194 F. 79 | 8th Cir. | 1912
The plaintiff, Smith, was a brakeman in the employ of the defendant company, with his headquarters at Wellington, Kan. For the purpose of enabling him to visit relatives residing at Ferry, in the state of Oklahoma, the defendant issued to him a free round-trip pass from Wellington to that place. On the return trip the train upon which he was a passenger was derailed, in the state of Oklahoma, and the plaintiff received the injuries for which he seeks to recover in this action. As in Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, the evidence presents a case of ordinary negligence only, and fails to show either a wanton or willful breach of duty. Upon the back of the pass was the following printed provision, which was signed by the plaintiff:
“Tbis pass is not transferable and must be signed in ink by the holder hereof, and the person accepting it and using it hereby assumes all risks of accidents and damages to person and baggage under any circumstances, whether caused by negligence of agents or otherwise. I accept the above conditions.”
At the close of the evidence the trial court directed a verdict in favor of the defendant, and thát ruling presents the only error assigned in" this court.
“The contention that because, in the cases referred to, the operation of the state laws, which were sustained, was to augment the liability of a carrier, therefore the rulings are inapposite here, where the consequence of the application of the state statute may be to lessen the carrier’s liability, rests upon a distinction without a difference.”
The pass was not a contract between the plaintiff and the company. It was simply a direction to defendant’s conductors to receive and transport the plaintiff upon its trains. It could have been taken up at any time, even in the course of a journey, and the plaintiff required to pay his fare. If a conductor had refused to honor the pass, that would have given no right of action against the company. It would have been simply a case for discipline between the company and its employé for disregarding its directions. It would have given no right of action, because the pass was a gratuity and imposed no legal obligation. In a similar case the Supreme Court used the following language in regard to such a pass:
“Here there was no contract of carriage, and that fact was known to Mrs. Boomig. She was simply given permission to ride in the coaches of Hie defendant.” Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442, 450, 24 Sup. Ct. 515, 51(5 (48 L. Ed. 742).
Such being the nature of the pass, the condition on its back accompanied its use. If that condition was void by the law of the state where the injury occurred, it would be disregarded. If it was valid, it would be enforced. In that view the waiver was a complete defense to this action. N. P. Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513.
"A carrier of persons without reward must use ordinary care and diligence for their safe carriage.” Comp. Raws 3909, § 428.
He insists that the evidence made out a case for the jury to determine whether the defendant used ordinary care. This statute, how
The judgment is affirmed.