manded and refused. (ee) * It has been held in New

York, that a contract between a railroad company and a gratuitous passenger, exempting the company from liability under any circumstances of negligence on the part of its agents, is not against law or public policy, and is valid; (f)1 and it has been held in Illinois, just otherwise. (ff)2 But it would seem that an owner of cattle transported on a railroad, who goes along in charge of them, is not such a gratuitous passenger. (g) It may be remarked, that a servant, travelling with his master, may recover for a loss, although his master bought and paid for the ticket. (h)

The reason of the difference between his liability as to passengers, and as to goods, is this. The carrier of goods has absolute control over them while they are in his hands; he can fasten them with ropes, or box them up, or put them under lock and key. But the carrier of passengers must leave to them some power of self-direction, some freedom of motion, some care of * themselves. It would be wrong, therefore, to hold him to as absolute a responsibility as in the case of goods; ful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of 'gross.'" And the doctrine laid down in that case was reaffirmed, as not only resting on public policy, but on sound principle, in Steamboat New World v. King, 16 How. 460. But see Boyce v. Anderson, 2 Pet 160,156, where it is said, that the carrier of a slave without reward would be liable only for gross negligence. See also Williams v. Taylor, 4 Port (Ala.) 234. In Fay v. Steamer New World, 1 Cal. 348, it was decided that a common carrier, transporting gold dust gratuitously, was not liable in case of loss, unless negligent. See Gordon v. Grand Street R. R. Co. 40 Barb. 646; Indiana, etc. R. R. Co. v. Mundy, 21 Ind. 48; Ohio R. R. Co. v. Mahling, 30 Ill. 9.

(ee) Hurt v. Southern R. R. Co. 40 Miss. 391.

(f) Wells v. New York Central R. R. Co. 24 N. Y. (10 Smith) 181.

(ff) Illinois R. R. Co. v. Read, 87 Ill. 484.

(g) Perkins v. New York Central R. R. Co. 24 N. Y. (10 Smith) 222; Flinn v. Philadelphia R. R. Co. 1 Houston, 469.

(h) Marshall v. York, N. & B. Co. 11 C. B. 898, 666.

1 And in New Jersey, Kinney v. Central R. Co. 5 Vroom, 518. In England it is held that a drover who travels free "at his own risk " cannot recover for injuries resulting from a railroad company's negligence, Gallin v. London, etc. R. Co. L. R. 10 Q. B. 212; even if "gross," McCawley v. Furness R. Co. L. R 8 Q. B. 57 ; nor if travelling on one railroad in continuation of his journey under such an agreement with another railroad, Hall v. North Eastern R. Co. L. R. 10 Q. B. 437. The holder of a "drover's ticket" cannot use it for stop-over purposes contrary to a regulation of the railroad company. Dietrich v. Penn. R. Co. 71 Penn. St. 432.

2 So in Indiana. Ohio, etc. R. Co. v. Selby, 47 Ind. 471. See however Arnold v. Ill. Cent. R. Co. 83 Ill. 273.

it is, however, held that the carrier of passengers is liable for the goods of the passenger put under his care in the same way that he is for other goods. (hh) But still the policy of the law applies to the carrier of passengers as to the carrier of goods. It admits only so much mitigation of the rule, as that he is liable only when he is guilty of some negligence; but if in the least degree negligent, he is liable, because the law holds him to do all that care and skill can do for the safety of his passengers. Only when all this is done, and he can show that the injury complained of is not to be attributed to any default whatever on his part, or on the part of any one for whom he is responsible, is he discharged from his liability. It seems to have been held decidedly, that the onus to prove that he is not in fault, rests on him. (i) Some question, however, may exist on this point. We should express our own view of the law *thus. The plaintiff must not merely prove that he has sustained injury; but

(hh) Merrill v. Grinnell, 80 N. T. 694.

(i) Christie v. Griggs, 2 Camp. 79. This was an action of assumpsit against the defendant, as owner of the Blackwall stage, on which the plaintiff, a pilot, was travelling to London, when it broke down and he was greatly bruised. The first count imputed the accident to the negligence of the driver; the second, to the insufficiency of the axle-tree of the carriage. The plaintiff having proved that the axle-tree snapped asunder at a place where there was a slight descent, from the kennel crossing the road; that he was in consequence precipitated from the top of the coach; and that the bruises he received confined him several weeks to his bed: there rested his case. Best, Serjeant, contended strenuously that the plaintiff was bound to proceed further, and give evidence, either of the driver being unskilful, or of the coach being insufficient But per Mansfield, C. J.: "I think the plaintiff has made a prima facie case by proving his going on the coach, the accident, and the damage he has suffered. It now lies on the other side to show that the coach was as good a coach as could be made, and that the driver was as skilful a driver as could anywhere be found. What other evidence can the plaintiff give? The passengers were probably all sailors like himself; and how do they know whether the coach was well built or whether the coachman drove skilfully? In many other cases of this sort it must be equally impossible for the plaintiff to give the evidence required. But when the breaking down or overturning of a coach is proved, negligence on the part of the owner is implied. He has always the means to rebut this presumption, if it be unfounded, and it is now incumbent on the defendant to make out that the damage in this case arose from what the law considers a mere accident." The same point was ruled by Lord Denman at Nisi Prius, in Carpue v. The L. & B. Railway Co. 5 Q. B. 747: it was decided by the Court of Exchequer, in Skinner v. London, Brighton, & South-coast Railway Co. 2 E. L. & E. 860; s. c. 6 Exch. 787, and has been repeatedly confirmed in this country. Thus, in Ware v. Gay, 11 Pick. 106, it was held, that, if in an action by a passenger against the proprietors of a stagecoach, for an injury occasioned by the insufficiency of the coach, the plaintiff proves, that while the coach was driven at a moderate rate upon a plain and level road, without coming in contact with any other object, one of the wheels came off and the coach overset, whereby the plaintiff was hurt, the law will imply negligence, and the burden of proof will rest upon the defendants to rebut this legal inference, by showing that the coach was properly fitted out and provided. To the same effect are Stokes v. Saltonstall, 13 Pet 181; Stockton v. Frey, 4 Gill, 406; McKenney v. Neil, 1 McLean, 640; Farish v. Reigle, 11 Gratt 697; Brehm v. Great Western R. R. Co. 84 Barb. 266; Boyce v. Cal. Stage Co. 26 Cal. 460. And see ante, p. ♦222, note (d).