JUDGE, J.
The common carrier is subjected by the law to a severe responsibility. He is not only responsible for losses and injuries caused by his negligence, but the law raises an absolute and conclusive presumption of negligence, whenever the loss occurs from any other cause than “ the act of God, or the public enemy.” And this rule of the law, it is said, is at least as ancient as the reign of Elizabeth.—2 Parsons on Contracts, 158.
This responsibility, being founded on the most salutary grounds of public policy, was originally considered as beyond the reach of the carrier himself, and as beyond the reach of limitation by special contract with the shipper. But we consider it as now well settled, that, while the carrier cannot limit his liability by any general notice, he may [500]*500legally contract for exemption from that extraordinary responsibility imposed by the common law, by which he becomes an insurer.—Steele & Burgess v. Townsend, 37 Ala. 247. To this extent he may go, in the limitation of his liability, but not further. Public policy forbids that he should be allowed to contract for exemption from liability for damage occasioned by the negligence, willful default, or tort, of himself or his servants.—2 Redfield on Railways, 82-98; 2 Parsons on Contracts, 240-251.
The contract made between appellant and appellee, in the present case, was, that in consideration of a free ticket, or free passage, appellee assumed all risk of accidents, and expressly agreed that appellant should not be liable, under any circumstances, whether of the negligence of its agents or otherwise, for any injury to her person or property. It is contended that, under this contract, appellant does not hold to appellee the relation of common carrier and that “ its duty should not be measured by that rule because one element of that relation is wanting—viz., appellant received no reward for the service to be performed.”
The relation of common carrier and passenger certainly subsisted between the parties, notwithstanding tbe contract; but, whether the effect of gratuitous transportation, in such case, is to exempt the carrier from that liability imposed by the common law, by which he becomes an insurer — viz., such as arises from those conclusive presumptions of negligence which are raised by the law in the absence of nonfeasance, or misfeasance and wrong — we need not determine, as no such question is presented by the record. We do hold, however, that it makes no difference whether the service is performed gratuitously or not, in regard to the obligation to’perform it well, after it is once entered upon ; for, ever since the decision of the leading case of Coggs v. Bernard, (2 Smith’s Leading Cases, 82,)it has been regarded as sound law, that “ the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it.” And we hold ’.further, that, in undertaking the performance of gratuitous transportation, the common carrier can no more stipulate for exemption from liability -for damage occasioned by the [501]*501negligence, or willful default, or tort, of himself or his servants, than he can when he receives a reward for the service to be performed: both are alike prohibited by a sound public policy, which also forbids a gratuitous bailee, not bound by the considerations of public duty attached to the office of a common carrier, from stipulating that he may be fraudulently negligent, or safely dishonest.
Railroad companies are incorporated, in part at least, from public considerations, and for the public good. As carriers of persons and property, it has been held they may be considered as acting in a public capacity, and as a kind of public officers. The exercise of honesty, care, and diligence, by them or their agents and employees, is a public duty, resulting from their position; the obligation to perform which, cannot be thrown off by contract. If thus thrown off, the effect would be to relax, or modify, the performance of the duty, and to promote a relaxation of proper care in the selection of agents and servants for its performance.
A learned law-writer in his work on contracts, (2 Parsons, 233,) says : “ The more courts have regarded the responsibility of the common- carrier as created by the law for public reasons, the less willing have they been that it should be placed within the control of one or both the parties, to be modified at their pleasure.” And the fact that the carrier is an artificial person, with no power of action except through its agents and servants, should not confer upon it rights and immunities, in the respect named, superior to those possessed by natural persons.
A ease decided in the court of exchequer in England, in 1867, (Booth v. North Eastern Railway Company, 2 Law Excheq. 173,) is analogous in principle to the case in hand. In that case, a contract was made for the conveyance of cattle by railway, which contained the following, amongst other conditions: “ The owner takes all risks of loading, unloading, and carriage, whether arising from the negligence or default of the company or their servants, or from defect or imperfection in the station, platform, or other places of loading or unloading, or of the carriage in which the cattle may be loaded or conveyed, or from any other [502]*502cause whatsoever.” “ The company will grant free passes to persons having the care of live stock, as an inducement to owners to send proper persons with, and to take care of them.” The action/ was brought for the failure safely to carry and deliver the cattle. The court held, that the first of the conditions named above “ was unreasonable, and that its unreasonable character was not removed by the fact that the company, under the second condition, granted, and the owner accepted, a free pass for a person who travelled with the cattle sent.” This adjudication, though made under the influence of the railway and canal traffic act of 17th and 18th Victoria, sustains, in principle,our conclusion as to the character of the contract in the case before us.
It has been held in Indiana, that “ an agreement upon a free pass, that the person accepting it assumes all risk of personal injury and loss or damage to property, whilst using the trains of the company, does not exempt the company from liability for gross negligence;” whilst in New York a different rule seems to be recognized.—Indiana Central Railway v. Mundy, 21 Indiana, 48 ; Wells v. The N. Y. Central Railroad Company, 24 N. Y. 181. But the decision in New York, above cited, was made by a divided court; and we cannot yield to the opinion of the majority the influence of binding authority, though it is doubtless entitled to great respect. Besides, the decisions in that State have not been uniform on the subject of the liability of common carriers. It seems also to have been, at one time, the doctrine of the English courts, that the common carrier might exempt himself, by special contract, from all responsibility whatsoever in regard to goods entrusted to him for transportation. In commenting upon the decisions of the Engglish court upon this subject, Judge Bedfield remarks, “It is surely not to be regarded as matter of surprise, that the legislature felt compelled to interfere, to restore something of the responsibility of common carriers.”—2 Redfield on Railways, 94. As bearing upon the question involved, see, also, the following authorities: 2 Parsons on Contracts, 222, note e; Ohio & Miss. Railway v. Mulling, 30 Ill. 9; Phil.
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JUDGE, J.
The common carrier is subjected by the law to a severe responsibility. He is not only responsible for losses and injuries caused by his negligence, but the law raises an absolute and conclusive presumption of negligence, whenever the loss occurs from any other cause than “ the act of God, or the public enemy.” And this rule of the law, it is said, is at least as ancient as the reign of Elizabeth.—2 Parsons on Contracts, 158.
This responsibility, being founded on the most salutary grounds of public policy, was originally considered as beyond the reach of the carrier himself, and as beyond the reach of limitation by special contract with the shipper. But we consider it as now well settled, that, while the carrier cannot limit his liability by any general notice, he may [500]*500legally contract for exemption from that extraordinary responsibility imposed by the common law, by which he becomes an insurer.—Steele & Burgess v. Townsend, 37 Ala. 247. To this extent he may go, in the limitation of his liability, but not further. Public policy forbids that he should be allowed to contract for exemption from liability for damage occasioned by the negligence, willful default, or tort, of himself or his servants.—2 Redfield on Railways, 82-98; 2 Parsons on Contracts, 240-251.
The contract made between appellant and appellee, in the present case, was, that in consideration of a free ticket, or free passage, appellee assumed all risk of accidents, and expressly agreed that appellant should not be liable, under any circumstances, whether of the negligence of its agents or otherwise, for any injury to her person or property. It is contended that, under this contract, appellant does not hold to appellee the relation of common carrier and that “ its duty should not be measured by that rule because one element of that relation is wanting—viz., appellant received no reward for the service to be performed.”
The relation of common carrier and passenger certainly subsisted between the parties, notwithstanding tbe contract; but, whether the effect of gratuitous transportation, in such case, is to exempt the carrier from that liability imposed by the common law, by which he becomes an insurer — viz., such as arises from those conclusive presumptions of negligence which are raised by the law in the absence of nonfeasance, or misfeasance and wrong — we need not determine, as no such question is presented by the record. We do hold, however, that it makes no difference whether the service is performed gratuitously or not, in regard to the obligation to’perform it well, after it is once entered upon ; for, ever since the decision of the leading case of Coggs v. Bernard, (2 Smith’s Leading Cases, 82,)it has been regarded as sound law, that “ the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it.” And we hold ’.further, that, in undertaking the performance of gratuitous transportation, the common carrier can no more stipulate for exemption from liability -for damage occasioned by the [501]*501negligence, or willful default, or tort, of himself or his servants, than he can when he receives a reward for the service to be performed: both are alike prohibited by a sound public policy, which also forbids a gratuitous bailee, not bound by the considerations of public duty attached to the office of a common carrier, from stipulating that he may be fraudulently negligent, or safely dishonest.
Railroad companies are incorporated, in part at least, from public considerations, and for the public good. As carriers of persons and property, it has been held they may be considered as acting in a public capacity, and as a kind of public officers. The exercise of honesty, care, and diligence, by them or their agents and employees, is a public duty, resulting from their position; the obligation to perform which, cannot be thrown off by contract. If thus thrown off, the effect would be to relax, or modify, the performance of the duty, and to promote a relaxation of proper care in the selection of agents and servants for its performance.
A learned law-writer in his work on contracts, (2 Parsons, 233,) says : “ The more courts have regarded the responsibility of the common- carrier as created by the law for public reasons, the less willing have they been that it should be placed within the control of one or both the parties, to be modified at their pleasure.” And the fact that the carrier is an artificial person, with no power of action except through its agents and servants, should not confer upon it rights and immunities, in the respect named, superior to those possessed by natural persons.
A ease decided in the court of exchequer in England, in 1867, (Booth v. North Eastern Railway Company, 2 Law Excheq. 173,) is analogous in principle to the case in hand. In that case, a contract was made for the conveyance of cattle by railway, which contained the following, amongst other conditions: “ The owner takes all risks of loading, unloading, and carriage, whether arising from the negligence or default of the company or their servants, or from defect or imperfection in the station, platform, or other places of loading or unloading, or of the carriage in which the cattle may be loaded or conveyed, or from any other [502]*502cause whatsoever.” “ The company will grant free passes to persons having the care of live stock, as an inducement to owners to send proper persons with, and to take care of them.” The action/ was brought for the failure safely to carry and deliver the cattle. The court held, that the first of the conditions named above “ was unreasonable, and that its unreasonable character was not removed by the fact that the company, under the second condition, granted, and the owner accepted, a free pass for a person who travelled with the cattle sent.” This adjudication, though made under the influence of the railway and canal traffic act of 17th and 18th Victoria, sustains, in principle,our conclusion as to the character of the contract in the case before us.
It has been held in Indiana, that “ an agreement upon a free pass, that the person accepting it assumes all risk of personal injury and loss or damage to property, whilst using the trains of the company, does not exempt the company from liability for gross negligence;” whilst in New York a different rule seems to be recognized.—Indiana Central Railway v. Mundy, 21 Indiana, 48 ; Wells v. The N. Y. Central Railroad Company, 24 N. Y. 181. But the decision in New York, above cited, was made by a divided court; and we cannot yield to the opinion of the majority the influence of binding authority, though it is doubtless entitled to great respect. Besides, the decisions in that State have not been uniform on the subject of the liability of common carriers. It seems also to have been, at one time, the doctrine of the English courts, that the common carrier might exempt himself, by special contract, from all responsibility whatsoever in regard to goods entrusted to him for transportation. In commenting upon the decisions of the Engglish court upon this subject, Judge Bedfield remarks, “It is surely not to be regarded as matter of surprise, that the legislature felt compelled to interfere, to restore something of the responsibility of common carriers.”—2 Redfield on Railways, 94. As bearing upon the question involved, see, also, the following authorities: 2 Parsons on Contracts, 222, note e; Ohio & Miss. Railway v. Mulling, 30 Ill. 9; Phil. & Reading Railway v. Derby, 14 How. (U. S.) 483; Steamboat New World v. King, 16 How. (U. S.) 469-474.
[503]*503It results from wliat we have said, that the grounds of demurrer to the second and third pleas were well taken, and that there was no error in the rulings of the court thereon.
2. The demurrer to the second and third pleab having been sustained by the court, the parties went to trial on the general issue. We have carefully examined the charges given by the court, to which appellant excepted, as well also as the charges requested by the appellant, which the. court refused to give; and construing them in the light of the evidence, we hold, without entering into a minute consideration of them all, that there is no error in any of the rulings of the court thereon, prejudicial to the appellant.
As to the charge given by the court, and the charge requested by the appellant and refused, relating to the right of appellant to make reasonable limitations as to the extent of its liability for baggage entrusted to it for transportation, the purposes of this case require us to go no further, than to repeat what we have already said in substance — viz., that no such limitation can be made byj.ny~^ — ' general notice — that it may be jnade. by special contract, but that a common carrier can not exempt Tiimseli, by any such contract, from liability for the negligence, willful default, or tpi^'of himself or his servants; and this upon the-familiar principle, that whatever has an obvious tendency to encourage guilty negligence, fraud, or crime, is -contrary to public policy.—Camden & Amboy Railway v. Baldauff, 16 Penn. St. 67.
3. The only other rulings of the court excepted to, relate to the question, whether the appellant’ safely carried and delivered the baggage to the appellee, at Columbus, Kentucky. This was all the appellant was bound by its original undertaking to do; and whether it discharged the duty or not, was, substantially, a question of fact to be decided by the jury. They found the fact against the appellant, and we can not revise this finding of the jury on the evidence. The most we can do is to determine whether or not the court erred in its rulings upon the law applicable to the question; and if it did, we are satisfied the error was not prejudicial to, but in favor of the appellant.
We had some doubt, at first, whether the second charge [504]*504requested by tbe appellant, and refused by the court, should not have been given. A closer scrutiny, however, has relieved us of the doubt. It was a controverted question in the case, whether the baggage-master of the steamboat company was the agent of the appellee, to receive her baggage at the depot of appellant, or whether he was not the agent of appellant, by agreement with the steamboat company, to take charge of the baggage and deliver it at the boat. If he was not the agent of the appellee to receive her baggage, it was insisted that it had never been delivered to her at Columbus, pursuant to the original undertaking ; and the burthen of proving such delivery rested upon the appellant. If the second charge had been given as asked, the court would, in effect, have withdrawn from the consideration of the jury the question of fact, as to whose agent the baggage-master of the steamboat company was, in receiving the baggage of appellee, or would have usurped the province of the jury by deciding, in effect, that he was the agent of the appellee.
Edr-dfeNNI no other reas.on, said charge was properly refused. If .thu dlaggagANr'appellee. was not delivered to her, or her agent, at the depot of appellant, but was placed by appellant in charge of the baggage-ma^tgrof the steamboat company, to be deliveved at the boat; ancLil^such baggage-master was authorized, by agreement between appellant and the steamboat company, to receive upon the trains, or at the depot of the former, the baggage of through passengers, to be delivered at the boat; and if such was\ appellant’s usual mode of delivering the baggage of through passengers travelling in that direction; then the larceny of the baggage by appellant’s servants, by reason of which it was not delivered at the boat, but lost to the appellee, renders the appellant responsible for the loss, although appellee was travelling' over the road of appellant on a free ticket, and although appellant might have discharged its original obligation by a proper delivery of the baggage at the depot.—Richards v. The London, &c., Railway Company, 62 Eng. Com. Law Rep. 837 ; Butcher v. The London, &c., Railway Company, 29 Eng. Law & Eq. Rep. 347.
The judgment is affirmed.