1. Although the plaintiff was riding upon a free pass, the relationship of passenger and carrier between her and the defendant was unaffected by that fact. A person riding upon a pass is as much a passenger as if he had paid full fare (2 Moore, Carriers, 2d ed. 975. Rogers v. Company,86 Me. 261), and is entitled to all the care and protection which the carrier is bound to furnish to paying passengers. 2 Hutchinson, Carriers, (3d ed.), ss. 1021, 1022. Todd v. Railroad, 3 Allen 18, 21. See 10 C. J. Tit: Carriers, s. 1310, where *Page 477 the cases are collected. This relationship continued until she had a reasonable opportunity to leave the station. Hill v. Railroad, 77 N.H. 151. The defendant was bound to exercise ordinary care to have the station platform in reasonably safe condition for the use of all its passengers including the plaintiff. Haselton v. Railway, 71 N.H. 589; Byron v. Railroad, 82 N.H. 434. The agreement in question did not purport to relieve the defendant from its duty to exercise ordinary care with reference to the plaintiff. It merely granted to it a release from liability in case this duty was violated. The sufficiency of the evidence of defendant's fault with reference to the condition of the platform is not seriously questioned. It, therefore, follows that the motions for a nonsuit and a directed verdict were properly denied unless the plaintiff is barred from recovering by reason of the stipulation contained in the pass.
It is well established law that stipulations intended to relieve a common carrier from liability for negligence are invalid if the transportation is for hire, (Baker v. Railroad, 74 N.H. 100; Peerless c Co. v. Railroad,73 N.H. 328; Durgin v. Company, 66 N.H. 277; Duntley v. Railroad,66 N.H. 263; 2 Hutchinson, Carriers, (3d ed.) ss. 1072-1074) but the contention of the plaintiff that there was legal consideration for the pass in question cannot be adopted in view of the provisions of our statute with reference to passes. P. L., c. 242, ss. 13-15. This statute provides that "no railroad corporation shall issue or give any free ticket, free pass or free transportation for passengers between points within this state except to its officers and employees and their families, . . .," and forbids the rendering of service for any other compensation than that fixed by its schedules on file with the public service commission. If it were true, as the plaintiff argues, that "the pass on which Mrs. Wessman was traveling was issued at the request of Mr. Wessman in consideration of his services to the railroad," we should be forced to the conclusion that it was illegally issued, but the evidence does not justify this conclusion. The only testimony upon this point was that of the plaintiff Charles, who testified that after working for the defendant a year, he held an annual pass and "could get" trip passes for his family once a month; that he was "entitled to monthly passes" for his family and that the same "privilege" was accorded to other men working in the shop. This evidence would not justify and much less compel a conclusion that the railroad was under a legal obligation to issue the pass in question since this would violate the statute which forbids the rendering a service for compensation not mentioned *Page 478 in its schedule of rates. The court will not give to an agreement or understanding an interpretation which would render it illegal and void when there is a perfectly obvious sense in which it may be given legal effect. Anything but a free pass to members of an employee's family is forbidden by the statute. The railroad apparently undertook to comply with the statute — not to violate it. The pass in question was by its terms denominated a free pass, and must be so regarded. Charleston c. Railroad Co. v. Thompson,234 U.S. 576. It, therefore, becomes necessary for us to decide whether the holder of a free pass is bound by the terms of his agreement releasing the carrier from liability for personal injuries.
Although we have never before been called upon to determine this precise point, it can hardly be regarded as an open question in this jurisdiction. The policy of this state with reference to contracts designed to relieve a party from the consequences of the non-performance of his common-law duty to exercise ordinary care has been so plainly stated as to permit of only one conclusion. In Baker v. Railroad, 74 N.H. 100, 112, it was set forth as follows: "It is against the policy of the law to permit anyone, be he common carrier or not, to relieve himself by contract from the performance of his common-law duty to use ordinary care to avoid injuring those with whom he knew or should have known his business would bring him in contact." While this statement was not necessary to the decision in that case, it was accepted by a majority of the court as a correct exposition of public policy, and the principle therein enunciated was applied to its fullest extent as a basis of decision in the case of Conn v. Company, 79 N.H. 450. In that case, when considering the effect of a covenant in a lease, by which the lessee agreed to save the lessor "harmless from any liability by reason of personal injuries to any person or persons on or about the said premises," the court said: "It must be held either that the defendant did not agree to save the plaintiff harmless in so far as liability to its employees is concerned, or that, if it did, the agreement is illegal; for notwithstanding it is permissible for me to insure you against liability to others for injuries caused by your future misconduct, it is not permissible for me to agree to release you from liability to me for injuries caused by such misconduct." The court apparently regarded the principles thus enunciated as so well established that the citation of authorities in their support was unnecessary.
The foundation for the rule of policy above stated has not been given extended consideration, but from the language used in the *Page 479 Baker case and the citation of Nashua c. Co. v. Railroad, 62 N.H. 159,161, it appears that the real reason for the rule is to be found in the cardinal importance attached to the doctrine of ordinary care in this state. The pre-eminent position here accorded to this canon of conduct is attested by the statements of the court in Nashua c. Co. v. Railroad, supra. "Everyone in the conduct of his lawful business is bound to act with this degree of care, and if he fails to do so is responsible for the consequences. It follows that a person injured by reason of his want of ordinary care, or (since the law makes no apportionment between actual wrong-doers) by the joint operation of his own and another's negligence, is remediless. This general rule of law justly applied to the facts, determines, it is believed, the rights of the parties in all actions for negligence."
The unvarying application of this rule to varying relationships has frequently been exemplified. Interesting instances are to be found in Benoit v. Perkins, 79 N.H. 11; Conway Nat. Bank v. Pease, 76 N.H. 319; Cavanaugh v. Railroad, 76 N.H. 68; Garland v. Railroad, 76 N.H. 556, 567; Burnham v. Stillings, 76 N.H. 122, 123; Hobbs v. Company, 75 N.H. 73; Pittsfield c. Company v. Company, 71 N.H. 522; Edwards v. Lamb,69 N.H. 599; Dunlap v. Dunlap. ante, 352.
It is the declared policy of this state that the operation of this rule, which is reasonable in theory and salutary in effect, shall not be interrupted by private contract. There seems to be no occasion for announcing a different rule of policy with reference to the stipulations or agreements contained in free passes. Since we feel that the prior decisions of this court compel the conclusion which we have reached, a consideration of the state of the authorities in other jurisdictions will serve no useful purpose. Inasmuch as the pass in question permitted travel only within the limit of this state, the federal rule concerning passes for interstate travel is not involved.
Neither do we see any reason for drawing the distinction suggested by the defendant between "the negligence of the employees of the defendant" and the "negligence of the defendant itself." Counsel for the defendants concede that, so far as they have been able to ascertain, "no court has ever undertaken to draw the line in the case of a corporation which can act only through agents and servants" for the purposes of this rule. In the case of contracts for hire, no such distinction is permissible under the rule as it has been formulated in this state. "A common carrier cannot stipulate for exemption from responsibility for the negligence of himself or his servants on *Page 480 grounds of public policy, or even by express contract." Durgin v. Company,66 N.H. 277, 279. As indicated above, we think that a uniform rule should govern both special contracts for hire and free passes.
This conclusion disposes of defendant's exceptions to the denial of its requests numbered 3, 4 and 5, all of which were based upon the foregoing theory.
Defendant's counsel offer convincing reasons why the possible distinction suggested in Baker v. Railroad, supra, between delegable and non-delegable duties should not be adopted in this class of cases, and we are disposed to agree that such a distinction "has no place in the branch of the law which we are now discussing."
It follows that the trial court was correct in its ruling that the release of liability contained in the pass was void, and the motions for a nonsuit and a directed verdict were properly denied.
2. The defendant seasonably requested the court to charge the jury as follows: "There is no evidence of negligence of the defendant with respect to the roof or gutters on the train shed at Manchester which contributed to cause this accident." This request was denied and the defendant excepted. A determination of the question thus presented necessitates a further examination of the facts.
The station platform upon the east side of the defendant's tracks in Manchester, where the plaintiff fell, is constructed of concrete with a curb next to the rails. Over it is a slate roof which slopes toward the tracks and covers the whole of the platform except a strip of "approximately two feet around the edge." Along the eaves of this roof runs a built-in gutter from which the water is carried off in pipes. The plaintiff testified that she fell "about under the gutter or eaves of the roof" and that the cause of her fall was a "bunch" or "ridge of ice" about a foot wide and "perhaps half an inch or so high." It was the contention of the plaintiff that the water from which this ice was formed came from the gutter, which had either leaked or overflowed, and that the defendant was negligent in maintaining it in such a condition as to permit this escape of water. The court instructed the jury that there was "no direct evidence that the gutters were leaking at the time of this accident" but, subject to defendant's exception, submitted to them the issue whether "it is more probable than otherwise that the gutters were leaking at that time," and "that their condition was due to the negligence of the defendant or its employees."
The major premise of the plaintiff's argument in defence of this *Page 481 ruling is thus stated in her brief: "The greater relative thickness of the ice and its location and shape would indicate that more water than the normal rain-fall had entered into its formation. There was no source from which this additional water could come except the gutter above." In support of the last assertion, reliance is placed upon the evidence of the "outside janitor" of the station who testified as follows: "Q. Were the gutters leaking? A. I couldn't tell you. I am not supposed to watch the gutters at all, not a bit. Q. Where did all this ice come from if the gutters didn't leak? A. I don't know. Q. Do you know of any other cause for it? A. No, sir. Q. How long had the gutters been leaking? A. I couldn't tell you, sir. . . . Q. Didn't these gutters leak when you had rain? A. I don't know, sir. I never took notice at all. Q. How long did you work there? A. Six months. Q. You worked there six months and one of your duties was to sand the platform if there was any ice on it and you didn't find out whether or not the gutters leaked? A. I never found that out at all, . . . Q. And you don't know whether the gutters leaked during that time? A. No, sir, I don't. Q. Why not? A. It is too far ago, I can't remember that. I never took notice of it."
The fact that this witness, while disclaiming any knowledge as to leaky gutters, or the actual cause of the ice, also disclaimed knowledge of other possible causes beside the one suggested by counsel, did not justify a conclusion that there was no other source from which water could have come. The witness did not even say that in his opinion there was no other source, he merely asserted or admitted his complete ignorance upon the subject. Such a statement regarding any controverted fact will not, in the absence of peculiar circumstances lending it unusual significance, support any conclusion as to the existence of the fact. It may be that if an expert, called to account for the happening of some abstruse phenomenon, should testify to a possible cause and add that he knew of no other, a conclusion that there was no other would be justified. But no such weight can be attached to the testimony of this witness. His position from beginning to end was, that the condition of the gutters and the cause of the ice were matters entirely outside his sphere of activity about which he knew nothing. Such testimony furnishes no logical basis for a finding of any fact regarding the subject under consideration. When, as in this case, it evidences a total disregard of other factors within the common knowledge of all, its worthlessness becomes doubly apparent. *Page 482
The position of the ice under the eaves is the only fact which points to the gutters as a possible source of the water. Yet, there are many other possible explanations for the presence of this patch of ice. It is a matter of common knowledge that liquids of many kinds are carried by express, handled on station platforms and occasionally spilled. Everybody knows that perishable products are frequently packed in ice, and that the packages often leak. If this patch of ice was under the eaves of the roof it must also have been in close proximity to the eaves of cars passing through the station on the north bound track from which water might be thrown in stopping or starting. The ground was covered with snow, which might be carried onto the platform in many ways. In short the causes which may result in a small accumulation of ice on a station platform in New Hampshire in December defy enumeration. In the absence of tangible evidence that the gutter in question actually leaked or overflowed, the mere position of this piece of ice would justify nothing more than a surmise that the water from which it was formed might have come from the gutter. This is not the kind of proof which the law requires. Deschenes v. Railroad, 69 N.H. 285. The efforts of plaintiff's counsel to show that the gutters were leaky met with complete failure. The testimony that "they collect more or less cinders" came to nothing in the absence of evidence of their actual condition at the time, or that they actually overflowed. Since the plaintiff's argument fails at this crucial point it is unnecessary to consider its other weaknesses. Our conclusion is that it was error to submit to the jury any issue of negligence, with reference to the condition of the gutters.
3. Subject to defendant's exception the plaintiff was permitted to testify that she did not read the pass before she signed it; that she did not know from any source what was in the paper that she signed; that she had only been to school for two terms and was not able to read well enough to read the pass. In any aspect of the case this evidence was immaterial, and for that reason, inadmissible. Under the law as it was declared by the presiding justice, it is plain that this evidence had no bearing upon any issue before the jury. If a contrary view of the law had been entertained it would have been equally immaterial. Lauze v. Insurance Co., 74 N.H. 334; Boering v. Railway, 193 U.S. 442; Quimby v. Railroad, 150 Mass. 365. The prejudicial effect of this evidence cannot be doubted. By its admission the jury may well have been led to believe that the railroad had taken advantage of the plaintiff's ignorance to secure *Page 483 her signature to a release which she could not read and did not understand. Defendant's exception to the admission of this testimony must be sustained.
On account of the foregoing errors the order must be
New trial.
All concurred.
ON REHEARING. After the foregoing opinion was filed the defendant moved for a rehearing upon the question whether a distinction should be drawn "between the defendant's personal negligence and the negligence of its employees," and argument was invited upon this motion.