concurring in part, dissenting in part.
I am unable to agree that the contractual provisions in this case shielding the defendant carriers from adjudicated liability should be given legal effect for two reasons. First, I am persuaded that there existed consideration for the railroad pass, and therefore, this case is controlled by Martin v. Greyhound Corporation, 227 F.2d 501 (6th Cir. 1955), cert. denied, 350 U.S. 1013, 76 S.Ct. 657, 100 L.Ed. 873 (1956). Second, it is contrary to public policy to permit the contracting away of the liability for one’s negligent conduct to one’s employees where the employer enjoys the benefits of what is in effect a public monopoly. In effect defendants seek the benefits of monopoly status as well as the fruits of the free enterprise system.
Charleston & Western Carolina Railroad v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed.2d 1476 (1914), serves as the cornerstone of the majority opinion. Thompson holds that the mere possibility of an occasional pass from the railroad company, even *828if constituting a partial motive for employment, would be insufficient consideration. Thompson’s recovery was accordingly barred. I question the wisdom of applying this seventy year old notion of consideration to our modern world. Today’s decision requires railroad employees to make an established benefit — riding on its employer carrier for less than published rates — the subject of a collective bargaining agreement and possibly a strike before this court recognizes the benefit as being given in a bargained-for-exchange.
To believe that business organizations actually make a charitable “freebie” to its employees when employees or members of their families ride under the pass, is to ignore economic reality. Employees certainly weigh such factors before either taking initial employment or evaluating potential provisions for purposes of collective bargaining sessions. Given the harsh fact that fuel costs have skyrocketed (and concomitantly increased travel costs), it borders on the absurd to suggest that the availability of travel passes at reduced rates does not induce employment with the railroad.
In Martin v. Greyhound Corporation, supra, this circuit recognized that “[t]he passes were in a real sense part of the compensation paid . . .” While the specific contractual provision dispelled all possible speculation that the character of the pass was a gratuity, Martin did recite Norfolk Southern Railroad Co. v. Chatman, 244 U.S. 276,. 37 S.Ct. 499, 61 L.Ed. 1131 (1916), in which the Supreme Court acknowledged that “the mere designation of a pass as free does not constitute it a gratuity.” Id. As the plaintiff’s employer, Louisville and Nashville Railroad, was obligated to pay Amtrak some cost in providing passenger service to Thompson, consideration was in fact present.1
The second reason which prevents my concurrence in the majority’s denial of employee Thompson’s claim, is purely a matter of public policy. We should not sanction outmoded policies, technical defenses, or fictions which operate to defeat a just application of the law. Here, employee Thompson accepted a traveling pass which realistically constituted compensation for his status as an employee, and in the same action was required to waive injury resulting from his employer’s negligence. Must Thompson refuse a part of his compensation, i. e., the railroad pass, in order to maintain his right of legal redress? Clearly the employer railroad utilized its superiority to insulate itself from suit by its employees. This contractual waiver was not the result of a collective bargaining agreement. Judicial decisions in other areas of the law provide ample support that it is contrary to public policy to permit such overreaching in this modern day. In 1914, when Charleston & Western Carolina Railroad v. Thompson, supra, was decided, the validity of a waiver of liability was undisputed. With the emergence of modern notions of public policy this is no longer true today.2 Because the majority opinion refuses to permit this ancient manner of overreaching to die by denying plaintiff employee Thompson his right of recovery, I dissent.
. Amtrak argues that the rejection by the Interstate Commerce Commission of Amtrak’s request for full reimbursement of allocated cost eliminates consideration as an issue. But a review of the record reveals that $.0087 per mile was awarded; consideration therefore was present.
. In addition to the authorities cited in n.3 of the majority opinion, see the Uniform Commercial Code on unconscionability, U.C.C. §§ 2-302, 2-719.