water had ever come up to it, and it being shown, that after the continuance of a very extraordinary storm for a long time, an express train passing at the usual rate had been thrown from the rails, and the plaintiff in consequence being injured, it was held that there was slight or no evidence of negligence on the part of the company, and a verdict for £1500 in favor of the plaintiff was set aside as being against evidence. The bed of the roads had in fact become undermined, and the sleepers were unsupported in consequence of the rush of water and the carrying off a bridge above the embankment, it being about midnight at the time the accident occurred, but no evidence to show that the servants in charge of the train were aware of the bad condition of the track or that the water had come up to the embankment. Water was seen, but not upon the line. The court seemed to think the company not bound to build their track so as to withstand such extraordinary floods. But it certainly deserves consideration whether there is not rashness in driving an express train. at the usual rate of speed under such perilous circumstances. We should not expect a jury to hesitate much upon a question of that character. 4. The liabilities of the company attach, although the passenger were riding upon a free ticket as a newspaper reporter.10 • Withers v. North Kent Railw., 3 H. & N. 969. 10 Hodges on Railw., 621; Great N. Railw. v. Harrison, 26 Eng. L. & Eq. 443; Gillenwater v. Mad. & I. Railw., 5 Ind. R. 340. And in Nolton v. The Western Railw., 15 N. Y. Court of Appeals, 444, it is held that where a railway voluntarily undertakes to convey a passenger upon their road, whether with or without compensation, if such passenger be injured by the culpable negligence or want of skill of the agents of the company, they are liable, in the absence of an express contract exempting them. The point of the degree of care requisite in such cases is here discussed, but not decided. But the argument is in favor of that for which we contend, that the care, diligence, and skill required in any particular business, is determined by the difficulty and peril of the business, rather than by the consideration of the undertaking. This is the same case of a mail agent, who was carried as an accessory of the mail referred to in § 251, pl. 5. And, although the court seem to regard it as a case of gratuitous transportation, it seems to us it should not so be considered. We should certainly hold it a carrying for compensation by the contract, although nothing in particular was paid for the fare of the agent as such. An agreement upon a free pass, that the person accepting it assumes all risk of personal injury and loss or damage to property whilst using the trains of the company, "does not exempt the 11 But it has been sometimes claimed to admit of some question, whether such passengers could always exact the same degree of care and watchfulness as one who paid fare, especially where his ticket, as is not unusual in such cases, contained a notice that passengers who used such ticket rode at their own risk, and the company would not be responsible for the safety of such passengers or their baggage. But the subject is very much discussed in one very important case, in the national tribunal of last resort, where the plaintiff, being president of another railway, was at the time riding by invitation of the president of defendants' road, in a special train for the accommodation of the officers of the road, and without charge. The collision occurred by another engine and tender coming in the opposite direction upon the same track, in disobedience of orders to keep the track clear. Grier, J., said: "The confidence induced, by undertaking any service for another, is a sufficient legal consideration to create a company from liability for gross negligence. Ind. Cent. Railw. v. Mundy, 21 Ind. 48. See Ohio & Miss. Railw. v. Muhling, 30 Ill. R. 9, where it is held that the responsibility of a railroad company for the safety of its passengers does not depend on the kind of cars in which they are carried, nor on the fact of payment of fare by the passenger. But see Bissell v. N. Y. Cent. Railw., 25 N. Y. 442, where a contract with a cattle dealer, providing that "persons riding free to take charge of their own stock, do so at their own risk of personal injury for whatever cause," is held binding. In every case where one takes passage with a common carrier of passengers, there is, in the absence of special contract, one implied for safe transportation and for fare. Frink v. Schroyer, 18 Ill. R. 416. 11 Phil. & Read. Railw. v. Derby, 14 How. 483. The principle of this case has been followed out, in an elaborate opinion of Mr. Justice Curtis, Steamboat New World v. King, 16 How. (U. S.) 469, 474, where the old theory of different degrees of negligence, defined by the terms, slight, ordinary, and gross, is examined and dissented from. The true theory seems to be, that it makes no difference, whether a service is performed gratuitously or not, in regard to the obligation to perform it well, after it is once entered upon. But it depends chiefly upon the circumstances of the case, and the undertaking of the party. If one is permitted to ride in the company's carriages as a passenger, he is certainly entitled to demand, and to expect the same immunity from peril, whether he pay for his seat or not. The undertaking to carry safely is upon sufficient consideration if once entered upon, as was held in the familiar case of Coggs v. Bernard, Holt, 13. But if the party should obtain consent to ride in some unusual mode, for his own special accommodation, he is then only entitled to expect such security as the mode of conveyance might reasonably be expected to afford. duty in the performance of it. Where carriers undertake to carry persons by the powerful but dangerous agent of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary, or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross." But where one accepts and uses a free ticket, having an express condition printed thereon whereby the holder "assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss of or injury to property," and the passenger is injured by means of a collision between the passenger train and a freight train left standing upon the track, the company is not responsible.12 Railway companies may stipulate for exemption from all responsibility for losses accruing to passengers from the negligence of their agents and servants, unless it arise from fraudulent, wilful, or reckless misconduct on the part of some one employed by the company.12 Where the injury arose from the gross neglect of the agents and servants of the company, it was held not to come fairly within the risk assumed by the passenger. 13 5. Hiring a train for an excursion does not excuse the company from liability to the passengers for injuries caused by their servants.14 Or, if the train is under the control of state officers, it will not exonerate the company, or a natural person, if they continue to act as passenger carriers under the state.15 6. Since the publication of the second edition we have had occasion to observe that the profession do not always readily comprehend, or if they do, fail clearly to state, the precise distinction which we have attempted to define between the degree of re 12 Welles v. New York Central Railw., 26 Barb. 641. Gross negligence is here defined to be such as implies fraud or bad faith. 13 Bissell v. N. Y. Central Railw., 29 Barb. 602. 14 Skinner v. L. B. & S. Railw., 2 Eng. L. & Eq. 360; Cl. Co. & Cin. Railw. v. Terry, 8 Ohio St. 570. But see Peoria Br. Ass. v. Loomis, 20 Ill. R. 235. 15 Peters v. Rylands, 20 Penn. St. 497. sponsibility assumed by carriers of goods and the carriers of passengers. 7. It seems to be supposed by some, that when it is said that the "utmost" care and diligence is required of carriers of passengers, that if any accident befalls the train upon which they are being transported, which might have been prevented by any degree of human skill or diligence, the carrier is liable for all damages accruing to the passengers. In short, that the carrier assumes all risks of accidental or providential occurrences, provided such contingencies might have been resisted or warded off by any degree of knowledge or activity within the power of man. The result of such a rule will be to render the carrier responsible for all contingencies not absolutely arising from irresistible force, or what is called the vis major, such as tempests and hurricanes and the public enemy. And this, as we have before shown, brings the rule to the same point which defines the responsibility of carriers of goods.16 8. The carriers of passengers only contract for their own acts, and for such a degree of watchfulness and diligence as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. Thus it was said, in a recent case,17 that "the care and diligence to be used by both parties are to be measured by the known perils to which passengers are exposed by the particular kind of conveyance used." And in another case in the same state 18 it is said: "While courts, in announcing the rule governing common carriers of persons, have said, that they must be held to the utmost degree of care, vigilance, and precaution, it must be understood that the rule does not require such a degree of vigilance as will be wholly inconsistent with the mode of conveyance adopted and render it impracticable. Nor does it require the utmost degree of care which the human mind is capable of imagining. Such a rule would require the expenditure of money and the employment of hands, so as to render it perfectly safe, and would prevent all persons of ordinary prudence from engaging in that kind of business. But the rule does require that the highest degree of practicable 16 Ante, § 151. Chicago, Bur., & Quincy Railw. v. Hazzard, 26 Ill. R. 373, 18 Tuller v. Talbot, 23 Ill. 357, care and diligence should be adopted that is consistent with the mode of transportation adopted." 19 19 This question is further illustrated in Bowen v. New York Central R. R. Co., 18 N. Y. R. 408, where it is said, the rule of responsibility of passengercarriers does not require "such particular precaution as it is apparent, after the accident, might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person, before the accident, and without knowledge it was about to occur. Mr. Justice Johnson here argues against requiring of passenger-carriers every possible precaution against accident of which the mind can conjecture, as defining the precise rule of responsibility of common carriers of goods, as rendering them responsible for all casualties not produced by irresistible force, such as the act of God or the public enemy. Passenger-carriers are not held responsible for the wrongful act of strangers, or of any party not in privity with such carrier. Thus in Curtis v. Rochester & Syracuse Railw., 18 N. Y. R. 534, the rule is explained more in detail by Selden, J.: “ Accidents may occur from a multitude of causes, even upon a railroad, for which the company is not responsible. If obstructions are placed by strangers upon the road, either through accident or design, the company is not responsible for the consequences, unless its agents have been remiss in not discovering them. The straying of cattle or horses upon the road causes numerous accidents which are not chargeable to the company.” It is said, in the last case cited, that where an accident occurs upon a passenger train, it may be fair to presume there was negligence or wrong somewhere; but that such presumption does not attach to the company, unless, or until it appear that such accident was attributable to some defect in the road or equipment, or to some want of proper care and watchfulness on the part of the company or its agents. And the same is said in a recent English case, Hammack v. White, 11 C. B. N. S. 587, 594: “Mere proof of an accident having happened to a train does not cast upon the company the burden of showing the real cause of the injury." But it was held, in Dawson v. Manchester, Sh., & L. Railw., 5 Law T. N. S. 682, that if a carriage break down, or run off the rail, this will be primâ facie evidence of negligence. By running off the rail here must be understood spontaneously, it is apprehended, which sometimes occurs from improper construction, or want of care and skill in driving the engine, and may occur from other causes of analogous character. In Pym v. Great Northern Railw., 2 F. & F. 619, it occurred from a defective rail. In a recent case in Maine, Edwards v. Lord, 49 Me. R. 279, where an injury occurred to the plaintiff from the upsetting of a stage-coach, it is said common carriers of passengers are bound to use more than ordinary care; they must use such care as very cautious persons exercise, and if an accident occur from any cause which any reasonable skill and care on their part might have prevented, they are responsi ble. The question how far, and under what circumstances, the parties to any contract, express or implied, assume the hazard of providential occurrences, is ex |