Lambert, J.:
The action is in negligence to recover for personal injuries sustained by the plaintiff while he was riding in a caboose at [389]*389the rear end of one of defendant’s fast freight trains near Callicoon, N. Y.
The day preceding the accident at the station of Greenwood on the New York and Pennsylvania railroad the firm, of Scott & Lewis partially loaded a car of five stock and hilled the same over that and the defendant railroad to Jersey Oity in the State of New Jersey. The car was then moved to Oanisteo and into defendant’s freight yards where its loading was completed by one Wilson out of stock belonging to him. It was then moved by the defendant on towards its destination as a car shipped by Scott & Lewis.
It appears that both railroads had at least two rates for the carriage of live stock, the one of which was in excess of the other. Both were filed and published as required by law. The higher rate was charged in such' instances as the carrier assumed entire responsibility for the care of the stock en route, While the lesser involved the furnishing of such care by the shipper. This car was shipped under the low tariff, and, as a preliminary thereto, the shippers were required to and did execute a printed form of contract, defining the rights and responsibilities of the parties. By such contract the care of the stock was imposed upon the shippers, and, as that involved the sending of an attendant with the stock, provision is therein made for the carrying of such person without charge for transportation. A clause is also included by which the shippers indemnify the carrier from loss by way of injury to such attendant.
Upon the back of this contract is a printed form .of release to he signed by the attendant in person. This release is sufficient in form to bar this action if plaintiff is bound by its provisions.
• At the time of this shipment William Scott, one of the shippers, after signing the contract in the firm name, executed this release in his own individual name as the man to be in charge of this stock during its transportation. He did not, however, accompany the car at all. From Greenwood to Oanisteo it had no attendant. At Oanisteo the plaintiff, previously employed by the shippers and Wilson for such purpose, boarded the train as such attendant. He did not produce and was not asked to exhibit any authority for his presence. His oral statement that he was in charge of this stock was [390]*390accepted as sufficient by the various conductors having the movement of this , car in charge. There was minuted, upon the way bill accompanying this car, ‘ ‘ Pass man in charge free. ” This was written on by the agent at G-reenwood.
Plaintiff and other drovers occupied the caboose of this train while same was in motion, attending to the wants of the stock at such times as the tram was stopped. As the train approached Callicoon it was observed that its progress was attended with "a series of rough jolts. This was called to the attention of the conductor. It was intended to stop the train at Callicoon, and as it approached this station there was a sudden and severe jolt sufficient to throw the plaintiff against the end of the caboose and cause the injuries of which he complains.
It first becomes important to determine plaintiff’s status upon this train. By his complaint he has chosen to rely upon the contract for the shipment of this stock to establish his standing. He, therefore, receives no benefit by way of license or permission to ride. He asserts his státus to be contractual and he identifies the contract specifically. He does not claim to have been a party to that contract in person, but he does assert that by reason Of the contract for his employment by the shippers he acquires the benefits of their contract.
This contract contemplates the carriage of some attendant and it is fairly to be said that it contemplates that the attendant may be some other person than the shipper. It does not identify the attendant in any manner. The release upon the back of the contract is clearly intended to be executed by the person actually accompanying the car, and no occasion arises for its use 'unless1 the áttendaht is á different person from the shipper. The indemnity clause in the contract accomplishes all the purposes of the release when shipper and attendant are the samó person. By "the contract and release such release is made an essential element in the transaction. The lower freight charge is made dependent upon the shipper caring for the stock en route. . Such care by the shipper rests upon the free transportation of the attendant, and such free transportation rests, in turn, upon the release from liability. In such manner the entire scheme is worked out, with a result advantageous to both shipper and carrier and involving, as it does, the carriage [391]*391of the attendant upon trains and under circumstances not designed for the carriage of passengers, it cannot be so construed as to make the release a mere incident. It is an important and essential ingredient of the entire transaction.
Primarily then, since plaintiff chooses to rely upon that contract to establish his standing, he must take the contract in its entirety and cannot select therefrom such portions as meet his needs while discarding therefrom such as tend to defeat his recovery. In acquiring the contractual standing of Scott or of Scott & Lewis, he must step into their shoes (so to speak) as otherwise there could not be said to have been that meeting of the minds of the parties essential to sustain every contract.
To escape this conclusion the plaintiff has adduced evidence to show that he never had personal knowledge that the release was signed by any one. And further, that both carriers had, upon other occasions, permitted the carriage of live stock and attendants without requiring the execution of the release. By such evidence it is sought to establish a custom sufficiently in vogue to be deemed a part of the contract, thus effecting a modification of the contract by the elimination of the release therefrom. Without passing upon the sufficiency of this evidence to establish such a custom (and of its sufficiency we have grave doubt), we do not deem this an instance where such a custom could be given the desired effect. Custom is to be ' resorted to in the construction of contracts only in cases of doubt or ambiguity as to their meaning. It is not available to create such doubt or ambiguity. It is true that the carrier might waive such provision made for its benefit in specific instances, but such waiver in one or a series of instances could not affect its right to insist upon its observance in other instances. ' To so hold would be to defeat the right of contract of the parties. There is no room for surmise that this release was executed by Scott as the result of fraud or misrepresentation by the carrier or in ignorance of its contents. He says that he was asked to and did execute it. He had been a frequent shipper and was familiar with this form of contract. His assumption of the right to send a different person with this car from the one who had executed the release, was unauthorized and unwarranted. The [392]*392carrier had the right to accept or reject the attendant offered. That right was a valuable one. Its liabilities for injuries would be greater in .some instances than in others. It had a right to say- who should go, and in this case it insisted on that right when it demanded and received this release signed by Scott.
Free access — add to your briefcase to read the full text and ask questions with AI
Lambert, J.:
The action is in negligence to recover for personal injuries sustained by the plaintiff while he was riding in a caboose at [389]*389the rear end of one of defendant’s fast freight trains near Callicoon, N. Y.
The day preceding the accident at the station of Greenwood on the New York and Pennsylvania railroad the firm, of Scott & Lewis partially loaded a car of five stock and hilled the same over that and the defendant railroad to Jersey Oity in the State of New Jersey. The car was then moved to Oanisteo and into defendant’s freight yards where its loading was completed by one Wilson out of stock belonging to him. It was then moved by the defendant on towards its destination as a car shipped by Scott & Lewis.
It appears that both railroads had at least two rates for the carriage of live stock, the one of which was in excess of the other. Both were filed and published as required by law. The higher rate was charged in such' instances as the carrier assumed entire responsibility for the care of the stock en route, While the lesser involved the furnishing of such care by the shipper. This car was shipped under the low tariff, and, as a preliminary thereto, the shippers were required to and did execute a printed form of contract, defining the rights and responsibilities of the parties. By such contract the care of the stock was imposed upon the shippers, and, as that involved the sending of an attendant with the stock, provision is therein made for the carrying of such person without charge for transportation. A clause is also included by which the shippers indemnify the carrier from loss by way of injury to such attendant.
Upon the back of this contract is a printed form .of release to he signed by the attendant in person. This release is sufficient in form to bar this action if plaintiff is bound by its provisions.
• At the time of this shipment William Scott, one of the shippers, after signing the contract in the firm name, executed this release in his own individual name as the man to be in charge of this stock during its transportation. He did not, however, accompany the car at all. From Greenwood to Oanisteo it had no attendant. At Oanisteo the plaintiff, previously employed by the shippers and Wilson for such purpose, boarded the train as such attendant. He did not produce and was not asked to exhibit any authority for his presence. His oral statement that he was in charge of this stock was [390]*390accepted as sufficient by the various conductors having the movement of this , car in charge. There was minuted, upon the way bill accompanying this car, ‘ ‘ Pass man in charge free. ” This was written on by the agent at G-reenwood.
Plaintiff and other drovers occupied the caboose of this train while same was in motion, attending to the wants of the stock at such times as the tram was stopped. As the train approached Callicoon it was observed that its progress was attended with "a series of rough jolts. This was called to the attention of the conductor. It was intended to stop the train at Callicoon, and as it approached this station there was a sudden and severe jolt sufficient to throw the plaintiff against the end of the caboose and cause the injuries of which he complains.
It first becomes important to determine plaintiff’s status upon this train. By his complaint he has chosen to rely upon the contract for the shipment of this stock to establish his standing. He, therefore, receives no benefit by way of license or permission to ride. He asserts his státus to be contractual and he identifies the contract specifically. He does not claim to have been a party to that contract in person, but he does assert that by reason Of the contract for his employment by the shippers he acquires the benefits of their contract.
This contract contemplates the carriage of some attendant and it is fairly to be said that it contemplates that the attendant may be some other person than the shipper. It does not identify the attendant in any manner. The release upon the back of the contract is clearly intended to be executed by the person actually accompanying the car, and no occasion arises for its use 'unless1 the áttendaht is á different person from the shipper. The indemnity clause in the contract accomplishes all the purposes of the release when shipper and attendant are the samó person. By "the contract and release such release is made an essential element in the transaction. The lower freight charge is made dependent upon the shipper caring for the stock en route. . Such care by the shipper rests upon the free transportation of the attendant, and such free transportation rests, in turn, upon the release from liability. In such manner the entire scheme is worked out, with a result advantageous to both shipper and carrier and involving, as it does, the carriage [391]*391of the attendant upon trains and under circumstances not designed for the carriage of passengers, it cannot be so construed as to make the release a mere incident. It is an important and essential ingredient of the entire transaction.
Primarily then, since plaintiff chooses to rely upon that contract to establish his standing, he must take the contract in its entirety and cannot select therefrom such portions as meet his needs while discarding therefrom such as tend to defeat his recovery. In acquiring the contractual standing of Scott or of Scott & Lewis, he must step into their shoes (so to speak) as otherwise there could not be said to have been that meeting of the minds of the parties essential to sustain every contract.
To escape this conclusion the plaintiff has adduced evidence to show that he never had personal knowledge that the release was signed by any one. And further, that both carriers had, upon other occasions, permitted the carriage of live stock and attendants without requiring the execution of the release. By such evidence it is sought to establish a custom sufficiently in vogue to be deemed a part of the contract, thus effecting a modification of the contract by the elimination of the release therefrom. Without passing upon the sufficiency of this evidence to establish such a custom (and of its sufficiency we have grave doubt), we do not deem this an instance where such a custom could be given the desired effect. Custom is to be ' resorted to in the construction of contracts only in cases of doubt or ambiguity as to their meaning. It is not available to create such doubt or ambiguity. It is true that the carrier might waive such provision made for its benefit in specific instances, but such waiver in one or a series of instances could not affect its right to insist upon its observance in other instances. ' To so hold would be to defeat the right of contract of the parties. There is no room for surmise that this release was executed by Scott as the result of fraud or misrepresentation by the carrier or in ignorance of its contents. He says that he was asked to and did execute it. He had been a frequent shipper and was familiar with this form of contract. His assumption of the right to send a different person with this car from the one who had executed the release, was unauthorized and unwarranted. The [392]*392carrier had the right to accept or reject the attendant offered. That right was a valuable one. Its liabilities for injuries would be greater in .some instances than in others. It had a right to say- who should go, and in this case it insisted on that right when it demanded and received this release signed by Scott. It had such right independently of any custom or usage that might have obtained in the past. The proof of custom was wholly immaterial.
We do not deem the foregoing to be at variance with those cases cited by respondent as to plaintiff’s status upon this train. In Brewer v. New York, Lake Erie & Western R. R. Co. (124 N. Y. 59) plaintiff’s intestate was an express messenger and was killed while, in the performance of his duties. It appeared that the express company by which he was employed had executed a contract with the defendant whereby it undertook to release the railroad from liability such as was sought to be enforced in that action. This was without the knowledge of the intestate and he was never asked to execute any release. .The railroad chose to rely upon the release of the employer without requiring the messengers to personally release. It was there held that the release afforded no defense.
In Coppock v. Long Island R. R. Co. (89 Hun, 186) the plaintiff was a groom in attendance .upon horses in an express car. His employer had executed a contract which purported to relieve the carrier from liability to him. ■ He was in ignorance of such contract and there was no attempt by the carrier to procure a release from the person in charge. It was relying solely upon the release by the employer of plaintiff.
In Porter v. New York, Lake Erie & Western R. R. Co. (59 Hun,. 177) the plaintiff was injured while in attendance upon a carload of stock. He was never required to release, although he was designated in the contract by name as the person to accompany the car. His employer had contracted to release the railroad from liability to him.
In each of those cases the release was held ineffectual as a defense. But it is to be noted that in none of them was there any effort by the carrier to procure a release from the person so being carried. In each the release of the employer was alone sought, and it was held that, without knowledge on the [393]*393part of the plaintiff that the release was made, it did not affect his status. The situation here presented is different. Here the carrier insisted upon a release from the attendant in person, and procured one to he signed. It had then taken all due steps to protect itself, and its liability could not be increased by the unauthorized substitution of another attendant.
There is further reason why this judgment and order must be reversed. The theory of negligence upon which plaintiff relies is that the sudden and severe jolt which occasioned the injuries was caused by too abrupt and severe application of the air brakes by the engineer. The rule of care required of defendant was stated by the trial court to be ordinary care and prudence. ' Such a rule excludes the application of the rule of res ipsa loquitur. The burden was, therefore, upon the plaintiff to show negligent operation of the air brake. To meet this burden the evidence goes no further than that the jolt was unusually severe, and the description of the accident. While it might, perhaps, have safely left this question to rest upon' 'plaintiff’s evidence, yet the defendant has advanced a theory as to the cause of this accident which is fully as reasonable as that of the plaintiff. The engineer testified that when he undertook to apply the air brake to make the stop at Oallicoon, although he only made a slight reduction, the brakes suddenly jumped to emergency without being so applied by him. By this evidence and that of other witnesses it was shown that such a result frequently is attendant upon what is known as a sticky triple valve upon some car in the train. The sticking of the valve on the car and its sudden giving way effects a sudden and extreme reduction throughout the entire air line, almost instantly applying all the brakes and resulting in a sudden and violent stoppage of the train. The jury was instructed that if this accident resulted from a sticky triple valve there could be no recovery. Such instructions were correct, as such a valve is not to be discovered by inspection. But the jury was permitted to speculate as to which of the two causes produced the accident. There was not the slightest evidence to lead them in the one direction rather than the other, and, therefore, the plaintiff did not meet the burden of proof upon this issue.
There was also error in the admission of evidence. Upon the [394]*394negligence issue plaintiff was permitted to prove, over the objection and exception of the defendant, conversations between the drovers in the caboose and the conductor of the train relative to the uneven and rough movement of the train preceding the accident. This talk included statements by the drovers or some of them to the effect that, if it continued, they would all be killed, while others remarked as to its effect upon the live stock and the injury to be expected. It also included the statement by the conductor that such violence must be the result of the improper working of the air brake.
None of this talk can be justified as evidence here as being a part of the res gestee. It preceded the accident. The statements by the drovers could scarcely be claimed to furnish any evidence of negligence on the part of the defendant. These men were not in a situation to- know anything of the manner in which the engineer applied the air brake. The engineer was far ahead of them and at the front end of the train. Nor was their statement permissible as bringing the attention of the conductor to the uneven progress and movement of the train. The fact that they did call it to his attention had been proven prior to the introduction. of this conversation in evidence. Such con-versations have been held improper to establish any negligence and do not have such a tendency. (Kuperschmidt v. Met. St. R. Co., 47 Misc. Rep. 352; Ehrhard v. Met. St. R. Co., 69 App. Div. 124.)
As to the declarations of the conductor, it suffices to say that his employment to act as such did not vest him with authority to make declarations for or against the .defendant, upon which negligence might be predicated. . This evidence was improper and its admission was error.
The judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred, Foote, J;, in result in separate memorandum, except Kruse and Robson, JJ., who dissented in an opinion by Kruse, J.