"Dated this 12th day of January, A. D. 1912." The liabilities of a common carrier may A demurrer was sustained to each of these be divided into two classes: one, the liabilparagraphs of answer, and these rulings are ity for losses by neglect which is the liaassigned as error and relied on for reversal. bility of a bailee or private carrier; the A motion for new trial filed by appellant other a liability for losses by accident or was overruled, and this ruling is also as- other unavoidable occurrence. Steele et al. signed as error and relied on for reversal. v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; [2] In answer to appellant's contention N. Y. C. R. R. Co. v. Lockwood, supra, 17 that the court erred in sustaining the de- Wall. 357, 21 L. Ed. 635. The only elements murrers to each of its affirmative paragraphs necessary to create liability against the of answer, the appellee urges the several common carrier, under the common law as objections to such answers stated in the re- originally declared, was the delivery of the spective memoranda accompaning each of property to the carrier by the shipper, and a said demurrers. Either of said objections, failure to deliver on the part of such caror in fact any objection, though not con- rier. The reason assigned for the peculiar tained in the memoranda, which is fatal to duty and high responsibility thus imposed

on such carriers was the public character | a liability designed for his security and afof their employment, the extensive control fecting him alone. However, as before inwhich they exercised over the property car- dicated, "the common-law exception to the ried, and the facilities at their command common carrier's liability, which exempts for securing immunity for a breach of their only those losses arising from the act of trust. In the first half of the eighteenth God, was well settled to include only those century the rigidity of this rule was some- inevitable causes of loss into which no huwhat relaxed, by the English courts, by man agency could have entered." This left certain innovations sanctioned by said the carrier liable as an insurer for many courts, which permitted such carriers to losses, equally inevitable, and which no care limit their liability by notice, even though or prudence on his part could have preventgeneral, if brought to the knowledge of the ed. No one but the owner of the goods could shipper. These innovations became so fre- have any interest in this liability; and, as quent, and their evil consequences so mani- its renunciation had no tendency to relax the fest, that expressions of regret from many vigilance which such carrier owed to others, eminent judges, both of England and Ameri- the owner was at liberty to surrender it. ca, on account of the sanction given such But he had no power to stipulate from what innovations by the courts, will be found in the cases herein cited. To correct these evils was immoral in its tendency, or to take from Parliament, in 1854, passed the Railway and the carrier any of the motives to the faithTraffic Act, the seventh section of which ful discharge of his public duty, and consequently could not relieve him from the conprovides as follows: sequences of his own negligence or careless

"That every railway company, canal company, and railway and canal company shall be liable for the loss of, or any injury to, any horse, cattle or other animal, or to any article, goods or things in the receiving, forwarding or delivering thereof occasioned by the neglect or default of such company or its servants, notwithstanding any notice, conditions or declaration made and given by such company contrary thereto, and that no special contract between such parties and any other parties, in the premises shall be binding upon or effect such party, unless the same shall: (1) Be reduced to writing; (2) be signed by the owner or person delivering the animal or goods; and (3) be adjudged by the court or judge before whom any question relating thereto shall be made, to be just and reasonable."

Since the passage of this act the English courts have generally held that by special contract the common carrier may exonerate itself from the responsibility of insurance, but cannot free itself “from the obligation to use due care for the safe transportation and delivery of the animal or thing to be delivered." N. Y. C. R. R. Co. v. Lockwood, supra, and cases there cited.

ness.

"There is nothing in which the public have a deeper interest than the careful and prudent management of public conveyances, and no higher moral obligation, than rests upon those intrusted with the control of dangerous forces, to discharge their duties with care and skill. Upon it the safety of thousands of lives and millions of property daily depends. Now, one of the strongest motives for the faithful performance of these duties is found in the pecuniary responsibility which the carrier incurs for the failure. It induces him to furnish safe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with one to relieve him from any part of this responsibility reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral because it diminishes the motives for the performance of a high moral duty; and it is against public policy because it takes from the public a part of the security they would otherwise have." Graham & Co. v. Davis & Co., 4 Ohio St. 362, 377, 62 Am. Dec. 285, 289; Davidson v. Graham, 2 Ohio St. 131, supra: N. Y. C. R. R. Co v. Lockwood, supra, 17 Wall. 357, 21 L. Ed. 627, 632.

An examination of these cases and those referred to therein will show that the great weight of authority in this country, Indiana included, is to the effect that, whatever doubt may have once been entertained on the subject, it is now well settled that, although a common carrier cannot limit the liability which the common law devolves on him, by any general notice; he, by special contract with the shipper, may limit his liability as an insurer, and thereby exonerate himself from responsibility for losses arising from causes over which he has no control, but in so far as his special contract attempts to exonerate him from any loss to which his own fault or negligence has con

The courts of this country generally refused to give sanction to the doctrine, announced by the English courts, which recognized that by a general notice, brought to the knowledge of the shipper, the common carrier might relieve itself from liability on the theory of the implied assent of the owner of the goods to the terms prescribed by such carrier in such notice (Graham v. Davis, supra); but a different conclusion was reached in cases where the shipper expressly agreed to the limitation of liability and perImitted it to be made a part of his contract of shipment. In such cases the great weight of authority in this country is not substantially different from that recognized and expressed by the English courts since the pas-tributed, it will be treated as against public sage, by Parliament, of the traffic and transportation act referred to supra.

That is to say, the courts now generally recognize that the shipper may, if he so desires, agree to any limitation of that part of

policy and void. Graham & Co. v. Davis & Co., supra; Davidson v. Graham et al., supra; Michigan, etc., R. Co. v. Heaton, 37 Ind. 448, 10 Am. Rep. 89: Adams Express Co. v. Fendrick, 38 Ind. 150; Terre Haute,

etc., R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Indianapolis, etc., Ry. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138; Reid v. Evansville, etc., R. Co., 10 Ind. App. 385, 35 N. E. 703, 53 Am. St. Rep. 391.

As before indicated, the liability upon which appellee's action is predicated is alleged to have resulted from appellant's negligence. The action sounds in tort and not in contract. The liability of an insurer is not involved. It follows that the contracts upon which said answers are based constitute no defense to appellee's cause of action, if, in fact, the appellant sustained toward the appellee, at the time of his injury, the relation of a common carrier, rather than that of a private carrier.

there cited), lending support to appellant's contention, and while our statute must be treated as conclusive of the character, of the relation sustained by railroad companies and the public generally in the matter of the business of transportation of freight and passengers as usually carried on by, and required of, such companies under the general rules and regulations controlling them, yet we do not understand that by such statute the Legislature intended that each and every carriage of passengers and goods, undertaken by such companies under special contracts, and different from that usually undertaken by and required of such companies, should be treated as a common carriage rather than a private carriage.

It may be added, also, that the facts ap

case are such as distinguish it from the cases supra, involving drovers' passes.

It is conceded by appellee that public pol-pearing in the complaint and answers in this icy is not involved in contracts of this character when entered into between a passenger and a private carrier, and that the limitation of liability here involved is legal and valid if the contract is to be construed as one between a passenger and a private carrier. In this connection see Louisville, etc., Co. v. Keefer, 146 Ind. 21, 34, 44 N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348; Pittsburgh, etc., R. Co. v. Mahoney, 148 Ind. 196, 200, 46 N. E. 917, 47 N. E. 464, 40 L. R. A. 101, 62 Am. St. Rep. 503, and cases cited; Cleveland, etc., Co. v. Henry, 170 Ind. 94, 99, 100, 83 N. E. 710.

We next address our inquiry to this phase of the question. It is insisted by the appellant that the contracts under consideration, by their express terms, show that ap pellant contracted as a private carrier and not as a public carrier, and that the cases just cited, involving similar contracts between public carriers and express and show companies, are conclusive of the question involved, and in favor of appellant's contention that its contract is valid.

[4] On the other hand, it is contended by appellee, in effect, that railroad companies are, in Indiana, made common carriers by statute (section 5271, Burns 1914, § 3925, R. S. 1881; Pennsylvania Co. v. Clark et al. [1891] 2 Ind. App. 146, 151, 27 N. E. 586; 28 N. E. 208); and that they cannot, by the form of their contract, make themselves private carriers; that the instant case is not different from those involving a drover's pass, and should be controlled by those cases (Ohio, etc., Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Louisville, etc., Co. v. Faylor, 126 Ind. 126, 25 N. E. 869; Lake Shore, etc., Co. v. Teeters, 166 Ind. 335, 77 N. E. 599, 5 L. R. A. [N. S.] 425; Pittsburgh, etc., Co. v. Brown, 178 Ind. 11, 97 N. E. 145, 98 N. E. 625).

[5] On the other hand, we cannot agree with the appellant's contention that the common carrier may, by the words of its contract, convert itself into a private carrier, where the transportation undertaken and the duties and responsibilities incident thereto are such as are ordinarily incident to a common carrier, and we are also of the opinion that the facts appearing in this case distinguish it from the cases involving injuries to express messengers and show employés cited supra.

"A common carrier may undoubtedly, in a bailee for hire, when as a matter of accommodaparticular case, become a private carrier or tion or special engagement he undertakes to carry something which it is not his business to carry."

But whether in the particular case the common carrier should be treated as private carrier does not necessarily depend on whether a special contract was entered into for the carriage, nor upon the wording or provisions of such contract, but rather upon the nature and character of the carriage or transportation contracted for, and whether the duties and obligations flowing therefrom are those which such carrier owes to such individual contractor as a common carrier, or only those which such carrier could be required to perform as a private carrier. 1 Hutchinson, Carriers (3d Ed.) § 44; Cleveland, etc., Co. v. Henry, supra, 170 Ind. 99, 83 N. E. 710; Parrill v. Cleveland, etc., Co., 23 Ind. App. 638, 653, 55 N. E. 1026; Terre Haute, etc., Co. v. Sherwood, supra, 132 Ind. 134, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 357, 377, 21 L. Ed. 627, 639.

The business of common carriage by rail, while it contemplates the carriage of persons We first consider appellee's contention. and property generally, yet it also contemWhile expressions may be found in some ju- plates that such passengers and property risdictions having statutes somewhat simi- will be carried on trains made up by the lar to our statute, supra (see Walther v. carrier, and entirely under its supervision Southern Pacific, etc., Co., 159 Cal. 769, 116 and control and subject to the usual and Pac. 51, 37 L. R. A. [N. S.] 235 and cases ordinary regulations governing such trans

portation. It is no part of the duty of a com- | said mines operated, and hence interested in mon carrier, as such, to carry the property seeing that the miners who operated such of shippers in their (the shippers') cars, with mines were provided with a means of transthe shippers in charge, at such times as the portation to and from their work. Under shipper demands, nor are such carriers re- these quired to give to the shipper any particular car for goods to be carried with an agent of the shipper in charge.

sengers by a common carrier, except that such contract is for transportation between a regular station and a mine, instead of between regular stations, and the mining company acted as an intermediary for the making of the contract, and the collecting of the fares. These elements are, in our judgment, of little importance in determining whether, as to such contract, appellant should be regarded as a common carrier. They might with equal propriety be inserted in any contract for passage on excursion trains run to some point other than a passenger station and arranged for by any one other than the carrier. Mr. Hutchinson closes the paragraph of his work, from which we quoted above, with the following words:

"But it may now be stated to be the decidedly prevailing doctrine in this country that a pas'senger carrier cannot contract against the consequences of his own negligence when the carriage of the passenger himself is the subject of the contract." (Our italics.) 2 Hutchinson, Carriers, 1072, pp. 1245, 6.

the case of Baker v. Brinson, 9 Rich. (S. C.) at page 202, 67 Am. Dec. 548, said:

"The exacting tendencies of certain great carriers of the present day, enjoying facilities that almost exclude competition, admonish us, in the application of these wholesome rules, carefully to guard against any abuses. Notwithstanding their apparent rigor, there is a salutary policy in these common-law doctrines, and those who are called to administer the law must see to it that they are not wholly evaded."

Again in the case of Steele et al. v. Townsend, supra, 37 Ala. 247, at page 257 (79 Am. Dec. 49), the court quotes with approval from Justice Gibson in Atwood v. Reliance Transp. Co., 9 Watts (Pa.) 87, 34 Am. 'Dec. 703, as follows:

"Though it is perhaps too late to say that a carrier may not accept his charge in special terms, it is not too late to say that the policy which dictated the rule of the common law requires that exceptions to it be strictly interpreted, and that it is his duty to bring his case strictly within them."

While these expressions of regret, in most instances, seem to have been uttered in conOur examination of the cases herein cited, nection with innovations of the common-law as well as many others, confirms this state doctrine applicable to the transportation of ment, unless it can be said that the accept-property, rather than of persons, there ance of a gratuitous pass is a "contract" within the meaning of that word as above used.

Many jurisdictions, Indiana included, hold that on who accepts a gratuitous pass, accepts with its benefits its burdens also, including a release of liability for injury resulting from the carrier's negligence. Payne v. T. H. & I. R. Co., 157 Ind. 616, 62 N. E. 472, 56 L. R. A. 472; Indianapolis, etc., Co. v. Klentschy, 167 Ind. 598, 79 N. E. 908, 10 Ann. Cas. 869; Malott v. Weston, .51 Ind. App. 572, 98 N. E. 127; 6 Cyc. 579, and cases cited under note 53.

This the only class of cases which we have been able to find where a limitation of Hability was allowed to defeat an action for injuries caused by the carrier's negligence, where the contract for carriage was with a common carrier for passenger carriage only, and the means of carriage, including road, cars, locomotive power, and those operating the train were under the complete supervision and control of such carrier. And when we take into account the fact that the only contract upon which the passenger bases his right to be upon the train, in such a case, is gratuitous, and consider the reasoning upon which these cases are based, it is doubtful whether they can be said to constitute an exception to the doctrine, supra, announced by Hutchinson.

There is no hardship in this doctrine, and many strong reasons unite to commend it. That there is strong reason that such should be the holding of the courts is found in the expressions of regret of various eminent judges, before referred to in connection with the innovations permitted in the commonlaw rule. Upon this subject, the court, in

would be even greater reason for regret if innovations on the common-law rule should be permitted where life and limb are involved (Graham v. Davis, supra, 4 Ohio, 379, 380, and cases there cited; Lake Shore, etc., Co. v. Teeters, supra. See, also, Ohio, etc., Co. v. Selby, supra), and it is wholly immaterial under what guise the innovation may appear, it is equally to be condemned. If the courts approve contracts of this character, where, as in this case, they are made by a common carrier for passenger carriage alone, over its own line of road, in its own cars, operated solely by its own employés, on the theory that the contract is one for private carriage, rather than for common carriage, the innovation and the evils that will result are just as real, and in no way dif ferent from what they would be if they should hold that the contract is not in violation of public policy, as expressed and recognized in the cases cited herein.

We, therefore, believe that the court should refuse to give their sanction to any innovation upon said general rule which will permit a common carrier to avoid responsibility for its own negligence resulting in injury to a passenger where, as in this case, it has the exclusive supervision and control of every element of such transportation from which such negligence is possible, and where, as in this case, its contract is for passenger carriage only, regardless of the guise under which such innovation is asked or presented, and hence hold that no error resulted from the court's rulings on the demurrers to said answers.

[8] As before indicated, this, in effect, disposes of all the questions presented by this appeal, except an objection to instruction