Woodruff, J.
It is not insisted, upon the argument of the appeal, that any error was committed by the referee in the admission or rejection of evidence, and the only exceptions urged upon our attention are, first, those which depend upon the construction and legal effect of the terms “owner’s risk,” which were written upon the receipts given by the defendant for the goods delivered for carriage, which words, the referee finds, formed part of the contract between the parties; and, second, the question whether there was any evidence that the injury to the plaintiffs’ goods was the result of such negligence of the defendant as is not included in the exemption imported by the words thus written upon the receipts.
And, on the part of the respondent, it is not questioned that the terms “ owner’s risk ” entered into and formed part of the contract between the parties, limiting the the responsibility of the defendants according to the just import of those terms.
[198]*198It is not argued, and it is far too late to argue, that a party having goods to be carried is not at liberty, if he choose, to enter into a special contract with the carrier, modifying and restricting the liability of the latter, and assuming any of the risks of the transportation which, but for such contract, the law imposes upon a common carrier. The idea that public policy forbid such contracts and does not permit the owner of goods to act freely in that regard, and himself to bear any such risks, if he can thereby promote his own interest in the reduction of the price of carriage, though at one time prominently put forth, never had any sufficient foundation in reason, principle or authority, and has been very distinctly repudiated. See New Jersey Steam Navigation Company v. Merchants’ Bank, 6 How. U. S. 382, 342, 393, 417; Schieffelin v. Harvey, 6 Johns. 170, 180; and cases collected in Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115, 139 ; Parsons v. Monteath, 13 Barb. 353; Ang. on Carr. ch. 7; Wells v. The Steam Navigation Company, 8 N. Y. 375.
It is claimed, however, that the contract imported by the words “ owner’s risk” does not exempt the defendant from any other than those perils of transportation which may result in injury to the property notwithstanding ordinary care and diligence is- exercised by the defendant and its servants.
Or, more briefly, that it does not exempt the defendant from liability for an injury to the plaintiffs, resulting frdm the want of ordinary care and skill on the part of the defendant’s servants.
It is said that the law will not suffer a man to claim immunity by contract against his own fraud or negligence. In Wells v. Steam Navigation Company, Mr. Justice Gardiner says, that, though this be so, a man may nevertheless contract against liability for the negligence, even gross negligence, or the fraud or felony, of his agent, or those in his employment; and no sufficient reason can, I think, be urged to the contrary; provided, always, the contract clearly shows such to be its just meaning.
A party may certainly consent to place the instruments and agencies which he is employing in his business at the service (jpro hac vice) of another, undertaking to set them in motion [199]*199under the scheme or plan of management which he has established, and say, “you shall have the benefit of my enterprise, my machinery, my servants, my rules, regulations and scheme of administration, but I propose that you shall take the hazards of every thing but my own fraud or gross negligence., and regard me as in no respect insuring or guaranteeing the fidelity or the prudence, diligence or care of those servants, whom I have no reason to distrust, but who may, out of my personal presence, neglect their duty or prove otherwise unfaithful" There is no sound reason for denying, that, if a contract is made on those terms, and, presumptively, for a much less compensation to be paid, it shall not bind the parties. It may be safely assumed, that, in this country at least, men of business are shrewd enough to take care of their own interests, and that if a party consents to such a bargain, it is because it is for his interest to do so; he expects to make or save money by relieving the other party from risks which he is willing to assume, and in general his expectation is realized. There is neither honesty nor policy in permitting him, when a loss happens through one of the risks he consented to bear, to deny the binding force of his contract.
This is now the rational view of the subject which is recognized as law.
The cases, however, very properly, I think, hold that the contract ought to be so explicit as to leave no reasonable doubt of its meaning and intent.
Where particular risks are specified, the contract may operate according to its terms, but when terms of doubtful or double meaning are employed, the general rule binding common carriers to a stringent liability will ■ determine the construction, because when the carrier insists that an exception has been created which modifies or suspends the general rule, he must show that the exception has been created. So where the terms of the exception are general, but can be reasonably satisfied by a limited construction, the courts have shown a disposition to confine their operation within what they have deemed reasonable limits.
Hence it is said the terms “ at the risk of the owners ” or “ owner’s risk ” (as in the present case), ought not to be deemed [200]*200to except every risk which can possibly be suggested. That it is not reasonable to suppose that a shipper or owner would understand or intend thereby, that the carrier should be under no responsibility, however inadequate or unsuitable his means of safe transportation, and however careless, reckless or dishonest his servants may be.
Hence it is said, that, when an agreement is relied upon, it ought to be clear and explicit, or it will receive that construction which may be most rationally deemed according to the intent of the parties, or, in short, the exemption claimed should appear in a form clear and unequivocal.
In accordance with this view of the subject it is held that such general terms as are above referred to, do not exempt the carrier from the consequences of his own fraud or neglect of the duty which he undertook to perform, and do not exempt him from liability for the fraud, bad faith or gross negligence of the servant whom he employs for its performance.
Such is the doctrine of Schieffelin v. Harvey, 6 Johns. 170, of Alexander v. Greene, in our late court of errors, 7 Hill, 533, of New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. U. S. 342, and of Wells v. Steam Navigation Co. in this court, 8 N. Y. 375.
In the. last case the doctrine is expressed to be that a contract in such general terms does not exempt the party from liability for the “ gross negligence ” of his. servants, and that is deemed to be the rule settled in Alexander v. Greene.
SirWiLLiam Joiras distinguishes between ordinary negligence and gross negligence and slight negligence thus: “ Ordinary neglect is the omission of that care which every man of common prudence ■ and capable of governing a family, takes of his own concerns.” “ Gross neglect is the want of that care which every man of common sense, how inattentive soever, takes of his own property,” and “ slight neglect is the omission of that diligence which all circumspect and thoughtful persons use in securing their own goods and chattels.” And Mr. Justice Story gives in substance the same definitions of these terms. “ Ordinary negligence may be defined to be the want of ordinary diligence, gross negligence to be the want of slight diligence, and [201]*201slight negligence to be the want of great diligence.” Story on Merchants, § 17.
This is the recognized and accepted distinction between the different degrees of negligence (see Scott v. De Peyster, 1 Edw. Ch. 513, 542-3), a distinction which is often found of but little practical importance when dealt with by the jury on the trial of a cause, but one which the courts are bound to regard in the determination and application of the rules of law.
The finding of the referee in the present case and his conclusions thereupon, show most clearly that he has held the defendants liable not simply and only for “gross negligence,” but for the want of ordinary care or “ ordinary negligence.”
In Schieffelin v. Harvey, the point decided was, that the carrier was liable for embezzlement by the crew or other person while the goods were in the possession of the carrier’s servants, though no fault or negligence was imputable to the owner of the vessel personally. In Alexander v. Greene, the supreme court liad held, that the defendants were not liable for negligence of their servants, although it be found to be gross negligence, and affirmed a nonsuit granted at the circuit. The court of errors decided that there was evidence upon which the jury might have found that the defendants’ servants were guilty of gross negligence; that the defendants were responsible for such negligence; and that the question, whether the defendants were guilty of gross negligence, should have been submitted to the jury.
In the case in the Uuited States court, the court were of opinion, that there was gross negligence, and the defendants were held liable therefor—one of the judges, indeed, deemed the negligence to amount to a marine tort. And the only point decided in this court, in Wells v. Steam navigation Co., was, that, under such general exemption as “at the risk of the owner,” the defendants were liable for the gross negligence of their servants.
The language of the opinion does not invariably discriminate between gross negligence and the want of ordinary care, but the point decided did not extend the liability of the defendants further than for gross negligence.
[202]*202But, according to my view of the proofs in this case, it is not necessary to pursue that inquiry. '
If the defendants are only hable for the gross negligence of their servants, then, upon the proofs in this case, the plaintiffs should have been nonsuited. When the plaintiffs rested their case, there was no proof except that the goods were “ shipped ” in good order, and were broken. Upon the defendants’ proofs there was nothing shown on which gross negligence of the defendants’ servants could be predicated.
But more than this, there was no evidence of want of ordinary care.
Without inquiring whether, when the plaintiff had shown that the contract of the defendant was not performed, that was enough to put the defendant to proof in explanation, it is clear, I think, that, when the defendants did show in explanation that the goods were broken in consequence of the cars running off or being thrown from the track, in course of the transportation, he brought the case within the purview 8f the exemption contained in the contract. Under the contract, the general rule is, in terms, transportation at the owner’s risk; the qualification which the cases referred to establish, is, that injuries resulting from fraud, bad faith or gross negligence, are excepted. When, therefore, the cause of the injury appeared, the defendants were, prima facie, excused, unless it be true that the mere fact, that the freight car was thrown from the track, is evidence of gross negligence; or, in the aspect in which I propose to consider the state of tliQ proofs, is evidence of want of ordinary care. See cases below cited. It would be a most fortunate fact in regard to security to life and limb, as well as safety to property, if it were presumptively true that ordinary care is sufficient to guard against such' accidents. Most unfortunately they do happen from various causes, against which the utmost caution, vigilance, skill and discretion is required, and which, when used, often prove ineffectual. Surely, the mere fact o£ the accident did not prove gross negligence.
But the defendants laid their whole case before the referee; and if the plaintiffs proved no negligence, still, if upon the whole proof, the finding of the referee was warranted, it is now of no importance by whom the evidence was furnished.
[203]*203It is not necessary to repeat what has so often been said in this court, that where there is conflicting evidence this court has no jurisdiction of the question whether the referee has found against the weight of the evidence, his judgment having been affirmed in the supreme court. I repeat the observation that we may not be misunderstood when it is added, that if there be such absence of evidence of the matter alleged, that the party should have been nonsuited, or, that it would be erroneous to submit the question to the jury, if the issue were before a jury, then, if due exception be taken, a question of law is raised and erroneously decided; and an exception, founded on the claim that such was the state of the proofs, this court are bound to consider and decide.
To the finding that the damage to the goods was occasioned by the want of ordinary care and skill; as also to the conclusion that upon the facts found the defendants are liable, the defendants’ counsel excepted.
An examination of the question thus raised, makes it necessary to see what it is that was imputed to the servants of the defendants as negligence.
It is found that the goods were well and properly put in a good and suitable box car for transportation. That they were carried by the defendants’ usual route. That at Avon the train was made up and inspected (though without manipulation) by the conductor, and he found all about it right as far as he could discover, and the proper person reported that the wheels had been examined and found safe.
The train, soon after leaving Avon, entered upon a descending grade, which continues for about a mile and a quarter. While passing this portion of the road, the alarm rope which ran through the train, by some strain thereon, rang the alarm bell, and so notified the engineer that something was amiss.
And it is expressly found that in the exercise of due discretion he understood it to be a signal to stop the train, and he did so as soon as possible, and whistled “ down the brakes.”
' In fact, by some accident which is not accounted for, the train was divided; but the rear cars followed so closely upon those attached to the engine, that the alarm-rope was not broken, and the engineer is expressly found to have acted with [204]*204due discretion in what he did; although, if he had known that the train was divided, he should have continued the speed of the engine and forward cars, and so have kept out of the way of the rear cars. Retardation of the engine brought the two parts of the train together, within half a minute, with a concussion which threw some of the cars off the track down an embankment, and so the plaintiffs’ goods were damaged.
“Due care had been used to keep the track, and the .track was kept, in proper condition up to the time of the happening of this accident.” And it was proved by uncontradicted evidence that the coupling was the one ordinarily used upon railroads, and the one “ most approved.”
The usual manual force was on the train, and consisted of a conductor, an engineer, fireman, two brakemen', and a man who performed the double duty of brakeman and oilman.
Now, up to this point, not only no gross negligence, and no want of every proper diligence is found; but the contrary.
The facts found, from which the inference of negligence is drawn, are these:
At the moment the separation of the cars occurred, the conductor was in the rear car, which was a passenger car. The duties of the man who acted as oilman and brakeman required him to be in the 'passenger car “ as much as to be anywhere else,” and he was there, and he and the conductor both sprang to the brake and worked it as soon as they could. Another brakeman was on the top of one of the box cars, which continued to be connected with the engine, examining and seeing to the condition of the alarm rope, which, it was shown without dispute, it was his duty to do; and “ it does not appear where the third brakeman was, or that any brakeman was at a brake; ” and it is found, as a fact, that “ no brakeman was at a brake.”
The referee does not find that the absence of the brakemen caused the two parts of the train to come together; or, that they could have prevented it, or its consequence,—the engine being stopped, in the exercise of due discretion, while the cars were not so far divided as to break the alarm rope. But he indulges a conjecture, that “ instant and proper letting down of the brakes on the rear car might have so dimished the force of [205]*205the concussion as to have avoided the catastrophe, if the train was in proper running order.”
And the referee has carefully excluded any presumption that he may have found other facts on which to base a conclusion of negligence, which are not specifically stated in his findings, by adding, that it does not otherwise appear how the accident occurred, nor what was its immediate cause.
How, in all this, I discover nothing warranting an inference of any negligence.
1. The alleged absence of the brakeman from the brakes, if that was negligence, is not ground for charging the defendant, unless such absence caused the injury. It is not found that it did, or that their presence would have prevented it. Hor did any witness so testify, or give even an opinion to that effect.
2. The conjecture which is stated in the findings, that the instant and proper letting down of the brakes on the rear car might have diminished the force of the concussion, is relieved wholly from any implication of negligence by the other facts found. The brakeman was on that car, and where his duties required him to be as much as at the brake (“ as much as any where else ”), and not only he but the conductor, with prompt endeavor to assist, “ sprang to the brake and worked it as soon as they could.” Here is not only no negligence, but a finding of instant diligence, and a doing therein all they could do.
3. The finding, that the second brakeman was on the top of a box car, engaged in seeing that the alarm rope was in order, is certainly not a finding of negligence; and the uncontradicted proof was, that the handle of the brake of the box cars rises to the top of those cars, so that, though not proved to have been standing over a brake at either end, he was in truth within convenient reach of one or the other. But this is wholly immaterial, for the obvious reason, that if he had been at the brake, no working thereof, however instant or efficient, could tend, in the slightest degree, to prevent the concussion or its consequences, but the contrary. It would have been far better if the car on which he stood, and the others connected with it and with the engine, had advanced more rapidly, instead of being retarded.
[206]*206There remains the circumstance stated by the referee, that the cause of separation does not appear, whether by the breaking of a coupling or the flying out of a coupling-pin, or from some other cause. Then, surely, it could not be inferred that it was caused by negligence. An attempt was made to show that a linch-pin might hare prevented the separation, but the proof clearly showed that ordinary care did not require it, and besides that, the linch-pin is more likely to fall out by the agitation of the cars than the coupling-pin.
And the referee further finds that it does not appear where the third brakeman was.
As to this and as to the circumstance last noted, they do not prove want of ordinary care. In the case in the supreme court of the United States, already twice referred to, Mr. Justice Nelson, says: “The respondents” (defendants) “having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care or by gross negligence, lies on the libelants, which would be otherwise in the absence of any such restriction.” This bears with great force upon the whole conclusion of the referee; and as to the third brakeman, if his presence at any brake where it was his duty to be, was material, his absence should have been proved. It is not enough to say he was not proved to be there. This doctrine is also stated by the late lamented chief judge of this court in a very able opinion affirming the binding effect of the very words now in question—" owner’s, risk,” and holding that where such a contract is made, it is the plaintiff who must prove the want of due care or gross negligence if he would recover; no presumption arises against the carrier. The plaintiff cannot rely on the absence of proof, he has the affirmative of the allegation. See Moore v. Evans, 14 Barb. 524, 530.
This is not a case of conflicting evidence, nearly every fact I have referred to is found by the referee; there is no conflict as to any other.
I cannot find warrant for any finding of gross negligence, or even want of ordinary care; the testimony given by the defendants, on the contrary, proves ordinary care at least, and that without contradiction.
[207]*207The conclusion of negligence has been found rather upon what is not proved. Every servant, of whose acts there is evidence, and whose acts could have any influence to prevent injury, is shown and substantially found to have been prompt, active, diligent and discreet; and, as to any servant, there is no evidence that he was not so.
I think the judgment should be reversed. It is quite obvious that, if the case is to be tested by the inquiry whether the plaintiffs established gross negligence,, there could be no reasonable pretense of claim.
Miller, J.
The determination of this case depends upon the construction to be placed on the contract made for the transportation of the property. The receipts given provided that it. was to be forwarded at the “ owner’s risk; and the question is whether these words include only the risks of breakage arising from the ordinary dangers of railroad transportation when due care has been observed by the carrier, and whether the carrier is liable for damages incurred beyond these risks.
The carrier may by special contract restrict his common law liability; and where this is done his relations are changed and he becomes as to that transaction an ordinary bailee and private carrier for hire, which imposes upon him the responsibility of exercising ordinary care in the transportation of property. Moore v. Evans, 14 Barb. 524, 530; Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485, 493.
In Wells v. Steam Navigation Co., 8 N. Y. (4 Seld.) 375, in a contract by the owners of a steamboat used for towing boats upon the Hudson river, from New York to ' Albany, for hire “ at the risk of the master and owners,” it was held that the owners of the steamboat were liable for injuries arising from the gross negligence of their servants navigating it, although not occasioned by fraud or want of good faith, and that the phrase employed has reference to the perils of navigation not arising from the gross negligence of the contractor. This construction is not in conflict with some other cases to which we have been referred. Schieffelin v. Harvey, 6 Johns. 170; Alexander v. Green, 3 Hill 9, and 7 Id. 533, 547. Where [208]*208the goods are transported at the risk of the owner the burden of proving that the loss was occasioned by gross negligence or a want of due care is upon the owner. 14 Barb. 524, 530.
The question then arises whether there is any evidence to warrant the conclusion that the defendant was guilty of such negligence, such want of due care, as authorized a recovery.
The referee has not found that the defendant was guilty of a want of care as to the cars; the making up and coupling of the train; the condition of the track; in using and obeying proper signals promptly at the first appearance of danger; or in the proper rate of speed, or the care and skill of the engineer; but he assumes that the damages were occasioned by the want of ordinary care and skill on the part of the servants of the defendant. He does not inform us in what that want of care and skill consisted, and it is difficult to see upon what evidence his finding was based. The train parted and there is no affirmative proof as to the cause, although according to the opinion of one of the witnesses, it was occasioned by the coupling pin flying out or breaking. The strain on the rope attached to the engine bell, caused the bell to ring, which was mistaken for a signal to stop the train, which signal was given and the engine stopped. If the engineer could have known that the train had parted, he would not have given the signal, and thus the collision would have been averted. But he was not to blame for this mistake and could not have known it, and, therefore, he was not guilty of negligence.
The finding of the referee that there was no brakeman at the brake, I think, is not supported by the evidence., There is no proof whatever to support it, and as the plaintiffs were bound to make out affirmatively the negligence of the defendant, it was erroneous. The referee also finds that because the accident occurred there was a want of precaution and care. This, I think, was also erroneous, as it by no means follows without proof, as a necessary result, that an accident of this kind is occasioned by a want of due care and caution. It might have occurred with all the care that properly could have been exercised, and been the consequence of circumstances beyond the control of those who had charge of the train. Accidents of this character are sometimes unavoidable, and such are the perils of [209]*209railroad transportation, that no human foresight or prudence can guard against them. These were the risks against which the contract provided, and which the owners of the property assumed to take upon themselves. It is apparent, I think, that the plaintiffs utterly failed to establish that degree of negligence which was essential to maintain the action, and that the referee erred in his conclusion, and therefore the judgment must he reversed, and a new trial granted, costs to abide the event.
A majority of the judges concurred.
Judgment reversed, and new trial ordered, costs to abide event.