ERROR to the Circuit Court of the United States for the District of Maine.
This was an action on the case for negligence, brought against the Grand Trunk Railway of Canada, to recover damages for injuries received by Stevens whilst a passenger in its cars. The plaintiff, being owner of a patented car-coupling, was negotiating with the defendant, at Portland, Me., for its adoption and use by the latter, and was requested by the defendant to go to Montreal to see the superintendent of its car department in relation to the matter, the defendant offering to pay his expenses. The pla ntiff consented to do this; and, in pursuance of the arrangement, he was furnished with a pass to carry him in the defendant's cars. This pass was in the usual form of free passes, thus, 'Pass Mr. Stevens from Portland to Montreal,' and signed by the proper officer. On its back was the following printed indorsement:--
'The person accepting this free ticket, in consideration thereof, assumes all risk of all accidents, 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. If presented by any other person the individual named therein, the conductor will take up this ticket and collect fare.'
The plaintiff testified that he put the pass into his pocket without looking at it; and the jury found specially that he did not read the indorsement previous to the accident, and did not know what was indorsed upon it. He had been a railroad conductor, however, and had seen many free passes, some with a statement on the back, others without.
During the passage from Portland to Montreal, the car in which the plaintiff was riding ran off the track and was precipitated down an embankment, and he was much injured. The direct cause of the accident, according to the proof, was that, at the place where it occured, and for some considerable distance in each direction, the bolts had been broken off the fishplates which hold the ends of the rails together, so that many of these plates had fallen off on each side, leaving the rails without lateral support. The consequence was that the track spread, and the cars ran off, as before stated. There was also evidence that at this place the track was made of old rails patched up.
The above facts appeared on the plaintiff's case, and the defendant offered no evidence, but requested the court to instruct the jury as follows:--
First, That if the plaintiff, at the time of sustaining the injury, was travelling under and by virtue of the pass produced in evidence in the case, he was travelling upon the conditions annexed to it.
Second, That if the plaintiff, at the time of sustaining the injury, was travelling under and by virtue of the pass produced in evidence in the case, the defendant is not liable.
Third, That if the plaintiff, at the time of sustaining the injury, was travelling as a free passenger, the defendant is not liable
Fourth, That if the plaintiff, at the time of sustaining the injury, was travelling as a gratuitous passenger, without any consideration to the defendant for his transportation, the defendant is not liable.
The court refused these instructions, as inapplicable to the evidence produced, and instructed the jury as follows, viz.:--
That if the jury find that, in May, 1873, the plaintiff was interested in a car-coupling, which had been used on the cars of the defendant since December previous, and that the officers of the company were desirous that the plaintiff should meet them at Montreal to arrange about the use of such couplings on their cars by defendant, and they agreed with him to pay his expenses if he would come to Montreal, and he agreed so to do, and took passage on defendant's cars, and was, by the reckless misconduct and negligence of the defendant, and without negligence on his part, injured whilst thus a passenger in defendant's car, the defendant is not exonerated from liability to plaintiff for his damages occasioned by such negligence, by reason of the indorsement upon the pass produced in evidence.
There was a verdict and judgment for the plaintiff. The defendant then sued out this writ of error.
Mr. John Rand for the plaintiff in error.
The plaintiff below was travelling gratuitously under a free pass, and subject to its conditions. The company was, therefore, not liable. Wells v. New York Central Railroad Co., 24 N. Y. 181; Perkins v. Same, id. 196; Bissell v. Same, 25 id. 442; Poucher v. Same, 49 id. 263; Cragin v. Same, 51 id. 64. He cannot be permitted to deny that he knew and accepted those conditions. Steen v. Steamship Company, 57 N. Y. 1; Monitor Company v. Buffum, 115 Mass. 345.
Mr. C. P. Mattocks, contra.
A pass, purporting on its face to be a free pass, may, nevertheless, be given for a consideration, and the holder be a passenger for hire. That such was the fact in this case is conclusively shown by the evidence, and the company is liable. Kinney v. Central Railroad Co., 34 N. J. L. 513; S.C.. 3 Am. Rep. 265; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 486; Wilton v. Middlesex Railroad Co., 107 Mass. 108; Jacobus v. St. Paul & Chicago Railway Co., 20 Minn. 125; Rose v. Des Moines Valley Railroad Co., 39 Iowa, 346; Cleveland, Painesville, & Ashtabula Railroad Co. v. Curran, 19 Ohio St. 1; S.C.. 2 Am. Rep. 362. Bissell v. New York Central Railroad Co., 25 N. Y. 442, and Poucher v. Same, 49 id. 263, can have no weight in this court since Railroad Company v. Lockwood, 17 Wall. 357.
Even admitting that the words printed on the back of the pass furnished to the plaintiff could, if assented to by him, have limited the company's liability, there is no evidence whatever that he had knowledge of them. There was, therefore, no assent upon his part to the terms of the alleged special contract or notice. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; The Philadelphia & Reading Railroad Co. v. Derby, 14 id. 468; The Steamboat New World v. King et al., 16 id. 469; York Company v. Central Railroad, 3 Wall. 107; Walker v. The Transportation Company, id. 150; Express Company v. Kountze Brothers, 8 id. 342; Railroad Company v. Lockwood, supra.
MR. JUSTICE BRADLEY delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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