In fact, in one case, the Court held that the Carmack Amendment did not create a substantial federal question in a personal injury case. Chi., Rock Island & Pac. Ry. Co. v. Maucher , 248 U.S. 359, 363, 39 S.Ct. 108, 63 L.Ed. 294 (1919). There, the plaintiff was injured during a train crash and brought suit against the railroad.

See, e.g., Chicago, R.I. P.R. Co. v. Maucher, 248 U.S. 359, 363. See also cases collected in 76 A.L.R. 428-435.

If the carrier "was under no statutory or common law obligation to render the special service, there were no reasons of public policy which forbade the rendition of such service upon such terms as the parties might stipulate." Mr. Justice Lurton in Clough v. Grand Central R. Co. 155 F. 81; Santa Fe, etc. R. Co. v. Grand Bros. Cons. Co., 228 U.S. 177; Chicago, etc. R. Co. v. Maucher, 248 U.S. 359. Cf. Davis v. Cornwell, 264 U.S. 560. That the rental or letting out of equipment by carriers, for a special service as, for instance, to a circus, is not within ordinary common-carrier duties, is recognized in Chicago, etc. R. Co. v. Maucher, supra, and has been so held in many decisions of state and federal courts Clough v. Grand Trunk R. Co., supra; Robertson v. Old Colony R. Co., 156 Mass. 525; Coup v. Wabash, etc. R. Co., 56 Mich. 111; Forepaugh v. Del., etc. R. Co., 128 Pa. 217; Chicago, etc. R. Co. v. Wallace, 66 F. 506; Wilson v. Atlantic, etc. R. Co., 129 F. 774; Yazoo M.V.R. Co. v. Crawford, 107 Miss. 355; Sager v. Northern Pac. R. Co., 166 F. 526.

its, but the Commission recognizes the peculiar nature of this traffic and the difficulty of establishing rates thereon in advance of shippers' request describing the character and volume of the traffic ordered, * * *." Appellant Railroad, in an effort to avoid the unfavorable effect on it of the laws of Wisconsin, and also of Illinois and Texas, as ruled by the District Court, insists that federal law is determinative of this case, that the Railroad is subject to the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., that the Carmack Amendment to that Act, 49 U.S.C.A. § 20 (11), regulates the carrier's power to limit its liability for the carriage of property in interstate commerce, and, manifests such a comprehensive plan that there is no room for state regulation, citing American Express Co. v. United States Horseshoe Co., 244 U.S. 58, 37 S.Ct. 595, 61 L.Ed. 990; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, and that the case of Chicago, R.I. Pac. Ry. Co. v. Maucher, 248 U.S. 359, 39 S.Ct. 108, 63 L. Ed. 294, relied upon by the District Court, is inapplicable. Thus far, we find ourselves in agreement with the appellant Railroad. In the Maucher case, supra, the injured person was a circus employee whose transportation was provided for by the contract.

( Port Richmond etc. FerryCo. v. Freeholders of Hudson County, 234 U.S. 317 [34 Sup. Ct. 821, 58 L.Ed. 1330]; Geer v. Connecticut, 161 U.S. 519 [16 Sup. Ct. 600, 40 L.Ed. 793]; Plumley v. Massachusetts, 155 U.S. 461 [15 Sup. Ct. 154, 39 L.Ed. 223]; Cooley v. Board ofPort Wardens, 12 How. 299 [13 L.Ed. 996]; Chicago, R.I. P.Ry. Co. v. Maucher, 248 U.S. 359 [39 Sup. Ct. 108, 63 L.Ed. 294]; Chicago M. St. P. Ry. Co. v. Solan, 169 U.S. 133 [18 Sup. Ct. 289, 42 L.Ed. 688]; Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477 [24 Sup. Ct. 132, 48 L.Ed. 268].) If a statute is enacted by Congress covering the subject of the state's regulation, it supersedes the state statute or decision.

Messrs. Henry E. Davis and Lide McCandlish, for appellants, cite: In cases affecting interstate commerce Federalpractice governs: 147 S.C. 487. Punitive damages: 37 L.Ed., 97; 105 S.C. 287. No actual damages where nophysical injury: 182 Fed., 613. Messrs. H.E. Yarboro, Jr., J.C. Hooks and A.F. Woods, for respondent, cite: Nervous shock and sickness constitutephysical injury: 158 S.C. 25; 136 U.S. 241; 253 U.S. 77. Special relation of carrier and passenger: 108 S.C. 151; 94 S.C. 282; 130 S.C. 408; 143 S.C. 91; 79 S.E., 307; 113 S.E., 678. Authority of Congress paramount overinterstate commerce: 169 U.S. 133; 191 U.S. 477; 230 U.S. 352. Until exercised by Congress State may exercisepower: 191 U.S. 477; 211 U.S. 612; 226 U.S. 491; 230 U.S. 352, Ann Cas., 1917-A, 973. Existence of relationof carrier and passenger and redress for injury are tobe decided by law of the State: 227 U.S. 601; 54 S.C. 498; 81 S.C. 319; 248 U.S. 359; 258 U.S. 22; 244 U.S. 205. Stipulation releasing liability on pass is valid: 192 U.S. 440; 234 U.S. 576; 13 C.J., 247. Punitive damagesto interstate passengers sustained: 93 S.C. 533; 94 S.C. 282. Slight evidence of ratification sufficient to takequestion to jury: 5 R.C.L., 152; 10 C.J., 988, 989. April 20, 1931.

The appellee was merely a licensee upon the freight train, permitted to be there as an employee of the telegraph company in pursuance of the contract between the appellant and the telegraph company. The Supreme Court of the United States has held that circus employees who were being transported upon cars attached to freight train under substantially the same conditions as those involved in this case are not passengers. C., R.I. P.R.R. Co. v. Maucher, 248 U.S. 359. To the same effect, see Robertson v. Old Colony R.R. Co., 166 Mass. 525. It has also been held that the following are not passengers: Express Messengers. B. O.S.W. Ry. Co. v. Voigt, 176 U.S. 498; Long v. Lehigh Val. R.R. Co. (C.C.A., 2nd Circuit), 130 Fed. 873; C. N.W. Ry. Co. v. O'Brien (C.C.A., 8th Circuit), 132 Fed. 593. Pullman Porters. Robinson v. B. O.R.R. Co., 237 U.S. 84; McDermon v. So. Pacific R. Co. (Circuit Court of Mo.), 122 Fed. 669; Denver, etc., R.R. Co. v. Whan, 3 Colo. 230, 11 L.R.A. (N.S.) 432. Lawyer not employed by the railroad, but traveling upon a pass. No. Pac. Ry. Co. v. Adams, 48 L.Ed. 513, 192 U.S. 440.

Georgia, F. A.R. Co. v. Blish Milling Co., 241 U.S. 190; Keogh v. Chicago N.W.R. Co., 260 U.S. 163; Davis v. Cornwell, 264 U.S. 560; Davis v. Henderson, 266 U.S. 92; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Ins. Co. v. Railroad Co., 104 U.S. 146; Chicago, R.I. P.R. Co. v. Maucher, 248 U.S. 359. Its liability must depend wholly on its alleged negligence in furnishing a defective car to the succeeding and connecting carriers.

A verdict was rendered for the plaintiff; the judgment entered thereon was affirmed by the highest court of the State; and the case is here on writ of certiorari under § 237 of the Judicial Code as amended. 262 U.S. 740. Whether, under the Interstate Commerce Act as amended, the express promise to furnish cars was valid is the only question requiring decision. The transportation service to be performed was that of common carrier under published tariffs, not a special service under a special contract, as in Chicago, Rock Island Pacific Ry. Co. v. Maucher, 248 U.S. 359. The agent's promise that the cars would be available on the day named was introduced to establish an absolute obligation to supply the cars, not as evidence that the shipper had given due notice of the time when the cars would be needed, or as evidence that the carrier had not made reasonable efforts to supply the cars. The obligation of the common carrier implied in the tariff is to use diligence to provide, upon reasonable notice, cars for loading at the time desired.

Until Congress does act affirmatively on these subjects, the state courts are free to apply their local laws, even though, in so doing, they may indirectly affect interstate commerce contracts of carriage. Hepburn Act, § 1, c. 3591, 34 Stat. 584; Chicago, Rock Island Pacific Ry. Co. v. Maucher, 248 U.S. 359; Savage v. Jones, 225 U.S. 501; Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477; Southern Pacific Co. v. Schuyler, 227 U.S. 601; Clark v. Southern Ry. Co., 69 Ind. App. 697; Weir v. Roundtree, 173 F. 779; Smith v. Atchison, Topeka Santa Fe Ry. Co., 194 F. 81; Southern Pacific Co. v. Jensen, 244 U.S. 205; Wiley v. Grand Trunk Ry. Co., 227 F. 129; Fowler v. Railroad Co., 229 F. 375; Minnesota Rate Cases, 230 U.S. 352. In passing on the question of liability of the carrier for negligent injury to a person riding on a free pass, and the question of the validity of a contract exempting the carrier from such liability, a federal court does not determine those questions by reason of any provision of the Hepburn Act, but by its own interpretation of the common law. Southern Pacific Co. v. Schuyler, supra; Weir v. Roundtree, supra; Smith v. Atchison, Topeka Santa Fe Ry. Co., supra; Martin v. Pittsburg Lake Erie R.R. Co., 203 U.S. 284.