Muldoon v. Seattle City Ry. Co.

• Decision Date: 30 December 1893
• Citation: 35 P. 422,7 Wash. 528
• Court: Washington Supreme Court
• Parties: MULDOON v. SEATTLE CITY RY. CO.

35 P. 422

7 Wash. 528

MULDOON v. SEATTLE CITY RY. CO.

Supreme Court of Washington

December 30, 1893

Appeal from superior court, King county; Richard Osborn, Judge.

Action by F. M. Muldoon against the Seattle City Railway Company for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

Andrew F. Burleigh, for appellant.

Will H Thompson, Edouard P. Edsen, and John E. Humphries, for respondent.

STILES J.

In this case the bare legal question is up for determination whether a person riding upon a public street car, upon a free pass can recover for personal injuries suffered by him through the negligence of the street-railroad company's servants when the pass had printed upon the back of it such a condition as the following: "The person accepting this pass assumes all risks of accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether by negligence of their agents or otherwise, for injury to the person, or for loss or injury to the property of the person, using this pass." It is a general rule that carriers of passengers for hire cannot contract against their liability for damages for injuries to their passengers, and this rule has been frequently held to be none the less operative when the evidence of the passenger's right to travel was put in the form of a free pass, if in fact there was a consideration for the issuance of it. Railroad Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Stevens, 95 U.S. 655. The cases above cited expressly refrain from any expression of opinion as to what the law would be were the pass purely a gratuity, with a condition against liability. There are dozens of such cases as Railroad Co. v. Lockwood in the reports, and the language of many of them is fully strong enough to justify counsel in claiming that they would cover the case of a gratuitous pass with conditions. However, nearly all of them are cases where drovers or other shippers, being under the necessity of accompanying their shipments of stock or other merchandise to properly care for it while in transit, were granted transportation without payment of fare eo nomine, but where the federal supreme court found that there was a valuable consideration, and therefore a contract of carriage for hire. But of all the cases called to our attention, or discovered by us in a somewhat extended examination of the subject, there are but eight where the naked question of liability under a free pass with conditions was presented. There may be some others, but they are most likely to be found in New York and Illinois, where the right of a carrier to contract against liability has long been recognized in some form or other. Railroad Co. v. Read, (1865,) 37 Ill. 484, held that a passenger traveling on such a pass could not recover; also, Kinney v. Railroad Co., (1869,) 34 N. J. Law, 513. Jacobus v. Railroad Co., (1873,) 20 Minn. 125, (Gil. 110,) held the opposite, as did Rose v. Railroad Co., (1874,) 39 Iowa, 246. Griswold v. Railroad Co., (1885,) 53 Conn. 371, 4 A. 261, and Annas v. Railroad Co., (1886,) 67 Wis. 46, 30 N.W. 282, held there could be no recovery. Railway Co. v. McGown, (1886,) 65 Tex. 643, followed Minnesota and Iowa; but Quimby v. Railroad Co., (1890,) 150 Mass. 365, 23 N.E. 205, decided against recovery. The Iowa case was largely based upon a statute of that state, which was construed to prohibit any attempt at limitation by the carrier. We have given these cases in their order of time, so that it may be seen that there is no absolute weight of authority on this subject. The language of the most of the textbooks, of which a dozen or more have been cited, is, so far as any opinion is expressed, for the most part favorable to a right of recovery in such cases; but Beach on Contributory Negligence (section 172) and Patterson's Railway Accident Law (page 505) are the only books of this class which give any consideration to the cases above cited.

There can be no question as to the propriety of that rule of law which prohibits a common carrier from forcing upon any person who deals with it in its public capacity a condition against liability arising from its own negligence. The very...