it is bound to exercise in the case of an ordinary passenger; since he has as good a right to be there, and his life is just as valuable; and no patience should be extended toward judicial decisions which make, in this respect, a distinction between moral duty and legal duty. Accordingly, the later and better opinion is that a postal clerk or mail agent of the United States, travelling upon a railway train, is entitled to the same measure of care which the law requires in favor of an ordinary passenger for hire, and stands on the same footing in respect of his right of recovery of damages in case he is injured through the negligence of the carrier's servants.120 In such a case, the compensation for the carriage of the postal agent or clerk is regarded as being included in the compensation paid by the Government to the railroad company for the carriage of the mails. 121 Notwithstanding this, his right of action is maintainable, not upon any theory of subrogation to the contract between the Government and the carrier, but in view of the public duty which the law imposes upon the carrier.122 The acceptance of a "free ticket" by a mail agent running on a railroad, conditioned that he shall take all risk of injury on such road, is not a waiver of his right to recover for injuries occasioned by the negligence of the company's servants; the reason being that, as the company receives compensation from the Government for transporting the agent, such waiver would be without consideration, and further that such a contract of waiver would be against public

120 Seybolt v. New York &c. R. Co., 95 N. Y. 562; s. c. 31 Hun (N. Y.) 100; 47 Am. Rep. 75 (notwithstanding condition in pass exempting company from liability); Gulf &c. R. Co. v. Wilson, 79 Tex. 371; s. c. 15 S. W. Rep. 280; 11 L. R. A. 486; Mellor v. Missouri &c. R. Co., 105 Mo. 455; s. c. 10 L. R. A. 36; 14 S. W. Rep. 758; s. c. aff'd in banc, 16 S. W. Rep. 849; Cleveland &c. R. Co. v. Ketcham, 133 Ind. 346; s. c. 19 L. R. A. 339; 33 N. E. Rep. 116; Magoffin v. Missouri &c. R. Co., 102 Mo. 540; s. c. 15 S. W. Rep. 76; Illinois &c. R. Co. v. Crudup, 63 Miss. 291; Louisville &c. R. Co. v. Kingman, 18 Ky. L. Rep. 82; s. c. 35 S. W. Rep. 264 (no off. rep.); Jones v. St. Louis &c. R. Co., 125 Mo. 666; s. c. 26 L. R. A. 718; Libbey v. Maine &c. R. Co., 85 Me. 34; s. c. 20 L. R. A. 812; Collett v. London &c. R. Co., 16 Ad. & El. (N. S.) 984; International &c. R. Co. v. Davis, 17 Tex. Civ. App. 340; s. c. 43 S. W. Rep. 540; Hammond v. North Eastern R. Co., 6 S. C. 130; s. c. 24 Am. Rep. 467; Norfolk &c. R. Co. v. Shott, 92

Va. 34; s. c. 22 S. E. Rep. 811; Houston &c. R. Co. v. Hampton, 64 Tex. 427. Prima facie liable when mail car derailed: Ohio &c. R. Co. v. Voight, 122 Ind. 288; s. c. 23 N. E. Rep. 774 (conceded); Gleeson v. Virginia Midland R. Co., 140 U. S. 435; s. c. 35 L. ed. 458 (doctrine conceded); may recover only as railroad employé under Pennsylvania statute: Pennsylvania R. Co. v. Price, 96 Pa. St. 256; s. c. aff'd 113 U. S. 219; liable for injury to postal clerk, as to a passenger, while riding in mail car when off duty: Baltimore &c. R. Co. v. State, 72 Md. 36; s. c. 6 L. R. A. 706; Arrowsmith v. Nashville &c. R. Co., 57 Fed. Rep. 165 (mail clerk a passenger by contract with United States Government); Houston &c. R. Co. v. McCullough, 22 Tex. Civ. App. 208; s. c. 55 S. W. Rep. 392.

121 Arrowsmith v. Nashville &c. R. Co., 57 Fed. Rep. 165.

122 Collett v. London &c. R. Co., 15 Jur. 1053; s. c. 20 L. J. (Q. B.) 411; 16 Q. B. 984; Hammond v. North Eastern R. Co., 6 So. Car. 130.

124

policy. 123 He is not a fellow-servant with the servants of the carrier in charge of the train, within the meaning of the rule which exonerates a master from responsibility for damages inflicted by the negligence of one of his servants upon another of his servants engaged in the same common employment.' In case he is killed through the negligence of the servants of the railroad company, there is, under the Missouri statute,125 the same right of action for damages for his death which would accrue in case of the negligent killing of an ordinary passenger.126 The relation of carrier and passenger, subsisting between the railway company and a United States postal clerk, like the privilege of a witness, exists eundo et redeundo: it exists while the postal clerk is returning from a tour of duty, as well as while he is going on such tour, and this, although he has not offered to pay fare, or exhibited his commission as a postal clerk, or notified the conductor of his presence on the train, and although the conductor has not learned that he is on the train.1 127

§ 2650. Soldiers Transported under Contract with the Government. A soldier who is transported by a railway company under a contract between the company and the Government, occupies the status of a passenger, subject, as in other cases,' 128 to the risks attending the kind of train on which he is carried. When, therefore, a soldier, while on duty in a baggage car of a special train conveying United States soldiers, guarding government stores, was killed in a negligent accident to the train, it was a case for damages.129

§ 2651. Express Messengers.130-In respect of the measure of duty which the carrier owes him, and his right of recovery for an injury happening through the negligence of the carrier's servants, an ex

123 Illinois &c. R. Co. v. Crudup, 63 Miss. 291.

124 Mellor v. Missouri &c. R. Co., 105 Mo. 455; s. c. 14 S. W. Rep. 758; aff'd in banc, 16 S. W. Rep. 849.

125 Mo. Rev. Stat. 1889, § 4425. 126 Magoffin v. Missouri &c. R. Co., 102 Mo. 540; s. c. 15 S. W. Rep. 76.

127 He was, when injured, in fact in the postal car and assisting the postal clerk in handling the mail at the request of the latter: Cleveland &c. R. Co. v. Ketcham, 133 Ind. 346; s. c. 19 L. R. A. 339; 33 N. E. Rep. 116.

The railway company is liable for injury to a postal clerk while riding in a mail car when off duty: Baltimore &c. R. Co. v. State, 72 Md. 36; s. c. 6 L. R. A. 706.

128 Post. § 2903.

129 Galveston &c. R. Co. v. Parsley, 6 Tex. Civ. App. 150; s. c. 25 S. W. Rep. 64. In this case the deceased was being transported as a soldier, under a special contract between the railway company and the Government of the United States. He was riding in the baggage car, guarding government property. Through defective brakes (as was alleged) there was a collision, in which the soldier was killed. It was held that he was a passenger for hire, and that, on proof of negligence on the part of the railway company, his widow was entitled to recover damages: Galveston &c. R. Co. v. Parsley, supra.

130 This section is cited in § 2928.

press messenger stands on the same footing as a United States postal agent. He is on the carrier's vehicle lawfully and for a consideration paid to the company, and his legal rights are therefore those of a passenger for hire. 131 Nor will an agreement between the express company and the carrier, by which the express company agrees to assume all risks incident to his property and messenger, and to indemnify the railway company against liability therefor, operate to deprive the messenger of his right of action for a negligent injury, unless he had knowledge of the agreement so as to be deemed to have assented to it.132 Nor is it at all necessary to the operation of the. foregoing rule that there was no express contract between the messenger and the railroad company, under which the latter undertook to carry the former;183 because, as in the case of the mail agents, already alluded to,134 his right of recovery rests upon the public duty which the law casts upon the carrier in favor of any one lawfully upon his vehicle. The rule under consideration will, of course, extend so far as to include the person temporarily supplying the place of an express messenger.135 Such was the doctrine both of the State and Federal courts; and such still is, and ought to be, the doctrine. of the State courts. But the Supreme Court of the United States have recently held that an express messenger, occupying an express car, in charge of express matter, in pursuance of a contract between the railroad company and the express company, is not a passenger, within the meaning of the rule of public policy, which denies the validity of contracts limiting the liability of a carrier to a passenger for negligence, and can not recover of the railroad company for injuries sustained in a collision, where the contract between the companies exempts the railroad company from such a liability, while

131 Fordyce v. Jackson, 56 Ark. 594; s. c. 20 S. W. Rep. 528; rehearing denied in 56 Ark. 601; s. c. 20 S. W. Rep. 597; Brewer v. New York &c. R. Co., 124 N. Y. 59; s. c. 35 N. Y. St. Rep. 60; 11 L. R. A. 486; 26 N. E. Rep. 324; Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71; Baltimore &c. R. Co. v. McCamey, 12 Ohio C. C. 543; s. c. 1 Ohio C. D. 631 (but where he also acts as baggage master his rights are only those of an employé); Voight v. Baltimore &c. R. Co., 79 Fed. Rep. 561 (since reversed, 176 U. S. 498); Blair v. Erie R. Co., 66 N. Y. 313; s. c. 33 Am. Rep. 55; Jennings v. Grand Trunk R. Co., 15 Ont. App. Rep. 477; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Kenney v. New York &c. R. Co., 125

N. Y. 422; Kentucky &c. R. Co. v. Thomas, 79 Ky. 169; Chamberlain v. Milwaukee &c. R. Co., 11 Wis. 238; Chamberlain v. Pierson, 87 Fed. Rep. 420; s. c. 59 U. S. App. 55 (distinguishing Wiggins Ferry Co. v. Ohio &c. R. Co., 142 U. S. 396; s. c. 35 L. ed. 1055, in which the party injured had knowledge of the terms of the contract).

122 Brewer v. New York &c. R. Co., 124 N. Y. 59; s. c. 35 N. Y. St. Rep. 60; 26 N. E. Rep. 324.

183 Fordyce v. Jackson, 56 Ark. 594; s. c. 20 S. W. Rep. 528; rehearing denied in 56 Ark. 601; s. c. 20 S. W. Rep. 597.

134 Ante, § 2649.

135 Blair v. Erie R. Co., 66 N. Y.

313.

his own contract, voluntarily entered into as a condition of his employment, assumes all such risks, and stipulates that he will indemnify and hold his employer harmless from all liability for such accident or injury.136

§ 2652. Express Messengers Learning the Run.—But it has been held that where an express messenger brings a stranger into an express-car for the purpose of teaching him the duties of the route, in order that he may supply his place during his absence, and introduces him to the conductor as a messenger learning the run, who thereupon demands no fare of him, when in fact such person is not an employé of the express company, and is not present in the car devoted to their use by any authority of theirs, the person so introduced by the express messenger into the car is not a passenger, but a trespasser, and can not demand the degree of care for his safety which the law requires the railroad company to exercise toward its passengers.137

§ 2653. Persons Employed on a Private Car.-While a person in charge of a private car, or employed thereon, which is attached to a railroad train, can not strictly be considered a passenger, yet he certainly is entitled to the rights of a passenger so far as an injury to him is concerned. He can not be regarded as an employé of the railroad company so as to preclude him from recovering for injuries received through the negligence of employés of the company. 138

§ 2654. Employés of the Carrier, when Deemed Servants.-The question under what circumstances a person employed by a railway company or other common carrier of passengers, is to be deemed an employé, and under what circumstances a passenger, is one upon

130 Baltimore &c. R. Co. v. Voight, 176 U. S. 498; s. c. 20 Sup. Ct. Rep. 385; rev'g s. c. sub nom. Voight v. Baltimore &c. R. Co., 79 Fed. Rep. 561. See also Wiggins Ferry Co. v. Ohio &c. R. Co., 142 U. S. 396; s. c. 35 L. ed. 1055. Compare Gleeson v. Virginia &c. R. Co., 140 U. S. 435; s. c. 35 L. ed. 458. An express messenger, not on duty, returning to a point at which his run begins, who pays no fare, but is carried under an agreement between the railroad and the express company, is guilty of contributory negligence in riding in the baggage car in violation of a rule of the company requiring passengers to ride in passenger cars,

and if he is injured while so riding, he can not recover: Kentucky &c. R. Co. v. Thomas, 79 Ky. 160.

137 Union &c. R. Co. v. Nichols, 8 Kan. 505; s. c. 12 Am. Rep. 475; 4 Chic. Leg. N. 82. And see note, 27 L. R. A. 794, 796.

188 Lockhart v. Lichtenthaler, 46 Pa. St. 151; Lackawanna &c. R. Co. v. Chenewith, 52 Pa. St. 382; Cumberland Valley R. Co. v. Myers, 55 Pa. St. 288. It was early held in the Supreme Court of the United States that slaves being carried for hire bore the relation of passengers to the carrier: Boyce v. Anderson, 2 Pet. (U. S.) 150.

which the decisions are not harmonious. The importance of the distinction lies in the following considerations: If the status of the person is that of a passenger, the carrier is answerable to him for any injury happening through very slight negligence, or want of the very highest degree of care;139 whereas if his status is that of servant, the carrier owes to him but ordinary care.140 Again, if he is a passenger, the carrier is answerable to him for injuries done to him by the servants of the carrier, in conformity with the rule of respondeat superior.11 But if he is a servant of the carrier, this rule does not apply so as to make the latter responsible for injuries done to him. by other servants of the carrier, engaged in the same common employment with him, and of such a grade as to be denominated "fellow-servants" of his.142 Without attempting a close analysis of the decisions dealing with this question,143 it may be stated that several of them hold that where an employé of the carrier is transported upon the carrier's vehicle to and from his place of labor, and is hurt while being so transported, through the negligence of the other servants of the carrier in charge of his vehicle, he can not recover damages of the carrier; because it is deemed that the relation subsisting between him and the carrier is that of master and servant, and he is hence injured by the negligence of fellow-servants engaged in the same general employment.114

120 Post, §§ 2722, 2724.

140 Post, Vol. IV.

141 Post, § 3167, et seq.

142 Post, Vol. IV.

143 Many of those about to be cited will be found explained at length in Thomp. Carr. Pass., pp. 46, 47.

14 Ryan v. Cumberland Valley R. Co., 23 Pa. St. 384; Gillshannon v. Stony Brook R. Co., 10 Cush. (Mass.) 228, 231; Russell v. Hudson River R. Co., 17 N. Y. 134; Tunney v. Midland R. Co., L. R. 1 C. P. 291; s. c. 12 Jur. (N. S.) 691; Hutchinson v. York &c. R. Co., 6 Eng. Rail. Cas. 580; Seaver v. Boston &c. R. Co., 14 Gray (Mass.) 466; Chicago &c. R. Co. v. Bryant, 13 C. C. A. 249; s. c. 65 Fed. Rep. 969; Ionnone v. New York &c. R. Co., 21 R. I. 452; s. c. 44 Atl. Rep. 592 (employé taking gratuitous passage to a point near his home, after the close of his day's work, enjoys a privilege incidental to his contract of service, and is hence not a passenger); Texas &c. R. Co. v. Smith, 67 Fed. Rep. 524 (civil engineer of the railway company, trav

elling for the company upon a pass exempting the company from liability for injuries to person or property); Hughson v. Richmond &c. R. Co., 2 App. D. C. 98; s. c. 22 Wash. L. Rep. 55; Wright v. Northampton &c. R. Co., 122 N. C. 852; s. c. 10 Am. & Eng. Rail. Cas. (N. S.) 151; 29 S. E. Rep. 100 (section master riding from his place of work to his sleeping place, on hand car or train, without paying fare, not a passenger); Abell v. Western Maryland R. Co., 63 Md. 433 (employé travelling free to place of work is entitled to recover for negligent injuries or his wife for negligence causing his death); Doyle v. Fitchburg R. Co., 166 Mass. 492; s. c. 24 Wash. L. Rep. 663; 3 Det. L. N., No. 26; 29 Chicago Leg. News 41; 5 Am. & Eng. Rail. Cas. (N. S.) 257; 44 N. E. Rep. 611; 33 L. R. A. 844 (employé deemed a passenger when riding on a ticket issued only to employés living on line of road elsewhere than at places of employment).