St. Louis, Iron Mountain & Southern Railway Company v. Pitcock

• Decision Date: 08 April 1907
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PITCOCK
• Court: Arkansas Supreme Court

101 S.W. 725

82 Ark. 441

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PITCOCK

Supreme Court of Arkansas

April 8, 1907

Appeal from Franklin Circuit Court; Jeptha H. Evans, Judge affirmed.

Affirmed.

Oscar L. Miles, for appellant.

The clause printed on the ticket that "the person or persons accepting this pass assumes all risks of accidents and damages without claim upon the company" presents the only question for decision in this case. Appellee was charged with notice of this condition. He had the option to pay for his transportation and have appellant to insure his safe carriage to his destination, or to accept the benefit of free carriage and himself assume the liability. Having accepted free passage, appellant was not as to him a carrier for hire. He is not entitled to recover. 192 U.S. 441, 24 S.Ct. 515.

Sam R Chew, for appellee.

1. If a person is on a carrier's car by permission or invitation even though riding on a free pass, he is a passenger, and the carrier owes to him the same duty, and the same degree of care in providing for his safety, that it owes to a passenger who has paid full fare. 3 Thompson on Neg. § 2646 et seq; 40 Ark. 298; 66 Ark. 494; 51 Ark. 459; 60 Ark. 550; 59 Ark. 180.

2. Appellant was liable for its negligence, notwithstanding appellee was a gratuitous passenger. The condition upon which appellant relies cannot be construed to mean an assumption by appellee of the risk of negligence on the part of appellant. Negligence and accident are not synonymous. 38 Ark. 357; Anderson's Law Dict. "Accident;" Webster's Dict. id. From the standpoint of public policy, those authorities have the better reason which hold that a carrier of passengers cannot exempt itself, by stipulations and conditions, from liability for injuries resulting from its negligence, even though the passenger is traveling on a free pass. 20 Minn. 125; 18 Am. Rep. 360; 32 Mo.App. 228; 3 Pa. 290; 68 Mo. 340; 65 Mo. 569; 63 Mo. 314; 41 Ala. 486; 63 Miss. 302; 38 So. 502; 85 Ill. 80; 21 Ind. 48; 126 Ind. 126; 39 Ark. 148; id. 523; 48 Ark. 468.

OPINION

WOOD, J.

The conceded facts are that appellee was riding upon appellant's passenger train from Little Rock to Alma, Arkansas; that while so riding he was injured through the negligence of appellant, and that the amount of the damages as found by the jury was not excessive. Appellee did not pay any fare for transportation, but accepted from appellant a free pass, which was indorsed as follows: "The person or persons accepting this pass assumes all risk of accidents and damages without claim upon company." He accepted transportation on this pass, with full knowledge of the above indorsement, preferring to use the pass rather than to purchase a ticket which contained no limitations upon appellant's liability.

Appellant contends that it is not liable, because appellee accepted a pass which provided that "the person or persons accepting this pass assumes all risk of accidents and damages without claim upon the company." We are of the opinion that this provision was intended by appellant to exempt it from liability for accidents caused by negligence of the company's agents. For unavoidable accidents it would not be liable any way, and the case is the same in legal effect as if the clause had contained the words "whether caused by negligence of the company's agents or otherwise." We do not agree with counsel for appellee that the cases of Northern Pacific Ry. Co. v. Adams, 192 U.S. 440, and Boering v. Chesapeake Beach Ry. Co., 24 S.Ct. 515, have no application because of the difference of the wording of the exempting clauses in the pass in those cases and the one at bar. The clauses are in legal effect the same, and the cases are directly in point. The only question for us to determine is whether or not we will follow those cases. In the first of the above cases Mr. Justice Brewer concludes the opinion as follows: "The railway company was not as to Adams a carrier for hire. It waived its right as a common carrier to exact compensation. It offered him the privilege of riding in its coaches without charge if he would assume the risk of negligence. He was not in the power of the company and obliged to accept its terms. They stood on an equal footing. If he had desired to hold it to its common-law obligations to him as a passenger, he could have paid his fare and compelled the company to receive and carry him. He freely and voluntarily chose to accept the privilege offered, and, having accepted that privilege, cannot repudiate the conditions. It was not a benevolent association, but doing a railroad business for profit; and free passengers are not so many as to induce negligence on its part. So far as the element of contract controls, it was a contract which neither party was bound to enter into, and yet one which each was at liberty to make, and no public policy was violated thereby." In the last of the above cases Judge Brewer also writes the opinion and concludes as follows: "The result we have reached conforms the law applicable to the present issue to that moral sense which justly holds those who accept gratuities and acts of hospitality to perform the conditions on which they are granted." In the fist opinion the learned justice cites a number of decisions of State courts and decisions also of the court of Queen's Bench that support the doctrine announced. He also cites a number of decisions of State courts holding the contrary doctrine. Since there is this diversity of opinion, we feel that we should adopt that view most in accord with our own Constitution and statutes, that which comports logically with our own decisions, which conserves a sound public policy, and reflects our own sense of right and justice.

Our Constitution provides that all railroads operated in this State shall be responsible for all damages to persons and property under such regulations as may be prescribed by the General Assembly. Art. 17, § 12. Section 6773, Kirby's Digest, provides that "all railroads which are now or may be hereafter built and operated in whole or in part in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State." Strictly and literally construed, under these provisions railroads would be liable for all damages to persons and property, whether caused through the negligence of the company or otherwise. But this court has construed these provisions of the law to mean that railroads are liable only in cases where they have been guilty of some actionable negligence. Little Rock & Ft. Smith Ry. Co. v. Eubanks, 48 Ark. 460, 3 S.W. 808; Little Rock & Ft. Smith Ry. Co. v. Payne, 33 Ark. 816.

As carriers of passengers, they are not liable for unavoidable accidents. This court has also held that the railway company is not liable to the party injured where the latter's "own negligence or wilful wrong contributed to produce the injury of which he complains, so that but for his co-operating and concurring fault the injury would not have happened to him. Little Rock & Ft. S. Ry. Co. v. Pankhurst, 36 Ark. 371; St. Louis I. M. & S. Ry. Co. v. Foreman, 36 Ark. 41; Railway Co. v. Cullen, 54 Ark. 431; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S.W. 1070. Unavoidable accidents and contributory negligence of the injured party are the only limitations or exceptions thus far recognized and allowed by the court to the constitutional and statutory provisions making railroads liable for all damages to persons or property done or caused by the running of their trains.

This court holds that railroads as common carriers of goods cannot exempt themselves by contract from losses and damages caused by their own negligence. Taylor v. Little Rock M. R. & Texas R. Co., 32 Ark. 31; Taylor v. Little Rock, Miss. R. & Texas Ry. Co., 39 Ark. 148; Little Rock, Miss. R. & Texas Ry. Co. v. Talbot, 39 Ark. 523. We hold that a railway company as master can not exempt itself by contract from liability to its...