Peterson v. Seattle Traction Co.

• Decision Date: 24 June 1901
• Citation: 23 Wash. 615,65 P. 543
• Parties: PETERSON v. SEATTLE TRACTION CO.
• Court: Washington Supreme Court

65 P. 543

23 Wash. 615

PETERSON v. SEATTLE TRACTION CO.

Supreme Court of Washington

June 24, 1901

On rehearing. Modified.

For former opinion, see 63 P. 539.

WHITE, J.

The opinion in this case (63 P. 539) was filed December 27, 1900. A rehearing was granted. It is necessary only to modify our views in one respect. In the original opinion we said: 'The carrier was not required by law or duty to give the plaintiff wrok as a track layer, and when he sought to obtain such work, it seems to us that he had a perfect right to contract, as an incident to the principal contract, that he should be carried by the defendant over its lines to and from his work, subject to the condition that the plaintiff would assume, while being so transported, all risk of accidents, etc., contained in the conditions which the defendant sought to prove.' A more critical examination of the pleadings in this case satisfies us that the question whether the plaintiff and defendant could so contract is not involved, and that point may still be considered open and undecided. The fourth affirmative defense, in substance, is that, if the plaintiff was traveling on one of the cars of the defendant at the time mentioned in said complaint, and if he then received any such injuries as are therein alleged said plaintiff was then traveling on one of the defendant's cars along one of its lines of street railway, not as a passenger paying fare for transportation of himself on said car, but by virtue of a free pass ticket which the defendant had theretofore furnished him, and which was accepted by the plaintiff under an agreement that he (the plaintiff) would assume all risks of damages and loss sustained by him while using it, and that the plaintiff expressly agreed with the defendant that the defendant should not be liable under any circumstances, whether by reason of negligence of its agents or otherwise, for any injury or loss to the plaintiff; that the same had been furnished by the defendant to the plaintiff gratuitously, without any consideration therefor, and not in pursuance of any contract express or implied, of the defendant with the plaintiff to furnish the same to him on account of his being in the employ of the defendant, and the same was so furnished to him, not as a compensation or partial compensation for any work or labor performed, or to be performed, but solely as a donation by the defendant to the plaintiff of the...