William O. Douglas

“ The free pass in the present case stated that 'the user assumes all risk of injury to person or property and of loss of property whether by negligence or otherwise and absolves the issuing company * * * from any liability therefor.' In Northern Pacific R. Co. v. Adams, supra, a similar provision in a free pass was sustained as a defense to an action brought under an Idaho statute by the heirs of a passenger. ”

“ Amendments were made to the free-pass provision of the Act to permit free transportation of additional classes of persons. [3] No other amendments to the free-pass provision were made. It was reenacted without further change or qualification. In view of this history we do not reach the question of what construction we would give the Hepburn Act were we writing on a clean slate. The extent to which we should rely upon such history is always a difficult question which has frequently troubled the Court in many fields of law and with varied results. ”

“ We do not stop to inquire into the merits of the claim. The objection was made for the first time in the motion for a new trial. It seems to have been an afterthought, as the Thiel case was decided a few weeks after the verdict of the jury in the present case. If not an afterthought, it is an effort to retrieve a position that was forsaken when it was decided to take a gamble on the existing jury panel. ”