Johnson, J.
The jury have found, by their verdict, that the death of Bissell was occasioned by the gross negligence [610]*610of the agents of the defendants at the time of the collision. Being negligence of that character which resulted in the death of several human beings, it was criminal in its nature, and would have subjected the guilty agent to indictment and punishment under the statute. (2 R. S. 662, § 19.)
hieither the contract nor the ticket can be construed to refer to injuries from such a cause. It would be against the settled rules of construction to hold that injuries from criminal causes were intended by the parties. In Welles v. The New York Central Rail Road Co., (26 Barb. 641,) it was conceded by the learned judge who delivered the opinion, that negligence so culpable as to imply fraud or bad faith would not be one of the risks assumed by the passenger, when, by accepting a free ticket or pass, he had expressly agreed to assume all risk of accidents, whether occasioned by negligence of the company’s agents or otherwise. The injury here arising from a cause not within the risk, constitutes a good cause of action against the defendants. Whatever may be said in the books about degrees of negligence, they are clearly recognized by our statute, which makes culpable negligence by which a human being is killed, manslaughter in the fourth degree.
The remark of the judge in his charge to the jury, that it seemed to him a case of gross negligence, is no ground for an exception. The whole question was submitted to them. I do not find any error in the charge, or in the refusal to charge, and am of the opinion that the order refusing a new trial should be affirmed.
T. B. Strong, J. I concur in the result of the foregoing opinion; but I think there is no difference in principle between this case and the case of Welles v. The same defendants, (26 Barb. 641.) In the latter case, it was admitted by the parties, that the plaintiff took passage at Lyons for Albany on a passenger train of cars of the defendants; that while seated in. the ¡forward .passenger, car, a collision occurred between that train of ears-and the; cars of -affreight.or cattle train standing [611]*611on the same track of the defendants’ road, whereby the baggage car of the passenger train was driven back into the car where the plaintiff was seated, and he was injured; and that such collision and injury were occasioned by carelessness and negligence of the defendants and their servants in charge of the respective trains. This was all the evidence in the case in explanation of, or in regard to, the collision. If the negligence thus proved was not a misdemeanor, for which an indictment would lie at common law, it was certainly as culpable as the negligence in the present case. Fortunately, the consequences were not so serious; but that makes no difference as to the grade of the negligence.
There is no force in the idea suggested, that as the parties have not designated the degree of the negligence, the court must regard it as simple ordinary negligence; for, without reference to the admission, in terms, of negligence, the facts admitted, unexplained, show gross or culpable negligence. The defendants with one train of cars ran into another train of the defendants on the same track; and upon these naked facts the law would not presume there was a justification, excuse or palliating circumstance, not offered to be proved, but adjudges there was neither.
The principle of liability in this, was, in my opinion, equally applicable in the other case.
E. Darwin Smith, J. In the conclusion to which my brother Johnson has come in this case, and in his reasons, in the main, I concur, but not in the view of my brother Strong, that there is no distinction in principle between this case and that of Welles v. The same defendants, in 26 Barb. 641.
It seems to me that the verdict in this case can be sustained, and both decisions stand together. It was not intended to deny, in the case of Welles, that there were not different degrees or shades of negligence, but to express a doubt whether those degrees could beffiefined with sufficient distinctness for any practical purpose. But, however this may be, there is [612]*612obviously such a degree of negligence as in common and legal language is known and designated as gross or culpable. The legislature has called this degree of negligence, in sections 6, 13 and 19 of article 1, title 2, chapter 1, part 4 'of the revised statute, (3 R. S. 5th ed.)—^in defining manslaughter-'—culpable negligence. The 19th section is as follows: “ Every other killing of a human being by the act, procurement or culpable' negligence of another, where such killing, is not justifiable or excusable, or is not in said act declared murder or manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” This degree of negligence, whether called culpable or gross, means the same thing—that want of' care and regard to his duty which every man of common sense applies to himself and his own affairs or property, (Edwards on Bailment, 44; Story on Bailment, § 17,) or such neglect as is equivalent to fraud, or is evidence of fraud. (Jones on Bailm. 10, 46, 119.) From the consequences resulting from this degree of negligence, whether death ensue or not, no person can claim exemption by contract. (26 Barb. 645.) If the defendant was a natural person, and the negligence was his, as the jury have found this to be a case of gross negligence, nothing further need be said in support of their verdict. But the defendant is a corporation aggregate, and could not be guilty of manslaughter or any other crime. As it has no soul, it can incur no moral guilt. It acts, necessarily, through officers and other agents. This fact, obviously, should not confer upon it any degree of irresponsibility in the affairs of business which would not apply to natural persons. Its agents must necessarily be liable criminally, like all other natural persons, and civilly for willful wrongs. The case of Welles was put upon the distinction between the negligence of the principad and the negligence of his agents and servants.
The defendants are common carriers of persons and property. A common earner is one who undertakes for hire or reward to transport the persons or goods of such as choose to [613]*613employ him, from place to place. (Story on Bailm. § 495. Edwards on Bailm. 425, 584.) As the obligation which the carrier assumes rests upon the basis of contract, express or implied, it would seem that, in point of principle, he must possess the same right with other persons to make his own contracts. But this right is clearly subject to some restriction. The carrier is deemed to exercise a quasi public employment ; and for this reason, and in this respect, it has long been held that public policy requires some limitation upon this absolute right. The defendants are a rail road corporation, and exercise a public franchise, and as such are doubtless subject to legislative control and restriction in regard to the manner of doing their business, and in regard to the character and extent of their undertakings and obligations with individuals.
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Johnson, J.
The jury have found, by their verdict, that the death of Bissell was occasioned by the gross negligence [610]*610of the agents of the defendants at the time of the collision. Being negligence of that character which resulted in the death of several human beings, it was criminal in its nature, and would have subjected the guilty agent to indictment and punishment under the statute. (2 R. S. 662, § 19.)
hieither the contract nor the ticket can be construed to refer to injuries from such a cause. It would be against the settled rules of construction to hold that injuries from criminal causes were intended by the parties. In Welles v. The New York Central Rail Road Co., (26 Barb. 641,) it was conceded by the learned judge who delivered the opinion, that negligence so culpable as to imply fraud or bad faith would not be one of the risks assumed by the passenger, when, by accepting a free ticket or pass, he had expressly agreed to assume all risk of accidents, whether occasioned by negligence of the company’s agents or otherwise. The injury here arising from a cause not within the risk, constitutes a good cause of action against the defendants. Whatever may be said in the books about degrees of negligence, they are clearly recognized by our statute, which makes culpable negligence by which a human being is killed, manslaughter in the fourth degree.
The remark of the judge in his charge to the jury, that it seemed to him a case of gross negligence, is no ground for an exception. The whole question was submitted to them. I do not find any error in the charge, or in the refusal to charge, and am of the opinion that the order refusing a new trial should be affirmed.
T. B. Strong, J. I concur in the result of the foregoing opinion; but I think there is no difference in principle between this case and the case of Welles v. The same defendants, (26 Barb. 641.) In the latter case, it was admitted by the parties, that the plaintiff took passage at Lyons for Albany on a passenger train of cars of the defendants; that while seated in. the ¡forward .passenger, car, a collision occurred between that train of ears-and the; cars of -affreight.or cattle train standing [611]*611on the same track of the defendants’ road, whereby the baggage car of the passenger train was driven back into the car where the plaintiff was seated, and he was injured; and that such collision and injury were occasioned by carelessness and negligence of the defendants and their servants in charge of the respective trains. This was all the evidence in the case in explanation of, or in regard to, the collision. If the negligence thus proved was not a misdemeanor, for which an indictment would lie at common law, it was certainly as culpable as the negligence in the present case. Fortunately, the consequences were not so serious; but that makes no difference as to the grade of the negligence.
There is no force in the idea suggested, that as the parties have not designated the degree of the negligence, the court must regard it as simple ordinary negligence; for, without reference to the admission, in terms, of negligence, the facts admitted, unexplained, show gross or culpable negligence. The defendants with one train of cars ran into another train of the defendants on the same track; and upon these naked facts the law would not presume there was a justification, excuse or palliating circumstance, not offered to be proved, but adjudges there was neither.
The principle of liability in this, was, in my opinion, equally applicable in the other case.
E. Darwin Smith, J. In the conclusion to which my brother Johnson has come in this case, and in his reasons, in the main, I concur, but not in the view of my brother Strong, that there is no distinction in principle between this case and that of Welles v. The same defendants, in 26 Barb. 641.
It seems to me that the verdict in this case can be sustained, and both decisions stand together. It was not intended to deny, in the case of Welles, that there were not different degrees or shades of negligence, but to express a doubt whether those degrees could beffiefined with sufficient distinctness for any practical purpose. But, however this may be, there is [612]*612obviously such a degree of negligence as in common and legal language is known and designated as gross or culpable. The legislature has called this degree of negligence, in sections 6, 13 and 19 of article 1, title 2, chapter 1, part 4 'of the revised statute, (3 R. S. 5th ed.)—^in defining manslaughter-'—culpable negligence. The 19th section is as follows: “ Every other killing of a human being by the act, procurement or culpable' negligence of another, where such killing, is not justifiable or excusable, or is not in said act declared murder or manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” This degree of negligence, whether called culpable or gross, means the same thing—that want of' care and regard to his duty which every man of common sense applies to himself and his own affairs or property, (Edwards on Bailment, 44; Story on Bailment, § 17,) or such neglect as is equivalent to fraud, or is evidence of fraud. (Jones on Bailm. 10, 46, 119.) From the consequences resulting from this degree of negligence, whether death ensue or not, no person can claim exemption by contract. (26 Barb. 645.) If the defendant was a natural person, and the negligence was his, as the jury have found this to be a case of gross negligence, nothing further need be said in support of their verdict. But the defendant is a corporation aggregate, and could not be guilty of manslaughter or any other crime. As it has no soul, it can incur no moral guilt. It acts, necessarily, through officers and other agents. This fact, obviously, should not confer upon it any degree of irresponsibility in the affairs of business which would not apply to natural persons. Its agents must necessarily be liable criminally, like all other natural persons, and civilly for willful wrongs. The case of Welles was put upon the distinction between the negligence of the principad and the negligence of his agents and servants.
The defendants are common carriers of persons and property. A common earner is one who undertakes for hire or reward to transport the persons or goods of such as choose to [613]*613employ him, from place to place. (Story on Bailm. § 495. Edwards on Bailm. 425, 584.) As the obligation which the carrier assumes rests upon the basis of contract, express or implied, it would seem that, in point of principle, he must possess the same right with other persons to make his own contracts. But this right is clearly subject to some restriction. The carrier is deemed to exercise a quasi public employment ; and for this reason, and in this respect, it has long been held that public policy requires some limitation upon this absolute right. The defendants are a rail road corporation, and exercise a public franchise, and as such are doubtless subject to legislative control and restriction in regard to the manner of doing their business, and in regard to the character and extent of their undertakings and obligations with individuals. But as common carriers, independently of particular legislation, they stand upon the same common law footing with natural persons, and the measure of their responsibility is precisely the same. Civilly, the defendants, as common carriers of persons for hire or reward, are liable for all injuries resulting from the negligence, carelessness or unskillfulness of their servants and agents, (16 N. Y. R. 362; Story, § 400,) and from all such acts of negligence for which, if they were natural persons, they would be liable criminally. They clearly cannot exempt themselves from civil responsibility by contract. Precisely the same obligation rests upon them, and the same restriction upon their right to limit their responsibility by contract exists, as would apply to a natural person in their place.
When rail road or other corporations assume the duty and employment of common carriers, as in this case, and act entirely by officers and agents, as they necessarily must, I conceive that they cannot contract for exemption from responsibility for whatever pertains to the proprietorship of the rail road, nor for the acts of that class of superior agents who act for and in the place of the corporation, as officers, directors or other managing agents, and who, as such, within the trust [614]*614confided to them, control and direct the operations of the corporation, and employ its inferior servants and agents." If a single natural person, for instance, owned the defendants’ rail road and its property, and operated the same for his own benefit, he would be bound to employ and provide skillful, careful, sober and proper persons as engineers, conductors, brakemen, switch tenders, and in all other positions, and would be bound to see to it that the tracks of his rail road, its bridges, turn-outs, and all other portions of his road, and the locomotives and cars in use thereon, and all the appurtenances of the road, were in a safe and proper condition. He could not stipulate for immunity from injuries resulting from negligence in respect to any such particulars, no more than he could for bad faith or fraud. All contracts exempting him, or seeking to exempt him, from responsibility for his personal negligence or fraud, would be repugnant to public policy, and absolutely void. (Alexander v. Greene, 3 Hill, 20. Story on Bailm. 21.) And the same rule, I think, should be applied to corporations. Public policy forbids the making by them of any contract that shall exempt them from responsibility, that would not be allowed to a natural person exercising the same precise employment. A private person, operating this rail road as his own, might stipulate, by express contract, I think, that a person who should ride free over his road should take the risk of the negligence of his subordinate agents and servants in running his trains; provided that he himself was free from all negligence in their employment, direction or otherwise. Ho one has a right to require a common carrier to transport him or his property without charge and at his own risk. And I can conceive no legal objection to a contract fairly and distinctly made, between a common carrier and a passenger who pays no fare, that the latter shall take his own risk in respect to the negligence of subordinate agents or servants in their appropriate sphere. And this is all we meant to decide in the case of Welles. Ho man who pays his fare [615]*615will be likely to make such a contract, or voluntarily to relinquish any safeguard for his personal security.
In this case the plaintiff’s husband made and signed with his own hand an express contract, in which it is stipulated that the persons riding free on the defendants’ road, to take charge of stock, do so at their own risk of personal injury, from whatever cause. And he also received from the defendants' agents, at the same time, a ticket with an indorsement thereon, stating that the person receiving the same assumed all the risk of accidents, and expressly agreed that the company should not be liable under any circumstances, whether of negligence or otherwise, for any injury to the person, &c. In such a case I conceive that there is no liability on the part of the defendants, except such as would exist between two private persons when one undertook to carry the other gratuitously from one place to another, for the personal accommodation or pleasure of the latter. The defendants would not be subject to the responsibilities of common carriers, but would be liable simply as bailees, as in the case of a naked depositary without reward, or a mandatary, who are only responsible for gross or culpable neglect. (16 N. Y. R. 447. 11 Wend. 25. 17 Mass. Rep. 479. 7 Cowen, 278.)
In this view of the defendants’ responsibility, in either aspect of the case, I find no difficulty in sustaining the verdict. The jury have found that the case was one of gross negligence, and this gross negligence was the negligence of the principal, in the employment of the very careless, incompetent and stupid, if not drunken, switchman, whose heedlessness caused the collision of the trains which produced the death of the plaintiff’s husband. Such, doubtless, was or may have been the opinion of the jury and the grounds of their verdict. On these grounds I think it entirely correct and proper.
In the case of Welles v. The same defendants, (supra,) there was no such proof, and no evidence showing how the collision happened; nor any evidence that would warrant a [616]*616jury in finding that any particular person, agent or servant, whose negligence caused the injury, was unfit for his place, or that any negligence had heen committed by the defendants in their scheme or direction for the running of the trains, or in the employment of any of their agents or servants. It was stipulatedfin the case, by the attorneys, that "the injuries were occasioned by the carelessness and negligence of the servants and agents of the defendants in charge of the two trains at the time of the collision. The express agreement of Welles, in that case, extended to, and was obviously designed to cover and embrace, the risks which would attend, and the casualties which might result from, the negligence of just this class of subordinate servants and agents, and where there was no fault or negligence on the part of the defendants, as proprietors of the rail road, in providing, to the utmost extent of care and diligence on their part, to prevent such casualty.
[Monroe General Term,
September 5, 1859.
T. R. Strong, Smith and Johnson, Justices.]
Upon this discrimination between the acts of the principal and the agent, I think that the case of Welles was rightly decided ; although some expressions in the opinion may require qualification. And that the verdict in this case can be sustained without involving any inconsistency between the two cases. I concur, therefore, in the decision that a new trial be denied.
Order refusing a new trial affirmed.