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The death of the intestate was caused and occasioned under circumstances which, if he had merely sustained a bodily injury from which he had recovered, would unquestionably have entitled him to maintain an action for such injury, unless he had debarred himself from such action by accepting and riding upon a free ticket.
The plaintiff's right of action, under the statutes of 1847 and 1849, depends upon the same circumstances. Unless Mr.
Perkins, if he had survived the injury which resulted in his death, could have maintained an action for such injury, his widow and next of kin clearly cannot maintain this action. The statutes of 1847 and 1849 give to the personal representatives of a deceased person whose death is caused by the wrongful act, neglect or default of any person or corporation, an action to recover a fair and just compensation not exceeding $5,000, with reference to the pecuniary injury resulting from such death. This is a new and original cause of action given by, and depending wholly upon, the statute. The damages recoverable in such case depends upon entirely different principles from those recoverable by the person injured in case death had not ensued from the injury. In such case, the person injured would only recover compensatory damages personal to himself, including expenses incurred and losses sustained in consequence of the injury. (Lincoln v. The Saratoga and Schenectady Railroad Company, 23 Wend., 425.)
But, in the case where death results from the injury, the pecuniary value of the life of the person killed, to the next of kin, is the measure of damages, to the extent of five thousand dollars. (Whitford v. The Panama R.R. Co., 23 N.Y., 467;Blake v. The Midland Railway Co., 10 Eng. L. Eq., 443.)
Assuming that the pass on which the deceased was riding is to be regarded as a free ticket, and that the defendants were carrying the deceased gratuitously, independently of the question whether Mr. Perkins expressly agreed to assume all risk of accidents upon the trip, the defendants would be clearly liable for any injury sustained by him if he had survived the same; and in this action, on the same ground, would be liable also to the plaintiff.
Having received the deceased into their cars, they would, in this view, be bound to carry him safely. They were and are not bound to carry him or any person gratuitously; but, undertaking to carry him, they must do it carefully, as with other passengers. This was settled, in principle, in the case ofCogys v. Bernard (2 Ld. Raym., 909). In that case the defendant undertook to take up several hogsheads of brandy;
then in a certain cellar, and lay them down again in a certain other cellar, and did the work so carelessly that one of the casks was staved and a great quantity of the brandy lost. The defendant was a mere private person, and it was claimed that, as he was not a common porter, and was acting gratuitously, he was not liable. But, upon very full argument, and after much consideration, it was held that, having assumed and undertaken to do the work, he was bound to do it carefully, and was liable for any injury resulting from his negligence.
This precise question was decided in this court in Nolton v.Western Railroad Company (15 N.Y., 444), and in the Supreme Court of the United States in The Philadelphia and ReadingRailroad Co. v. Derby (14 How., 468;) in Steamboat New World
v. King (16 id., 477); and in Gillinwater v. The Madison andIndianapolis Railroad Company (5 Ind. [Porter], 340).
The next inquiry is, whether the ticket upon which Mr. Perkins was riding was, in legal effect, anything more than a notice. It is well settled in this State that common carriers cannot limit their responsibility by a notice. This has been deemed settled law since the decision of the cases of Hollister v. Nowlen
(19 Wend., 234), and Cole v. Goodwin (id., 251). But this ticket can hardly be regarded as a mere notice. If Mr. Perkins had applied to purchase a ticket in the ordinary way, or had paid for his passage like passengers generally, and had received this ticket for his money and as his authority to get into and ride in the defendants' cars, the ticket should probably be regarded as a mere receipt and voucher for his fare, and could not, I think, be regarded as an agreement on his part to take the risk of accidents; for the defendants could not, in such case, by their own act, enforce or impose any such agreement upon the passenger, or compel him to relinquish his legal right to be safely transported. The carrier clearly cannot limit his responsibility by his own act. (6 How. U.S., 382.)
But he did not apply to purchase a ticket. He did not pay his passage, or contemplate riding in the defendants' cars like ordinary passengers, paying full fare.
Applying for a pass, or free ticket; taking it and having it in his possession some six or eight hours before the starting of the train in which he was to go; and having his attention expressly called to its terms, taken in connection with the fact, found by the jury, that he was, at the time of the accident, actually riding on this ticket, if not conclusive against him as a legal presumption, would at least be evidence that he assented to the terms indorsed upon the ticket, from which a jury would be authorized to imply such assent; and, as the circuit judge was not asked to submit any such question to the jury, I think the plaintiff is hardly at liberty to deny that there was, in fact, such an agreement as the defendants claim.
Assuming, then, that Perkins agreed to take "all the risks of accidents, and expressly agreed that the defendants should not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to his person" — for such are the terms of the ticket — the question remains, what is the extent and force of such agreement. Upon its face, it is clearly sufficiently comprehensive to embrace every description of accident, casualty or risk attending railroad travel. But it must obviously be subject to some limitation and qualification. It ought not to be considered as applying to such risks as could not have been within the intent and contemplation of the parties, and cannot apply to such as are not within the legitimate compass of contract upon principles of public policy.
The learned judge who tried this case at the circuit charged the jury that, "while, if the deceased was riding upon the pass, he was riding upon the conditions annexed to the pass, yet, notwithstanding the conditions thus particularly expressed, if the negligence of the defendants was gross and culpable; if it was of such a character that it would subject the party to a prosecution for fraud or crime; then it does not come within these conditions." In other words, that, if the ticket is in its nature a contract, the parties to the contract did not contemplate such cases of negligence as are fraudulent or criminal in their character.
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The death of the intestate was caused and occasioned under circumstances which, if he had merely sustained a bodily injury from which he had recovered, would unquestionably have entitled him to maintain an action for such injury, unless he had debarred himself from such action by accepting and riding upon a free ticket.
The plaintiff's right of action, under the statutes of 1847 and 1849, depends upon the same circumstances. Unless Mr.
Perkins, if he had survived the injury which resulted in his death, could have maintained an action for such injury, his widow and next of kin clearly cannot maintain this action. The statutes of 1847 and 1849 give to the personal representatives of a deceased person whose death is caused by the wrongful act, neglect or default of any person or corporation, an action to recover a fair and just compensation not exceeding $5,000, with reference to the pecuniary injury resulting from such death. This is a new and original cause of action given by, and depending wholly upon, the statute. The damages recoverable in such case depends upon entirely different principles from those recoverable by the person injured in case death had not ensued from the injury. In such case, the person injured would only recover compensatory damages personal to himself, including expenses incurred and losses sustained in consequence of the injury. (Lincoln v. The Saratoga and Schenectady Railroad Company, 23 Wend., 425.)
But, in the case where death results from the injury, the pecuniary value of the life of the person killed, to the next of kin, is the measure of damages, to the extent of five thousand dollars. (Whitford v. The Panama R.R. Co., 23 N.Y., 467;Blake v. The Midland Railway Co., 10 Eng. L. Eq., 443.)
Assuming that the pass on which the deceased was riding is to be regarded as a free ticket, and that the defendants were carrying the deceased gratuitously, independently of the question whether Mr. Perkins expressly agreed to assume all risk of accidents upon the trip, the defendants would be clearly liable for any injury sustained by him if he had survived the same; and in this action, on the same ground, would be liable also to the plaintiff.
Having received the deceased into their cars, they would, in this view, be bound to carry him safely. They were and are not bound to carry him or any person gratuitously; but, undertaking to carry him, they must do it carefully, as with other passengers. This was settled, in principle, in the case ofCogys v. Bernard (2 Ld. Raym., 909). In that case the defendant undertook to take up several hogsheads of brandy;
then in a certain cellar, and lay them down again in a certain other cellar, and did the work so carelessly that one of the casks was staved and a great quantity of the brandy lost. The defendant was a mere private person, and it was claimed that, as he was not a common porter, and was acting gratuitously, he was not liable. But, upon very full argument, and after much consideration, it was held that, having assumed and undertaken to do the work, he was bound to do it carefully, and was liable for any injury resulting from his negligence.
This precise question was decided in this court in Nolton v.Western Railroad Company (15 N.Y., 444), and in the Supreme Court of the United States in The Philadelphia and ReadingRailroad Co. v. Derby (14 How., 468;) in Steamboat New World
v. King (16 id., 477); and in Gillinwater v. The Madison andIndianapolis Railroad Company (5 Ind. [Porter], 340).
The next inquiry is, whether the ticket upon which Mr. Perkins was riding was, in legal effect, anything more than a notice. It is well settled in this State that common carriers cannot limit their responsibility by a notice. This has been deemed settled law since the decision of the cases of Hollister v. Nowlen
(19 Wend., 234), and Cole v. Goodwin (id., 251). But this ticket can hardly be regarded as a mere notice. If Mr. Perkins had applied to purchase a ticket in the ordinary way, or had paid for his passage like passengers generally, and had received this ticket for his money and as his authority to get into and ride in the defendants' cars, the ticket should probably be regarded as a mere receipt and voucher for his fare, and could not, I think, be regarded as an agreement on his part to take the risk of accidents; for the defendants could not, in such case, by their own act, enforce or impose any such agreement upon the passenger, or compel him to relinquish his legal right to be safely transported. The carrier clearly cannot limit his responsibility by his own act. (6 How. U.S., 382.)
But he did not apply to purchase a ticket. He did not pay his passage, or contemplate riding in the defendants' cars like ordinary passengers, paying full fare.
Applying for a pass, or free ticket; taking it and having it in his possession some six or eight hours before the starting of the train in which he was to go; and having his attention expressly called to its terms, taken in connection with the fact, found by the jury, that he was, at the time of the accident, actually riding on this ticket, if not conclusive against him as a legal presumption, would at least be evidence that he assented to the terms indorsed upon the ticket, from which a jury would be authorized to imply such assent; and, as the circuit judge was not asked to submit any such question to the jury, I think the plaintiff is hardly at liberty to deny that there was, in fact, such an agreement as the defendants claim.
Assuming, then, that Perkins agreed to take "all the risks of accidents, and expressly agreed that the defendants should not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to his person" — for such are the terms of the ticket — the question remains, what is the extent and force of such agreement. Upon its face, it is clearly sufficiently comprehensive to embrace every description of accident, casualty or risk attending railroad travel. But it must obviously be subject to some limitation and qualification. It ought not to be considered as applying to such risks as could not have been within the intent and contemplation of the parties, and cannot apply to such as are not within the legitimate compass of contract upon principles of public policy.
The learned judge who tried this case at the circuit charged the jury that, "while, if the deceased was riding upon the pass, he was riding upon the conditions annexed to the pass, yet, notwithstanding the conditions thus particularly expressed, if the negligence of the defendants was gross and culpable; if it was of such a character that it would subject the party to a prosecution for fraud or crime; then it does not come within these conditions." In other words, that, if the ticket is in its nature a contract, the parties to the contract did not contemplate such cases of negligence as are fraudulent or criminal in their character.
The rule of exception from the apparent scope and purview of the contract, asserted in this part of the charge, I think cannot be sustained. It states that fraudulent and criminal negligence is not within the scope of the contract. This would clearly be so, if the defendant were a natural person, and was stipulating in respect merely to his personal acts. And if it were not so, fraud vitiates all contracts; and no person will be allowed to stipulate for crime. If the defendants were private persons, who could commit crime and could be indicted and convicted under the statute of murder or manslaughter for killing Mr. Perkins, most certainly such crime would not be within the purview of this contract.
It is quite clear that Mr. Perkins never intended to agree, or the defendants to stipulate, that they, by their servants or agents, might kill him. Such was not the bargain. No one will pretend that the right to commit murder or suicide could be embraced in this or any contract. Like all other agreements, this contract must be construed in the light of the existing facts and circumstances at the time it was made, and not derive its construction from subsequent events. Parties, in making a contract, must be held to contemplate all the ordinary and possible incidents, accidents or contingencies which may attend its execution; and such accidents and contingencies must be deemed within the purview of the contract, not as accidents expected, but as accidents possible.
What, then, did these parties mean by this contract? The cardinal rule of interpretation is, what was the intent of the contracting parties at the time of making the contract? In the light of this rule, what are the facts? Perkins applied to the defendants' director for a free pass. A free pass means, the privilege of riding over the defendants' railroad without payment of the customary fare. The defendants are a railroad corporation, exercising the rights and subject to the responsibilities of common carriers, and liable, in a civil action, in this capacity, for all injuries to persons or property transported by them resulting from the negligence or unskillfulness of their agents or servants. The business of the defendants is all
necessarily performed by agents and servants, and the defendants are necessarily obliged to employ a large number of persons as such agents and servants, some of whom will be more or less careless or negligent, notwithstanding and in despite of the utmost care, diligence and caution in their employment. The defendants are transporting persons and passengers by the powerful agency of steam; and when accidents did occur, they were liable to be attended, more or less, with very serious consequences. This the parties both well knew, and they also well knew that railroad accidents were of frequent occurrence; that railroad travel was subject constantly to perils resulting from the carelessness and negligence of engineers, conductors, baggagemen, brakemen, switch-tenders, and others; that trains were frequently thrown off the track or came in collision, and were subject to a variety of accidents and casualties against which no human prudence or skill in the employment of agents could entirely guard; and that all such accidents involve unavoidably, more or less, loss of life or limb or bodily injury, and other disastrous consequences. With perfect knowledge of these facts, Mr. Perkins asked for and accepted the free pass, upon the express condition that he should "assume all risk of accidents" and expressly agreed "that the Company shall not be liable under any circumstances, whether by the negligence of the defendants' agents or otherwise, for any injury to the person,"c. Such is the bargain. It can mean nothing else than that Perkins will take for himself the risk of all accidents and injuries to his person attending his contemplated trip in the defendants' cars from Rochester to Albany, so far as such accidents and injuries might result from the negligence of the defendants' agents and servants. The defendants, in view of the accidents, attended with much pecuniary loss, resulting constantly from the negligence of some of their agents, proposed to carry Mr. Perkins without charge to Albany upon condition that he would take for himself the risks attending the trip.
The question between the parties was simply which should take the risk of such accidents as might occur in consequence
of the negligence of some of the defendants' many agents. Without an agreement exempting and absolving them from all liability in respect to such accidents, and the injuries resulting therefrom, the defendants would be legally responsible for such injuries. Mr. Perkins assumes the risk for himself. He becomes his own insurer. He absolves the defendants in advance from all liability "for any injury to his person" from such negligence. It was a fair insurable risk, and Perkins agreed to assume it for himself. If this be the contract, upon what principle it can be claimed that it does not embrace the accidents which may result from the gross negligence of the defendants' agents, I cannot conceive. The contract makes no exception in respect to degree of negligence. It embraces all degrees. It uses the term negligence in its general generic sense. To hold that it does not embrace gross negligence is to interpolate into it a qualification not made by the parties, and which tends materially to impair and nullify its force, for the parties well knew that accidents were liable to result from the gross negligence of defendants' agents, as well as from inferior negligence. The contract related to the acts of third persons, acting as agents, of the defendants. Perkins agreed to take his risk in respect to the negligence of such third persons. He took it entirely. If the agents were guilty of criminal negligence, which is only another name for gross negligence when it causes death or injury to life or limb, the agent himself is punishable criminally for such negligence. The principal never could be so punished. His civil responsibility therefore is discharged by the contract. There is no reason why the defendants should be responsible for the gross negligence of their agents, more than for slight negligence. To the principle asserted in the charge, I have tacitly assented in two cases, in Bissel v. The New York Central Railroad Company
(29 Barb., 602), and in this case at general term which follows, and was decided upon the authority of that case. But I am satisfied upon reflection that it is essentially unsound.
The portion of the charge referred to, may perhaps embrace a denial of the right of the defendants to relieve themselves
by contract from liability, for the gross negligence of their agents. The charge impliedly admits that the contract was valid as a protection to the defendants as against all accidents resulting from the degrees of negligence, below gross negligence.
A party who claims exemption from liability, for the negligence of his servants or agents, must undoubtedly base his claim upon the express words of his contract. It will not be presumed in his favor. In the case of The New Jersey Steam Navigation Company
v. The Merchants' Bank (6 How. U.S., 383), the contract did not embrace, in terms, the negligence of the defendant's agents, and the court held, that it could not be regarded as stipulating for such negligence. Judge NELSON, who gave the opinion of the majority of the court, says: — "If it is competent at all, for a carrier to stipulate, for the gross negligence of himself, and his servants or agents, in the transportation of goods, it should be required to be done, at least in terms that could leave no doubt as to the meaning of the parties."
The case of Wells v. Same Defendant (in 4 Seld.), holds the doctrine, that negligence may be stipulated against, in respect to agents, but will not be deemed included in general words of exception, unless expressly mentioned. Judge GARDINER, says: "A man may contract against fraud or felony committed by those in his employment." The words of the agreement in that case, upon which the question arose, were that the canal boat be taken in tow, c., "at the risk of the master and owners thereof." These words it was held, and was properly held, did not include gross negligence.
But where negligence, as in this case, is expressly mentioned and stipulated against in the contract, I think the claim to make an exemption, to the force and effect of the contract based upon a distinction in the degrees of negligence, unsound and untenable.
I think with Lord DENMAN, who, in Hinton v. Dibbin (2 Q.B., 661), said: It may well be doubted whether between gross negligence and negligence merely, any intelligible distinction
exists. Judge CURTIS (in 16 How. U.S., 474), also says, it may be doubted whether the term "slight, ordinary and gross negligence, can be usefully applied in practice."
The difficulty of defining gross negligence, and the intrinsic uncertainty pertaining to the question as one of law, and the other impracticability of establishing any precise rule on the subject, renders it unsafe to base any legal decision on distinctions of the degrees of negligence. Certainly before cases are made to turn by the verdict of juries, upon any such distinction, the judges should be able to define, with some precision, what they mean by gross negligence, slight negligence and ordinary negligence. It will be seen on examining the many cases reported, where the question has arisen, that this has been found utterly impracticable by the judges, when called upon to instruct juries on the question, and also when called on to declare the law more carefully in bank.
Negligence is essentially always a question of fact, and every case depends necessarily upon its own particular circumstances. What is negligent in a given case, may easily be affirmed by a jury; but in what degree the negligence consists, in any scale of classification of degrees of negligence, is not so easily determined — will ordinarily be a matter of pure speculation and of no practical consequence.
Upon the ground taken in that part of the charge referred to, that, if the negligence of the defendants' agent, Evarts, was gross and culpable, it was not embraced within the contract, and the defendants were liable in this action for the consequences resulting from such negligence, the learned judge, I think, erred; and the verdict cannot be sustained.
SELDEN, Ch. J., DENIO, DAVIES, ALLEN and GOULD, JS., concurred in this conclusion; and the court ordered a new trial. SELDEN, Ch. J., referred, for the reasons of his judgment, to the following opinion, delivered by him in another case, argued at the same term, in which the court failed to agree, and a reärgument was ordered: