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Springer v. Drosch.

Reichart v. Castator, 5 Binn. 109; Gillespie v. Gillespie, 2 Bibb, 89; Dale v. Harrison, 4 id. 65; Clapp v. Tirrill, 20 Pick. 247; Dyer v. Homer, 22 id. 253, where it was held that a note given for such a consideration could be enforced; Sherk v. Endress, 3 Watts & S. 255, where it was ruled, that such a contract could be enforced by either party against the other in all its terms and for any purpose; Randall v. Phillips, 3 Mason, 378; Byrd v. Curlin, 1 Humph. 466; Thompson v. Moore, 36 Me. 47; Eyric v. Hetrick, 13 Penn. St. 488; Burgett v. Burgett, 1 Ohio, 469; Worth v. Northam, 4 Ired. 102; Hendricks v. Mount, 2 South. 738; Robinson v. Monjoy, 2 Halst. 173; Sumner v. Murphy, 2 Hill (S. C.), 488; Chapin v. Pease, 10 Conn. 69; Dearman v. Radcliffe, 5 Ala. 192; McGuire v. Miller, 15 id. 394.

Neeley v. Wood, 10 Yerg. 486, is cited in a note to Phillpotts v. Phillpotts, 10 C. B. 84, but as the volume is not in our library, being out of print, we have not examined it. We have also omitted the earlier New York cases, as controlled by the later rulings.

Such an array of authority, however, should satisfy any one that this question is, indeed, at rest, and that the defense attempted in this case cannot avail the defendant- that a contract for the sale or conveyance of property, to hinder or delay creditors, is only illegal as to creditors; and that as between the parties, and as to all others, it is a legal and valid sale or conveyance, and can be enforced in all its terms as any other contract.

On the trial the defendant offered to introduce in evidence an execution and return of the sheriff, and also a schedule of property attached thereto, verified by the plaintiff, in the case of Keifer and others against the plaintiff. This was offered as an admission made by Drosch, this claim not being included in the list, that at a date subsequent to the alleged sale to the defendant no such cause of action existed. The evidence was refused. This was error. It was evidence tending to disprove the cause of action, and was proper for the consideration of the jury.

For this error in excluding the evidence offered, the case is reversed and remanded for a new trial. Costs for appellant.

VOL. II.-46

CASES

IN THE

SUPREME COURT

OF

OHIO.

THE CLEVELAND, PAINESVILLE AND ASHTABULA RAILROAD COMPANY, plaintiffs in error, v. CURRAN.

(19 Ohio St. 1.)

Carriers-drover's pass-Stipulations against liability for negligence.

The plaintiff made a contract with the defendant for the transportation of stock at a certain rate, wherein it was stipulated that the person riding free to take charge of the stock should do so at his own risk of personal injury, from whatever cause. At the same time, without additional consideration, the defendants gave him a "drover's pass," entitling him to go with the stock and return by a passenger train. On this pass was an indorsement stipulating that " the person accepting this free ticket assumes all risks of accident, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents, or otherwise, for injuries to the person," nor as common carriers. The plaintiff received the pass with knowledge of its contents, accompanied the stock, and was injured on his return by the negligence of defendant's servants. Held, that the plaintiff was not a gratuitous passenger, and that the contract and stipula tion against liability for negligence was against the policy of the law and void, and, therefore, no defense to an action for the injury.

CURRAN, the defendant in error, shipped by railroad, from Finley, Ohio, for Buffalo, New York, two car loads of hogs, in January, 1864. On arriving at Cleveland, the cars containing the hogs were transferred to the road of the plaintiff in error, and Curran went to the freight office of the plaintiff in error, and then made a contract (C.) with its agent, which provided, that, in consideration of receiving transportation at reduced rates from Cleveland to Buffalo, the

The Cleveland, Painesville and Ashtabula Railroad Co. v. Curran.

shipper, Curran, was to assume all risks to the animals, etc., and further, "it is agreed between the parties hereto, that each and every of the persons riding free, to take care and charge of said stock, do so at their own risk of personal injury from whatever cause; and the said party of the second part (Curran), for the consideration aforesaid, hereby releases and agrees to release and to hold harmless, and keep indemnified, the said party of the first part, of and from all damages, actions, claims and suits, on account of any and every injuries, loss and damage herein before referred to, if any such occur or happen," etc.

This contract was executed in duplicate, each party taking one. Thereupon the agent filled Curran's name in a blank drover's pass, and gave it to him. This pass contained a direction to pass Curran from Cleveland to Erie, with stock, and return on passenger train. On the back of it was printed the following: "The person accepting this free ticket assumes all risk of accident, 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 or injury to the property, of the passenger using the ticket, and agrees, that, as for him, he will not cor. sider the company as common carriers, or liable as such." Curran proceeded with this pass on the train with the hogs to Buffalo, where they were delivered. He then took passage on a passenger train to return, taking a berth in the sleeping car, for which he paid extra. He traveled by virtue of his drover's pass, which was received and taken up by the conductor. During the journey the train was delayed by a snow drift, and, while so delayed, was struck by another train passing in the same direction, and the defendant in error severely injured thereby.

Curran, in his petition, alleged that the collision took place in consequence of the gross carelessness of the conductor and brakemen on the train in which he traveled, in neglecting to signal the approaching train. The company denied the negligence, and averred that Curran was a gratuitous passenger riding on a free pass issued to him, under an agreement with the company to exempt it from all liability for any injuries to his person.

At the trial the superintendent testified that the contract for the transportation of the hogs was in the usual form, "and of the kind which was alone used by the company at the time the said stock was transported for Curran; and that the company would not, at

The Cleveland, Painesville and Ashtabula Railroad Co. v. Curran.

that time, have received and transported the hogs except under such contract."

The jury found, generally, for Curran, assessing his damages at $2,000. They also found, specially, the following facts:

1. The company performed its contract for the transportation of the hogs.

2. Curran paid no consideration for the drover's pass, other than that expressed in the contract for the transportation of the hogs. 3. Curran knew the contents of what appeared on the face and back of the drover's pass when he received it.

4. He was injured on his return.

From the judgment entered on this verdict, the company filed its petition in error.

W. L. Perkins and James Mason, for plaintiff in error:

The contract of Curran to exonerate the company from liability is not void, as in contravention of any rule of public policy. Wells v. The N. Y. Central R. R. Co., 24 N. Y. 181; Perkins v. Same, id. 196; Smith v. Same, id. 222, 228, 230, 231, 232; Bissell v. Same, 25 id. 442; Wells v. Steam Nav. Co., 8 id. 375.

A. L. Tinker and Gatch & Walker, for defendant in error:

A carrier of passengers cannot, by special contract, exempt himself from liability for his own negligence, such contract being against public policy. Jones v. Voorhies, 10 Ohio, 145; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 id. 362; Wilson v. Hamilton, id. 722; Welsh v. Pittsburg, etc., R. R. Co., 10 id. 75; Philadel phia & Reading R. R. Co. v. Derby, 14 How. 468; Farwell v. Boston & Worcester R. R. Co., 4 Met. 36; McElroy v. Nashua & Lowell R. R. Co., 4 Cush. 400; New World v. King, 16 How. (U. S.) 469474; Coggs v. Bernard, Holt, 13; Tod v. Old Colony & Fall River R. R. Co., 3 Allen, 18; Ind. Cent. R. R. Co. v. Munday, 21 Ind. 48; Ohio & Miss. R. R. Co. v. Muhling, 30 Ill. 9.

WHITE, J. The controversy arising on the record in this case is embraced in two general questions.

The first we will consider is, whether Curran, the plaintiff below, was, at the time he received the injury complained of, a gratuitous passenger.

The Cleveland, Painesville and Ashtabula Railroad Co. v. Curran.
"drover's pass

We think he was not. The ticket called a entitled him to ride from Cleveland to Erie with his stock, and to return on a passenger train. A single consideration was paid to the company for this privilege and for the transportation of his stock, and the one service can no more be said to have been gratuitous than the other. It is true the person using the ticket is referred to in the contract as "riding free," and in the indorsement on the ticket it is called a "free ticket;" but these expressions can, in fact, only mean that the holder was to be subjected to no additional charge, and that he was to pass free of the usual fare exacted of passengers. The writing "C." and the ticket were delivered at the same time, and, together, constitute one contract.

The next question is, whether the stipulation in the contract exempting the company from all liability for negligence constitutes a defense to the action.

In our opinion it does not. We regard it as settled in this state, by former decisions, that no such stipulation would exonerate the company from responsibility as a common carrier for the loss of goods caused by its own negligence; and from the principle thus established we are not inclined to recede. Welsh v. Pittsburg, Fort Wayne and Chicago R. R. Co., 10 Ohio St. 65; Graham & Co. v. Davis & Co., 4 id. 362; Davidson v. Graham et al., 2 id. 131.

It is true, that common carriers are not insurers of the safety of passengers as they are of goods which they undertake to carry; but the principle of law which forbids their being allowed to exempt themselves from liability for the consequences of their negligence in respect to goods, applies with still greater force in the case of passengers.

The common law has a peculiar regard for human life; and for this reason exacts a greater degree of care in respect to it than in relation to any matter of mere property. Shearman & Redf. on

Negl. § 24.

Carriers, of the class of the plaintiff in error, are creatures of legislation, and derive all their powers and privileges by grant from the public. They are created to effect public purposes, as well as tc subserve their own interest. They are intended, by the law of their creation, to afford increased facilities to the public for the carriage of persons and property, and, in performing this office, they assuine the character of public agents, and impliedly undertake to employ in their business the necessary degree of skill and care.

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