Smith v. . the New York Central Railroad Company

24 N.Y. 222

• Court: New York Court of Appeals
• Decided: March 5, 1862
• Status: Published

Opinions

Wright, J.

It is no longer an unsettled question in this State that a common carrier of property may, by special agreement, restrict his common-law liability. (Dorr v. Steam Navigation Company, 1 Kern., 485, and cases cited.) There are no controlling considerations of public policy against permitting such carrier to limit the liability which the law imposes on him, by express agreement with the owner of the property; and as the public interests are not to be affected, there can be no valid objection to the parties changing their relation in a particular transaction, by special agreement, so that the carrier instead of being an insurer against all except the act of God and the public enemy, shall become, as to that transaction, an ordinary bailee and private carrier for him.

A carrier of persons is -not deemed a common carrier, nor is he subjected by law to like obligations. He is not an insurer, or responsible for anything but his own negligence, and that of his agents and servants. But in respect to this, he is held to a stringent duty and accountability; and the degree of duty is obviously to be measured by the dangers which attend the carriage, and the control which the carrier lawfully exercises over both vehicles and roadway.. A carrier of passengers, by coach, on a public- highway would be accountable for the negligence of the person whom he places in charge of the vehicle, and his own also, if injury occurs from the unfitness or defectiveness of such vehicle. The measure of his duty is to provide competent and skillful drivers, and sufficient and road-worthy carriages. A carrier of passengers by railroad (such road being operated by the carrier) is responsible for the negligence of his agents and employees in charge of the vehicles and the roadway also, and his accountability extends not only to the conduct and management of the railroad, so far as relates to the transit, but also to the sufficiency of the vehicles and the road itself. When a railroad company is the carrier, the duty rests on such company, not only to provide sáfe vehicles, but a safe roadway; and in view of the dangers which attend-railroad carriage, its duty is not limited to such precautions as it is apparent, after an accident, might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur. It is plain, as was said by Johnson, Ch. J., in Bowen v. New York Central Railroad Company (18 N. Y., 408), that the utmost foresight as to possible dangers, and the utmost prudence in guarding against them, are the only limits which a decent regard to the safety of men, and a conformity to the established principles of the law, allow to be fixed to the responsibility of those who conduct and manage railroads. As to them, unless this degree of foresight and prudence be exerted, the presumption, of negligence arises, and they will be responsible.

I am not aware of, nor have we been referred to, any casé holding that a carrier of passengers by railroad may lawfully contract with a person offering to be carried against the consequences which the law attaches to his negligence, nor that the present defendants who are constituted by statute carriers of passengers, absolutely required to transport them, empowered to regulate the time and manner in which they shall be transported, and made liable for any damages occasioned by their neglect of duty, may contract to relieve themselves from this liability, or to assume any other character than that given, to them by the statute. (Laws of 1850, chap. 140, § 1, pp. 28, 86.) Or to state the case differently, being authorized and compelled by law to carry persons on their road, and made liable for neglect of duty, both by statute and common law, they may by agreement with the passenger exempt themselves from the performance of duties imposed or required by the law for the safety of the citizen. Nay, -that they may contract to relieve themselves from any degree of negligence or culpable omission of duty. In the present case the charge of the judge in its entire scope and meaning was, that the plaintiff could not recover unless the. death of his intestate was the result of gross or culpable negligence of the defendants; yet this is claimed to have been erroneous, because such intestate had specially stipulated with the company to assume all risks of the transit, whether occurring from their culpable negligence and misconduct, or otherwise. In short, that they had secured, by contract with the intestate, a sort of license or right, so far as respected him, to be negligent; and no matter, though the .roadway and vehicles be defective and insufficient, and the ;carrier’s employees criminally negligent, and from these causes .he is injured, there is no remedy.

•In March, 1855, the defendants were exercising the double employment of common carriers of property, and carriers of .persons, by railroad between Buffalo and Albany. As carriers of property, by the common law, their liability was that of insurers against all except the act of God an.d the public enemies; and as carriers of persons they were responsible for-the slightest neglect of themselves or their agents resulting- in injury. In the latter capacity their duty extended to the exercise of the utmost foresight and prudence in anticipating and guarding against possible dangers arising from the imperfections of the road or the vehicles run on it; and they were pot only responsible for their own neglect of duty in provide ing a sufficient roadway and carriages for safe transportation, but also for the negligence of those acting in their behalf, in the. control and management of the road and the transportation. As carriers of property, Ward, the plaintiff’s intestate, a drover residing in Ohio, engaged with them for the transportation from Buffalo to Albany, of five hundred, or two carloads, of live hogs. A special agreement for their carriage was entered into, which, by its terms, restricted the common-law .liability of the carrier in certain respects. Ward assumed the risks of injuries which the hogs, or either of them, might receive, in the transit, in consequence of any of them being wild, vicious, unruly, weak, escaping or maiming themselves or each other: or from delays: or in consequence of heat, .suffocation or other ill effects of being crowded either upon the cars, or by the owner feeding the stock or otherwise. Also, all risk of loss or damage sustained by reason of any delay in the transportation, or from accidents that might happen inconsequence of insecurity in the floor, frame or doors of the cars in which the hogs were to be transported, and from any risk attending the loading and unloading of the hogs, the company furnishing the necessary laborers to assist. Beyond these assumed risks, the carriers were in no way absolved from their common-law obligation to safely transport and deliver such property to the owner at the point of destination. If any loss or damage occurred from injury to the hogs, from causes not embraced in risks assumed by the owner, the carriers were bound by their common law obligations. There is "no pretense that the owner assumed all risks, and that by express agreement of the parties, the relation of the carrier as to the particular transaction was changed from that of a common carrier to an ordinary bailee, and from a public to a private carrier for hire. All that can be said is, that the legal effect of the agreement was to exonerate the carriers from risks attending the transportation and delivery, that as common carriers, and in the absence of any agreement, they were subjected to by law. Ho quéstjon, however, arises in this case as to the safe transportation and delivery of the hogs, or as to any liability of the company in respect to the carriage of the property.

As the owner was to feed and see to the condition of the hogs during the transit, and the carriers were to be relieved ■from the duty of taking care of them, the agreement contemplated that a person or persons on behalf of such owner should accompany the train to discharge the duty, but the sum paid to the carriers was evidently intended as a compensation both for the transportation of the hogs and the passage of the persons in whose charge, for certain purposes, they were to be. In no just sense could these persons be. regarded as gratuitous passengers; and although the carriers assume to treat them as riding free, they were not; as it was a condition of the contract that they were to ride with the train to take care of the stock, and the consideration paid to the defendants was as well for such passage as for the carriage of the property itself.

The agreement, therefore, related to the transportation of property, and its whole intent and effect were to absolve the defendants as common carriers from certain specified risks that were otherwise imposed on them by law. In the instrument, however, is found this clause: “And it is further agreed between the parties hereto, that the persons riding free to take charge of the stock, do so at their own risk of personal injury from whatever cause.” • Ward, the owner, was the person riding on the stock train, of which his two car-loads of hogs formed a part, and he was killed during the transit, as the jury found, through the culpable neglect of the defendants in providing and using an insufficient and unsafe car for him and other passengers to ride in. On the trial, the defendants took the broad ground that this was a valid and binding agreement, and operated to excuse them from any liability for personal injury, or, at least, except such injury arose from .willful misconduct. The judge, however, who tried the cause construed the agreement differently; and instructed the jury that if they should find that the death of the intestate was caused by gross negligence on the part of the defendants, without fault on his part, they were liable notwithstanding the agreement. The judge was not requested to define what he meant by the term “ gross negligence,” in its application to the case; but if the theory of the plaintiff as to the cause of the injury was the correct one (and that question was fairly submitted to the jury), within all the cases, the defendants were grossly, and culpably negligent. A railroad company that shall neglect to provide safe and road-worthy vehicles for the transportation of persons, when the omission to do so is fraught with imminent danger to human life, and injury occurs thereby, is not only culpably negligent, -but, I think, practises a fraud upon, and exhibits bad faith in respect to those whom they have undertaken to carry.

The accident resulted (as the jury must have found) from the use by the defendants of an unsafe and dangerous car, with a flattened wheel, which caused it to leave the track. Providing and using such a vehicle was the negligence of the carriers, culpable and inexcusable. It is in this case therefore quite unnecessary to inquire whether there is really anything practical in the definition of the degrees of negligence heretofore attempted by courts and text writers, ■or whether the carriers, being a corporation, may, contract against liability for the negligence of its employees and servants.

We come now to a consideration of the nature and effect of the stipulation in respect to personal injury of persons in charge of the stock introduced into the agreement for the transportation of the property. It is to be observed, that although the freight agent of the company testified that Ward was furnished with a pass, the form o" tenor of it was not shown; and if the defendants have succeeded in limiting their liability as carriers of passengers, it is wholly by force of the stipulation above referred to: Ward himself being the person who went on the train to take care of the hogs.

Conceding for a moment that the defendants, as passenger carriers, might enter into a valid contract with a passenger to be absolved from liability for personal injury to him, the first inquiry that naturally arises is, whether this effect can be legally given to the agreement in this case, in exoneration of liability for injuries to Ward, the plaintiff’s intestate, or whether really it has any binding force. The carriers and Ward agree, not that the latter shall assume all risks of personal injury, but that the persons who may ride on the train to take charge of the stock will do so. Now, suppose a person other than Ward should have accompanied the train to take care of the stock (and the agreement clearly contemplated such a case) and was injured by the carelessness of the defendants, it could scarcely be pretended that the company would not be liable. Such person would have made no agreement to assume any risk and because the carriers have agreed with another that he will ride at his own risk of personal injury, they cannot thereby avoid their legal responsibilities. It is in no sense his agreement, nor is he a party to it. If the agreement would have no binding force upon such a person, why upon Ward, who accidentally occupied his place ? Can the agreement operate differently in respect to persons in the same class—binding one and having no force as to the other ? Shall it be held to limit the carrier’s liability as to Ward, and to have no effect in that direction as to another person occupying the same relation ? Had the agreement been that Ward himself should ride on the train to take care of the stock, at his own risk of personal injury, from whatever cause, and such a contract was valid, a different question would be presented. But that is not this contract. Here the carriers and the owner of property contract. for its transportation, and as parcel of the contract the owner is to take care of it on the transit, and to that end he must employ persons to accompany the train, and lie stipulates that these persons shall ride at their own risk of personal injury. The owner may or may not be one of these persons, but if he should happen to be, have the carriers by force of the stipulation succeeded in relieving themselves from responsibility for' an injury to him, resulting from their negligence ? I .think not. If carriers of persons by railroad are to be permitted to contract against liability for their own negligence, such contract should be at least directly with the contracting party, and clear and definite as to injuries to him. A contract between such carriers—who are simultaneously exercising the employment of common carriers of property—and the owner of property, that persons riding on the train in charge of such property, do so at their own risk of personal injury, is not of that character.

But if this be an incorrect view, and the contract is to be treated as one between Ward and the defendants, as carriers of persons in respect.to injuries to him occurring in the transit, we are next to consider whether a carrier and passenger can make a valid contract that shall operate to excuse the former from all liability for personal injury to the latter; and if so whether the accident or negligence which caused the injury complained of was within the scope and spirit of the agreement actually made.

1. The defendants claim that this was a contract releasing them from all liability for personal injury to Ward, except such injury arose from their willful misconduct. But it is unnecessary to add this qualification, as by- its terms all risks are assumed from whatever cause. Was such a contract a. valid one ? With regard- to a special contract with a common carrier for the carriage of property, there are no considerations affecting the public interest or policy forbidding it being made. ■■ The parties to such a contract are alone interested; and al though the carrier exercises a sort of public employment, the obligations which the law imposes on him ■ inure exclusively to the benefit of the owner of the property. The owner may agree to relieve the carrier from his obligations as an insurer, and limit' them as to the particular transaction to those of a - private carrier for hire; and the interests of' the public will be in no way affected thereby. But how is it when a railroad company is • the carrier of persons, and engaged in the business of operating a railroad for the public use? Whether a . contract shall be avoided on the ground of public policy, does not depend upon the question whether it is beneficial or otherwise to the contracting parties;- Their personal1 interests" have nothing to- do with it; but the interests of the public are alone to be considered. The state is interested not only in the welfare, but in the safety of its citizens. To promote these ends is a leading object of government." Parties'are left to make whatever contracts they please, provided no legal - or moral obligation is thereby violated, or any public interest impaired; .but when the effect or tendency of the contract is to impair such interest, it is contrary' to public policy and' void.. Contracts in restraint of trade are void, because they interfere with the welfare and convenience of the state; yet the state has a deéper interest in protecting the lives of its citizens. It has manifested this interest unmistakably in respect to those who travel by railroads. Hér policy, and the uniform policy of the law has been, in regard for the safety of the citizen who has recourse to this "dangerous mode of travel, upon a road and by agencies over which he has no ‘ control, to hold the carriers "to the exercise of the utmost foresight even as to possible dangers, and the utmost prudence in guarding against them.' This policy is dictated-both by a ' desire to protect the citizen, and. because' the' public is interested in his safety. Whether a carrier to whose exclusive charge the safety of a passenger has been committed,- by his own culpable negligence and misconduct, shall put in jeopardy* the life of such passenger, is a question affecting the public and not the party alone who isl being'carried. It is said that1' the passenger should be left to make whatever contract he pleases; but, in my judgment, the public having an interest in his safety, he has no right to absolve a railroad company to whom he commits his person from the discharge of those duties which the law has enjoined upon it in regard for the safety of men. Can a contract, therefore, which allows the carrier to omit all caution or vigilance, and is, in effect, a license to be culpably negligent to the extent of endangering the safety of the passenger, be sustained ? I think not. Such a contract, it seems to me, manifestly conflicts with the settled policy of the State in regard to railroad carriage. Its effect, if sustained, would obviously enable the carrier to avoid the duties which the law enjoins in regard to the safety of men, encourage negligence and fraud, and take away the motive of self-interest on the part of such carrier, whidh is perhaps the only one adequate to secure the highest degree of caution and vigilance. A contract with these tendencies is, I think, contrary to public policy, even when no fare is paid.

In this case, however, Ward was not a gratuitous passenger. He had compensated the carriers not only for the transportation of his stock, bu£ for the carriage of himself to take charge of it. He is to be regarded in the same light as a passenger who has paid a compensation for being carried. Whatever may be said, therefore, in respect to a person riding free in pursuance of an agreement to assume all risks, the direct question here, is, whether it is against the policy of our laws for a railroad company carrying a passenger for a compensation, to contract with such passenger for exemption from liability for its negligence. That it is I cannot entertain a doubt. If, then, the agreement in this case is to be construed as releasing the defendants from all liability for personal injury to Ward from their own culpable negligence and misconduct, and absolving them from all responsibility for his safe carriage, it is void.

2. But was that the tenor and effect of the agreement? The contract, in which the stipulation is found, related to the transportation of his hogs, and that contract provided that the owner should assume certain risks in respect thereto, and either accompany the train himself to take care of them, or fn'rnish other persons to discharge that duty. With respect to the property, the company assumed to safely transport it and. take upon themselves all risks of transportation except those specified. They were to furnish the means of transportation— provide the road, attendants, supervision, and motive power, and secure sufficient cars, except in the single respect to the floors, frames, and doors of such cars. As to these things, there was no attempt to limit their common-law liability as carriers of property, and for loss or damage occurring to the owner during such transportation from causes other than those, the risks of which he had assumed the liability as common carriers continued. " They were responsible for any loss to the owner resulting from neglect to provide either a sufficient roadway or secure and road-worthy vehicles for the transportation, except as respected their floors, frames and doors. They were liable for any degree of negligence of themselves or their servants, in the transit, except as to those things which the owner undertook to relieve them from, and take upon himself the risk. This is the nature and effect of the contract as to the carriage of the property. But in it is embodiéd the stipulation that persons accompanying the train, to take charge of the stock, do so at their own risk of personal injury from whatever causes. It was a convenience to both parties, and a part of the contract, that a person should ride along to take care of the stock. Mow we are asked to presume, whilst the agreement bound the carriers to safely transport the property, and the law held them responsible as insurers except so far as they had succeeded by agreement to limit such liability, that the parties intended that the persons in charge of the property should assume all risks of personal injury, whether resulting from the culpable negligence and misconduct of the carriers or otherwise: and that it was intended that the carriers should be held for loss occurring from their negligence in the transportation of the property, but absolved from all liability for injuries caused by such negligence, however gross or culpable, to the persons in charge of it. This could not have been the intention, nor will the law presume that it was, so long as there were other risks to which the stipulation might naturally and properly apply, and more consistently with honesty and fair dealing. It will not be presumed that Ward intended to hold the carriers for loss occa-' sioned by their omission of care in the transportation of' his ' property, but to excuse them from any liability for injury to' himself whilst taking care of it, though having no control ór ' management whatever of the railroad: nor that the carriers, ■ - after becoming a party-to a contract for the carriage of; livestock, a part of which contract was that a person should ride - on the train to take care of such stock, intended that that person should-take on himself the risk of personal injury,- even though they should omit the ordinary precautions which a man , observes in taking care of himself or his own- property. The most reasonable construction to be given to the stipulation, in view of the circtimstances under which it was made', and the-only one, -I think the law will permit, is this: the persons riding on the train' to take care of the stock- will do so at their own risk of personal injury from causes not produced- by the-willful misconduct, gross negligence, or want of ordinary care-of the carriers -or their servants,-in the control and management of the railroad on which themselves and the stock- were to be carried. Had Ward, in. general terms, agreed to assume all risks as to the transportation of the stock, the carriers would-' still have been liable for gross negligence or a want of due care. • The-parties might by such' agreement have succeedede in establishing the relation, as to this transaction, of an ordinary bailee and ■ private carrier for hire. But a private carrier for hire is answerable for gross negligence or a want of due care. There are cases in respect to the transportation of property, giving-a similar construction to stipulations as broad and comprehensive as the present one. In Alexander v. Greene (7 Hill, 533), the contract was to tow a canal boat to Albany, at the risk of the master and owners thereof. ■ The canal boat was run upon a rock and her cargo lost; but it was held in the court of errors . that the contract did not exempt the defendants from the con- • sequences of their gross negligence or want of ordinary skill and care, and that that could not have been the intention of the parties. The case of Wells v. The Steam Navigation Company (4 Seld., 375), involved the same question and upon a precisely similar contract. Although contending that the defendants were only answerable for injuries occasioned by fraud or want of good faith, the court of appeals held that the contract did not protect the defendants from the gross negligence of their servants in navigating their vessel, and that a stipulation or a contract to exempt from gross negligence, must be specific and distinct, .or it will not be implied from a clause containing a general expression that might naturally apply to other risks. In Sager v. The Portsmouth Railroad Company (1 Am. Railway Cases, 172), the question arose upon the liability of the carriers for the loss of live stock by an accident upon a railroad. The contract for the carriage was in the following form: “We take upon ourselves the risk of all and any damages that may happen to our horses, cattle, &c., and that we will not call upon said railroad company, or any of their agents, for any damages whatsoever; ’’ yet it was held that this was not a stipulation for willful misconduct, gross negligence or want of ordinary care in the defendants or their servants, either in respect to the railway or its management. A .similar conclusion was reached in the case of The New Jersey Steam Navigation Company v. The Merchants' Bank (6 How. U. S. R., 383), which was an action against a common carrier for the loss of the goods, when the clause on which the carrier relied for exemption was, “ at the risk of the master and owners."

On the whole, therefore, there was no error in holding at the circuit, that notwithstanding the stipulation, the defendants were liable for gross negligence. The instructions to the jury Were, that if they came to the conclusion, from the evidence, that the death of Ward was caused by gross negligence on the part of the defendants, without fault on his part, their verdict should be for the plaintiff; otherwise they should find for the defendants. This was quite as favorable to the defendants as they were entitled to claim. The evidence in one view of it,. in my judgment, would not only have justified a finding of gross negligence, but negligence of so culpable a character that had the carrier been a natural person and not a corporation, he would have been liable to a criminal prosecution.

The judgment of the 'supreme court should be affirmed.

Denio and Davies, Js., were of opinion that there is no general public policy forbidding a contract by which a railroad corporation should be exempt from liability for the negligence of its agents in respect to a purely gratuitous passenger, but they thought that the railroad act and its policy prohibit a contract for such exemption with a paying passenger. They were for affirmance, on the ground that plaintiff’s intestate was not a gratuitous passenger. i

Smith, J., was for affirmance on the ground that the negligence was that of the corporation itself. Sutherland, J., for affirmance, upon the ground stated by him in Wells v. The same Defendant, that the contract for exemption was void irrespective of the question whether the transportation was gratuitous or for hire.