There being made some question whether the indorsement on the ticket (“the person accepting this free ticket assumes all risks',' &c., and expressly agrees" &e.) is a contract, on the part of the passenger, with the company; it seems necessary to say that the word “agreed” means the concurrence of two parties; and that the act of acceptance binds the acceptor as fully as his hand and seal would. (Co. Litt., § 217, note; 5 Hill, 258, 259; 1 Seld., 229; 27 Barb., 140; and cases there cited.) The point is too well settled to admit of debate.
The true questions in the case arise upon the legality of such a contract; and what acts or omissions it does; by fair construction, cover. The terms, “negligence,” “ ordinary negligence,” “ gross negligence,” had their origin in the rules of law as fixed in regard to bailments, generally; and not in regard merely to the duty of common carriers, since they were held responsible for any and every degree of negligence. But a naked depositary, without reward, was responsible only for gross negligence; and gross negligence, in that use of the term, was considered as evidence of fraud; and, unexplained, equivalent to fraud-. (Jones’ Bail., 36, 46.) The term has since been used, in reference to common carriers of goods, as pointing out such acts as they were not at liberty to exempt themselves from liability for, even by an express contract, in terms covering them. That they could not so exempt themselves was decided upon grounds of public policy—evidently for the reason that such acts were evidence of fraud, or willful injury; and that a carrier of goods was in so absolute and unwatched control of the goods, that it would .not answer to allow him to rebut such evidence. And it is of course the law, that no one can, by contract, shield himself from liability for his own fraud, or for his own willful acts.
Holding this to be the true reason of the rule, and its right interpretation, and granting that it applies to individual carriers of persons, does it apply to corporations, which carry persons ? Fraud and willful misfeasance include a will, a motive; and a corporation, as such, can have no motive, no will; *184 though its agents may have both. Still it would hardly do to hold the property of corporators liable for the willful or criminal act of a person employed by the corporation. Such acts cannot be said to be done in the course of his employment
Were a switchman willfully to misplace a switch, so that a .train of cars were thrown off, and many passengers killed; the man would be guilty of homicide; but the railroad company could not be held responsible for the damages, any more than could the owner of a carriage and horses, should his driver willfully run them among a crowd of persons, trampling and crushing all before him.
As to the construction of the contract; it would seem, from what has been said, that the term “ gross negligence,” as used in the law, has a technical meaning, which is not properly applicable to those acts of servants of a corporation, for which the corporation is responsible; though as between their acts, which are slightly negligent, and those which are very negligent, there is no different rule of responsibility. It is the fact of negligence (mere negligence), and not its degree, which incurs the liability.
This being so, and taking the terms of this contract, “thé company shall not be liable under any circumstances, whether of negligence of their agents or otherwise, for any injury, &c., of the passenger using this ticket;”—against what liability does it contract? We are not to give it a construction, that would make it illegal, unless that be the only fair construction; and its plain purport provides against “ circumstances of negligence ;” the words “or otherwise” being too vague to be held to bear an illegal meaning. It is, then, a contract not to be liable for the mere negligence of the agents of the company.
I am aware that the judge, at the circuit has found that the act of the agents, in this case, was one of “ gross negligence.” But in so finding he has gone beyond the stipulation as to the facts; which is that the injuries were occasioned by means of the negligence of the agents; the stipulation covering the same ground as the contract, and the complaint making no other allegation. And the case must be considered as if the *185 word “gross” were omitted in the finding, as it is in the evidence (or stipulation): had the plaintiff wished it in his case, he should have said so, and put it there.
Upon the reasoning above, and upon any legal principle — whether founded upon public policy, or otherwise — there seems to be nothing illegal in such a contract. It cannot, reasonably, be said that because five or ten, persons on a train that carries two hundred, have such passes, there is the less inducement to care on the part of the company, or its . agents; or that a feeling of indifference to human life would be thereby caused. The quantum of interest, the ratio of motive, is too utterly insignificant, when compared with the vast liability not protected by any contract, and binding the company and its agents to every measure of caution. That agents will be careless; that no considerations are sufficient to induce constant vigilance; we have frequent and terrible proofs. But the holding of such contracts illegal would not even tend to alter the fact.
Independently of, or rather in accordance with, these views, upon principle, the case of Wells and Tucker against the Steam Navigation Company (4 Seld., 375), seems an authority, of the same general tendency. Although it was there held that the words “ at the risk of the owner,” did not cover the proved acts of the agents of the defendant;, and although the case uses the term “ gross negligence” in ásense different from the one above given to it, still the case holds that those, defendants did not, not that they could not, protect themselves from liability in the case proved. And (at p. 381), Judge Gardiner said, “ Although the law will not suffer a man to: claim immunity by contract against his own fraud, I know no reason why this may not be done in reference to fraud or felony committed by those in his employment.” It is by no, means necessary, to go so far now, but, a fortiori, he may; protect himself by contract against the negligence, in any: degree of his agents.
The judgment of the Supreme Court should be affirmed.
*186 Denio, Davies, Allen and Smith, Js., concurred.