Mr. Justice Shepard
delivered the opinion of the Court:
The errors that have been assigned specifically show forth' every point that has been argued, and without reciting them, the several questions which they present for determination will be considered in the natural order of their arrangement.
1. The court did not err in refusing the second instruction relating to a supposed negotiation between plaintiff’s husband and the defendant concerning advertising work as including the pass delivered to him for her use, for the reason that there was no evidence sufficient to raise such an issue. Eor the same reason the first instruction that was given, to the effect that if they should find that “ the plaintiff was riding on ¡a ticket for which value had been given, then their verdict should be for the plaintiff,” could have been denied. There was a third person in the plaintiff’s party, who went upon Mr. Boering’s invitation, and for him alone a ticket was purchased and paid for. Plaintiff and wife were lawfully upon the train, but they rode upon passes for which no consideration was given. Boering himself was the only witness who testified to the receipt of the passes, and he fails to say that any arrangement between him and the defendant concerning advertising embraced the issue of free transportation to his wife. His own pass recites that it is on account of advertising contract with Moxley advertising service. This might mean that it was part of the consideration of that contract, or merely a courtesy extended because of their relations. However this may be is a matter of no importance because the injury sued for was not to him but his wife, whose pass recites that it was “ complimentary.”
[509]*509Testimony was clearly admissible to show that the pass had not been issued as a gratuity, but as a part of a contract entered into between the parties upon a mutual consideration. The witness could have been interrogated with no other purpose than to bring the case if possible within the rule firmly established in Railroad Co. v. Lockwood, 17 Wall. 357, and Railway Co. v. Stevens, 95 U. S. 655. See, also, Knott v. Botany Mills, 179 U. S. 69; The Kensington, 183 U. S. 263. The negotiation, whatever it included, was conducted by him, yet all that he could say was, “ that at the time the pass for Mrs. Boering was given him, there were given to witness four other passes, two being to Mr. Shoemaker, general manager of the Moxley advertising service, and Mrs. Shoemaker; one to Mr. Edwards, the Baltimore agent of the advertising service; and one to Mr. J. D. Boering, all being issued at the same time and pursuant to the same conversation with General Passenger Agent Lewis of the Chesapeake Beach Bailway Company.” This does not show that any contract was entered into between the parties relating to advertising and incidental transportation of either the witness or his wife. No attempt was made to relate the “ conversation ” which is said to have accompanied the delivery of the passes. The failure of her husband and co-plaintiff to make a definite statement concerning a matter completely within his knowledge ought not to operate to the plaintiff’s advantage. Erom any point of view, however, the only rational inference from the witness’ entire statement, is that there was no contract embracing the issue of the pass to his wife, but that it was a gratuity — a compliment as expressed on its face.
2. We are also of the opinion that there was no error in refusing to permit the plaintiff’s husband to answer the questions set out in the bill of exceptions, the purpose being to show that Mrs. Boering had not seen the conditions printed on the back of the pass; that she had not authorized him to procure the pass; and that she had never assented to his waiving her right to recovery for injuries occasioned by the negligence of the company’s agents or otherwise.
[510]*510This conclusion covers also the error, assigned on the refusal to instruct the jury to the effect that they should' disregard the conditions on the back of the pass and find for the plaintiff, “ if she never had seen or known, prior to the accident, of the contents of the pass or ticket which her husband showed to the conductor as entitling her to ride on defendant’s road.”
Now if the plaintiff had been able to show that the pass had been issued to her under conditions sufficient to make her carriage one for hire in any legal sense, then (assuming what we need not determine, namely, that she was not bound by the agency and knowledge of her husband), it would, undoubtedly, have been competent for her to show that her attention had not been called to the indorsed stipulation, and that she had never given her assent to it. The Majestic, 166 U. S. 375.
But, as before stated, the plaintiff was in no sense a passenger for hire, and hence it was of no consequence whether or not she knew of and had assented to the assumption of the risk of accident imposed by the indorsement. No matter what may have been the authority of her husband to act for her in the original receipt of the pass, she accepted it and willingly availed herself of its privilege, and must, therefore, be held bound by its conditions. Quimby v. Boston and Maine RR. Co., 150 Mass. 365, 367: Griswold v. N. Y., etc., RR., 53 Conn. 371; Muldoon v. Beattie Ry. Co., 10 Wash. 311; I. C. RR. Co. v. Read, 37 Ill. 486.
The gift and the condition were interdependent and inseparable. She could not enjoy the gift without subjecting herself to the operation of the condition upon which it was made.
3. The facts of the case, as we have seen, preclude the idea of plaintiff’s carriage as part of the consideration of a contract of which it is collateral, and hence are not governed by the rule of decision in Railroad Co. v. Lockwood, and other like cases. Undoubtedly, the principle of decision in Railroad Co. v. Derby, 14 How. 468, can have no application, because there the plaintiff rode on the special invitation [511]*511of tbe president of tbe company without any stipulation or condition whatever.
The question which they do present, and upon which the decision must turn, is this: Could the defendant, in extending the privilege of gratuitous passage to the plaintiff, couple it with a condition lawfully binding her to assume the risk of accident caused by the negligence of its agents ?
This question is an open one in this jurisdiction, and its difficulty is attested by the conflicting decisions of many of the State courts of last resort, which, with commendable industry and skill, have been collated on the briefs of counsel.
It would serve no useful purpose to recite or review those decisions,. the majority of which, it may be conceded, support the contention of the plaintiff.
The ground of that contention is, that the occupation of a common carrier is of such a nature that it would conflict with settled public policy to permit one, under any circumstances, to stipulate against liability for injuries resulting from negligence in the performance of its duties.
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Mr. Justice Shepard
delivered the opinion of the Court:
The errors that have been assigned specifically show forth' every point that has been argued, and without reciting them, the several questions which they present for determination will be considered in the natural order of their arrangement.
1. The court did not err in refusing the second instruction relating to a supposed negotiation between plaintiff’s husband and the defendant concerning advertising work as including the pass delivered to him for her use, for the reason that there was no evidence sufficient to raise such an issue. Eor the same reason the first instruction that was given, to the effect that if they should find that “ the plaintiff was riding on ¡a ticket for which value had been given, then their verdict should be for the plaintiff,” could have been denied. There was a third person in the plaintiff’s party, who went upon Mr. Boering’s invitation, and for him alone a ticket was purchased and paid for. Plaintiff and wife were lawfully upon the train, but they rode upon passes for which no consideration was given. Boering himself was the only witness who testified to the receipt of the passes, and he fails to say that any arrangement between him and the defendant concerning advertising embraced the issue of free transportation to his wife. His own pass recites that it is on account of advertising contract with Moxley advertising service. This might mean that it was part of the consideration of that contract, or merely a courtesy extended because of their relations. However this may be is a matter of no importance because the injury sued for was not to him but his wife, whose pass recites that it was “ complimentary.”
[509]*509Testimony was clearly admissible to show that the pass had not been issued as a gratuity, but as a part of a contract entered into between the parties upon a mutual consideration. The witness could have been interrogated with no other purpose than to bring the case if possible within the rule firmly established in Railroad Co. v. Lockwood, 17 Wall. 357, and Railway Co. v. Stevens, 95 U. S. 655. See, also, Knott v. Botany Mills, 179 U. S. 69; The Kensington, 183 U. S. 263. The negotiation, whatever it included, was conducted by him, yet all that he could say was, “ that at the time the pass for Mrs. Boering was given him, there were given to witness four other passes, two being to Mr. Shoemaker, general manager of the Moxley advertising service, and Mrs. Shoemaker; one to Mr. Edwards, the Baltimore agent of the advertising service; and one to Mr. J. D. Boering, all being issued at the same time and pursuant to the same conversation with General Passenger Agent Lewis of the Chesapeake Beach Bailway Company.” This does not show that any contract was entered into between the parties relating to advertising and incidental transportation of either the witness or his wife. No attempt was made to relate the “ conversation ” which is said to have accompanied the delivery of the passes. The failure of her husband and co-plaintiff to make a definite statement concerning a matter completely within his knowledge ought not to operate to the plaintiff’s advantage. Erom any point of view, however, the only rational inference from the witness’ entire statement, is that there was no contract embracing the issue of the pass to his wife, but that it was a gratuity — a compliment as expressed on its face.
2. We are also of the opinion that there was no error in refusing to permit the plaintiff’s husband to answer the questions set out in the bill of exceptions, the purpose being to show that Mrs. Boering had not seen the conditions printed on the back of the pass; that she had not authorized him to procure the pass; and that she had never assented to his waiving her right to recovery for injuries occasioned by the negligence of the company’s agents or otherwise.
[510]*510This conclusion covers also the error, assigned on the refusal to instruct the jury to the effect that they should' disregard the conditions on the back of the pass and find for the plaintiff, “ if she never had seen or known, prior to the accident, of the contents of the pass or ticket which her husband showed to the conductor as entitling her to ride on defendant’s road.”
Now if the plaintiff had been able to show that the pass had been issued to her under conditions sufficient to make her carriage one for hire in any legal sense, then (assuming what we need not determine, namely, that she was not bound by the agency and knowledge of her husband), it would, undoubtedly, have been competent for her to show that her attention had not been called to the indorsed stipulation, and that she had never given her assent to it. The Majestic, 166 U. S. 375.
But, as before stated, the plaintiff was in no sense a passenger for hire, and hence it was of no consequence whether or not she knew of and had assented to the assumption of the risk of accident imposed by the indorsement. No matter what may have been the authority of her husband to act for her in the original receipt of the pass, she accepted it and willingly availed herself of its privilege, and must, therefore, be held bound by its conditions. Quimby v. Boston and Maine RR. Co., 150 Mass. 365, 367: Griswold v. N. Y., etc., RR., 53 Conn. 371; Muldoon v. Beattie Ry. Co., 10 Wash. 311; I. C. RR. Co. v. Read, 37 Ill. 486.
The gift and the condition were interdependent and inseparable. She could not enjoy the gift without subjecting herself to the operation of the condition upon which it was made.
3. The facts of the case, as we have seen, preclude the idea of plaintiff’s carriage as part of the consideration of a contract of which it is collateral, and hence are not governed by the rule of decision in Railroad Co. v. Lockwood, and other like cases. Undoubtedly, the principle of decision in Railroad Co. v. Derby, 14 How. 468, can have no application, because there the plaintiff rode on the special invitation [511]*511of tbe president of tbe company without any stipulation or condition whatever.
The question which they do present, and upon which the decision must turn, is this: Could the defendant, in extending the privilege of gratuitous passage to the plaintiff, couple it with a condition lawfully binding her to assume the risk of accident caused by the negligence of its agents ?
This question is an open one in this jurisdiction, and its difficulty is attested by the conflicting decisions of many of the State courts of last resort, which, with commendable industry and skill, have been collated on the briefs of counsel.
It would serve no useful purpose to recite or review those decisions,. the majority of which, it may be conceded, support the contention of the plaintiff.
The ground of that contention is, that the occupation of a common carrier is of such a nature that it would conflict with settled public policy to permit one, under any circumstances, to stipulate against liability for injuries resulting from negligence in the performance of its duties.
It cannot be denied that the duty of the common carrier is to carry its passengers in safety, and that this duty is not dependent upon contract alone; that the duty is in the nature of a public one and that the public interest is directly involved in its performance.
For these reasons, a sound, well-established rule of public policy will not permit the carrier to impose special terms of an unreasonable nature (as, for example, the assumption of the risk of damage occasioned by the negligence of the carrier or its agents), upon one who, practically compelled to avail himself of its services, nevertheless pays something in the shape of valuable consideration therefor. To uphold a condition exempting the carrier from liability for negligence under such circumstances would strongly tend to induce a relaxation of that high degree of care essential to the safety of the multitudes who daily avail themselves of the services of common carriers. But sound and expedient as this rule of public policy undoubtedly is, under the con[512]*512ditions before stated, we cannot bring ourselves to tbe conclusion tbat tbe reasoning on wbicb it is founded bas any application to tbe case of one wbo accepts a free passage as a gratuity.
A strictly free passenger does not biggie witb tbe carrier and consent to tbe condition in order to obtain a reduced rate of passage', nor does be consent to it in order to obtain a reasonable rate of freight for property wbicb be must accompany or follow to its destination. There is no inequality between him and tbe carrier in tbe transaction, for be is not one wbo, being practically compelled to take passage, and having tbe right to demand it upon a reasonable consideration, is unable to resist tbe imposition of special terms. He is a mere seeker and recipient of favor, and ought to be estopped to repudiate a condition upon wbicb tbat favor was conferred. So to bold — to use tbe appropriate words of Judge Putnam in the circuit court in a recent and like case — “ conforms tbe law to tbe moral sense wbicb justly bolds those wbo .accept gratuities and acts of hospitality to perform tbe conditions on wbicb they were granted.” Duncan v. Maine Central RR. Co., 113 Fed. Rep. 508.
Our conclusion accords also witb tbat of tbe Supreme Judicial Court of Massachusetts in a well-considered case, and tbe reasons therefor are so well stated in their opinion tbat we shall quote from it at length: “ There can be no difficulty in tbe adjustment of terms where passes are solicited as gratuities. * * * The instances cannot be so numerous tbat any temptation will be offered to carelessness in tbe management of their trains, or to an increase in their fares, in both of wbicb subjects tbe public is interested. In such instances, one wbo is ordinarily a common carrier does not act as such, but is simply in tbe position of a gratuitous bailee. Tbe definition of a common carrier, wbicb is that •of a person or corporation pursuing the public employment of conveying goods or passengers for hire, does not apply under such circumstances. Tbe service wbicb be undertakes to render is one wbicb be is under no obligation to perform, and is outside of bis regular duties. In yielding to tbe [513]*513solicitations of the passenger, he consents for the time being to put off his public employment, and -to do that which it does not impose upon him. The plaintiff was- in no way constrained to accept the gratuity of the defendant; it had been yielded to him only on his own solicitation. When he did, there is no rule of public policy, we think, that prevented the carrier from prescribing, as the condition of it, that it should not be compelled, in addition to carrying the passenger gratuitously, to be responsible to him in damages for the negligence of its servants. It is well known that, with all the care that can be exercised in the selection of servants for the management of the various appliances of a railroad train, accidents will sometimes occur from momentary carelessness or inattention. It is hardly reasonable that, besides the gift of free transportation, the carrier should be held responsible for these, when he has made it the condition of his gift that he should not be. Nor, in holding that he need not be under these circumstances, is any countenance given to the idea that the carrier may contract with a passenger to convey him for a less price on being exonerated from responsibility for the negligence of his servants.” Quimby v. Boston and Maine RR. Co., 150 Mass. 365, 370, 371.
After careful consideration of the opposing decisions by learned courts for whose opinions we have the highest respect, we are constrained to say that we fail to see any substantial grounds for invoking a rule of public policy that would permit the free pass in this case to stand as a contract of carriage, and strike down the condition without which it would not have been given. The plaintiff had no right to demand carriage without consideration; the carrier was under no obligation to furnish it. Instead of purchasing an unconditional ticket, as was done for the friend who traveled upon their invitation, she accepted free transportation upon express condition. To regard the promise to carry, for which there was no consideration upon any theory of the law of contract, as a contract for carriage, and deny the obligation of the express condition upon which it was granted, [514]*514seems to us to run counter to the time-honored, and paramount rule of public policy that upholds the cherished right of freedom of contract. In a recent case, the Supreme Court of the United States said, after declaring that there was no disposition to depart from the salutary doctrine of the Lockwood and Stevens cases: “At the same time it must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare.” B. & O. RR. Co. v. Voigt, 176 U. S. 498, 505. That case involved the contract between a carrier and an express company exempting the carrier from liability for damages to the messenger of the express company, that might be caused by the negligence of the carrier.
The stipulation, having been consented to by the messenger, was upheld as within the freedom of contract and not opposed to any rule of public policy. In our opinion, the case at bar comes clearly within the principle of that decision.
Finding no error, the judgment will be affirmed, with costs. It is so ordered. . Affirmed.
A writ of error to the Supreme Court of the United States was prayed and allowed.