On a motion for a rehearing, the counsel for respondent insisted that admitting the existence of a custom, such as contended for by the appellant, yet this would not exonerate the company, unless it appeared that knowledge of the custom was brought home to the respondent, and that he had assented thereto. Courts look with disfavor upon every attempt by common carriers to limit their liability. Falvey v. Northern Transp. Co., 15 Wis. 129. Besides, even if the bags were carried nominally “ free,” still their transportation was not in fact wholly gratuitous. The custom applied only to the bags of those who shipped grain over the road. The patronage received therefor was the consideration of the free carriage of empty bags. Erom the custom, on the one hand, and the patronage induced thereby on the other, resulted a mutually beneficial interest, and hence an obligation. 20 Curtis (U. S.) 260; 21 id. 291; 15 N. Y. 444.
The cause was disposed of at the June term, 1868, by the following opinion:
PaiNE, J.After carefully considering the original briefs of counsel and the arguments upon the rehearing, I have come to the conclusion that the carrying of the bags of the plaintiff by the company cannot be considered as gratuitous, whether the *390custom was only to return bags free that bad gone over tbe road filled, or whether it was a general custom to carry tbe bags of customers free both ways, without regard to tbe question whether, at any particular time, they were returning from 'a trip on which they had passed over the road, filled or not. If such a relation were created by an express contract, instead of being based upon a custom, it would seem clear that there would be a sufficient consideration for the agreement to carry the bags. If a written contract should be signed by the parties, in which the one should agree to give the company the transportation of his grain at its usual rates, and the company should agree in consideration thereof to carry the grain at those rates, and also to carry the bags both ways whenever the customer might desire it, without any further charge, there can be no doubt that the giving to the company his business, and the payment of the regular freight, would be held to. constitute the consideration for this part of the agreement on the part of the company. But if it would be so in such a case, it is equally so when the same understanding is arrived at through the means of a custom. The company, by establishing such a custom, makes the proposition to all persons, that if they will become its customers, it will carry their bags both ways without any other compensation than the freight upon the grain. Persons who become its customers in view of such a custom, do so with that understanding. And the patronage and the freights paid are the consideration for carrying the bags. The company, in making such a proposition, must consider that this additional privilege constitutes an inducement to shippers to give it their freight. And it must expect to derive a sufficient advantage from an increase of business occasioned by such inducement, to compensate it for such transportation of the bags. And it ought not to be allowed, when parties have become its customers with such an understanding, after losing their bags, to shelter itself under *391the pretext that tbe carrying of tbe bags was a mere gratuity, and it is therefore liable only for gross negligence.
It makes no difference that tbe custom is described as being to carry tbe bags free. In determining whether they are really carried “ free ” or not, tbe whole transaction between tbe parties must be considered. And when this is done, it is found that all that is meant by saying that tbe empty bags are carried free, is, that tbe customers pay no other consideration for it than tbe freight derived from tbe business they give tbe company. But this, as already seen, is sufficient to prevent the transportation of the bags from being gratuitous. Smith v. R. R. Co., 24 N. Y. 222; see also Bissel v. Railroad Co., 25 id. 442. It will be seen that in that case a majority of tbe court held, that where a passenger expressly agreed to take certain risks of injury upon himself, for a consideration, tbe agreement was valid and binding. But DbNio, Weight and SutheelaND dissented, and DeNIO, J., in bis opinion, on pages 455 and 456, states what seems to be tbe true construction and effect of such a contract, bolding that a person riding in charge of cattle, under a contract to carry them at a specified price per car load, and to carry a person a free ” to take charge of them, was not a gratuitous passenger. Tbe other two dissenting justices doubtless agreed with him upon this point. And it is evident from tbe remarks of SeldeN, J., on page 44Y, that be did not bold tbe opposite view, but rested bis decision upon the ground that tbe plaintiff was bound by tbe contract to take tbe risk, whether be was á gratuitous passenger or not. See also Steamboat New World v. King, 16 How. (U. S.) 469, in which it was held, that, under a general custom of steamboats to carry “ steamboat men ” free, a steamboat man, riding on a free ticket, was not to be regarded as a gratuitous passenger; but that tbe consideration was .to be found in those advantages which induced tbe establishment of tbe custom — a doctrine which seems directly applicable to the question under consideration.
*392I can see no ground for any such difficulty as that suggested by the appellant’s counsel on the re-argument. He said, if this undertaking to return bags free was to be considered a matter of contract on the part of the company, it would be unable to collect its freights on delivering grain, upon the ground that its contract was not then completed. But this could not be so. The company, on delivering the grain, parts with the possession of the property to the shipper or his consignee. And on doing that, it is of course entitled to its freight. And its agreement to return the bags without further charge, or to carry them free both ways whenever its customer should deliver them empty for that purpose, could not have the effect of destroying this right. The contract would be construed according to the intention of the parties. See Angelí on Carriers, § 399, note 3, and cases cited. And here it would be very obvious that neither of the parties contemplated any relinquishment by the company of its right to freight on delivering the grain. The transaction for that purpose would be distinct. Here the defendant’s evidence showed that the plaintiff was a “ customer.” The company claims that he had complied with the custom on his part, so as to make it applicable to him. But if he had done so,' as that constitutes a sufficient consideration to prevent the carrying of his bags from being gratuitous, the company is liable.
It is immaterial, therefore, whether the instruction excepted to was strictly accurate or not, in assuming that there was evidence tending to show that the bags were on a return trip, after having gone over the road filled; as neither in that case, nor on the custom as claimed to have been shown by the appellant, would the transportation be gratuitous.
By the Oowrt. — The judgment is affirmed, with costs. .