and the hand of the first party, the day and year first above written. "CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, "By C. M. HOLT, Agent. "ED. WILLIAMS, Shipper. "If this contract is for two or more cars, and is presented to the Company's Agents at the below named addresses within 3 days from date, it may be exchanged for a return pass for the above named party in charge, it being distinctly understood that said pass must be used the same day as issued. "Atchison, Kans., General Agent's Office. "Beardstown, Ill., Local Freight Agent's Office. "Burlington, Iowa, Division Freight Agent's Office. "Chicago, Ill., General Freight Office, Union Stock Yards. "The defendant pleaded that it was exempt from liability for damages to the plaintiff by virtue of the italicized paragraph of the foregoing agreement. At the close of the trial there was substantial evidence that the injury to the plaintiff was caused by the negligence of the defendant's servants in the operation of the cattle train, the evidence relative to the contract between the parties for the free transportation of the plaintiff was uncontradicted and it established these facts: The plaintiff resided at Robertson in the State of Missouri. He had been engaged in dealing in and shipping cattle in that State for eighteen years, had frequently made contracts of the character of that here in evidence and was familiar with this agreement, and with the rates and terms upon which the Railway Company transported cattle from Robertson to the city of Chicago. The defendant operated regular passenger trains and carried passengers thereon between these stations for a regular fare of about $12. The danger of accident and injury to one riding in the caboose of a cattle train is about four times the danger to one riding in a coach of a passenger train. The defendant offered to carry and did transport cattle from Robertson to Chicago and between other places on its railroad VOL. CCV-29 and assumed the entire responsibility and care of them during the transportation, without furnishing free transportation to the shipper or any of his agents and without any agreement that he or any of his agents should water, feed or give care or attention to the cattle during the transportation, for the same price and rate as it charged and received in cases in which the owner or his agent received free transportation upon the cattle train and agreed to assume the responsibility of the care of the cattle and the risk of his own injury while riding upon the freight train, as he did in the contract in evidence. The railway company preferred to carry and care for the cattle without furnishing transportation to any one upon the freight trains, but nevertheless it offered to provide, and when desired did provide free transportation on the cattle train for one person for every two cars shipped upon the terms specified in the italicized paragraph of the agreement. Cattle were shipped each way. The railway company charged and received the same rate whichever method was adopted and left the shippers free to make their choice. The majority of the shippers accepted the free transportation on the train with their cattle and agreed to care for them and to hold the company exempt from liability for any injury to themselves while they were riding on the freight train. The plaintiff and other shippers had the option to ship their cattle without free transportation for any one and to throw the entire care of the cattle on the company, or to accept the free transportation and to make the agreement to care for their cattle during the transportation and to exempt the defendant from liability for their injuries while riding on the cattle train. The plaintiff was not requested, required or constrained to accept the free transportation upon the cattle train upon which he rode, to assume the care of the cattle during their carriage or to ride on the cattle train and to agree that the defendant should not be liable for his injuries while he was so carried, but he did so voluntarily because he wished to accompany his cattle to Chicago and to sell them there. In this state of the case the trial court denied the request of counsel for the defendant to instruct the jury to return a verdict in its favor; an exception was taken to this ruling and it was assigned as error. "And the Circuit Court of Appeals for the Eighth Circuit further certifies that the following question of law is presented by the assignment of errors in this case, that its decision is indispensable to a determination of this case and that to the end that this court may properly decide the issues of law presented it desires the instruction of the Supreme Court of the United States upon the following question: "Where the owner of cattle has the option to ship them to market at the same rate without free transportation for himself or his agents on the cattle train, to throw the entire responsibility of the care of the cattle during the transportation upon the railroad company and to travel to the market town on a passenger train of that company for the regular fare, or to accept free transportation to the market town upon the cattle train which carries his cattle, to assume the responsibility of their care during the transportation and to agree that the railroad company shall not be liable to him for any injury or damage which he sustains while he is being so carried, and without request, requirement or constraint he voluntarily chooses the latter alternative, is his contract that the railroad company shall not be liable to him for such injury or damage valid?" Mr. O. H. Dean, with whom Mr. W. D. McLeod, Mr. Hale Holden, Mr. H. C. Timmonds and Mr. O. M. Spencer were on the brief, for Chicago, Burlington and Quincy Railway Company. Mr. Timothy J. Butler, Mr. D. C. Allen, Mr. John H. Denison, Mr. John Hipp and Mr. Ralph Talbott for Edgar C. Williams. MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court. In Jewell v. McKnight, 123 U. S. 426, 432, 434, 435, the court Opinion of the Court. 205 U.S. had occasion to determine the scope of those provisions of the Revised Statutes which authorized the judges of the Circuit Court in any civil suit or proceeding before it where they were divided in opinion, to certify to this court the point upon which they so disagreed. Rev. Stat., §§ 650, 652, 693. Speaking by Mr. Justice GRAY, this court held that each question certified must be a distinct point or proposition of law clearly stated, so that it could be definitely answered, without regard to other issues of law or of fact in the case. It said: "The points certified must be questions of law only, and not questions of fact, or of mixed law and fact-'not such as involve or imply conclusions or judgment by the court upon the weight or effect of testimony of facts adduced in the cause.' The whole case, even when its decision turns upon matter of law only, cannot be sent up by certificate of division." In that case the general creditors of one of the parties sought to set aside, as fraudulent, a warrant of attorney to confess judgment. The court further said: "The statement (embodied in the certificate and occupying three closely printed pages in the record) of what the judges below call 'the facts found' is in truth a narrative in detail of various circumstances as to the debtor's pecuniary condition, his dealings with the parties to this suit and with other persons, and the extent of the preferred creditors' knowledge of his condition and dealings. It is not a statement of ultimate facts, leaving nothing but a conclusion of law to be drawn; but it is a statement of particular facts, in the nature of matters of evidence, upon which no decision can be made without inferring a fact which is not found. The main issue in the case, upon which its decision must turn, and which the certificate attempts in various forms to refer to the determination of this court, is whether the sale of goods was fraudulent as against the plaintiffs. That is not a pure question of law, but a question either of fact or of mixed law and fact. Not one of the questions certified presents a distinct point of law; and each of them, either in express terms or by necessary implication, involves in its decision a con 205 U.S. Opinion of the Court. sideration of all the circumstances of the case. 'They are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;' and 'It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so.' Waterville v. Van Slyke, 116 U. S. 699, 704." See also Fire Asso. v. Wickham, 128 U. S. 426, 434. In United States v. Rider, 163 U. S. 132, the Chief Justice, speaking for the court, said that "it has always been held that the whole case could not be certified," and that "under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated." In that case it was also held that certificates of questions of law by the Circuit Courts of Appeals under the Judiciary Act of March 3, 1891, are governed by the same general rules as were formerly applied to certificates of division of opinion in the Circuit Court-citing Columbus Watch Co. v. Robbins, 148 U. S. 266; Maynard v. Hecht, 151 U. S. 324. In United States v. Union Pacific Railway, 168 U. S. 505, 512 (which was the case of certified questions from a Circuit Court of Appeals), the rule as announced in the Rider case was affirmed. To the same effect are Graver v. Faurot, 162 U. S. 435, 436; Cross v. Evans, 167 U. S. 60, 64; McHenry v. Alford, 168 U. S. 651, 658. The present certificate brings to us a question of mixed law and fact and, substantially, all the circumstances connected with the issue to be determined. It does not present a distinct point of law, clearly stated, which can be decided without passing upon the weight or effect of all the evidence out of which the question arises. The question certified is rather a condensed, argumentative narrative of the facts upon which, in the opinion of the judges of the Circuit Court of Appeals, depends the validity of the live-stock contract in suit. Thus, practically, the whole case is brought here by the certified question, and we are, in effect, asked to indicate what, under all |