157 N.Y.S. 740 | N.Y. App. Div. | 1916
The question involved upon this appeal is whether the release from liability for negligence, given by plaintiff’s intestate to the defendant in consideration of a reduced rate of fare, bars the plaintiff’s right of recovery. Plaintiff’s intestate was a clergyman.
“Conditions. 11/10/13
“ In consideration of this ticket being sold at a reduced rate, a person accepting and using it expressly agrees to and does thereby assume all risk of accidents and damage to person or property, whether caused by negligence of the Company, or that of its agents or employees or otherwise. And as a condition precedent to the issuing and use thereof, each person represents that he or she is legally entitled to use such reduced rate ticket under all laws governing the same, and agrees that he or she will not use this ticket in violation of any law.
“ This ticket is not transferable.
“ Signature JAMES A. ANDERSON.”
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Upon the back of the clerical order issue,d by the defendant, which by the terms of the ticket plaintiff’s intestate was required to present as evidence of his right to travel at the reduced rate of fare at which the ticket was sold, was the following:
“ Conditions.
“ 1st. This order is not transferable and can be revoked at any time. Duplicate will not be issued * * *.
“ 4th. This order must be shown to conductors in connection with the ticket issued thereon.
“ 5th. I accept this order agreeing to be governed by its conditions and by those of the Clerical Ticket issued to me and accompanying it.
“JAMES A. ANDERSON.”
The name of plaintiff’s intestate upon the back of the ticket as well as upon the back of the order was conceded to be in his handwriting. No claim was made by the plaintiff upon the trial that her intestate did not fully comprehend the conditions to which he had affixed his signature. Being a man of education, it is to be presumed, in the absence of all evidence upon
Within a short distance of LeEoy the train was derailed and plaintiff’s intestate killed. The refusal of the court to dismiss the complaint upon the ground that the plaintiff’s intestate was being carried by the defendant under a contract which exempted it from liability and the exception taken to such refusal furnish the basis of the appeal from the judgment entered upon the verdict in favor of the plaintiff and from the order denying the motion of defendant for a new trial. It is not claimed that the derailment was caused by any affirmative act of wrongdoing upon the part of the defendant or of any of its agents or servants. Concededly it resulted from the breaking of a defective rail over which the locomotive had passed in safety.
The basis of plaintiff’s claim of right to recovery may be embraced in two propositions: That the release was void as against public policy, and that the negligence causing the accident was that of the defendant itself and not of its servants.
As to the validity of the release: It must be regarded as established in this State, although at variance with the holdings of very many other States, that a release given by a passenger traveling gratuitously or at a reduced rate of fare is valid. While in the early case of Gould v. Hill (2 Hill, 623) it was held that common carriers could not limit their liability or evade the consequences of a breach of their legal duties as such by an express agreement or by special acceptance of goods to be transported, this doctrine was soon overruled, since which time the decisions of our courts have been uniform in sustaining the effectiveness of such releases, as will be seen by the following references to decisions of our courts:
In the case of Dorr v. New Jersey Steam Navigation Co. (11 N. Y. 485), which related to the higher responsibility under the common law for the transportation of property, it was held that there were no controlling considerations of public policy against permitting the giving by a consignee to a common carrier of property of a release limiting liability, and hence that such release was valid.
In the case of Perkins v. New York Central R. R. Co. (24
In the case of Smith v. New York Central R. R. Co. (24 N. Y. 222) it was held that as to a person who must be regarded as a paying passenger, and who was injured by the gross negligence of an agent of the carrier in using an unfit and dangerous car, a provision to the effect that persons riding free did so at their own risk of personal injury from whatever cause was void as against public policy.
In the case of Bissell v. New York Central R. R. Co. (25 N. Y. 442), a leading case, it was held that a common carrier, in consideration of an abatement in whole or in part of his legal fare, may lawfully contract with a passenger that the latter will take upon himself the risk of damage from the negligence of agents and servants, for which the carrier would otherwise be liable; that public policy is satisfied by holding a railroad corporation bound to take the risk when the passenger chooses to pay the fare established by the Legislature; and that if a passenger voluntarily and for any valuable consideration waives the right to indemnity, the contract is binding.
In the case of Poucher v. New York Central R. R. Co. (49 N. Y. 263) it was held that the defendant, who had issued to the plaintiff a drover’s pass in consideration of his agreement to “take all the risks of personal injury from whatever cause, whether of negligence of defendant, its agents or otherwise,”
The opinion in the case of Baltimore & Ohio, etc., Railway v. Voigt (176 U. S. 498, 518) comments upon the cases of Bissell v. New York Central R. R. Co. (supra) and Poucher v. New York Central R. R. Co. (supra) as holding that “no rule of public policy forbids contractual exemption from liability, because the public is amply protected by the right of every one to decline any special contract, on paying the regular fare prescribed by law, that is, the highest amount which the law allows the company to charge.”
It was said in Northern Pacific Railway Co. v. Adams (192 U. S. 440) that if a passenger is injured or killed while riding on a pass gratuitously given which he has accepted with knowledge of the conditions therein, the company is not liable therefor, either to him or to his heirs, in the absence of willful or wanton negligence; that a railroad company is not under two measures of liability, one to the passenger and the other to his heirs. The latter claim under him and can recover only in case he could have recovered had he been injured only and not killed. These last two cases are cited and approved in Santa Fe Railway v. Grant Bros. (228 U. S. 177, 185).
In the case of Seybolt v. New York, Lake Erie & Western R. R. Co. (95 N. Y. 562, 573) it was said: “It cannot now be disputed that an individual transported over the route of a carrier of passengers may debar himself, by a contract founded upon a sufficient consideration, from any claim to damages for injuries to his person or property occasioned by the negligence of such corporation during the course of transportation.”
In the case of Ulrich v. New York Central & Hudson River R. R. Co. (108 N. Y. 80) it was held that the rights and liabilities of the parties must be governed by the provisions of the indorsement of the pass by which the plaintiff assumed all risk of accident and agreed that the defendant should not be liable under any circumstances whether by negligence of its agents or otherwise for any injury to his person or property.
In the case of Hodge v. Rutland R. R. Co. (112 App. Div. 142; decision amended, 115 id. 881; affd., 194 N. Y. 570) it was held that plaintiff’s intestate, a shipper of freight, having in consideration of a free passage signed a contract relieving the defendant from liability for personal injury sustained by him, whether caused by the negligence of the defendant or any of its employees, or otherwise, could not recover although the death of her intestate was caused by the negligence of the defendant. Plaintiff’s intestate was killed in a rear-end collision of two of defendant’s trains.
In the case of Gill v. Erie R. R. Co. (151 App. Div. 131, 135) it was said: “If the plaintiff was a passenger riding gratuitously on this pass he cannot recover, for it is well settled that a railroad company may, by express contract, relieve itself from liability for the negligence of its servants to one who rides on a free ticket containing such an exemption.”
In the case of Fish v. D., L. & W. R. R. Co. (211 N. Y. 374, 382) it was said that a contract which provided that the plaintiff, who was to be carried without charge other than the sum paid for the transportation of livestock, and by which the plaintiff agreed to indemnify and save harmless such carrier from all liabilities by reason of personal injury sustained by him “whether the same be caused by the negligence of said carrier or any connecting carrier, or any of its or their employes, or otherwise,” was valid in this State.
However, plaintiff’s counsel seeks to draw a distinction between the effect of a release indorsed upon a free pass and a release indorsed upon a reduced fare ticket. . But in his opinion in the Bissell Case (25 N. Y. 442, 448) Judge Selden said:
As' to the second proposition of plaintiff that the negligence causing the accident was that of the defendant itself, and not that of its servants, and that a release exempting a carrier from liability for its own negligence is void, it is to be observed that the New York cases above cited have established the proposition that a carrier may contract against its own negligent acts other than its willful and wanton misconduct. However, it was said by Selden, Oh. J., in a concurring opinion, in the case of Perkins v. New York Central R. R. Co. (supra, at p. 213): “But a distinction is no doubt to be made between the directors or managing officers of a corporation and its subordinate agents. As the former exercise all the powers of the corporation and are its only direct medium of communication with outside parties, they must, in respect to all its external relations, be considered as identical with the corporation itself. No contract, therefore, can exempt a railroad company from liability for the willful or wanton misconduct or gross recklessness of its directors; but the rule extends to no other officer or agent of the company.”
That any negligence resulting in the accident was that of the servants of the company will be seen from a brief review of the evidence. The rail which broke was a standard fifty-pound rail, rolled in 1893. It had apparently been used on the Erie main line, but heavier trains having required heavier rails, the rail in question was in 1901 transferred to the Attica single-track division, upon which the traffic was much lighter, and for use upon which the undisputed evidence is that the rail was of sufficient weight. It, however, proved to be what is known as a “ piped ” rail, a condition resulting from a bubble of gas or
Plainly any negligence causing the accident was that of the servants of the defendant who relaid the rails and had charge of repairing the track. Hence even under the contention of plaintiff’s counsel the injury suffered by plaintiff’s intestate causing his death was covered by the release. Nor can it be said that such conclusion is unjust. The decedent had absolute freedom of choice as to what contract he should make, and it was not a matter of public concern which ticket he purchased. He had the right to require the defendant to furnish him a full-fare ticket, and to itself take the risk of his being injured during his journey, or he had the right to accept the offer of the defendant and himself assume the risk of injury, relieving the company therefrom. He freely and voluntarily chose the latter, and in view of the very small percentage of passengers injured in railroad travel, the nearly fifty per cent deduction of fare made by the defendant upon clerical tickets might naturally be considered favorably by plaintiff’s intestate. The contracts printed upon the back of the ticket and of the order were plain and simple and in no way ambiguous. The breaking of a rail has long been recognized as one of the more frequent causes of railway accidents, and may well be considered to have been one of the risks intended to be assumed by the traveler when by executing the contract he assumed “ all risk of accidents and damage to person or property, whether caused by negligence of the Company, or that of its agents or employees or
The judgment and order appealed from must, therefore, be reversed and a new trial granted.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.