drawing room car. certain extent by the new contract. By reference to the opinion delivered in the court below upon a former appeal of this case, and which is contained in the appeal-book, we infer that the judgment in favor of the plaintiff rendered by the trial court was affirmed upon the theory that the contract for a seat in the drawing-room car was made with the agents of the defendant, and that such a contract subverted or modified for this trip that formed by the pass and its indorsements. It is not pretended but that the plaintiff secured his transportation on this occasion by virtue of his pass, but it is suggested by the opinion referred to that the contract Effect of pur for the purchase of a seat annulled the express chasing seat in condition upon which the pass was issued to the plaintiff, while it left the pass in full vigor so far as it gave the plaintiff a right to be carried on defendant's road from Albany to New York. Perhaps the language used by the court below will afford a more accurate view of its position, viz.: "The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the provisions of the free pass." The vice of this argument is in the assumption that "the defendant has taken money from the plaintiff for carrying him." Assuming, for the purposes of the argument, that the purchase, by a passenger on a train, of a drawing-room ticket, from a drawing-room car conductor, has the same force and effect as though purchased from the train conductor, of which there is much doubt, we yet think that such a purchase has no effect upon the status of the purchaser as a passenger. The contracts of a railroad corporation must be construed by the same rules which apply to those of all other parties, and must be given the force and effect which were within the contemplation and understanding of the parties when they were made. The inquiry then is, What was the intention of the parties in the transaction culminating in the sale of a seat in the drawing-room car for the trip? It is undoubtedly true that if the plaintiff had paid his fare, or had made a valid contract with the defendant for passage which was inconsistent with the provisions of the pass, it might be inferred that the parties intended by such an arrangement to rescind the contract previously existing between them, at least to the extent of any inconsistency. But we are of the opinion that the transaction in question had no such effect, and that the purchase of a right to enjoy particular and exclusive accommodations during the trip, whether made with the defendant or otherwise, did not, so long as the pass was used to secure transportation, in any way affect the validity of the agreement expressed therein. Indeed, the terms printed upon the ticket by which the plaintiff secured his seat in the drawing-room car repel a contrary inference, and plainly indicate that the plaintiff was required to rely for transportation upon his pass; for it is there stated that "this check, with passage ticket or fare, will be taken up by the conductor in charge of train." The inference is irresistible that the ticket for a seat had no relation to his right to transportation, but that the latter was expected to be made the subject of a distinct and separate contract to be formed by an agreement between the plaintiff and the defendant. Instead of its being supposed by the parties that the purchase of a seat modified the previous contract, it was expressly understood that the passenger was to secure the right of transportation by some arrangement already or thereafter to be made with the conductor of the train. This he did by the production and presentation of the pass to the conductor, and its recognition by him; and, by the express provisions of the contract embodied therein, he forfeited his right to claim damages for any injuries suffered either to his person or property occurring during that trip. The contract for a seat did not make the purchaser a passenger in any sense, but it simply provided that if the purchaser secured a right to ride on that train he could also enjoy the advantages of a specified seat during the trip, if he so desired. The securing of a right to ride on the train was the condition upon which he became entitled to occupy the specified seat during the trip, and non-compliance with this condition would clearly preclude the purchaser from deriving any advantage from his purchase of the drawing-room ticket. We can discover no principle upon which it can be held that the contract expressed by the pass should be considered rescinded or inoperative. Certainly no express agreement was made to that effect, and we think none can be implied from the transaction referred to. It cannot be claimed that the purchase by a passenger of special and exclusive accommodations on a railroad train, not open to the enjoyment of passengers generally by virtue of their passage tickets, gives the purchaser a right to transportation, and yet the argument of the respondent implies that he had the right to use the pass to secure his transportation, and still repudiate the conditions upon which alone he was authorized to use it. The pass gave the plaintiff the right to enter any of the cars attached to the train, and occupy a seat therein during the passage from Albany to New York, except certain cars set apart for special service and use. The pass gave the passenger no right to occupy a seat in such 34 A. & E. R. Cas.-23 cars, and the money paid by the plaintiff to secure this seat had no relation to his right of transportation. The passenger could not have supposed that it did, for he not only used his pass for that purpose, but from the insignificance of the price paid for his seat, as compared with the regular fare for such a trip, the idea is repelled that he supposed he was thereby securing transportation also. It could not be contended for a moment that the holder of a drawing-room car ticket could, by force of such ticket alone, insist upon being carried over a railroad to his place of destination, or that the railroad company would be liable for damages for ejecting such holder from its cars for non-payment of fare, if he should refuse to pay the customary sum charged for transportation. No such rights are contemplated by the parties to such a transaction. The contract indicated by his purchase of a drawing-room seat certainly did not by express terms refer to or provide for any modification or rescission of the previous contract, and there is not a circumstance attending the transaction from which an intention that it should, can be inferred. The court below seemed to suppose that the case of Thorpe v. Railroad Co., 76 N. Y. 409, tended to support the recovery in this case, but we are of the opinion that it has no bearing upon the question involved herein. That case holds that the servants in a drawing-room car, in their relations to passengers, and their conduct in preserving order and enforcing the rules and orders of the company, are the servants of the railroad corporation; but that case is very far from holding that such servants have the right to make contracts on behalf of the company for transportation, or that, if they do, they necessarily rescind other contracts existing between the passenger and the company. We are, for the reasons stated, of the opinion that the judgments of the courts below should be reversed, and a new trial granted, with costs to abide the event. All concur. Injuries to Passengers Riding on Free Passes.-See Buffalo, etc., R. Co. v. O'Hare, 9 Am. & Eng. R. R. Cas. 317; Kimball v. Boston & A. R. Co., 13 Ib. 55; Abell v. Western Maryland R. Co., 21 Ib. 503; Carroll v. Missouri Pac. R. Co., 26 Ib. 268; Gulf, etc., R. Co. v. McGowan, 26 Ib. 274; Camden & A. R. Co. v. Bausch, 28 Ib. 142. BATES v. OLD COLONY R. Co. (Massachusetts Supreme Judicial Court, June 20, 1888.) Passengers-Express Messengers-Waiver of Claim-Validity. A stipulation in a special contract with an express messenger that in return for permission to ride in the baggage car, he should assume all risk of accident and injuries resulting therefrom, is supported by sufficient considera tion. Same-Reasonable Condition-Public Policy.-A railroad company being under no obligation to allow express messenger to ride in the baggage cars of its trains, it is entitled to protect itself against an increase of its liabilities upon giving permission to do so, and such a condition relieving it from liability for accidents and personal injuries is neither unreasonable nor against public policy. Same-Statutory Provision-Construction.-Under the provisions of the Massachusetts statute which requires railroad companies to give all persons and companies reasonable and equal terms and facilities for the transportation of persons and merchandise, railroad corporations are not required to discriminate in favor of express companies, and to carry their merchandise and messengers in the baggage cars of passenger trains on reasonable terms equally favorable to express companies. ON exceptions from Superior Court, Suffolk County. Action of tort by Benjamin F. Bates against the Old Colony R. Co. for damages for personal injuries. Plaintiff, who was a messenger in the employment of the New York & Boston Despatch Company, received the injuries complained of in an accident on defendant's road. The company's rules prohibited passengers from travelling on the baggage cars without releasing the company from claims for injuries sustained while so travelling, and plaintiff had signed a contract which provided that "in consideration of said company permitting him to ride upon baggage cars on its trains, he would assume all risks of accidents resulting therefrom, and would hold the company free and discharged from all claims and demands in any way growing out of the injuries received by him while so riding." The express messengers travelling upon the company's trains all received quarterly season tickets which were similar in terms, and issued at the same rates as those issued to the regular season passengers, except that the following memorandum was stamped upon them: "The holder of this ticket, having released the company from all liability will be permitted to ride in the baggage car." The court instructed the jury that the regulation and agreement did not bar plaintiff's right of recovery and a verdict was returned for $10,000. The defendant excepted. J. H. Benton, Jr., for defendant. Facts. W. ALLEN, J.-The rules of defendant prohibited passengers from riding in baggage cars, and the plaintiff had no right as a passenger to ride where he was riding at the time he was injured. He was there under a special contract, by which, in consideration that the defendant would allow him to ride in the baggage car he assumed all risk of accident and injuries resulting therefrom, and agreed to hold the defendant free and discharged from all claims and demands growing out of any injuries received by him while so riding. The parties plainly intended to include injuries resulting from the negligence of the defendant's servants. We need not consider whether the contract would be construed or held to include injuries to which riding in the baggage car did not contribute. There was evidence tending to show that the plaintiff would not have been injured had he been in a passenger car, and that his presence in the baggage car directly contributed to the injury. The ruling of the court ordering a verdict for the plaintiff was a ruling that the plaintiff was entitled to recover for injury caused by the negligence of the defendant's servants, although his riding in the baggage car contributed to the injury. In considering the correctness of this ruling, the contract of the plaintiff must be taken to have been that he would assume the risk of injury from the negligence of the defendant's servants, to which his riding in the baggage car, under the permission given by the defendant, should contribute. The objection is that the contract is void, as without consideration, unreasonable, and against public policy. We see no objection to the contract as construed and applied in this case. It was the duty of the defendant, as a carrier of passengers, to transport persons over its road, on their paying the established fare, and to see that its servants used due care to secure the safety of its passengers. It was its duty to give, to persons paying the established rates, tickets which would be evidence of their right to carriage, and of the defendant's obligation to carry them with due care. The defendant was Plaintiff's contract valid -Riding in the baggage car. |