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St. Louis, etc., Ry. Co. v. Pitcock

not so many as to induce negligence on its part. So far as the element of contract controls, it was a contract which neither party was bound to enter into, and yet one which each was at liberty to make, and no public policy was violated thereby." In the last of above cases, Judge Brewer also writes the opinion, and concludes as follows: "The result we have reached conforms the law applicable to the present issue to that moral sense which justly holds those who accept gratuities and acts of hospitality to perform the conditions on which they are granted." In the first opinion, the learned justice cites a number of decisions of state courts, and decisions also of the Court of Queen's Bench that support the doctrine announced. He also cites a number of decisions of state courts holding the contrary doctrine. Since there is this diversity of opinion, we feel that we should adopt that view most in accord with our own Constitution and statutes, that which comports logically with our own decisions, which conserves a sound public policy, and reflects our own sense of right and justice.

Our Constitution provides that all railroads operated in this state shall be responsible for all damages to persons and property under such regulations as may be prescribed by the General Assembly. Article 17, § 12. Section 6773, Kirby's Dig., provides that: "All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state." Strictly and literally construed, under these provisions railroads would be liable for all damages to persons and property, whether caused through the negligence of the company or otherwise. But this court has construed these provisions of the law to mean that railroads are liable only in cases where they have been guilty of some actionable negligence. L. R. & Ft. Smith Ry. Co. v. Eubanks, 48 Ark. 467, 3 S. W. 808, 3 Am. St. Rep. 245; L. R. & Ft. Smith Ry. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55. As carriers of passengers they are not liable for unavoidable accidents. This court has also held that the railway company is not liable to the party injured, where the latter's "own negligence or willful wrong contributed to produce the injury of which he complains, so that but for his co-operating and concurring fault the injury would not have happened to him. L. R. & Ft. S. Ry. Co. v. Pankhurst, 36 Ark. 371; St. Louis, I. M. & Sou. Ry. Co. v. Freeman, 36 Ark. 41; Railway Co. v. Cullen, 54 Ark. 431, 16 S. W. 169; St. I., I. M. & Sou. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070. Unavoidable accidents and contributory negligence of the injured party are the only limitations or exceptions thus far recognized and allowed by this court to the constitutional and statutory provisions making railroads liable for all damages to persons or property done or caused by the running of their trains.

This court holds that railroads, as common carriers of goods, cannot exempt themselves by contract from losses and damages caused by their own negligence. Taylor, Cleveland & Co. v. L.

25 R R R-6

St. Louis, etc., Ry. Co. v. Pitcock

R. M. R. & Texas R. Co., 32 Ark. 393, 29 Am. Rep. 1; Taylor & Co. v. L. R. Miss. R. & Texas Ry. Co., 39 Ark. 148; L. R. Miss. R. & Texas Ry. Co. v. Talbot, 39 Ark. 523. We hold that a railway company, as master, cannot exempt itself by contract from liability to its servants for injuries caused by its negligence in failing to provide a safe place to work, and safe machinery, materials, and tools with which to operate. L. R. & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. Rep. 230. In Railway v. Eubanks, supra, the court, in passing upon the validity of the contract in which the servant agrees to assume all the risks of his employment and to exempt the company from liability "for any injury or damage he may sustain," uses the following language, which is pertinent to the case at bar: "A common carrier or a telegraph company cannot, by precontract with its customers, relieve itself from liability for its own negligent acts. This, however, may be on the grounds of its public employment. Again: "It is an elementary principle in the law of contracts that 'modus et conventio vincunt legem'-the form of the agreement and the convention of the parties override the law. But the maxim is not of universal application. Parties are permitted by contract to make a law for themselves only where agreements do not violate the express provisions of any law nor injuriously affect the interests of the public. Our Constitution and laws. provide that all railroads operated in this state shall be responsible for all damages to persons and property done by the running of trains. This means that they shall be responsible only in cases where they have been guilty of some negligence, and it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground of considerations of public policy." These decisions are grounded upon the principle that it will be detrimental to the public interest to permit railway companies by private contract to escape a duty which is imposed upon them by law, namely, to respond in damages to every one who may be injured through their negligence. In other words, that it contravenes public policy for railroad corporations to buy immunity from liability which the law imposes upon them by extending favors as a gratuity, or, for a reduced or a nominal consideration, to those who may chance to be injured through their negligence. The reasons for the application of the doctrine may be more obvious and cogent in the cases of carriers of goods and master and servant, already decided by this court; but, notwithstanding the difference in facts, the same doctrine is applicable here, and it is but in line with the language and logic of these previous decisions to so hold. The principle upon which the rule is invoked in all these cases is well stated in the case of Louisville, etc., Ry. Co. v. Faylor, 126 Ind. 126, 25 N. E. 869: "A stipulation that the carrier shall not be bound to the exercise of care and diligence is, in effect, an agreement to absolve him from one of the essential duties of his employment, and it would be subversive of the very object of the law to permit the carrier to exempt himself

St. Louis, etc., Ry. Co. v. Pitcock

from liability by a stipulation in his contract with the passenger that the latter should take the risk of the negligence of the carrier or his servants. The law will not allow the carrier thus to abandon his obligation to the public, and hence all stipulations which amount to a denial or repudiation of duties which are of the very essence of his employment will be regarded as unreasonable, contrary to public policy, and therefore void."

We cannot agree with the court and the learned justice who wrote its opinions in Railway v. Adams, and Boering et al. v. Railway, supra, that "no public policy was violated" by a contract. like the one under consideration, and that to so rule but conforms the law "to that moral sense which justly holds those who accept gratuities and acts of hospitality to perform the conditions on which they are granted." That view ignores the duty to the public which railroad corporations virtually undertake to perform when they receive their charters. By virtue of these, they have vast privileges of monopoly in transportation, and the absolute right of eminent domain. They owe, in turn, the duty to exercise ordinary care, which, in the case of passengers, is the highest degree of care that a person of ordinary prudence would exercise, consistent with the mode of conveyance and the proper conduct and management of the business, to see that their passengers are furnished safe and comfortable transportation. They cannot escape this duty. They cannot buy immunity from liability for a failure to discharge it by reduced fare or free transportation. The passenger cannot relinquish the rights which the law gives him in consideration of gratuitous passage. It is not a question of benevolence and hospitality on the part of the carrier in giving, nor the violation of moral obligation on the part of the passenger in receiving, without being bound by the terms of the agreement upon which the gratuity was offered and accepted. The question is one of public duty which the state as parens patriæ, having due regard for the lives and limbs of all her subjects, will not permit to be relegated to the domain of private contract. The interest which the commonwealth has in the comfort and safety of her citizens, to see that they are protected from injuries resulting through the negligence of the public carrier or his servants, is the same, whether such citizen be a gratuitous passenger or a passenger for hire. As is well said by the Supreme Court of Minnesota, in Jacobus v. St. Paul & Chicago Ry. Co., 20 Minn. 125 (Gil. 110), 18 Am. Rep. 360: "The more stringent the rule as to the duty and liability of the carrier, and the more rigidly it is enforced, the greater will be the care exercised, and the more approximately perfect the safety of the passenger. Any relaxation of the rule as to duty or liability naturally, and it may be said inevitably, tends to bring about a corresponding relaxation of care and diligence upon the part of the carrier. * * * While it might not ordinarily occur that the presence of a free passenger upon a train, for injury to whom the carrier would not be liable, would tend to lessen the carrier's sense of responsibility and his vigilance, it still remains true that the greater the sense of responsibility the

De Board v. Camden Interstate Ry. Co

greater the care, and that any relaxation of responsibility is dangerous." Other authorities in support of the rule announced are collated in 6 Cyc. 544, note 59. See, also, 4 Ell. R. R. § 1608, notes pp. 2514, 2515. See, also, the comparatively recent case of Yazoo & M. V. R. Co. v. Grant, 38 South. 502, 86 Miss. 565, 109 Am. St. Rep. 723, decided since the decisions of the Supreme Court of United States, supra, and referring to them.

Affirmed.

DE BOARD V. CAMDEN INTERSTATE RY. Co.

(Supreme Court of Appeals of West Virginia, April 17, 1907.)
[57 S. E. Rep. 279.]

Writ of Error-Record-Authentication-Bill of Exceptions.—A paper, entitled "Bill of Exceptions," signed and sealed by the judge of the court, and bearing the style of the case in which an order has been entered, stating that a bill of exceptions was tendered, signed, sealed, and made a part of the record, is sufficiently identified to make it a part of the record..

certificate of evidence,

Same Incorporation of Evidence.-A marked for identification in a particular manner, and referred to as having been so marked in a bill of exceptions, which says "the plaintiff, to maintain the issue upon his part, introduced before the court and jury the following witnesses, who testified as follows: Here read evidence transcribed by stenographer, certified by her and for identifications marked [giving the mark found on the certificate], and this was all the evidence offered, either by the plaintiff or the defendant, upon the trial of this case," is sufficiently incorporated in the bill of exceptions, in a legal sense, and identified, to make it a part thereof.

Carriers Passengers Contract Evidence.* - A street railway ticket or transfer check, in the hands of a purchaser thereof for use on the car lines of the company issuing it, constitutes the complete evidence of the contract between the purchaser and the company, and the privileges evidenced by its terms are not subject to limitation by a mere rule of the company, knowledge of which the purchaser did not have, and could not conveniently have ascertained.

Same Ejection-Damages.-Ejection of the holder of such ticket

*For the authorities in this series on the subject of the validity of a carrier of passengers' rules and regulations; see foot-notes appended to Illinois Cent. R. Co. v. Allen (Ky.), 20 R. R. R. 49, 43 Am. & Eng. R. Cas., N. S., 49; Knoxville Traction Co. v. Wilkerson (Tenn.), 22 R. R. R. 763, 45 Am. & Eng. R. Cas., N. S., 763.

For the authorities in this series on the subject of street railway transfers, see foot-notes appended to Georgia Ry. & Elec. Co. v. Baker (Ga.), 20 R. R. R. 789, 43 Am. & Eng. R. Cas., N. S., 789; Cleveland City Ry. Co. v. Conner (Ohio), 20 R. R. R. 649, 43 Am. & Eng. R. Cas., N. S., 649.

For the authorities in this series on the subject of the damages

De Board v. Camden Interstate Ry. Co

or transfer, by a conductor or other officer, from a car of the company by which it was issued, contrary to the terms thereof, and refusal to carry him, on his failure and refusal to pay an additional fare, is actionable, and the measure of damages is such sum as the jury believe the plaintiff entitled to recover, provided the amount be not so large or small that the action of the jury in awarding it must be attributed to passion, partiality, corruption, prejudice, or some mistaken view of the case.

Writ of Error-Disposition of Cause-Remand to Trial Court.-. On reversing and setting aside an order, granting a new trial, on a writ of error perfected before the new trial was had, the appellate court will not render judgment on the verdict reinstated by its action on the writ of error, if the rendition of a final judgment in the court below, on a second verdict, obtained after the writ of error was perfected, be brought to its attention. Under such circumstances, the case will be remanded, for judgment by the court below, on the verdict reinstated by the appellate court, to the end that there may not be in force two judgments at the same time on one cause of action.

Same Effect of Transfer of Cause - Jurisdiction of Appellate Court-Subsequent Proceedings in Trial Court. The acquisition of a second verdict and judgment thereon, under such circumstances, does not deprive the appellate court of its jurisdiction, nor constitute a settlement and adjustment of the controversy, barring prosecution of the writ of error.

(Syllabus by the Court.)

Error to Circuit Court, Cabell County.

Action by William J. De Board against the Camden Interstate Railway Company. From an order granting a new trial after verdict in favor of plaintiff, he brings error. Reversed and remanded.

Isbell & Perry, for plaintiff in error.

Vinson & Thompson, for defendant in error.

POFFENBARGER, J. In an action of trespass on the case for damages, for wrongfully refusing to carry him on its street car, and ejecting him therefrom, William J. De Board obtained, in the circuit court of Cabell county, a verdict against the Camden Interstate Railway Company, for the sum of $300, which the court, on the motion of the defendant, set aside. Under clause 9 of section 1 of chapter 135 of the Code of 1899 (section 4038, Code 1906), allowing, in any civil case, where there is an order granting a new trial, an appeal from such order, De Board obtained a writ of error.

recoverable against a carrier for refusal or failure to transport a passenger, or delay in transporting him, see foot-notes appended to Sappington v. Atlanta & W. P. R. Co. (Ga.), 22 R. R. R. 846, 45 Am. & Eng. R. Cas., N. S., 846; foot-notes appended to Louisville & N. R. Co. v. Fowler (Ky.), 21 R. R. R. 299, 44 Am. & Eng. R. Cas., N. S., 299.

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