Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/351

 PART IV.] LIABILITY FOR TORTS OF AGENTS. [§ 352. dating the public in the line of his employment ; then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. " But the condition of things is entirely different, and espe- cially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the bod} 7 politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the people are compelled to accept. . . . " The conclusions to which we have come are : — " First. That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. " Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his ser- vants. " Thirdly. That these rules apply both to carriers of goods and to carriers of passengers for hire, and with special force to the latter. " Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire. 1 " We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we con- sidered the plaintiff a free passenger instead of a passenger for hire." 2 1 Railroad Co. v. Lockwood, 17 Wall. 357, 384. This case, also, dis- approves distinctions between de- grees of negligence. 2 See, also, Railway Co. v. Stevens, 95 U. S. 655; Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174; Ex- press Co. v. Kountze Bros., 8 Wall. 342; Chicago, M. & St. P. R'y Co. v. Solan, 169 U. S. 133 ; Calderon v. Atlas St'mship Co., 170 U. S. 272. Compare Philadelphia and Read- ing R. R. Co. v. Derby, 14 How. 468; Steamboat New World v. King, 16 How. 469; Molton v. Western R. R. Co., 15 N. Y. 444. In Jacobus v. St. P. and Chi. R'y Co., 20 Minn. 125, it was held that a railroad com- pany could not exempt itself from liabilities caused by its negligence to a person travelling on a free pass. Contra, as to an express messenger travelling under a contract between the railroad and the express com- 331