The Ohio, etc., R. W. Co. v. Selby.

answer is, whether the contract hereinbefore set out was sufficient to relieve the appellant from liability for the injury complained of. The appellant insists, that by the terms of such contract she is exempted from responsibility for all accidents, including those occurring from negligence, at least the ordinary negligence of its servants. Is such a contract valid? This involves an inquiry into the law affecting the right of a railway company to exempt itself by special contract from the liability which ordinarily attaches to it as a common carrier of persons and property. There seems to be an irreconcilable conflict in the adjudged cases in England and in this country. We propose, therefore, to make a brief review of the leading cases, and classify them, so that it may be seen which sustain, and which oppose, the validity of the contract relied upon by appellant. And we will, in the first place, examine the adjudged cases in this court.

In Wright v. Gaff, 6 Ind. 416, it was held, that a steamboat might, by special contract, be exempted from liability for injury resulting from ordinary negligence, but not for gross negligence.

The ruling in the last case cited was referred to with approval, in the case of The Indianapolis, etc., R. R. Co. v. Remmy, 13 Ind. 518.

In the case of The Indiana Central R. W. Co. v. Mundy, 21 Ind. 48, Mundy was riding on a free pass, with conditions on the back, assuming all risks of personal injury, similar to the pass in the case at bar. The court in that case decided that Mundy did not assume any risks arising from acts of gross negligence, but approved the charge of the court below, "that the railway company would not be liable except for wilfully gross negligence," etc.; and in a note to that case, authorities are cited to sustain that ruling.

The ruling in the above case was adhered to in the case of Thayer v. The St. Louis, etc., R. R. Co., 23 Ind. 26.

The case of The Michigan Southern and Northern Indiana R. R. Co. v. Heaton was decided by the late judges of this court at the May term, 1869. A rehearing was granted, not,

The Ohio, etc., R. W. Co. v. Selby.

however, upon the point under examination. In the case of The I., P. & C. R. R. Co. v. Allen, 31 Ind. 394, decided at the same term as the above case, the following reference is made to the ruling in such case:

"It is true, that the language of the contract is broad enough to cover loss from any cause whatever; but in The Michigan Southern and Northern Indiana R. R. Co. v. Heaton, at this term, after a careful examination of the subject, this court came to the conclusion, that a contract as broad in its terms as the one under consideration did not cover liability for loss occasioned by ordinary negligence. Indeed, it is held in that case, that a common carrier can not contract against liability for loss from his own ordinary negligence; that such a condition is void as against public policy." The opinion of the court in that case is published in a note commencing on page 397.

Such case having been re-submitted and re-argued came before the court as at present constituted, and will be found reported in 37 Ind. 448. Upon the last hearing, it was held that a common carrier can not by contract relieve himself from liability for the loss of goods delivered to him for transportation, which has been occasioned by his own negligence, or that of his agents or servants, or where such negligence has in any degree contributed to such loss. A common carrier can no more stipulate for a slight degree of negligence than he can for gross negligence."

In the subsequent case of The Adams Express Co.v. Fendrick, 38 Ind. 150, the opinion of the court was delivered by the same judge who wrote the opinion in the case last cited. He says:

"The only question we need to consider is that presented by the ruling on the demurrer to the first paragraph of the answer. It will be seen that the loss is alleged to have occurred from one of the dangers of 'river navigation,' for which it was stipulated that the company should not be liable.

"Doubtless, at common law, and independently of any con

The Ohio, etc., R. W. Co. v. Selby.

tract to the contrary, the defendant, as a common carrier, would have been liable for the loss; a common carrier being regarded as an insurer against all casualties in the transportation of goods, except those arising from the act of God or the public enemy. But the great current of authorities has established the proposition, that a common carrier may, by contract, limit the extreme liability which the law thus throws upon him. In the case of The Michigan, etc., R. R. Co. v. Heaton, 37 Ind. 448, this court held that a common carrier might, by contract, exclude himself from liability for a loss not arising from, or being contributed to by, any degree of negligence on the part of the carrier, his servants or agents."

In many of the cases a distinction has been drawn between the degrees of negligence. In some it was held that a common carrier might contract against slight negligence, in others against ordinary negligence, and in a few against gross negligence. But the very decided tendency of modern decisions is to disregard this distinction.

The Supreme Court of the United States, in the case of Railroad Company v. Lockwood, 17 Wal. 357, uses the following language in reference to the degrees of negligence:

"The defendants endeavor to make a distinction between gross and ordinary negligence, and insist that the judge ought to have charged that the contract was at least effective for excusing the latter.

"We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence. And if ordinary care

The Ohio, etc., R. W. Co. v. Selby.

is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply 'negligence.' And this seems to be the tendency of modern authorities. I Smith's Lead. Cas. 453, 6 Am. ed.; Story Bail., sec. 571; Wyld v. Pickford, 8 M. & W. 460; Hinton v. Dibbin, 2 Q. B. 661; Wilson v. Brett, II M. & W. 115; Beal v. South Devon R. R. Co., 3 H. & C. 337; Law R. 1 C. P. 600; 14 How. 486; 16 How. 474. If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the performance of various duties and the fulfilment of various contracts, we think they go too far; since the requirements of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed."

We do not mean to say that in no case does the distinction in the degrees of negligence exist. Such a distinction may exist in cases involving a question of contributory negligence. We are now considering the degree of negligence that may be contracted against, and beyond that we decide nothing.

We shall not attempt a review of the cases sustaining, or in conflict with, the recent decisions of this court, but will cite such cases.

The following cases hold that a common carrier may be exempted from liability for a loss occasioned by ordinary negligence: Wells v. The N. Y. C. R. R. Co., 26 Barb. 641; S. C., 24 N. Y. 181; Perkins v. The N. Y. C. R. R. Co., 24 N. Y. 196; Smith v. The N. Y. C. R. R. Co., 29 Barb. 132; S. C., 24 N. Y. 222; Bissell v. The N. Y. C. R. R. Co., 29 Barb. 602; S. C., 25 N. Y. 442; Poucher v. The N. Y. C. R. R. Co., 49 N. Y. 263; Ashmore v. Pennsylvania, etc., Co., 4 Dutcher, 180; Kinney v. Central R. R. Co., 3 Vroom, 407; Hale v. The N. F., etc., Co., 15 Conn. 539; Peck v. Weeks, 34 Conn. 145; Lawrence v. The N. Y., etc., R. R. Co., 36 Conn.

The Ohio, etc., R. W. Co. v. Selby.

63; Kimball v. Rutland, etc., R. R. Co., 26 Vt. 247; Mann v. Birchard, 40 Vt. 326; Adams Ex. Co. v. Haynes, 42 Ill. 89; 42 Ill. 458; The Ill. C. R. R. Co. v. Adams, 42 Ill. 474; Hawkins v. Great Western R. R. Co., 17 Mich. 57; S. C., 18 Mich. 427; Balt. & O. R. R. Co. v. Brady, 32 Md. 328; Levering v. Union, etc., Co., 42 Mo. 88.

Many of the above cases were decided by divided courts. Some of them limit the exemption to cases of slight negligence, some of them to ordinary negligence, and a few of them extend the doctrine to cases of gross negligence.

We now proceed to cite cases holding the opposite doctrine and fully sustaining the recent decisions in this court. Cole v. Goodwin, 19 Wend. 251; Gould v. Hill, 2 Hill N. Y. 623; Dorr v. The N. 7. St. Nav. Co., 4 Sandf. 136; Stoddard v. The Long Island R. R. Co., 5 Sandf. 180; Parsons v. Monteath, 13 Barb. 353; Moore v. Evans, 14 Barb. 524; Laing v. Colder, 8 Pa. St. 479; Camden and Amboy R. R. Co. v. Baldauf, 16 Penn. St. 67; Goldey v. The Penn. R. R. Co., 30 Penn. St. 242; Powell v. The Penn. R. R. Co., 32 Penn. St. 414; The Penn. R. R. Co. v. Henderson, 51 Penn. St. 315; Farnham v. The Camden, etc., R. R. Co., 55 Penn. St. 53; Amer. Express Co. v. Sands, 55 Penn. St. 140; The Empire Trans. Co. v. Wamsutta Oil Co., 63 Penn. St. 14; Jones v. Voorhees, 10 Ohio, 145; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; Wilson v. Hamilton, 4 Ohio St. 722; Welsh v. The Pittsburg, etc., R. R. Co., 10 Ohio St. 65; The Cleveland, etc., R. R. Co. v. Curran, 19 Ohio St. 1; The Cincinnati, etc., R. R. Co. v. Pontius, 19 Ohio St. 221; Knowlton v. The Eric R. W. Co., 19 Ohio St. 260; Fillebrown v. The Grand Trunk R. W. Co., 55 Me. 462; Sager v. Portsmouth, etc., R. R. Co., 31 Me. 228, 238; School District, etc., v. Boston, etc., R. R. Co., 102 Mass. 552; Flinn v. The Phil., Wil. & Balt. R. R. Co., I Hous. Del. 469; Orndorff v. Adams Express Co., 3 Bush (Ky.), 194; Swindler v. Hilliard, 2 Rich. (S. C.) 286; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247; Southern Ex. Co. v. Crook, 44 Ala. 468; Whitesides v. Thurlkill, 12 Sm. &