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District Court of Appeal, First District, Division 2, California.


Civ. 11450

Decided: March 17, 1941

Elliott Johnson, of Oakland, for appellant. Hildebrand & Bills and James R. Agee, all of Oakland, for respondent.

This is an action brought to recover damages for injuries suffered in a head-on train collision. The jury returned a verdict against the defendant and, from the judgment entered thereon, the defendant has appealed.

In the early morning of September 20, 1938, plaintiff was a gratuitous passenger riding on a westbound Southern Pacific Company train between El Paso, Texas, and Los Angeles, California. Her ultimate destination was her home city of Sacramento, California. The pass had been issued to her through the fact that her husband was an employee of the appellant. Her trip was purely one on her personal affairs. At a siding known as Tortuga, located in California near the Arizona boundary, an eastbound train was stopped, awaiting the passage of the train upon which plaintiff was riding. A brakeman of the stationary train whose duty it was to properly align the tracks, threw the switch so that the westbound train turned from the main line into the siding and ran into the train it had intended to pass.

Plaintiff's pass which she had signed contained the following language: “Conditions. * This is a free pass based upon no consideration whatever. The person accepting and using this pass, in consideration of receiving the same, agrees that the Southern Pacific Company shall not be liable under any circumstances for any injury to the person, or for any loss or damage to the property of the individual using this pass, and that as to such person the company shall not be considered as a common carrier or liable as such. This pass will not be honored unless signed by the holder in ink or indelible pencil. *”

At the outset of a discussion of the law it should be noted that this case is controlled solely by the federal statutes applicable to the situation. The trip was of an interstate nature and as such was governed by the acts of congress. This subject is mentioned because of the fact that various state jurisdictions have arrived at a variety of conclusions upon the effect of such a release when dealing with intrastate commerce.

In her complaint the plaintiff alleged that defendant was guilty of gross negligence. In its answer the defendant admitted it was negligent but denied it was guilty of gross negligence. When the plaintiff had closed her case the defendant made a motion which was as follows: “I now move the court for a judgment of nonsuit in favor of defendant Southern Pacific Company on the ground that, first, there is no evidence sufficient to sustain a finding of gross negligence upon the part of the Southern Pacific and, secondly, even assuming that there is sufficient evidence to justify a finding of such gross negligence, the trip which the plaintiff took was interstate and was made under and by virtue of a free pass containing a release signed by the plaintiff releasing the Southern Pacific Company from liability, and under the law governing such a situation, such release was valid and binding and prevents a recovery by the plaintiff.” That motion was denied. When instructing the jury the trial court, among others, gave the following instructions:

(1) “If you find from the evidence in this case that the defendant Southern Pacific Company was guilty of gross negligence, as defined in these instructions, then your verdict must be against the defendant Southern Pacific Company and in favor of the plaintiff.

(2) “Gross negligence is not presumed but must be proven.

(3) “You are further instructed that the term ‘gross negligence’ as used in these instructions is defined as follows: ‘Gross negligence is that entire want of care which would raise a presumption of conscious indifference to consequences; an entire want of care, or such a slight degree of care as to justify the belief that there was an entire disregard for and indifference to the safety and welfare of others.’

(4) “It is not necessary that there be a wilful intent to harm another person in order to constitute ‘gross negligence’.

(5) “If you find from the evidence that the defendant Southern Pacific Company was guilty of ‘ordinary’ negligence only, then your verdict must be against the plaintiff and in favor of defendant Southern Pacific Company.

(6) “Ordinary negligence is defined as the omission to do something which an ordinarily prudent person would have done under the same situation, or doing something which such person would not have done in the same situation.”

The defendant contends that there was no evidence it was negligent in any respect otherwise than this, that it did not prevent a collision. That contention must be conceded and later we will further discuss such fact, whether considered as gross negligence or otherwise, as material to this case. Continuing the defendant asserts that even though it was guilty of gross negligence it was not liable to the plaintiff who was riding on a free pass on a train being operated in interstate commerce.

The defendant claims the plaintiff was a licensee and that it was under no obligation to her except not to injure her by any wilful or wanton act. Giannini v. Campodonico, 176 Cal. 548, 169 P. 80; Currier v. Trustees of Dartmouth College, 1 Cir., 117 F. 44. The plaintiff modifies that claim by adding that defendant, under the facts, was bound to exercise ordinary care. Yoshiko Yamauchi v. O'Neill, 38 Cal.App.2d 703, 102 P.2d 365. The defendant replies that, accepting the modification, it was not liable. It cites and relies on the provisions of the Hepburn Act, 34 U.S. Stats. at Large, 584. It thus appears the entire case is to be determined on that statute and the decisions of the federal courts.

That, in referring to want of care, in this state and many other jurisdictions, a distinction is made between slight negligence, ordinary negligence, and gross negligence will be conceded at once. Cooper v. Kellogg, 2 Cal.2d 504, 511, 42 P.2d 59. But it must also be conceded that from an early date it has been the settled rule in the federal courts that they do not draw that distinction. New York C. Railroad Co. v. Lockwood, 17 Wall. 357, 382, 21 L.Ed. 627. However, both of the above classes of courts draw a distinction between acts of negligence, on the one hand, and acts of a wilful or wanton nature, on the other hand. The first class rests on failure to exercise due care, the second involves acts of the volition of the offender. In none of the cited cases is it held that an act of gross negligence is synonymous with a wilful or wanton act. The two are in this state distinctly different. Kastel v. Stiever, 215 Cal. 37, 46, 8 P.2d 474. There is no claim that the instant case involved a wilful or wanton act and cases which did involve such questions, New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502, 9 A.L.R. 496; Virginia Beach Bus Line v. Campbell, 4 Cir., 73 F.2d 97, do not require discussion.

Many of the arguments in favor of this plaintiff had been refuted by the United States Supreme Court in its decisions rendered prior to the enactment of the Hepburn Act, 34 U.S.Stats. at Large, 584. But the enactment of that statute in 1906 was most material to the specific issue presented in the instant case. Manifestly said statute was enacted in the interest of interstate commerce. It was in no manner addressed to wilful or wanton acts. As amended by the Hepburn Act, the Interstate Commerce Act, U.S.C.A. Tit. 49, sec. 1, subd. 7, provides: “(7) Free transportation for passengers prohibited; exceptions; penalty. No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families *. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than $100 nor more than $2,000, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty.” Down to the date of the enactment of the Hepburn Act the congress had not exercised its constitutional power to legislate regarding “free passes”. Under fundamental rules when it did speak on the subject such legislation became the law on that subject—inclusive and exclusive. Later the case entitled Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 177, 67 L.Ed. 348, arose. In that case the court quoted from the amended statute and then it said:

“The provision for passes, with its sanction in penalties, is a regulation of interstate commerce, to the completion of which the determination of the effect of the passes is necessary. We think, therefore, free passes in their entirety are taken charge of, not only their permission and use, but the limitations and conditions upon their use; or to put it another way, and to specialize, the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, are taken charge of. And that responsibility and those rights, this court has decided, the railroad company can control by conditions in the passes. Antecedently to the passage of the Hepburn Act, we decided that a passenger who accepts a free pass may exempt a carrier from responsibility for negligence, and no public policy is violated thereby. Northern P.R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513; Boering v. Chesapeake Beach R. Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742.

“Those cases were considered and applied as giving validity to the stipulations of passes issued under the act in Charleston & W.C.R. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476, according thereby freedom of transportation to the possessor of a pass, and giving assurance to the railroad company that its gratuity will not be given the consequences of compensated right and its incident obligations, and be a means of exacting from the company indefinite damages. In this case the prayer was for $25,000; the recovery was for $8,000. Circumstances might have made it the larger sum; and this, it is the contention and decision, is the determination of state laws which could neither permit nor forbid the gift. We cannot assent. The pass proceeded from the federal act; it is controlled necessarily in its incidents and consequences by the federal act, to the exclusion of state laws and state policies, and such is the effect of the cited cases.”

Manifestly, construing the terms of plaintiff's free pass as directed by the foregoing decision, the plaintiff may not claim the defendant did not exercise due care and claim compensation for negligence as distinguished from wilful or wanton acts.

But, the plaintiff argues, the question is not an open one in this state. She cites and relies on Walther v. Southern Pacific Co., 159 Cal. 769, 116 P. 51, 37 L.R.A.,N.S., 235. However we think it is sufficient to state that the “free pass” involved in that case was issued and was outstanding when the Hepburn Act took effect. Obviously an act of congress would not operate to impair contracts made prior to its enactment.

From what we have said it follows that the trial court erred in denying the defendant's motion for a nonsuit; that it erred in giving the instruction which we have marked (1); and that the judgment should be reversed.

It is so ordered.


We concur: NOURSE, P.J.; SPENCE, J.