Quimby v. Boston & M.R. Co.
| Decision Date | 01 January 1890 |
| Citation | 150 Mass. 365,23 N.E. 205 |
| Parties | QUIMBY v. BOSTON & M.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.P. Moulton, for plaintiff.
S Lincoln and W.I. Badger, for defendant.
When the plaintiff received his injury he was traveling upon a free pass given him at his own solicitation, and as a pure gratuity, upon which was expressed his agreement that, in consideration thereof, he assumed all risk of accident which might happen to him while traveling on or getting off the trains of the defendant railroad corporation on which the ticket might be honored for passage. The ticket bore on its face the words, "provided he signs the agreement on the back hereof." In fact the agreement was not signed by the plaintiff, he not having been required to do so by the conductor who honored it as good for the passage, and who twice punched it. The fact that the plaintiff had not signed and was not required to sign, we do not regard as important. Having accepted the pass, he must have done so on the conditions fully expressed therein, whether he actually read them or not. Squire v. Railroad Co., 98 Mass. 239; Hill v. Railway Co., 144 Mass. 284, 10 N.E. 836; Railroad Co. v. Chipman, 146 Mass. 107, 14 N.E. 940. The object of the provision as to signing is to furnish complete evidence that the person to whom the pass is issued assents thereto; but one who actually avails himself of such a ticket, and of the privileges it confers, to secure a passage, cannot be allowed to deny that he made the agreement expressed therein, because he did not and was not required to sign it. Railway Co. v. McGown, 65 Tex. 643; Railroad Co. v. Read, 37 Ill. 484; Wells v Railway Co., 24 N.Y. 181; Perkins v. Railway Co., Id. 196. If this is held to be so, the case presents the single inquiry whether such a contract is invalid, which has not heretofore been settled in this state, and upon which there has been great contrariety of opinion in different courts. If the common carrier accepts a person as a passenger, no such contract having been made, such passenger may maintain an action for negligence in transporting him, even if he be carried gratuitously. Having admitted him to the rights of a passenger, the carrier is not permitted to deny that he owes to him the duty which, as carrying on a public employment, he owes to those who have paid him for the service. Files v. Railroad Co., 149 Mass. 204, 21 N.E. 311; Todd v. Railroad Co., 3 Allen 18; Com. v. Railroad Co., 108 Mass. 7; Littlejohn v. Railroad Co., 148 Mass. 478, 20 N.E. 103; Railroad Co. v. Derby, 14 How. 468; The New World v. King, 16 How. 469. But the question whether the carrier may, as the condition upon which he grants to the passenger a gratuitous passage, lawfully make an agreement with him by which the passenger must bear the risks of transportation, obviously differs from this.
In a large number of cases the English decisions, as well as those of New York, have held that where a drover was permitted to accompany animals upon what was called a "free pass," issued upon the condition that the user should bear all risks of transportation, he could not maintain an action for an injury received by the negligence of the carrier's servants. A similar rule would without doubt be applied where a servant, from the peculiar character of goods, as delicate machinery, was permitted to accompany them, and in other cases of that nature. That passes of this character are "free passes," properly so called, has been denied in other cases, as the carriage of the drover is a part of the contract for the carriage of the animals. The cases on this point were carefully examined and criticised by Mr. Justice BRADLEY in Railroad Co. v. Lockwood, 17 Wall. 367, and it is there held that such a pass is not gratuitous, as it is given as one of the terms upon which the cattle are carried. The decision is put upon the ground that the drover was a passenger carried for hire, and that with such passenger a contract of this nature could not be made. The court, at the conclusion of the opinion, expressly waives the discussion of the question here presented, and, as it states, purposely refrains from expressing any opinion as to what would have been the result had it considered the plaintiff a free passenger instead of one for hire. Railway Co. v. Stevens, 95 U.S. 655, in which the same distinguished judge delivered the opinion of the court, is put upon the ground that the transportation of the defendant, although not paid for by him in money, was not a matter of charity or gratuity in any sense, but was by virtue of an agreement in which the mutual interest of the parties was consulted.
Whether the English and New York authorities rightly or wrongly hold that one traveling upon a "drover's pass," as it is sometimes called, is a free passenger, they show that in the opinion of these courts, a contract can properly be made with a free passenger that he shall bear the risks of transportation. This is denied by many courts whose opinions are entitled to weight. It will be observed that in the case at bar there is no question of any willful or malicious injury, and that the plaintiff was injured by the carelessness of the defendant's servants. The cases in which the passenger was strictly a free passenger, accepting his ticket as a pure gratuity, and upon the agreement that he would himself bear the cost of transportation, are comparatively few. They have all been carefully considered in two recent cases, to which we would call attention. These are Griswold v. Railway Co., 53 Conn. 371, (1885,) and that of Railway Co. v. McGown, ubi supra, (1886,) in which the precise question before us was raised, and decided, after a careful examination of the authorities, in a different manner by the highest court of Connecticut and that of Texas. No doubt existed in either case,...
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