I think this case deserves further consideration, not because I am convinced that the judgment of the superior court is erroneous, but because the decision here is based upon a ground which will include cases affected by considerations different from those which may properly be deemed controlling in this case. It is held in the opinion of the court that no matter how entirely gratuitous the transportation of a passenger may be, he can never bind himself, in consideration of such transportation, to waive any claim for damages based upon the gross negligence of a common carrier or his servants. It is, in my opinion, unnecessary to lay down so broad a rule in order to sustain this judgment. The fact that the pass in question here was issued to an employee of the defendant, in accordance with its long-established and well-understood practice, would warrant the conclusion that his transportation was not purely gratuitous; for it is reasonable to suppose that the privilege of free transportation to employees would in many, if not in all, instances affect the terms upon which men would be willing to enter, or to continue in, the service of a railway corporation, and would, *Page 777 in the long run, result in a considerable pecuniary advantage to the company — an advantage imposing a corresponding obligation to issue the pass when requested.
In this view, the issuance of a free pass to a railway employee rests upon a valuable consideration. But there are many other classes of persons, as, for example, sick, destitute, or homeless, but deserving persons, to whom railway companies and other common cariers are permitted to issue free passes, and for whom they do provide transportation for no consideration except the promptings of common humanity. Certainly there is no justice or sound policy in a law which sets a premium on inhumanity by warning a person, otherwise disposed to extend relief to one in dire need of it, that he can only obey the promptings of compassion at the risk of serious pecuniary loss. But that is what our law of common carriers does if it has been correctly construed in the broad declaration that "on whatever terms a common carrier of persons voluntarily receives and carries a person the relation of common carrier and passenger exists." This proposition is only partly true, and the particular in which it falls short of the truth is precisely that element in the ordinary relation of carrier and passenger which takes the case of purely gratuitous transportation out of the operation of section 2175 of the Civil Code. The definition of common carrier found in section 2168 of the Civil Code comes no nearer defining the relation of carrier and passenger than the definition of lawyer would to defining the relation of attorney and client. What the true relation is in either case is to be gathered from those provisions of the statute which prescribe the mutual rights and duties of the parties. It is the duty of a common carrier to provide transportation for passengers, and the right of the passenger to be transported, but only on condition that thepassenger pays the regular fare. (Civ. Code, secs. 2169-2173.) If the person desiring transportation cannot pay, and stands in no relation to the carrier which gives him a right to demand free transportation, the carrier owes him no duty, and in granting him free transportation as a mere bounty he steps out of his character as a common carrier and deals with him in a relation essentially different from the legal relation of common carrier and passenger. If, in such case, the carrier requires a waiver of claims for damage, it is absurd to suppose *Page 778 that he is craftily bargaining for exemption from any claims based upon his willful torts or meditated fraud. No agreement would shield him from such claims, and since he could make no profit out of the free transportation of a passenger a motive for such an elaborate contrivance is hard to imagine. But that he should desire to be exempt from claims based upon the mere forgetfulness, ignorance, or unskillfulness of himself or his servants, is natural and entirely justifiable. To say that a common carrier, merely because he is a common carrier, cannot in such circumstances stipulate as freely for exemption from claims for damages as any other person, is to ignore the fact that for the sole benefit of the passenger he has waived the rights and in so doing divested himself pro hac vice of the character of a common carrier.
The decision of the court, in my opinion, goes too far in putting upon the same plane with employees of a railway company traveling upon passes issued in accordance with its general custom, those who are carried out of simple compassion.