or damage not occurring on its own road or its portion of the through route," etc. This action is against the terminal carrier.

The defendant contends that it is not liable unless it be shown that the damage occurred on its line, and that there is no evidence that that

was so.

We understand "released" to mean exemption from the common-law liability as an insurer. It seems to be agreed that O. K. means all right or in good condition: Baxter v. Ellis, 111 N. C. 124. It must be admitted that the present system of rapid transit, consisting of through lines, connecting lines, associated lines, and the like, makes it difficult in some cases to locate the line on which the damage occurs, and it would seem practicable for the interested lines to make some arrangement for their own benefit and the public convenience by prorating the freight charges and also the damages, when they cannot be located, and thereby avoid the inconvenience of actual inspection at every transfer, which would not only be inconvenient and cause much delay but serious loss to the consignee.

This case illustrates the difficulty. The glass, being very thick, could not have been broken without a severe jar, and, looking at the evidence, it is scarcely possible to see where or how it occurred.

The case does not fall within the principle of Rocky Mount Mills v. Wilmington etc. R. R. Co., 119 N. C. 693, 25 S. E. R. 854, 56 Am. St. Rep. 682, where it was held that the associated companies were partners, and each one liable for the negligence of either of the other lines. We are not required to discuss the liability of the other lines which handled the package of glass. The first discovery of damage was when the goods were at the terminal point of the defendant's line.

A bill of lading is something more than a simple receipt. It is a receipt and a contract. As a contract, in which the carrier agrees to transport and deliver the goods to the consignee upon the terms and conditions specified in the instrument, it is a merger of prior and contemporaneous agreements of the parties, and, being in writing cannot be explained by parol evidence, and thereby change its legal import, in the absence of fraud or mistake. It also, by the terms of the writing, as 'n this case, excludes the common-law liability of the carrier, because it is a special contract governed by its own limitations. The bill, as a receipt, is an acknowledgment of the quantity, character, and condition of the articles delivered and received, and as such may be explained, varied, or contradicted like other receipts. This exemption from the common-law liability may be enforced, if it be reasonable and does not involve exemption from negligence. Ray's Negligence of Imposed Duties, 93-95; Pollard v. Vinton, 105 U. S. 7; Elliot on Railroads, sec. 1415.

The defendant's agent having received the box apparently in good condition and marked the bill of lading "O.K." was an adoption of the terms and conditions specified in writing by the initial carrier, and these facts raise a rebuttable presumption that the damage occurred thereafter. The defendant endeavored to meet and overcome this presumption with evidence, and went to the jury with his evidence. The court charged the jury that among connecting lines the carrier, in whose hands the property is found damaged, is presumed to have caused the damage, and that the burden is upon the defendant to rebut this presumption and satisfy the jury that the glass was not damaged in its possession. In response to the inquiry of the jury, the court charged them that, if the condition of the contents was unknown to the defendant, liability could have been guarded against by examination or stipulation, and that failure to do so was negligence. This we think was correct according to the authorities and the facts.

The instructions asked for by defendant were not suited to the facts, and ignored the presumption just pointed out, and were properly refused. It has been held that the stipulation above stated is a reasonable one and consistent with public policy: Phifer v. Carolina Cent. R. R. Co., 89 N. C. 311, 45 Am. Rep. 687. It has also been held by this court that, if the contents and their condition be unknown, liability may be avoided by examination or by a stipulation, and that it is negligence in a receiving line not to observe these precautions: Dixon v. Richmond, etc., R. R. Co., 74 N. C. 538.

Affirmed.

AN EMPLOYEE OF A RAILROAD COMPANY, WHO RIDES TO AND FROM HIS WORK ON A MONTHLY TICKET FURNISHED BY THE COMPANY, IS A PASSENGER

DOYLE V. FITCHBURG RAILROAD CO.

162 Mass. 66; 37 N. E. R. 770 (1894)

Tort for damages for death of Cornelius J. Doyle, who was employed by defendant railroad. He lived in Waltham with his father, riding back and forth daily on a monthly ticket which the carrier was accustomed to furnish to its employees living outside the city, and which contained on its back a condition that the free ticket is accepted on the express agreement that the company should not be a common carrier as to him, or liable under any circumstances, whether negligence of agents or otherwise, for injury to the person or property of the passenger confined to the day between 7 a.m. and 6 p.m. At 10 p.m., while

returning from Boston on business of his own, he was killed in a collision due to the gross carelessness of the engineer. To a refusal of the court to rule that plaintiff could not recover defendant excepted.

MORTON J. It is conceded that the death of the plaintiff's intestate was due to the gross negligence of an engineer in the employ of the defendant. The defense rests on two propositions: 1. That the plaintiff's intestate was not a passenger, but an employee; 2. If that is not so, that the defendant is not liable by reason of the conditions on the back of the ticket.

We do not think that at the time of the injury the plaintiff's intestate was "in the employment" of the defendant within the meaning of the statute. The defendant was not transporting him to or from the place of his daily labor, pursuant to the arrangement which existed between them. It had no control or authority over him. He was not traveling on any service for it, and he could use it as he saw fit, and he was passing over the defendant's road entirely for his own business or pleasure. So long as he was working from day to day for the defendant, it might be said, in a popular sense, that he was in its employment. But we do not think that is the sense in which the words are used in the statute. Otherwise, if at any time, under any circumstances, passing over the railroad on a highway crossing on Sunday, for instance, on an errand to get a doctor for his father or a friend, he was injured by the gross negligence of the defendant's servants while engaged in its business, he would have no right of recovery. Nothing but the plainest language would warrant such a construction.

Was he a passenger? This question is a more difficult one, and there is force in the argument that to hold that he was a passenger would subject the defendant to a higher degree of care toward him when traveling on its road on his own pleasure than when traveling pursuant to some purpose connected with his service as an employee. Nevertheless, we think that he must be regarded as having been a passenger. It is clear that a person may at one time be an employee when passing over a railroad, and at another time in passing over the same road be a passenger, though continuing all the while, in a popular sense, in the employment of the railroad company. The ticket on which the plaintiff's intestate was riding was not a mere gratuity. It furnished part of the consideration by which he was induced to enter the employment of the defendant. A ticket was given to him each month, and it contained more rides than were necessary in traveling to and from work. It is expressly conceded that persons holding these tickets could use them for their own private interest or pleasure; and we think the result must be that the plaintiff's intestate held toward the defendant the relation of

a passenger at the time when he was injured. The cases to which the defendant has referred us are distinguishable from this. Those in this state were where the plaintiff was being transported in immediate connection with his employment. Gillshannon v. Stony Brook R. R. Corp., 10 Cush. 228; Seaver v. Boston & Maine R. R. Co., 14 Gray, 466; Gilman v. Eastern R. R. Corp, 10 Allen 233, 87 Am. Dec. 235; O'Brien v. Boston & Albany R. R. Co., 138 Mass. 387, 52 Am. Rep. 279. In the cases in other states the circumstances under which the injuries occurred were such that the plaintiff could at the time fairly be said to be in the employ of the defendant: Russell v. Hudson River R. R. Co., 17 N. Y. 134; Vick v. N. Y. Cent. etc. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Abend v. Terre Haute etc. Ry. Co., 17 Am. & Eng. R. R. Cas. 614; International etc. Ry. Co. v. Ryan, 82 Tex. 565, 18 S. W. R. 219; Kansas City etc. R. R. Co. v. Phillips, 98 Ala. 159, 13 So. R. 65; Parkinson Sugar Co. v. Riley, 50 Kan. 401, 31 Pac. 1090, 34 Am. St. R. 123; Evansville etc. R. R. Co. v. Maddux, 134 Ind. 571, 33 N. E. R. 345; Manville v. Cleveland etc. R. R. Co., 11 Ohio St. 417; O'Connell v. Baltimore etc. Ry. Co., 20 Md. 212; 83 Am. Dec. 549; Hutchinson v. York etc. Ry. Co., 5 Ex. 343; Tunney v. Midland Ry. Co., L. R. 1 Com. P. 291.

In considering the contract on the back of the ticket, the fact that the statute is a penal one must also be borne in mind. The word “damages" is not used in a strictly legal sense; Sackett v. Ruder, 152 Mass. 297, 413, 25 N. E. R. 736. Damages are to be assessed not less and not more than a certain amount, and with reference to the degree of culpability of the corporation, its servants, or agents. Originally the remedy was by indictment. Afterward it was extended to an action of tort: Stats. 1871, c. 381, sec. 49; Stats. 1874, c. 372, sec. 163; Stats. 1881, c. 199, secs. 1, 6. But only one of the remedies can be pursued by the executor or administrator. And whether the amount is recovered by indictment or in an action of tort, it goes in either case to the widow and children and next of kin, and the executor or administrator has no interest in it. It is in substance a penalty given to the widow and children and next of kin, instead of to the commonwealth, and as such the intestate could not release the defendant from liability for it: Commonwealth v. Vermont etc. R. R. Co., 108 Mass. 7, 12, 11 Am. Rep. 311; Commonwealth v. Boston etc. R. R. Corp., 134 Mass. 211; Littlejohn v. Fitchburg R. R Co., 148 Mass. 478, 482, 20 N. E. R. 103. Save as a matter of convenience, the proceedings properly enough might be instituted by the widow and children or next of kin, if the statute permitted it, as is done in certain instances under the employers' liability act: Stats. 1887, c. 270, sec. 2. We have not found it necessary to con

sider whether a release of damages for causing the death of a human being is or is not justified by public policy, though a statute has been enacted recently which seems to authorize such a release by express messengers: Stats. 1894, c. 469, sec. 2. Upon that, however, we express no opinion. The result is that we are of opinion that the exceptions must be overruled, and it is so ordered.

IT IS THE DUTY OF A CARRIER OF PASSENGERS TO BRING THE TRAIN TO A STANDSTILL AND ALLOW THE PASSENGERS AMPLE TIME TO GET OFF

FILER V. NEW YORK CENTRAL RAILROAD Co.
49 N. Y. 47 (1872)

Action for damages for injuries permanently disabling defendant. The train slowed up at her station, but did not stop. A brakeman said to her, "You had better get off; they are not going to halt any more." She tried to get off, but her skirts caught and she was dragged some distance, receiving painful and permanent injuries. A judgment for plaintiff was affirmed by the Supreme Court, and appeal was then taken to the Court of Appeals.

ALLEN, J. It was submitted to the jury, if they found that the plaintiff was directed by the brakeman to leave the cars or get off when the cars were in motion, to determine whether under the circumstances there was any such negligence on her part as would preclude her from recovering; the judge having in substance instructed the jury that if a person seeks to recover for injuries resulting from the negligence of another, he must himself be free from any negligence contributing to the injury. The question was put to the jury whether the plaintiff acted as prudent persons generally would have acted under the circumstances, and the charge was that, if she did, that would not bar a recovery.

There is no complaint of the manner in which the question as to the alleged contributory neg gence of the plaintiff was submitted to the jury, if there was any question for submission. The claim of the defendant, is, that the complaint should have been dismissed or a verdict ordered against the plaintiff upon the ground that she was culpably careless and negligent, and that, there being no dispute as to the facts, the question was one of law for the court and not of fact for the jury.

Ordinarily the question of negligence is one of mixed law and fact, and it is the duty of the court to submit the same to the jury, with proper instructions as to the law. What is proper care is sometimes a question