But this view, though the one commonly expressed, is probably not quite accurate. The gratuitous carrier, to be sure, is not responsible for all losses for which a common carrier is liable; but where a common carrier takes gratuitously he must carry according to the care he has undertaken. Since he has undertaken to carry the goods along with those which he is carrying for hire, and in the same way, he is responsible for any neglect to furnish such care as is requisite for carrying on his business. For a gratuitous bailee undertakes to use such skill as he possesses.* In an action against a gratuitous bailee of a horse for an injury suffered by the horse, Baron Parke said: "The defendant was shown to be a person conversant with horses, and was therefore bound to use such care and skill as a person conversant with horses might reasonably be expected to use. . . In the case of a gratuitous bailee, where his profession or situation is such as to imply the possesion of competent skill, he is equally liable for the neglect to use it." § 149. Gratuitous passenger. However this may be decided in the case of gratuitous carriage of goods, there is no doubt that a person carried gratuitously by a railroad is a passenger, and is entitled to the same care as any passenger. North Carolina--Bland v. Nomach, 2 Murphy, 373 (1818); Pender v. Robbins, 6 Jones (Law), 207 (1858). England-Nelson v. Mackintosh, 1 Starkie, 237 (1816); Booth v. Wilson, 1 B. & Ald. 59 (1817); Doorman v. Jenkins, 2 A. & E. 256 (1834). But see Adams Exp. Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582 (1869); McLean v. Rutherford, 8 No. 109 (1834); Howard Exp. Co. v. Wile, 64 Pa. St. 201 (1870). 4 Shiells v. Blackburn, 1 H. Bl. (Eng.) 158 (1789). 5 Wilson v. Brett, 11 M. & W. (Eng.) 113 (1843). 6 United States-Philadelphia & R. R. R. v. Derby, 14 How. (U. S.) 468, 14 L. Ed. 502. Illinois-Benner Livery, etc., Co. v. Busson, 58 Ill. App. 17 (1894). : But a carrier who is carrying a passenger gratuitously does not owe him the duty owed by a common carrier; and though he is obliged to take care even of a gratuitous passenger, still the obligations of the common carrier do not bind him. The question commonly arises where a passenger riding on a free pass exempts the carrier from liability for injury by negligence. Such an exemption is binding, though in the case of a common carrier it would be void." 8 In Northern Pacific Railway v. Adams, Mr. Justice Brewer said: "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 risks of negligence. He Indiana-Gillenwater v. Madison, etc., R. Co., 5 Ind. 339, 61 Am. Dec. 101 (1854); Ohio, etc., R. Co. v. Mickless, 71 Ind. 271 (1880); Russell v. Pittsburgh R. Co., 157 Ind. 305, 61 N. E. 678, 87 Am. St. Rep. 214, 55 L. R. A. 253 (1901). Iowa-Rose v. Des Moines Valley R. Co., 39 Iowa, 246 (1874). Maryland-State v. Western Maryland R. Co., 63 Md. 433 (1884). Massachusetts-Todd v. Old Colony R. R. Co., 3 Allen (Mass.), 18, 80 Am. Dec. 49 (1861); Wilton v. Middlesex R. R., 107 Mass. 108 (1871); Wilton v. Middlesex R. R., 125 Mass. 130 (1878); Littlejohn v. Fitch. R. Co., 148 Mass. 478, 20 N. E. 103, 2 L. R. A. 502 (1889); Doyle v. Fitch. R. Co., 162 Mass. 66, 37 N. E. 770, 44 Am. St. Rep. 335, 25 L. R. A. 157 (1894). Missouri-Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799 (1878); Buck v. People's St. R., etc., Co., 46 Mo. App. 555 (1891); Dorsey v. Atchinson, etc., R. Co., 83 Mo. App. 528 (1900). New York-Perkins v. N. Y. C. R. Co., 24 N. Y. 196, 82 Am. Dec. 282 (1862); Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221 (1874). Pennsylvania-Buffalo, etc., R. Co. v. O'Hara, 3 Pennyp. (Pa.) 190, 12 Wkly. Note Cas. (Pa.) 473 (1882). Texas-Gulf, etc., R. Co. v. McGown, 65 Tex. 640 (1886). 7 Northern Pac. Ry. v. Adams, 192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. 408 (1904); Griswold v. New York & N. E. R. R., 53 Conn. 371, 55 Am. Rep. 115 (1885); Quimby v. Boston & M. R. R., 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846, B. & W. 506 (1890). 8 Supra. 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." In Quimby v. Boston & Maine Railroad," Mr. Justice Devens said: "Certainly the carrier is not likely to urge upon others the acceptance of free passes, as the success of his business must depend on his receipts. There can be no difficulty in the adjustment of terms where passes are solicited as gratuitous. When such passes are granted by such of the railroad officials. as are authorized to issue them, or by other public carriers, it is in deference largely to the feeling of the community in which they are exercising a public employment. The instances cannot be so numerous that any temptation will be offered to carelessness in the management of their trains, or to an increase in their fares, in both of which subjects the public is interested. In such instances, one who is ordinarily a common carrier does not act as such, but is simply in the position of a gratuitous bailee. The definition of a common carrier, which is that of a person or corporation pursuing the public employment of conveying goods or passengers for hire, does not apply under such circumstances. The service which he undertakes to render is one which he is under no obligation to perform, and is outside of his regular duties. In yielding to the solicitation of the passenger, he consents for the time being to put off his public employment, and to do that which it does not impose upon him. The plaintiff was in no way constrained to accept the gratuity of the defendant; it had been yielded to him only on his own solicitation. When he did, there is no rule of public policy, we think, that prevented the carrier from prescribing, as the condition of it, that 9 Supra. it should not be compelled, in addition to carrying the passenger gratuitously, to be responsible to him in damages for the negligence of its servants. It is well known that, with all the care that can be exercised in the selection of servants for the management of the various appliances of a railroad train, accidents will sometimes occur from momentary carelessness or inattention. It is hardly reasonable that, beside the gift of free transportation, the carrier should be held responsible for these, when he has made it the condition of his gift that he should not be. Nor, in holding that he need not be under these circumstances, is any countenance given to the idea that the carrier may contract with a passenger to convey him for a less price on being exonerated from responsibility for the negligence of his servants. In such a case the carrier would still be acting in the public employment exercised by him, and should not escape its responsibilities, or limit the obligations which it imposes upon him." In several jurisdictions it is held that even in the case of a free passenger a limitation of liability for negligence is invalid; but this is on general grounds of public policy, and it is not denied that the carrier is as to such passenger a mere private carrier.10 150. Carriage of children and servants. In order that a person may be a passenger it is not necessary that the relation of passenger and carrier be established through an agreement and payment of fare made by himself. The agreement may be made and the fare paid by a third person. Such was the case where the owners of slaves paid their passage and shipped them on steamboats to a certain destination. These slaves were held to occupy the position of passengers towards the carriers.11 10 Jacobus v. St. Paul R. R., 20 Minn. 125, 18 Am. Rep. 360 (1873); Gulf C. & S. F. R. R. v. McGown, 65 Tex. 640 (1886). 11 Boyce v. Anderson, 2 Pet. (U. S.) 150, 7 L. Ed. 379 (1829). So, in the case of a young child travelling free with its parent, under a statute or a rule of the company, which permits such a child to travel without the payment of fare, the agreement in this case, if any, is made by the person with whom the child is travelling; but the child occupies towards the carrier the position of a passenger from the time it is received with the adult passenger. 12 And so a servant whose fare is paid by his master is a passenger. 13 In short, the relation of passenger and carrier does not arise, necessarily out of a payment of fare or a contract or obligation to pay it. The relation comes into existence whenever a person is rightfully carried by a carrier as passengers are carried. 8151. Riding by mistake. In the same way one who takes a train intending to pay his fare with a ticket which he bona fide believes to be a good one is a passenger, though in fact the ticket is not good for a passage in that train, because the train is a limited one,14 or because it is a freight train which the passenger bona fide but wrongfully believed, would carry passengers. 15 One who through mistake gets into the wrong train is to be regarded as a passenger until he learns his mistake and has a chance to leave the train, or decides to stay on the train and pay his fare. 16 12 Austin v. Great W. Ry., L. R. 2 Q. B. 442 (1867); Littlejohn v. Fitchburg R. R., 148 Mass. 478, 20 N. E. 103 (1889); Whitney v. Pere Marquette R. R. (Mich.), 1 L. R. A. (N. S.) 352 (1906). 13 Marshall v. York N. & B. Ry., 11 C. B. 655 (1851); Mims v. Seaboard Air Line Ry., 69 S. C. 338, 48 S. E. 269 (1904). 14 Lake S. & M. S. R. R. v. Rosenzweig, 113 Pa. 519, 6 Atl. 545, 4 Cent. 712 (1886). 15 Boggess v. Chesapeake & O. Ry., 37 W. Va. 297, 16 S. E. 525 (1892). 16 Columbus, C. & I. C. Ry. v. Powell, 40 Ind. 37 (1872); Cincinnati, H. & I. R. R. v. Carper, 112 Ind. 26, 14 N. E. 352 (1887); Arnold v. Pennsylvania R. R., 115 Pa. 135, 8 Atl. 213, 6 Cent. 630 (1887). |