David Josiah Brewer

“ It cannot be that, if the death was caused by a rightful act, or an unintentional act, with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed, but only injured. The company is not under two different measures of obligation,-one to the passenger and another to his heirs. If it discharges its full obligation to the passenger, his heirs have no right to compel it to pay damages. ”

“ Did the company omit any duty which they owed to the decedent? He was riding on a pass which provided that the company should 'not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person.' He was a free passenger, paying nothing for the privilege given him of riding in the coaches of the defendant. He entered those coaches as a licensee, upon conditions which he, with full knowledge, accepted. He was not a passenger for hire, such as was held to be the condition of the parties recovering in New York C. R. Co. ”

“ The specific matters of negligence charged are the placing a nonvestibuled car in a vestibuled train, and the high rate of speed at which the train passed around the curve at the place of injury. But nonvestibuled cars are in constant use all over the country,-were the only cars in use up to a few years ago,-and further, the deceased, having passed over the open platform, knew exactly its condition. ”