29 Barb. 602 | N.Y. Sup. Ct. | 1859
The jury have found, by their verdict, that the death of Bissell was occasioned by the gross negligence
hieither the contract nor the ticket can be construed to refer to injuries from such a cause. It would be against the settled rules of construction to hold that injuries from criminal causes were intended by the parties. In Welles v. The New York Central Rail Road Co., (26 Barb. 641,) it was conceded by the learned judge who delivered the opinion, that negligence so culpable as to imply fraud or bad faith would not be one of the risks assumed by the passenger, when, by accepting a free ticket or pass, he had expressly agreed to assume all risk of accidents, whether occasioned by negligence of the company’s agents or otherwise. The injury here arising from a cause not within the risk, constitutes a good cause of action against the defendants. Whatever may be said in the books about degrees of negligence, they are clearly recognized by our statute, which makes culpable negligence by which a human being is killed, manslaughter in the fourth degree.
The remark of the judge in his charge to the jury, that it seemed to him a case of gross negligence, is no ground for an exception. The whole question was submitted to them. I do not find any error in the charge, or in the refusal to charge, and am of the opinion that the order refusing a new trial should be affirmed.
T. B. Strong, J. I concur in the result of the foregoing opinion; but I think there is no difference in principle between this case and the case of Welles v. The same defendants, (26 Barb. 641.) In the latter case, it was admitted by the parties, that the plaintiff took passage at Lyons for Albany on a passenger train of cars of the defendants; that while seated in. the ¡forward .passenger, car, a collision occurred between that train of ears-and the; cars of -affreight.or cattle train standing
There is no force in the idea suggested, that as the parties have not designated the degree of the negligence, the court must regard it as simple ordinary negligence; for, without reference to the admission, in terms, of negligence, the facts admitted, unexplained, show gross or culpable negligence. The defendants with one train of cars ran into another train of the defendants on the same track; and upon these naked facts the law would not presume there was a justification, excuse or palliating circumstance, not offered to be proved, but adjudges there was neither.
The principle of liability in this, was, in my opinion, equally applicable in the other case.
E. Darwin Smith, J. In the conclusion to which my brother Johnson has come in this case, and in his reasons, in the main, I concur, but not in the view of my brother Strong, that there is no distinction in principle between this case and that of Welles v. The same defendants, in 26 Barb. 641.
It seems to me that the verdict in this case can be sustained, and both decisions stand together. It was not intended to deny, in the case of Welles, that there were not different degrees or shades of negligence, but to express a doubt whether those degrees could beffiefined with sufficient distinctness for any practical purpose. But, however this may be, there is
The defendants are common carriers of persons and property. A common earner is one who undertakes for hire or reward to transport the persons or goods of such as choose to
When rail road or other corporations assume the duty and employment of common carriers, as in this case, and act entirely by officers and agents, as they necessarily must, I conceive that they cannot contract for exemption from responsibility for whatever pertains to the proprietorship of the rail road, nor for the acts of that class of superior agents who act for and in the place of the corporation, as officers, directors or other managing agents, and who, as such, within the trust
In this case the plaintiff’s husband made and signed with his own hand an express contract, in which it is stipulated that the persons riding free on the defendants’ road, to take charge of stock, do so at their own risk of personal injury, from whatever cause. And he also received from the defendants' agents, at the same time, a ticket with an indorsement thereon, stating that the person receiving the same assumed all the risk of accidents, and expressly agreed that the company should not be liable under any circumstances, whether of negligence or otherwise, for any injury to the person, &c. In such a case I conceive that there is no liability on the part of the defendants, except such as would exist between two private persons when one undertook to carry the other gratuitously from one place to another, for the personal accommodation or pleasure of the latter. The defendants would not be subject to the responsibilities of common carriers, but would be liable simply as bailees, as in the case of a naked depositary without reward, or a mandatary, who are only responsible for gross or culpable neglect. (16 N. Y. R. 447. 11 Wend. 25. 17 Mass. Rep. 479. 7 Cowen, 278.)
In this view of the defendants’ responsibility, in either aspect of the case, I find no difficulty in sustaining the verdict. The jury have found that the case was one of gross negligence, and this gross negligence was the negligence of the principal, in the employment of the very careless, incompetent and stupid, if not drunken, switchman, whose heedlessness caused the collision of the trains which produced the death of the plaintiff’s husband. Such, doubtless, was or may have been the opinion of the jury and the grounds of their verdict. On these grounds I think it entirely correct and proper.
In the case of Welles v. The same defendants, (supra,) there was no such proof, and no evidence showing how the collision happened; nor any evidence that would warrant a
T. R. Strong, Smith and Johnson, Justices.]
Upon this discrimination between the acts of the principal and the agent, I think that the case of Welles was rightly decided ; although some expressions in the opinion may require qualification. And that the verdict in this case can be sustained without involving any inconsistency between the two cases. I concur, therefore, in the decision that a new trial be denied.
Order refusing a new trial affirmed.