Davis vs. Chicago, Milwaukee & St. Paul R. Co. switches, and frogs from the west end of the trestle to the guard rail of switch No. 3 were in good condition at the time of the accident. (5) The train was running, at the time it approached the place of the accident, at about the usual rate of speed. (6) The engineer was not guilty of any negligence which caused the car wherein plaintiff was riding at the time of the accident to leave the track and to fall over the embankment. (7) The defendant company was guilty of negligence which occasioned the injury to the plaintiff. (8) If the plaintiff was entitled to judgment, his damages were assessed at $4,000. The defendant moved for a new trial, on the ground that the verdict was contrary to the law and to the evidence; that the answers 1, 3, and 7 were contrary to and unsupported by evidence; that the court erred in refusing to direct a verdict for the defendant; and that the court erred in its charge to the jury. The motion was denied, and the plaintiff had judgment on the verdict, from which the defendant appealed. Geo. W. Bird, attorney, and Burton Hanson, of counsel, for the appellant, argued, among other things, that the contract in this case related wholly to interstate commerce, and resort cannot be had to state statutes or state decisions to determine whether it was valid or invalid. All laws of the state, whether statute or common law, which attempt to regulate or interfere with interstate commerce are void. Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557; Hall v. De Cuir, 95 id. 485; La Farier v. G. T. R. Co. 52 Am. & Eng. R. Cas. 226; Missouri P. R. Co. v. Sherwood, 55 id. 478; State Freight Tax, 15 Wall. 232; Welton v. Missouri, 91 U. S. 275; Brown v. Houston, 114 id. 622; Grand Trunk Ticket Case, 52 Am. & Eng. R. Cas. 228. There is no common law of the United States. Bucher v. Cheshire R. Co. 125 U. S. 583; Swift v. P. & R. R. Co. 64 Fed. Rep. 59; Gatton v. C., R. I. & P. R. Co. 63 N. W. Rep. 589. When Davis vs. Chicago, Milwaukee & St. Paul R. Co. counsel in the closing argument to the jury insisted that there was no proof that threats had been made and that no persons had been seen near the place of the accident just prior thereto, the duty then devolved upon the court, especially when its attention was directed thereto by an apt instruction, to correct the error and mischief of such argument and instruct the jury as to the probative force of that testimory and their duty in the premises. Carey v. C., M. & St. P. R. Co. 61 Wis. 71, 76; Hardy v. Milwaukee St. R. Co. 89 id. 187; Brown v. Swineford, 44 id. 282, 292; Campbell v. Campbell, 54 id. 90, 98; State v. McCartney, 65 Iowa, 522, 525; Hall v. U. S. 150 U. S. 76; Holden v. Pennsylvania R. R. 169 Pa. St. 1; Jordan v. Wallace, 32 Atl. Rep. 174; Magoon v. B. & M. R. Co. 67 Vt. 177; Cohen v. Drake, 13. Wash. 102; Surface v. Douglas, 1 Kan. App. 78; Mitchell v. Tacoma R. & M. Co. 9 Wash. 120; St. Louis & S. F. R. Co. v. Farr, 12 U. S. App. 520; Engmann v. Estate of Immel, 59 Wis. 249. For the respondent there was a brief by P. H. Fay, attorney, and Rickel & Crocker and Richmond & Smith, of counsel, and oral argument by Mr. Fay and Mr. J. B. Smith. To the point that all limitations contained in contracts for interstate carriage of either persons or property, by which the carrier seeks to limit its liability for the negligence of itself or servants, are void, they cited Railway Co. v. Stevens, 95 U. S. 635; Railroad Co. v. Pratt, 22 Wall. 123; Scruggs v. B. & O. R. Co. 18 Fed. Rep. 318; Express Co. v. Kountze Bros. 8 Wall. 342; Hart v. Penn. R. Co. 112 U. S. 331; Bank of Ky. v. Adams Exp. Co. 93 id. 181; Railroad Co. v. Fraloff, 100 id. 24; Railroad Co. v. Mfg. Co. 16 Wall. 319; Myrick v. M. C. R. Co. 107 U. S. 102; New Jersey S. N. Co. v. Merchants' Bank, 6 How. 381; Thomas v. W., St. L. & P. R. Co. 63 Fed. Rep. 200; Bussey v. M. & L. R. R. Co. 13 id. 330; Express Co. v. Caldwell, 21 Wall. 264; York Co. v. Cent. R. R. 3 id. 112; Ayres v. Western R. Davis vs. Chicago, Milwaukee & St. Paul R. Co. Corp. 14 Blatchf. 9; In re Binford, 3 Hughes, 295; The Colon, 9 Ben. 354; Ernest v. Express Co. 1 Woods, 573. The following opinion was filed April 14, 1896: PINNEY, J. 1. We think that the evidence on the part of the plaintiff was sufficient to require that the case should be submitted to the jury on some, at least, of the allegations of negligence; and that the defendant's motion for a nonsuit, and its request that the jury be instructed to find a verdict for the defendant, were properly denied. As we have arrived at the conclusion that there must be a new trial, we will abstain from any discussion of the evidence, and content ourselves with stating that the case was clearly one for the jury, under proper instructions as to the law, to determine whether the claim of the plaintiff or that of the defendant as to the cause of the accident was the true one. There is a question of law presented by these motions, whether by the contract between the plaintiff and the company, and the terms of the "drover's return ticket" issued under it, upon which he was riding at the time of the accident, the plaintiff is precluded from maintaining his action, upon the ground that he had assumed all risks of accident and expressly agreed that the company "shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to me." This stipulation was part of an entire contract made in Wisconsin, to be performed in part in Wisconsin and in part in Iowa. It is very well established in this state that a contract for such an exemption from liability by a common carrier is void, as against public policy. The defendant could not, by any agreement, however plain and explicit, wholly relieve itself from liability for injuries caused by its negligence or the negligence of its agents or employees. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, and cases cited. The validity of Davis vs. Chicago, Milwaukee & St. Paul R. Co. such a stipulation was fully considered in that case, and very many authorities were referred to holding against the validity of such an exemption; and the doctrine of the case of Railroad Co. v. Lockwood, 17 Wall. 357, in which the question of the validity of an exemption in substance the same as the present case was elaborately considered, was approved and followed, and the conclusion was reached that a railroad company could not thus abdicate the essential duties of its employment, of carefulness and fidelity as a common carrier. This is in accordance with previous decisions of this court there referred to, and the law was held to be the same in the state of Iowa (Hart v. C. & N. W. R. Co. 69 Iowa, 490); so that, both by the law and public policy of the place where made and the states within which the contract was to be performed, the provision in question was void, and it can afford no protection to the defendant in this action. We think it plain that the interpretation and validity of this provision are to be governed by the law of Wisconsin, where it was made, as it does not appear that the parties intended to be bound by the law of any other state or country in respect to the contract. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 450, and cases there cited. This result is in accord with the common law and principles of public policy in all the states. The proposition that resort cannot be had to the common law to determine the validity of a contract for interstate carriage or transportation, in the absence of any legislation to the contrary by Congress under its power to regulate commerce, is, we think, without support in reason or adjudicated cases. Until Congress shall act in the premises, it is competent for the parties to make any agreement on the subject not void as against the principles of the common law and public policy, to which resort may be had, as the law of the contract, in determining the validity of any of its provisions. Transportation companies, by reason of their control Davis vs. Chicago, Milwaukee & St. Paul R. Co. over the carrying trade, cannot be allowed to exact any stipulation they may choose, and arrogate to themselves the right to regulate commerce, in defiance of the common law and settled principles of public policy. The invalidity of such stipulations in contracts relative to interstate transportation has been declared in very many cases in which the principles laid down in Railroad Co. v. Lockwood, 17 Wall. 357, have been applied. In Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 439, it was said that "by the common law of England and America, before the Declaration of Independence, recognized by the weight of English authorities for half a century afterwards, and upheld by decisions of the highest courts of many states of the Union, common carriers could not stipulate for immunity for their own or their servants' negligence." The constitutional grant to Congress of the power to regulate commerce did not supersede or displace the common law, but conferred upon Congress the power to make such regulations as in its wisdom it saw fit; and, until Congress acts in the premises, the principles of the common law governing such contracts will necessarily apply, and cannot be regarded as obnoxious to the objection that they are regulations of commerce, within the meaning of the constitutional provision. In the case last cited, it is said that the case of Railroad Co. v. Lockwood "rests upon the doctrine that an express stipulation by any common carrier for hire, in the contract of carriage, that he shall be exempt from liability for losses caused by the negligence of himself or his servants, is unreasonable and contrary to public policy, and consequently void. And such has always been the understanding of this court, expressed in several later cases," there cited. Hart v. Penn. R. Co. 112 U. S. 331, 338; Railroad Co. v. Pratt, 22 Wall. 123, 134; Railway Co. v. Stevens, 95 U. S. 655; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 181; Phoenix Ins. Co. v. E. & W. Transp. Co. 117 U. S. 322. These are full and instructive VOL. 93-31 |