligence after their departure? There was nothing therefore in this objection and having glanced at, as he thought, and satisfactorily replied to them all, he should now address himself more particularly to. the jury on. the question of damages.
   The Court,

Wootten, J.,

charged the jury : As you are already. aware, this is an action brought by John Minn against the Philadelphia, Wilmington and Baltimore Railroad Company, for the purpose of recovering damages, which it is alleged he sustained on the night of the 18th of March, 1856, by reason of a collision between what is called' the through freight train, which left Baltimore at half-past five o’clock of that day, and an extra freight train which left1 the same place at half-past seven o’clock of the same day, and followed the through freight train. The regular mail train having left at a quarter before seven.

It appears that the mail train, at some one of the .intermediate stations, p'assed the through freight train, and that the latter then proceeded towards its place of destination, and that about nine o’clock, when the train was in sight of Aberdeen, about four miles from Havre de Grace, the through freight train on which the plaintiff was, was run into by the extra freight train, which was following it, whereby the1 collision referred to in this case occurred, which resulted in the injury to the plaintiff for which he is now seeking redress.

The plaintiff rests his right of recovery on the ground of the responsibility of the defendants—the Railroad Com-•pony—to carrjqhim over their road safely, as a passenger. But it is further contended for him, that whether he was on board as a passenger or otherwise, if he was rightfully and lawfully there, the defendants are equally liable for any injury-he received, which resulted from the negligence of the defendants’ servants. On these grounds, the plaintiff asserts his right of recovery of damages commensurate with the injury received by him.

The defendants resist his right "of recovery on several distinct grounds.

First. That the defendants were not and could not be regarded as common carriers of persons, in respect to the plaintiff on that occasion.

Second. That if the defendants are liable at all, it is on a special contract or undertaking, and that he cannot recover in this form of action.

Third. That the relation in which the plaintiff stood to the defendants on this occasion, was not that of a passenger or traveller over their road, as in ordinary cases, but that he was in the freight train ‘before mentioned, rather in the character or capacity of an employee or servant, by the permission and agreement of the company, to take care of his live stock, and upon terms and conditions which exempted the company from any liability for the injury which he received.

Fourth. That the injury complained of was occasioned, in part at least, by the fault of the plaintiff, and not by the negligence of the defendants, and therefore, he is not entitled to recover. ‘

They say the through freight train was detained at Baltimore some twenty-five minutes beyond its usual time of departure, at the instance and request of the plaintiff, ,to enable him to get his stock on board, and that that delay was the cause of the collision, which resulted in the injury to the plaintiff, and without which he would not have received it.

We’will now proceed, gentlemen, to notice the several matters of defence, and endeavor to announce to you, as clearly as we can, the opinion of the Court, on the questions of law which have been presented to us for our consideration. They are new to us, at least some of them, and in- * volve nice and intricate questions, and though they have been argued with much ability on both sides, much has been left for us in determining the true line of principles upon which this case turns. We have, however, feeling the importance of the case, given to it all the attention our opportunity would afford. That the case is an important one, has not and we apprehend will not be denied. It is not only important to the unfortunate victim of the disaster, but it is so to the defendants, and beyond the present case, that they may know their responsibility; and it is important to the community at large, that they may know the extent of their risk, and of their security and personal safety.

The great advantages of this company, and the convenience . it affords the travelling community, which all will admit, cannot be considered by you in your deliberations, nor should the fact of its existence as a corporation influence your verdict in any respect. But you should give to them the same measure of justice, and hold them to the same accountability that you would an individual of the community.

The first branch of the defence denies that the defendants stood, in respect to the plaintiff, in the relation of common carriers, and that, therefore, they are not liable to him for the injury complained of.

The second branch is also based on the assumption that they were not, in reference to this particular transaction, within the legal definition of common carriers; but that the engagement with the plaintiff" falls within the terms of a special contract or agreement, to carry the plaintiff safely, and that he cannot recover in this form of action, for a breach of it, but his remedy is in another form of action.

These two branches of the defence resolve themselves into one and the same principle, and the decision of the first will dispose of the latter.

"We will, therefore, for the present, pass to the remaining portions of the defence, the first of which is : that the relation in which the plaintiff stood to the defendants, was not that of a passenger or traveller over their road, but that he was in the freight train, rather in the character or capacity of an employee or servant, to take care of his stock, and upon terms and conditions which exempted the defendants from any liability for the injury which he received.

It is true, as a general principle of law, that the master is not liable to his servant for injuries occasioned by the negligence of his fellow servants, in the course of their •common employment, provided the latter be a person of competent care and skill; and it is on the principle that when he engages to serve a master, he undertakes, as between him and his master, to run all the ordinary risks of the service; and this includes the risk of negligence of his fellow servants, whenever he is acting in discharge of his duty as servant of him who is the common master of both. But we are of opinion, that the relation of master and servant did not exist between the plaintiff" and defendants in reference to this case.

It appears that he was a drover, and that as such, was in the through freight train for the purpose of taking care of his stock, which the defendants had received on board for transportation in that train. It also appears that it was the established practice and usage of the company to grant to the owners of live stock, transported over their road, what is termed a drover’s ticket, for the purpose of taking care of his stock and upon his releasing the company from any risk on account of it, and paying the rate of freight charged under such circumstances, which ticket authorized such owner to travel or pass in that train without any further fare or compensation than what was included in the freight charged and paid for the stock; and it also appears that the rate of freight charged by the company on live stock, was twenty-five per cent higher when neither the owner nor any one on his behalf passed in the train for the purpose of taking care of the stock. It was under such circumstances, and in accordance with this practice and usage of the company, as is alleged in behalf of the plaintiff, that he was travelling on this occasion, and at the time when the collision happened and the injury complained of was sustained. If you are satisfied, gentlemen, that such was the case, we say to you, that in our opinion it did not constitute the relation of employer and employee, or master and servant, between the company, and the plaintiff, so as to bring it within the principle of law which we have before stated. _ On the contrary, if such was the case, we think, whether he had or had not a drover’s ticket, but had paid the freight charged under such circumstances for his stock, he was rightfully and lawfully a passenger on the freight train from the city of Baltimore to his place of destination : for we do not consider it necessary under, the circumstances that he should have had a ticket, and particularly if the conductor permitted him to remain in the train, to constitute him rightfully and lawfully a passenger in that freight train.

But it is insisted that they did not stand in the relation, or sustain the obligations to the plaintiff of common carriers of passengers for hire, because he was in a freight and not a passenger train. • And if we correctly apprehend these grounds, they are as follows: that if the plaintiff was even rightfully and lawfully on board the through freight train at the time of the collision, he cannot recover in this action, because, as the defendants allege in the first instance, they did not stand in the relation or sustain the obligations of common carriers of passengers for hire in regard to him, inasmuch as he was not on a passenger train, or train in which they commonly carried passengers; and in the second place, because, as they assume, he w'as in the freight train before mentioned under a special undertaking by the defendants as private carriers or ordinary bailees for hire, to carry him over their road, on an express condition that they were not to be liable for his personal safety, and if liable at all, were only liable as private carriérs, under a special undertaking, in anothér form of action.

In the solution of these -questions, gentlemen, we are necessarily led to the inquiry as to what are common carriers. Without entering into a general description or definition of the term, it will be sufficient for the purposes of this case to say that they consist of two classes: common carrier^ of goods, and common carriers of passengers for hire; and railroad companies being incorporated, by law for the transportation of persons and property, over the line of their respective roads for hire, are common carriers of both descriptions. These are the objects for which they are instituted by law; it is their public employment, their principal and direct business, and not a casual or occasional occupation with them, and this beyond any doubt constitutes them common carriers of both descriptions. It may be proper to say, however, that if as a general thing they confine the transportation of goods to what is called the freight trains, and the conveyance of passengers to the regular passenger trains, they are common carriers of goods as to the former, and of passengers as to the latter; but nevertheless, if by a passenger train they are in the practice of also carrying goods for hire, they may become common carriers of goods by that train; and if by any freight train, they are in the habit of carrying passengers for hire, such as emigrants or drovers, or any other class of traders with their property, they may also, as td such persons, become common carriers of persons by that train, as well as of such property; • that is to say, by such practice they assume the obligations and liabilities of common carriers, indifferently both of persons and property by such trains.

There is a wide distinction, however, between the obligations which the law imposes upon common carriers of goods for hire, and common carriers of persons for hire. Common carriers of goods are responsible for all injuries thereto, except such as are caused by the act of God and the public enemies, even in the absence of negligence; because the law regards the former as insurers against all other injuries. But a common carrier of passengers is liable for injuries to the latter only in case of his negligence. But the lawdn its beneficence will not allow any trifling with the lives or personal safety of human beings, and therefore exacts great care, diligence and skill from those to whose charge as common carriers they are committed ; common carriers of passengers are responsible for any negligence resulting in injury to them, and are required in the preparation, conduct and management of their means of conveyance, to exercise every degree of care, diligence, and skill, which a reasonable man would use under such circumstances. This obligation is imposed on them as a public duty, and by their contract, to carry safely, as far as human care and foresight will reasonably admit. A railroad company, using as it does the powerful and dangerous agency of steam, is hound to provide skilful and careful servants, competent in every respect for the posts they are appointed to fill in their service; and is responsible not only for their possession of such care and skill, but also for the continued application of these qualities at all times. Pierce on American Railroad Law, 469, 470, 471.

These are the obligations, as we understand them, which the law, out of its regard for the lives and personal safety of human beings, imposes upon common carriers of passengers for hire; but it is argued and insisted, in behalf of the defendants, that they did not, in respect to the plaintiff in this case, stand in the relation of common carriers of passengers for hire; because, they say, they never held themselves out to the public as such on any of their freight trains passing from Baltimore; that they never opened their ticket office at the former place for the sale of'tickets to passengers to go by such trains, and that by a regulation of the company their agents and servants were prohibited from taking passengers on these freight trains, unless specially authorized to do so by the president or general superintendent of the company, or other officers thereof having power to confer on them such authority, and therefore they say they are not bound by these obligations in the present case; hut if liable at all, it-was on a special undertaking to carry him in a freight train, and subject to a general condition published on their “ drovers’ tickets,” and constituting one of the. regulations of the company, that they would not assume any risk or responsibility for the personal safety of such a passenger on such a train. But we have already informed you, that if you are satisfied, from the evidence in the cause, that it was the practice of the company to receive and carry the owners of live stock with their stock on such trains, upon their paying the freight charged under such circumstances, and that the plaintiff1 had paid his freight and was in the train in conformity with that usage, then he was there rightfully and lawfully, and the defendants and their servants were bound to exercise the same degree of care and diligence in conveying him over their road, in the train in question, as we have before described as incumbent by law on common carriers of passengers for hire generally, and that, so far as this duty was concerned, they stood in a no less responsible relation to him. For in our opinion it was inconsistent with the relation in which they stood to him, or would have stood to any similar passenger under the like circumstances, and utterly at variance with the duty which the law, on the ground of public policy, and as the conservator of the lives and the personal safety, as well as the property of individuals, imposes upon that, as well as upon other classes of common carriers of persons, to allow of such an exemption or limitation of their responsibility for the personal safety of their passengers against injuries resulting from their own negligence, or the want of due care and diligence in carrying them. And here we would take occasion to remark that this point does not raise the question, which was discussed at no inconsiderable length during the argument, and which has so often perplexed judges, both in this country and in England, that is to say, whether it is competent for a common carrier of goods to limit his responsibility for their safety, and which is an extreme and extraordinary liability, as we have before remarked, by a general or even a special notice brought home to the knowledge of the owner of them. For that question and the cases in which it has arisen, however much it may have been mooted and agitated, have never been held to apply to a common carrier of persons for hire; in regard to whom the common-law liability is not so extreme, it binding them only for such injuries as result from their own negligence. If, therefore, it is proved that the plaintiff was in this freight train of the defendants, as before stated, that is to say, in accordance with a regulatian or practice of the company, specially applicable to such persons, and even if you should be satisfied that he had on that occasion a drover’s ticket in his possession, of" the description which has b'een offered and read in evidence, and consequently knew of the general condition which it contained, that no risk would be assumed by the company for his personal safety, it would not exempt the company from their legal liability for the injury which he sustained, provided you should be further satisfied, when you come to review and consider all the facts and circumstances proved in the cause, that the. injury complained of was directly attributable to any negligence or want of care and diligence on the part of the servants of the defendants on the occasion. Because it would be contrary to public policy to sanction such a limitation or exemption of the responsibility of the company for injuries to a person under such circumstances, resulting from the negligence of their servants.

We come now, gentlemen, to the consideration of that part of the defence which rests on the assumption that the injury complained of was the fault of the plaintiff, and not attributable to the negligence or fault of the defendants.

It is true, as a general proposition, as stated by the defendants’ counsel, that if the negligence of the plaintiff was the cause of the injury, or if it co-operated with the negligence and misconduct of the defendants to produce it, the, plaintiff would not be entitled to recover, because he could not hold others liable for the consequences of his own negligence. But this rule does not apply unless he could have avoided the injury by the exercise of due care on his own part. If he could not avoid it by such care, the want of it would not preclude his right of recovery.

This principle, however, is more properly applicable to another class of cases essentially different from the one we are now considering.

In the case referred to by the defendants’ counsel, the injured party was approaching the track and had an uninterrupted view of it in the direction from which the train was coming, so that he might have seen it, had he turned' his eyes in that direction. It was considered that if the plaintiff saw the train, it was an act of madness for him voluntarily to place himself in its way, and if he did not see it, it was only because he unwisely allowed his attention to be drawn in another direction. In this case, which we are now considering, the fault which is alleged to be due to the plaintiff, and to which the collision and consequent injury to the plaintiff are attributed, was in his re; questing the defendants to delay the departure of the train at Baltimore until he could get his stock on board. It did not necessarily follow that the detention of twenty-five minutes, whether it was for the purpose of taking the plaintiff’s stock on board or for some other reason (and the evidence is somewhat conflicting on that point), that the injury resulted from it. But, gentlemen, assuming it to be true that the delay of twenty-five minutes at Baltimore was to enable the plaintiff to get his stock on board, whatever might be the consequences of the delay, they are not chargeable upon the plaintiff, for he had no power of controlling the action of the defendants’ servants; it was entirely optional with them whether they detained the train or left at the regular and appointed time, and if they chose to wait till the plaintiff’s stock was put on board it was their own voluntary act, and they cannot by reason of it exempt themselves from the liability which would have rested upon them had they made their departure at the regular and appointed time.

We have now, gentlemen, submitted tp you our views upon the several questions of law which are involved in this cqse, and it only remains for you to apply them to the facts as they have been proved before you.

Ton cannot fail to perceive, however, that with the views which we have expressed in regard to the questions of law which have been raised in the trial of the case, that it turns in a great measure on a question of due diligence on the part of the officers and servants of the defendants having the management of the two freight trains on the evening of the collision. The fact of collision, and that the plaintiff was injured by it, in the manner proved before you,1 are not disputed, we believe. It has been maintained, and cases have been cited to show, that where two railroad trains, running on the Same road and 'belonging to or under the control of the same company, come in collision, the law imputes negligence to the officers having charge of one or both of the trains, as such accidents can rarely occur if due diligence be observed by such officers. This ‘ renders it therefore necessary for'a railroad company to show, when a collision occurs between two of its trains," and a suit is instituted by a passenger injured by it, that it was'not attributable to the negligence of its servants. But this is only a legal presumption, and is liable to be rebutted by evidence to the contrary; and if any proof is adduced tó the contrary, it is the province of the jury to determine it, as any other fact, from all the evidence before them.

It will be your duty, therefore, gentlemen, upon a view of all the facts and circumstances of the case, properly applied by you to the law as we have announced to you, to determine the question of liability on the part of .the defendants to the plaintiff for the injury complained of. If he .was oh the train rightfully and lawfully, as before stated, and sustained the injury in consequence of the collision, and you are satisfied that the injury was the result of the negligence of the defendants’ servants (and the question of negligence is one of'fact for you to determine), the plaintiff is entitled to your verdict for such damages as you in your sound judgment and discretion may consider him to have sustained. But if, on the contrary, you should be of opinion that they were guilty of no negligence, or that he was not rightfully and lawfully there in such a relation to the defendants as renders them liable to him for the injury, on the principle before stated, your verdict should be for the defendants.

The measure of damages, provided your verdict should be for the plaintiff, is purely a question for your consideration ; and we have no disposition, gentlemen, if we had the right, to invade your province in this or any other respect.

The plaintiff had a verdict for thirteen thousand dollars damages.

The case was afterwards taken to the Court of Errors and Appeals on a bill of exceptions tendered to the charge of the Court by the defendants, but the same was sustained and affirmed on all the points ruled by the court below.  