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resented by plaintiffs are likewise citizens and residents of New York.

4. Whether the suit is an ancillary one.

The plaintiffs, relying upon Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 53, attempt to sustain the jurisdiction of the court on the ground that this suit is ancillary to the foreclosure proceedings against the Metropolitan Company in the District Court. But the facts in that case bear no resemblance to those here under consideration. There the rights and lien which it was declared the federal court had exclusive jurisdiction to ascertain and enforce were expressly reserved by the decree; and the purchaser under the decree took title expressly subject to them. The decree of foreclosure under which sale was made of the property of the Metropolitan Company, which was later transferred to the New York Company, contained, so far as appears from the record, no reservation whatsoever concerning liens or similar rights. And there is in the answer of the New York Company the uncontroverted statement that the properties subject to the foreclosure "were sold to the purchasers and to the New York Railways Company, free and clear of any lien, claims or interest in any party outstanding, except the interests of those expressly provided for in the Plan of Reorganization; and that the proceedings resulting in the deficiency judgment against the Metropolitan Company here sued on "did not constitute a claim against, or a lien on, or an interest in any of the property rights or estate of the Metropolitan Street Railway Company.” Furthermore the bill in the instant case does not purport to be ancillary to the Metropolitan Company foreclosure proceedings. Plaintiffs here seek merely to establish an equity against the property of the New York Company, on the theory that the rights of the Crosstown bondholders have been improperly ignored. They set up a wholly independent cause of action,

Decree affirmed.


244 U.S.





No. 192. Argued April 20, 1917.-Decided May 21, 1917.

Under the doctrine established by Railroad Company v. Lockwood,

17 Wall. 357, and many cases decided since, a person traveling by railroad as a caretaker of live stock on a "free" or "drover's" pass is a passenger for hire as to whom a stipulation that the carrier shall

not be liable for personal injuries caused by its negligence is void. As applied to caretakers of live stock, $ 1 of the Hepburn Act of

June 29, 1906, uses the term "free pass” in the sense which established custom had given it and judicial determination had sanctioned long before the act, viz., as meaning not a gratuitous pass but one issued for a consideration constituting the caretaker a passenger for hire, within the doctrine of the Lockwood Case. Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576, dis

tinguished. Where a connecting carrier, sued for personal injuries by a person

traveling on a drover's pass, based its defense on a release of liability for negligence contained in the contract of carriage issued by, and in accordance with the tariffs of, the initial carrier, under the Carmack Amendment, Held that it was estopped from claiming also that under its own tariff the issuance of such passes was forbidden and unlawful and that therefore such traveler was unlawfully upon

its train. A provision in a tariff that "free or reduced transportation shall not

be issued for shippers or caretakers in charge of live stock shipments,

and such shippers or caretakers shall pay full fare returning," is construed as implying that such transportation will be allowed to the destination of the shipment, but not for the

return trip of the caretaker. When connecting interstate carriers, in accordance with tariffs of the

initial carrier duly filed and published, contract to carry a shipment of live stock with a caretaker for a specified rate in money, the carriage quoad the caretaker is a carriage for money, part of the total rate, and the mere fact that the part attributable to the caretaker is

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not stated separately in a passenger tariff does not render the con

tract to carry him invalid under the Act to Regulate Commerce. Separation of the rate in such a case is an administrative matter

affecting the form of tariffs, which is committed to the Interstate Commerce Commission by 8 6 of the Commerce Act, as amended, and concerning which the courts will not interfere in advance of

application to the Commission. 222 Fed. Rep. 802, affirmed.

The case is stated in the opinion.

Mr. C. M. Bain (by special leave), with whom Mr. John H. Small, Mr. W. B. Rodman and Mr. J. Kenyon Wilson were on the briefs, for plaintiff in error.

Mr. Charles Whedbee and Mr. P. W. McMullan for defendant in error.

MR. JUSTICE CLARKE delivered the opinion of the court.

The judgment obtained in this case by the plaintiff in the District Court, W. C. Chatman, affirmed by the Circuit Court of Appeals for the Fourth Circuit, is here for review on writ of error.

On December 1, 1911, the plaintiff below (hereinafter designated as the plaintiff) delivered to the Pennsylvania Railroad Company at Jersey City a carload of horses to be carried to Hertford, N. C., and was tendered by an agent of the company for his signature, the customary “Uniform Live Stock Contract” of the Pennsylvania Company, the essential provisions of which are printed in the margin."

· The provisions of the contract essential to be considered


in substance, that the company had received from Chatman a carload of horses for transportation to Port Norfolk for Hertford, N. C., "with W. C. Chatman in charge;' and that it was received by the Pennsylvania Company "for itself and on behalf of connecting carriers for

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This contract was retained by the company but from it was detached a "coupon” which was given to Chatman, containing, in substance, an acknowledgment that he had delivered live stock of the kind and nature therein described, consigned to W. C. Chatman, destination Port Norfolk, Va., for Hertford, N. C., “W.C. Chatman, man

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transportation, subject to the official tariffs, classifications and rules of the said company”; and “that the said shipper is at his own sole risk and expense to load and take care of and feed and water said stock whilst being transported

and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same . That the shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock.” It further provided that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge, other than the sum paid or to be paid for the transportation of the live stock in his or her charge, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims and liabilities of every kind, by reason of personal injury sustained by the person in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or otherwise. There was printed upon this contract, as a part of it, the following:

“RELEASE FOR MAN OR MEN IN CHARGE. “In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the livestock mentioned in said contract, of which livestock ... in charge, the undersigned does hereby voluntarily assume all risks of accidents or damage to his person or property, and does hereby release and discharge the said carrier or carriers from every and all claims, liabilities and demands of every kind, nature and description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers or any of its or their employees or otherwise.

(signature of man in charge)


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in charge.” Without other pass or ticket than this "coupon” and without other payment than the published tariff on the carload of stock, the Pennsylvania Railroad Company carried the plaintiff, with his carload of horses, on a freight train to Norfolk, Virginia, where the car was delivered to and accepted by the defendant company for transportation to its destination.

The plaintiff testifies that defendant's conductor saw him and knew he was on the car up to the time the accident complained of occurred.

The car in which the horses and the plaintiff were being carried was derailed on defendant's line, and the plaintiff, being injured, sued for damages and secured the judgment which we have before us.

The negligence of the defendant is not disputed.

On this record the defendant claims two defenses, the first of which is:

That the plaintiff is not entitled to recover, because, when injured, he was traveling on a free pass issued pursuant to the terms of the live stock contract in which he had released the carriers from all liability for any personal injury which he might sustain, thus bringing his claim within the authority of Northern Pacific Ry. Co. v. Adams, 192 U. S. 440.

In Railroad Company v. Lockwood, 17 Wall. 357, 384, it was decided that a person traveling on a "drover's pass," issued upon a live stock contract precisely similar in its terms to that which we have in this case, was a passenger for hire and that a release from liability for injuries caused by the carrier's negligence was void because a common carrier could not lawfully stipulate for such exemption.

This decision was rendered in 1873, and has been frequently approved: Railway Company v. Stevens, 95 U. S. 655; Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397; Baltimore & Ohio Southwestern

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