delivered the opinion of the Court:
The objections taken to the judgment of the court below in overruling the pleas, relate chiefly to what is thereby interposed as a contract obligating appellant not to assert a claim for damages on account of the negligence, other than gross, of its servants. It is claimed there is no valuable consideration to support the promise of appellant, and that the object sought thereby to be attained is contrary to public policy.
The doctrine is settled, in this court, that railroad companies may. by contract, exempt themselves from liability on account of the negligence of their servants, other than that which is gross or wilful. Illinois Central Railroad Co. v. Read, 37 Ill. 484; Illinois Central Railroad Co. v. Morrison, 19 id. 136; Western Transportation Co. v. Newhall, 24 id. 466; Illinois Central Railroad Co. v. Adams, 42 id. 474; Adams Express Co. v. Haynes, id. 89.
So, also, it has been held the law imposes no obligation on railroad companies to carry passengers on freight trains, nor freight on passenger trains; it only requires them to carry both, leaving it to them to regulate the manner in which it shall be done, Illinois Central Railroad Co. v. Nelson, 59 Ill. 112; Illinois Central Railroad Co. v. Johnson, 67 id. 314. If they carry passengers on freight trains, they can not make arbitrary discriminations, and therefore, while they may reasonably require that all persons desiring to be thus carried shall first procure tickets, they must afford reasonable facilities to that end, so that all may have a like opportunity to procure them. Illinois Central Railroad Co. v. Johnson, supra.
Appellee being under no legal obligation to carry passengers on its freight trains, it follows that a contract, whereby it agrees to do so, must be governed by its own terms, subject only to the qualification that the same terms shall be impartially extended to all who may desire to avail of them. The consideration that supports the promise of appellant is the promise of appellee to carry him, not generally, but by this particular mode of conveyance, to which, but for the promise, he would not be entitled; and it is such as the law deems valuable. It is, presumably, both beneficial to appellant and matter of expense to appellee. Moreover, although it is not important whether it involves a greater burden on appellee to carry by this mode of conveyance than it does by the mode it has specially provided for the carriage of passengers, or less, it being sufficient that the company is under no legal obligation to carry passengers by this mode, and that its agreement to do so is purely voluntary, we think, from the substance of the allegations of the pleas, it is clear that the carriage of passengers by freight trains imposes additional burdens upon the company. It has passenger trains with ample facilities to accommodate all the travel on its road. The expense of running these trains is, obviously, not sensibly diminished by diverting a portion of the travel thus provided for to its freight trains. The freight trains are composed of cars constructed for carrying freight, and they are so operated. The carriage of passengers requires stoppages of these trains at convenient places for getting on and off, and what might be proper care in managing and operating the train, if laden with freight only, might, in some instances, be gross negligence if it contained a car filled with passengers. This additional hindrance, and the higher degree of care in operating the train thus rendered necessary, would, of itself, under every definition given of a valuable consideration, be sufficient to support a promise.
With regard to the policy of such contracts, we need but say it would seem, in this respect, impossible to distinguish the present contract from those cases where the contract has been to carry generally, or by regular passenger trains. In such cases, as the authorities before quoted show, it is competent for railroad companies, by contract, to exempt themselves from liability on account of the negligence of their servants which is not gross or wilful. Any objection which might, in this respect, obtain, with regard to the contract set up in the pleas, would equally apply to those.
We see no error in the ruling of the court, and its judgment is affirmed.
Judgment affirmed.