Pratt

Defendant appeals from a judgment of $5,280, entered upon an adverse jury verdict in a personal injury action brought by a passenger riding on a free pass in a single, self-propelled diesel passenger unit known as a “Budd car.” Defendant also appeals from an order denying its motion for judgment notwithstanding the verdict. The unit is hereafter referred to as “the train.”

The pass had on its back a printed notice under which plaintiff had affixed her signature. This provided that the holder (plaintiff), by accepting the pass, “agrees to assume all risk of accident and damage to person or baggage in any circumstances and absolves The Western Pacific Railroad Company from all liability therefor.”

The trial court held that appellant could, by such an agreement, exempt itself from liability for its negligence but could not do so for its gross negligence.

Walther v. Southern Pac. Co., 159 Cal. 769, 772-774 [116 P. 51, 37 L.R.A. N.S. 235], is direct authority for this holding as applied to intrastate trips. The rule as to interstate trips is different, being controlled by federal law. (Donnelly v. Southern Pac. Co., 18 Cal.2d 863, 867-868 [ 118 P.2d 465 ] ; Francis v. Southern Pac.…