(dissenting). Being unable to agree with Mr. Justice Brooke in the conclusions he has reached in this case, I herewith submit my own views.
*341The declaration counts upon the fact that the car was improperly loaded and also upon the want of a proper inspection. Experienced loaders gave evidence on the trial that the car was improperly loaded. The testimony on both of these questions was ample in my judgment to carry them to the jury. But it is said that the deceased was a fellow-servant of the loaders, and therefore plaintiff cannot recover. Notwithstanding this fact, if the defendant was negligent in its inspection of the car béfüreplacing it in the train, the fact that the deceased was a fellow-servant of the loaders would furnish no protection to defendant against its own negligence. McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597); Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 89 Am. St. Rep. 461); Welch v. Traction Co., 154 Mich. 399 (117 N. W. 898).
The right to recover is finally denied plaintiff on the ground that in boarding the train to ride from his work to his home in Wolverine the deceased violated Act No. 300 of the Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6524), prohibiting free transportation. From the testimony it clearly appears that the deceased understood that he had a right to ride by reason of some arrangement between his employer and defendant. The conductor recognized this right and permitted him to ride, and, from the testimony, it further appears that in 1907 some agreement was made whereby the loaders were to be carried to and from their work. If the transportation of the loaders was being taken care of by the agreement, the deceased was not violating the act prohibiting free transportation.
But whatever the facts are concerning the agreement, it was conclusively shown that both the deceased and the conductor understood that plaintiff’s intestate was to be carried to and from his work. This being so, the deceased thereby became a passenger and was *342entitled to the same protection against negligent injuries that other passengers were entitled to on the logging train. It is said his belief that he had a right to ride and his ignorance of the law cannot avail him. If the deceased, in good faith, believed he had the right to ride, as the jury found by their verdict, he jiould not be guilty of wilfully violating the law. But suppose he did know the law and was in doubt about his right to ride, but was accepted and recognized as a passenger by the conductor, how does that absolve the defendant from answering to him or his estate for negligent acts for which it would be obliged to answer to any other passenger? If it is to be held that the company is absolved because the deceased was riding in violation of law, what becomes of the case of Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33), wherein it is held:
“That a'party traveling upon the highway upon a Sabbath, either from necessity or for pleasure or business, who is injured by a collision with a railway train at a crossing, is not barred from recovery against the [railroad] company for its negligence from the fact that the injury occurred on Sunday.”
The only difference between that case and this is that in the case cited the plaintiff alone was violating the law, whereas in this case it is said both plaintiff and defendant were violating it. The rule governing such cases is very clearly laid down by Hutchinson on Carriers (2d Ed.), (section 566).
“The carrier is liable to persons whom it accepts for transportation over its line, and from whom it demands no fare, to the same extent that it is liable to passengers who pay fare. A person riding on a free'pass is as much a passenger as if he were paying full fare, and if the pass is given for a valuable consideration, he is a passenger for hire. The fact that the carrier is prohibited by law from issuing free passes does not render a person a trespasser who travels upon such a pass unlawfully HssuecTTo him. *343If the pass is unlawful, the conductor should demand the regular fare, and his failure to do so will not make the traveler a trespasser, nor destroy his rights as a passenger.” [5 Am. & Eng. Enc. Law (2d Ed.), pp. 507, 508.]
This rule has been followed by many State courts and by the Federal Supreme Court. Buffalo, etc., R. Co. v. O’Hara, 3 Penny. (Pa.) 190; McNeill v. Railroad Co., 135 N. C. 682 (47 S. E. 765, 67 L. R. A. 227); John v. Railway Co., 42 Mont. 18 (111 Pac. 632, 32 L. R. A. [N. S.] 85); Bradburn v. Light Co., 45 Wash. 582 (88 Pac. 1020, 14 L. R. A. [N. S.] 526); Gabbert v. Hackett, 135 Wis. 86 (115 N. W. 345, 14 L. R. A. [N. S.] 1070; Schuyler v. Southern Pacific Co., 37 Utah, 581 (109 Pac. 458); Id., 37 Utah, 612 (109 Pac. 1025); Southern Pacific Co. v. Schuyler, 227 U. S. 601 (33 Sup. Ct. 277, 43 L. R. A. [N. S.] 901).
The last case cited deals with the penalty clause of the Hepburn act (Act June 29, 1906, chap. 3591, 34 Stat. 584, § 1 [U. S. Comp. Stat. Supp. 1911, p. 1284]) which makes both the giver and receiver of free transportation equally guilty of a violation of the act. It is said:
“But, finally, it is argued (b) That it was beyond the power of the State court to ‘read into the Hepburn act an exception in favor of gratuitous passengers,’ thereby (as is said) enlarging the class to whom Congress limited the right of free interstate transportation. This is ingenious, but, as we think, unsound. As applied to-the concrete case, it is equiva- • lent to saying that the operation of the Hepburn act is such as to deprive one who, in good faith and without fraud, and with the consent of the carrier, but in actual though unintentional violation of the prohibition of the act, accepts a free passage in interstate transportation, of the benefit of a rule of local law that renders the carrier in such circumstances responsible for exercising care for the passenger’s safety because the carrier has voluntarily undertaken the *344burden of such care. But the act itself declares what penalty shall be imposed for a violation of its prohibition:
“ ‘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 one hundred dollars nor more than two thousand dollars, 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.’
“This penalty is not to be enlarged by construction. Neither the letter nor the spirit of the act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage. The deceased no more forfeited his life, limb, or safety, and no more forfeited his right to the protection accorded by the local law to a passenger in his situation, than the carrier forfeited its right of property in the mail car upon which the deceased rode. His right to safe carriage was not derived, according to the law of Utah, from the contract made between him and the carrier, and therefore was not deduced from the supposed violation of the Hepburn act. It arose from the fact that he was a human being, of whose safety the plaintiff in error had undertaken the_ charge. With its consent he had placed his life in its keeping, and the local law thereupon imposed a duty upon the carrier, irrespective of the contract of carriage. The Hepburn act does not deprive one who accepts gratuitous carriage, under such circumstances, of the benefit and protection of the law of the State in this regard.”
In my opinion the judgment of the trial court should be affirmed.
Kuhn and Ostrander, JJ., concurred with Bird, J.