from liability for the wilful or wanton misconduct or gross recklessness of its directors, but the rule extends to no other officer or agent of the company." Justices DENIO, DAVIS, ALLEN, and GOULD, concurred.

The law as defined in the New York cases holding such contracts valid, is followed in New Jersey: Kinney et al. Adm'rs v. The Central RR. Co. of New Jersey (1869), 34 N. J. Law 513, which was a case of a free pass with an agreement stipulating that, in consideration of the same, the passenger assumed all risk of accident, and that the company should not be liable under any circumstances. Justice VAN SYCKEL maintains the validity of such contracts in the following language,-"The objection that this contract is inconsistent with good morals and sound policy has been considered in all the cases of this kind which have been submitted to judicial criticism. It differs widely from the question whether a person should be allowed to stipulate against a loss from his own negligence. Reasons of great cogency could be started against the validity of such a contract which can have no pertinency to this issue. * * * Why should the passenger who solicits a free pass be permitted to escape the liability to loss which he voluntarily assumes in order to secure the accommodation? It is certainly a breach of good faith in the passenger, to attempt to fix the carrier with responsibility in such a case."

The same ruling is followed in Connecticut: Griswold Adm'r v. The New York and New England RR. Co. (1885), 35 Conn. 371, also a case of a passenger traveling on a free pass with a condition exempt

ing the company from all liability. The remarks of Justice LOOMIS Show that he considered the agreement as dissolving the position of carrier and passenger, and creating that of an ordinary bailor and bailee. He says, "In the first place, the arrangement between the parties ought not to be regarded as a contract with the railroad company in its character as a common carrier, and therefore the stipulated exemption is no abdication of that rigid responsibility which the law imposes on common carriers. The gratuitous accommodation concerns only the immediate parties, unless in a very indirect way, by making the fare of the other passengers higher."

Pausing for one moment to consider these remarks, it will be found that even supposing the relationship of the parties is changed by such a contract, and the carrier becomes a gratuitous bailee, he will still be liable for any injury sustained through negligence in himself or his servants, upon the principle laid down in the famous case of Coggs v. Bernard (1704), 2 Ld. Raym. 909, where it was decided that the confidence induced by undertaking any service for another, is a sufficient consideration to create a duty in the performance of it, even though the act be gratuitous.

This is clearly shown by the case of Todd v. The Old Colony and Fall River RR. Co. (1861), 3 Allen (Mass.) 18, where the plaintiff was a gratuitous passenger lawfully upon the defendants cars. Chief Justice BIGELOW, saying,-"The defendants having undertaken to transport the plaintiff in their cars, were bound to the use of due and seasonable care in performing a duty which they had voluntarily assumed;

and if, by omitting to take such precautions as were necessary and proper to prevent a person exercising due care, from receiving an injury, the plaintiff was injured, he is entitled to recover compensation." The cases of Fairmount and Arch Street Passenger Ry. Co. v. Stutler (1867), 54 Pa. 375, wherein it was held that the duty to carry safely, is a duty the company owe; Wilton v. Middlesex RR. Co. (1871), 107 Mass. 108, where the plaintiff was riding on a street car gratuitously at the driver's invitation; The Ohio and Mississippi RR. Co. v. Muhling (1861), 30 Ill. 9, a case of a workman of the company injured while traveling on the road in pursuit of his own business, without having paid any fare, are to the same effect.

Further, with respect to the gratuitous accommodation concerning only the immediate parties. Does the degree of care which is .bound to be exercised by a carrier

of passengers, and especially by a railroad company, depend upon the relationship existing between the carrier and the passenger? It exists independently of any contract, for, says the Court, in Moreland v. Boston and Providence RR. Co. (1886), 141 Mass. 31, "The degree of care is not fixed solely by the relation of carrier and passenger, it is measured by the consequences which may follow the want of care." For this reason, therefore, such contracts ought not to be sustained. So, in Welles v. The New York Central RR. Co. (1862), 24 N. Y. 181, Justice SUTHERLAND, in his dissenting opinion, points out that the law requires of carriers of passengers all the care that human foresight is capable of, and that the duty to use this extraordinary care

is a legal duty, independent of any contract with, or fare or consideration paid by, their passengers, and that as carriers of passengers as well as of property, they may be considered as acting in a public capacity, and as a kind of public officers. To the same effect are the words of Justice JUDGE in Mobile & Ohio RR. Co. v. Hopkins (1868), 41 Ala. 489; also those of Justice FIELD in the case of Hannibal & St. Joseph RR. Co. v. Swift (1871), 12 Wall. (79 U. S.) 261, where he says: [the obligations] were imposed upon it [the company] by the law, from the public nature of its employment, independent of any contract."

They

Again, in The Philadelphia & Reading RR. Co. v. Derby (1852), 14 How. (55 U. S.) 486, a case of a free passenger, one of the Company's stockholders, who was injured while being taken over the road to examine its condition, Justice GRIER says, "the liability of the defendants below [the company], for the negligent and injurious act of their servant, is not necessarily founded on any contract or privity between the parties, nor affected by any relation, social or otherwise, which they bore to each other. It is true, a traveler by stage coach, or other public conveyance, who is injured by the negligence of the driver, has an action against the owner, founded on his contract to carry him safely. But the maxim of respondeat superior, which, by legal imputation makes the master liable for the acts of his servant, is wholly irrespective of any contract, express or implied, or any relation between the injured party and the master * * This duty [to carry safely] does not result alone from the consideration paid for the service. It is imposed by

the law, even where the service is gratuitous."

It will be observed that in the opinion in the New Jersey case (supra, page 393) it is said that such a case differs widely from the question whether a person should be allowed to stipulate against loss from his own negligence and that it would be a breach of good faith to attempt to fix the carrier with responsibility in such a case. The question, however, arises. Has not public policy something to do with the matter? Has not the State as parens patriae an interest in the lives and limbs of its subjects?

The lives and health of individuals when traveling by railroad, are entirely in the hands, and at the mercy, of such companies. The traveler is powerless and without any means of helping himself even if he could or would. He has no means of knowing whether the road over which he has to travel is in proper condition or not, he has no power to examine the engine and coaches of the train to satisfy himself that they are in full working order and repair, neither can he regulate the rate of speed at which the train shall travel; it may be run at an improper speed in order to make lost time, and accidents may thereby be occasioned, yet he is powerless to prevent it and cannot interfere. Through these and other means, unmistakably negligence on the part of the carrier, his agents and employes, accidents, and it may be truly said the majority of them, occur. It is therefore contended that such companies, as public servants, ought not to be allowed to contract themselves out of all liability, and that, on the ground and on considerations of public policy, they are properly held liable

even to a gratuitous passenger traveling upon a free conditional pass or a special contract, for negligence in themselves, their agents and other employes.

This contention is supported by the dissenting opinions of Justices SUTHERLAND and WRIGHT, in Welles v. The New York Central RR. Co. (supra), also by the opinion of Justice SMITH in Perkins v. The New York Central RR. Co. (supra), and by the cases hereinafter mentioned.

A railroad company, as well as any other carrier of passengers, is held to a stringent duty and responsibility, and the degree of duty is obviously to be measured by the dangers which attend the carriage, and the control which the carrier lawfully exercises over both vehicles and roadway. A carrier of passengers by coach, on a public highway, would be accountable for the negligence of the person whom he places in charge of the vehicle, and his own also, if injury occurs from the unfitness or defectiveness of such vehicle. A carrier of passengers on a railroad (such road being operated by the carrier), is responsible for the negligence of his agents and employes in charge of the vehicles, and the railroad also, and his accountability extends not only to the conduct and management of the railroad, so far as relates to the transit, but also to the sufficiency of the vehicles and the roadway itself. When a railroad company is the

carrier, the duty

rests on such company, not only to provide safe vehicles, but a safe roadway; and in view of the dangers which attend railroad carriage, its duty is not limited to such precautions as it is apparent, after an accident, might have prevented the

injury, but to such as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur: per Justice WRIGHT, in Smith Adm'r v. The New York Central RR. Co. (1862), 24 N. Y. 222.

The responsibility thus cast upon railroad companies and other carrier of passengers, is thrust upon them out of considerations of public policy, for, says the Court in The Pennsylvania RR. Co. v. Marion (1885), 104 Ind. 239, a railroad company must, "out of considerations of public policy," exercise the highest diligence for the benefit of the passenger while in the actual progress of his journey.

So vigilant is the law in this respect, and all on account of public policy, that it has been held that railroad companies must employ the very best possible well-known means and appliances, to insure the safety of the public: Pendleton Street RR. Co. v. Shiress (1868), 18 Ohio St. 255. And for the same reasons, they "must keep pace with science and art, and modern improvements, in their application to the carriage of passengers, but they are not responsible for the unknown as well as the new:" per Justice AGNEW in Meier v. The Pennsylvania RR. Co. (1870), 64

l'a. 225.

Seeing then, that such responsibility does not depend upon contract; that the duty the carrier owes to his passengers is cast upon him by law, out of considerations of public policy, as a means of public safety; that he acts in a public capacity as a public servant; and that the maxim respondeat superior is independent of any contract; is it not contrary to public policy, and

the principles which govern the carrier's duties, to allow such contracts to stand?

It is truc, that persons may enter into whatever contracts they please, but to this principle of law there is a proviso, which says, that in so doing, they must not violate any legal or moral obligation, or impair any public interest, for, if the tendency of such contracts be to impair public interest, they are against public policy and void: Smith Adm'r v. The New York Central RR. Co. (1862), 24 N. Y. 222.

It would seem that the tendency of such contracts is toward the violation of both a legal and moral duty and to impair public interest. This contention is clearly upheld by Justice WELLES, in Parsons v. Montieth (1851), 13 Barb. (N. Y.) 353, in these words :-" A contract which should excuse a carrier from his own fraud or gross negligence, would be contra bonos mores, and void. So, of contracts for the violation of any law, common or statute." See also Steinweg v. The Erie Ry. (1870), 43 N. Y. 123.

In Pennsylvania RR. Co. v. McCloskey's Adm'r (1854), 32 Pa. 526, the same principle is contended for, the Court saying:-" Assuming that a public company of carriers may contract for other exemptions from liability than those allowed by law, still such a contract will not exempt from liability for gross negligence."

Such a contract cannot relieve them from ordinary care in the performance of their duty; and the most that it can do, is to relieve them from those conclusive presumptions of negligence which arise when the accident is not inevitable, even by the highest care, and to require that negligence be

actually proved against them: per LOWRIE, C. J., in Goldey v. The Pennsylvania RR. Co. (1858), 30 Pa. 242; followed in Powell v. The Pennsylvania RR. Co. (1859), 32 Id. 414; Farnham et al. v. The Camden & Amboy RR. Co. (1867), 55 Id. 53; The American Express Co. v. Sands (1867), Id. 141; Empire Transportation Co. V. Wamsutta Oil Refining and Mining Co. (1870), 63 Id. 14. The same rule has been followed in The Illinois Central RR. Co. v. Morrison (1857), 19 Ill. 136 (infra); The Indiana Central RR. Co. v. Mundy (1863), 21 Ind. 48; Squire v. The New York Central RR. Co. (1867), 98 Mass. 239; Hadley v. The Northern Transportation Co. (1874), 115 Id. 304; Welsh v. The Pittsburg, Fort Wayne & Chicago RR. Co. (1859), 10 Ohio St. 65; Union Express Co. v. Graham (1875), 26 Id. 595; Gaines v. The Union Transportation and Insurance Co. (1876), 28 Id. 418, wherein Justice JOHNSON Said-"He cannot by such a stipulation, relieve himself from responsibility for losses caused by his own negligence or want of care or skill, and the burden of proof is upon the carrier to show not only a loss within the terms of the exemption, but also that proper care and skill were exercised to prevent it."

The same rule is upheld in West Virginia, The Baltimore & Ohio RR. Co. v. Skeels (1869), 3 W. Va. 556, wherein Justice BERKSHIRE states the law as follows: "By express stipulation in the contract to that effect, they may, at least, exonerate themselves from all liability that does not arise from the want of ordinary care and diligence on their part.”

This question is perhaps nowhere

better stated than by Justice BRADLEY, in The New York Central R R. Co. v. Lockwood (1873) 17 Wall. (84 U. S.) 367, as follows: 1. That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. 2 That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for negligence of himself or his servants. 3. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.

Special attention should here be called to this last case, inasmuch as Justice BRADLEY states that the Court "purposely abstain from expressing any opinion as to what would have been the result of our

judgment had we considered the plaintiff a free passenger instead of a passenger for hire." The case was one of the drover class, and the Court held that a drover traveling on a pass, for the purpose of taking care of his stock on the train, was a passenger for hire, his passage being one of the mutual terms of the arrangement for carrying his cattle.

Although these cases differ from those of purely gratuitous passengers, yet a short examination of the opinion, especially when read with his opinion in The Grand Trunk Ry. of Canada v. Stevens (infra page 402) may be found useful as showing that such contracts, in so far as they seek to relieve the company from liability for negligence of itself and its servants, are contrary to public policy and void. Mr. Justice BRADLEY'S language is forcible, and it is submitted that when read as before indicated, might equally apply to the