1. "We know of no law which limits the right of employer and employee to contract for themselves as to the relative rights and duties of each to the other, provided the contract be not forbidden by positive law, or be contrary to public policy. They are both free citizens. Labor is property, and the laborer has, and ought to have, the same right to contract in reference to it as other freemen have in reference to their property. Generally, the duties cast by law upon employer and employee are only implications of law, in the absence of stipulations by the parties. If one enter into the employment of another, and there be no stipulations as to wages, hours of labor, industry, etc., the law implies an obligation upon the employer to pay reasonable or customary wages, and upon the employee reasonable industry, and upon both reasonable hours of labor. It also implies various other duties and obligations; but, obviously, these are all only implications, in the absence of any agreement between the parties, and it would be a dangerous interference with private rights to undertake to fix by law the terms upon which employer and employee shall contract. For myself, I do not hesitate, to say that I know of no right more precious, and one which laboring men ought to guard with more vigilance, than the right to fix by contract •the terms upon which their labor shall be engaged. It looks' yery specious to say that the law will protect them from the consequences of their own folly, and make a contract for them *471wiser and better than their own. But they should remember that the same law-giver which claims to make a contract for them upon one point, may claim to do so upon others, and thus, step by step, they cease to be free men. We do not say that employer and employee may make any contract: we simply insist that they stand on the same footing as other people. No man may contract contrary to law, or contrary to public policy or good morals, and this is just as true of merchants, lawyers and doctors — of buyers and sellers, and bailors and bailees, as of employers and employees. 'Will it for a moment be insisted that one who borrows a horse may not stipulate that he shall only exercise the care cast by law upon one who hires a horse? May not a warehouseman stipulate that he will take extraordinary care when the law, in the absence of such a stipulation, would cast upon him only ordinary care ? May he not even stipulate that all the risk shall be upon the bailor? “Modus et conventio vinount legem” is a very ancient maxim of the law, and Mr. Brown, in his Legal Maxims, says it may be regarded as the most elementary principle of law in regard to contracts. He translates it thus: “ The form of agreement and the convention of parties overrule the law Brown’s Legal Maxims, 690. And our Code, (1873) section 10, whilst it provides that laws made for the preservation of order and good morals cannot be done away with or abrogated by any agreement, yet it also declares that “a person may waive or renounce what the law has established in his favor, when he does not thereby injure others, or affect the public interest.” So far as I know, this ancient rule is applicable to all the private relations in which men may place themselves towards each other. A common carrier is not strictly a private person. He undertakes to deal with the public, and the law considers the rules applicable to him as rules affecting the public interest. And it is upon this ground that the cases go which, while they recognize the right of a carrier to limit his liability, so far as he is an insurer, at the same time deny his right, even by special contract, to stipulate that he shall not be liable for negligence of himself or servants.
*472In the case of Railroad Company vs. Lockwood, 17 Wallace, 375, this subject, as to common carriers, is very fully discussed, and the authorities pro and eon, examined and commented upon. The Court decided that a common carrier could not stipulate for non-liability for his own negligence, or the negligence of his servants. But the whole case turns upon the nature of a common carrier’s undertaking, that it is a public employment, that care and diligence are the essential duties of his undertaking, that the carrier and his customer do not stand on an equal footing. -For these reasons, the contract of a common carrier is an exception to the general rule, “ that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to contract.” None of this reasoning applies to the case before us. This suit is not against the railroad company as a carrier. The husband of the plaintiff was one of the agents by whom the defendant was exercising the employment of a common carrier. His relation to the company was strictly a private one. His contract of service was a free one. He did not stand in the situation of a traveler, or shipper of goods, “ who cannot stop to higgle, or refuse to go on, or to ship his goods.” The railroad company has no monopoly of service. It is only one of a million of employers with whom the husband of the plaintiff might have sought employment. He deliberately, and for a consideration, uudertook what he knew to be a dangerous service, and contracted that he would not hold the company liable for the negligence of its servants, or even for the negligence of the company itself.
2, 3 and 4. We recognize, however, one limitation to this agreement, and that is the limitation the law puts upon all contracts. No man can stipulate for immunity in case he should do an act that is a crime. No contract is a good one that is in violation of law, that is which the law forbids, or which is against good morals, or contrary to public policy: Code of 1873, sections 2749, 2750. Nothing in this contract can, therefore, protect the company when the negligence which *473has caused the damage is a crime, when it comes within that kind of negligence, which is called, in section 4291 of the Code (1873,) criminal negligence, recklessness of human safety and human life. That sort of negligence is forbidden by law and punishable by law as penal. It is contrary to good morals and to public policy as declared by law. As the evidence in this case entirely fails to make a case of criminal negligence on the part of the railroad company or its agents, we think the verdict is wrong. It may be that the link used by the railroad is not as good a link as some others, and were this a question between a passenger and the road, the fact that the tool is not of the most approved character, would be of great importance. But to enable an employee to recover without such a contract as this he must be without fault. Is a man without fault who uses a dangerous and unsafe tool, knowing it to be so ? Can a mau claim that he has been damaged by the fault of other employees who have furnished an unsafe tool, when he has for months used that tool, knows-its unsafeness, and still runs the risk ? An employee is not without fault, that is, he is a contributor to his own hurt, if,, however negligent others may be, knowing that negligence,, seeing the danger, he still chooses to expose himself to the danger. A car coupler is, as we suppose, employed in a dangerous business; he knows it, and if he undertakes to couple a car, with full knowledge that there is extra danger arising from the negligence of somebody else, he is not without fault. It seems to us absurd to say that a man shall use a tool daily for ten months in his own special employment, and then claim that he is hurt without fault of his own, and by the negligence of olhers, in consequence of the unfitness of that tool for the purpose. We are ready to hold railroad companies to the duties the law casts upon them. But juries should remember that before the law, the rich and the poor, the strong and the weak, have equal rights.
