Jacobus v. St. Paul & C. Ry. Co.

• Decision Date: 01 January 1873
• Citation: 20 Minn. 110
• Parties: D. JACOBUS v. ST. PAUL & C. RY. CO.
• Court: Minnesota Supreme Court

Page 110

20 Minn. 110

D. JACOBUSv.

ST. PAUL & C. RY. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the court of common pleas, Ramsey county, denying a new trial.

Bigelow, Flandrau & Clark, for appellant, contended — I. V. D. Heard, for respondent, contended —

BERRY, J.

The plaintiff brings this action to recover damages for injuries occasioned to his person by the alleged gross negligence of defendant's servants in charge of defendant's railway train, upon which plaintiff was traveling. Plaintiff was riding upon a free pass, which, together with the conditions indorsed, is in these words, viz.:

"ST. PAUL & CHICAGO RAILWAY.

"Pass D. Jacobus upon the conditions indorsed hereon, until Dec. 31, 1871, unless otherwise ordered. Not transferable.

                                            D. C. SHEPARD
                                                  "Chf. Eng. and Supt."
                

"CONDITIONS.

"The person who accepts and uses this free ticket thereby assumes all risk of accident, and agrees that the company shall not be liable under any circumstances, whether of negligence of its agents or otherwise, for any injury of the person, or for any loss or injury to his property, while using or having the benefit of it."

Upon the pleadings and the charge of the court, the first question arising in this case is, whether the pass, with its conditions, protects defendant from liability for injury received by plaintiff while riding upon such pass, even though the injury was caused by gross negligence upon defendant's part. In our opinion, this question should be answered in the negative, for the reason that the degree of care and diligence exacted of a bailee should be proportioned to the importance of the business and of the interests at stake. Holly v. Boston Gas-light Co. 8 Gray, 131; Goddard v. G. T. R. Co. 57 Me. 202. "The law imposes upon the common carrier of passengers the greatest care and foresight for the safety of his passengers, and holds him liable for the slightest neglect." McLean v. Burbank, 11 Minn. 288, (Gil. 189.) And for like reasons the same extreme care is required, though the passenger be carried gratuitously. Having undertaken to carry, the duty arises to carry safely. Phil. & R. R. Co. v. Derby, 14 How. 486; Nolton v. Western Ry. 15 N. Y. 444; Steamboat New World v. King, 16 How. 474; 2 Redf. Railw. 184-5, and notes; Perkins v. N. Y. Cent. R. Co. 24 N. Y. 196; Todd v. Old Col. & F. R. Co. 3 Allen, 21.

In the case at bar, however, the plaintiff was not merely a gratuitious passenger, i. e., a passenger carried without payment of fare or other consideration. He was a passenger upon a free pass expressly conditioned that the defendant should not be liable to him for any injury of his person while he was using or having the benefit of such pass. Does this circumstance distinguish his case from that of a merely gratuitous passenger? Upon the question whether conditions of this kind are valid and effectual to exonerate the carrier of passengers, the adjudications differ. In New York the conditions appear to be held sufficient to absolve the carrier from liability, even for the gross negligence of his employes. Wells v. N. Y. Cent. Ry. 24 N. Y. 181; Perkins v. Same, Id. 196; Bissell v. Same, 25 N. Y. 442. In New Jersey it is held that such conditions are good as against ordinary negligence, with a very decided intimation that the exemption from liability comprehends gross negligence also. Kenney v. Cent. R. Co. 34 N. J. 513.

In Pennsylvania, Illinois, Indiana, and several other states the courts hold that no such condition will avail to protect the carrier from responsibility for the gross negligence of its employes. Ill. Cent. Co. v. Read, 37 Ill. 484; 19 Ill. 136; Ind. Cent. R. Co. v. Munday, 21 Ind. 48; Pa. R. Co. v. McClosky's Adm'r, 23 Pa. St. 532; Mobile & Ohio Ry. Co. v. Hopkins, 41 Ala. 489.

There are two distinct considerations upon which the stringent rule as to the duty and liability of carriers of passengers rest. One is a regard for the safety of the passenger on his own occount, and the other is a regard for his safety as a citizen of the state. The latter is a consideration of public policy growing out of the interest which the state or government as parens patriæ has in protecting the lives and limbs of its subjects. Shear. & R. Neg. § 24; C. P. & A. R. Co. v. Curran, 19 Ohio St. 12; Phil. & Reading R. Co. v. Derby, supra; Steam-boat New World v. King, supra; Smith v. N. Y. Cent. R. Co. 24 N. Y. 222; Ill. C. R. Co. v. Read, supra; Pa. R. Co. v. Henderson, 51 Pa. 315; Bissell v. N. Y. C. R. Co. 25 N. Y. 455, per DENIO, J.; N. Y. Cent. R. Co. v. Lockwood, (U. S. Sup. Ct.) not yet reported.

So far as the consideration of public policy is concerned, it cannot be overridden by any stipulation of the parties to the contract of passenger carriage, since it is paramount from its very nature. No stipulation of the parties in disregard of it, or involving its sacrifice in any degree, can, then, be permitted to stand. Whether the case be one of a passenger for hire, a merely gratuitous passenger, or of a passenger upon a conditioned free pass, as in this instance, the interest of the state in the safety of the citizen is obviously the same. The more stringent the rule as to the duty and liability of the carrier, and the more rigidly it is enforced the greater will be the care exercised, and the more approximately perfect the safety of the passenger. Any relaxation of the rule as to duty or liability naturally, and, it may be said, inevitably, tends to bring about a corresponding relaxation of care and diligence upon the part of the carrier. We can conceive of no reason why these propositions are not equally applicable to passengers of either of the kinds above mentioned.

It is said, however, that it is unreasonable "to suppose that the managers of a railroad train will lessen their vigilance and care for the safety of the train and its passengers because there may be a few on board for whom they are not responsible." In the first place, if this consideration were allowed to prevail, it would prove too much; for it could be urged with equal force and propriety in the case of a merely gratuitous passenger as in a case like this at bar. Yet, as we have seen, no such consideration is permitted to relieve the carrier from the same degree of liability for a gratuitous passenger as for a passenger for hire.

Again, suppose (what is not at all impossible or improbable, as, for instance, in case of a free excursion) that most or all of the passengers upon a train were gratuitous, or riding upon conditioned free passes, the consideration urged would be no answer to a claim that the carrier should be responsible. A general rule can hardly be based upon such calculations of chances. Moreover, while it might not ordinarily occur that the presence of a free passenger upon a train, for injury to whom the carrier would not be liable, would tend to lessen the carrier's sense of responsibility and his vigilance, it still remains true that the greater the sense of responsibility the greater the care; and that any relaxation of responsibility is dangerous.

Besides these considerations, it is to be remembered that the care and vigilance which a carrier exercises do not depend alone upon a mere sense of responsibility, or upon the existence of an abstract rule imposing stringent obligations upon him. It is the enforcement of the rule, and of the liability imposed thereby — the mulcting of the carrier for his negligence — which brings home to him in the most practical, forcible, and effectual way, the necessity for strictly fulfilling his obligations.

It may be that on a given occasion the gratuitous passenger, or the passenger upon a free pass, is the only person injured, (as, for aught that appears, was the fact in this instance,) or the only party who will proceed against the carrier, the only person who will practically enforce upon the carrier the importance of a faithful discharge of his duty. These considerations, as it seems to us, ought to be decisive upon the point that sound public policy requires that the rule as to the liability of the carrier for the safety of the passenger should not be relaxed though the passenger be gratuitous, or, as in this case, riding upon a conditioned free pass. It is contented that there was no proof of gross negligence on defendant's part, and that, therefore, the verdict was not justified. There was evidence that the train was a mixed train; that it was running from 40 to 45 miles an hour, according to the plaintiff, and according to the other witnesses from 15 to 22 miles an hour; that the lumber was upon a platform car, and that the stake of the lumber car, in consequence of the breaking of which the injury occurred, was a stick of butternut cord wood, and was cross-grained. There was also the testimony of J. T....