66 N.Y. 313 | NY | 1876
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *315 The defendant seeks exemption from liability for the injuries sustained by the plaintiff's intestate upon the ground that the intestate was bound by the terms of the contract entered into between the defendant and the express company, and that such contract exonerates the defendant from liability for negligence.
The original contract between the defendant and the express company, provided that the defendant should transport, free of charge, the money-safes, contents and messengers of the express company, "the party of the first part assuming no liability whatever in the matter." By the subsequent modification of the contract, provision was made that the railway company should assume the usual risks upon express matter, except that they should not assume any risk or loss upon any money, etc., for which, with the express company's safes and messengers no charge for carriage was to be made, and the latter were to pass free of charge. The condition referred to was general in its character, and evidently related to the liability and duty of the defendant in its ordinary dealings with the express company. It does not purport to control or adjust any other rights or duties. It contained no provision, and there was no agreement that the company should not be liable for negligence, and the scope of the contract is not to be extended beyond what was evidently intended and was in the contemplation of the parties. Conceding the doctrine that the defendant had a right to protect itself by contract, from any liability for negligence on the part of its employes, such protection cannot be invoked unless the contract contains a provision to that effect. None of the cases which hold that the defendant is exonerated under a special contract, go to the extent claimed or affect a contract of the character of the one now presented. In Smith v. The *317 New York Central Railroad Company (
There is no provision in the contract which prevents the employment by the express company, of any person as a messenger, or in the place of such messenger, when, for any reason, he is prevented from attending to his duties. The intestate therefore was lawfully upon the cars and entitled to the same protection as the messenger whose place he filled. The circumstances presented bear no analogy to that of a person who is invited by a conductor without authority, and contrary to the regulations of the company, to ride upon a train which is not intended to carry passengers without paying his fare, as was the case in Eaton v.Delaware, Lackawanna Western Railroad Company (
Concurrence Opinion
Upon a reasonable interpretation of the contracts between the defendant and express company, there is no stipulation that the persons riding free, as messengers of the latter company, shall take and bear all risks of personal injury, without recourse to the carrier for compensation for damages sustained through its negligence, or the negligence of its servants. There is no provision in terms restricting the liability of the railway company to the messengers of the express company, or distinguishing the latter from other passengers carried upon the road, or who may be lawfully on the trains as passengers. Without an express exemption, provided by contract, the defendant is liable for the consequences of its negligence, or that of its servants, to all persons traveling and carried upon its trains, as messengers or agents of the express company, to the same extent as to other passengers. *319
(Nolton v. W.R. Corporation,
This leads to an affirmance of the judgment, without considering the other questions raised.
Dissenting Opinion
I will briefly state the grounds of my dissent from the conclusion reached by my brethren. In the first contract the defendant agreed to transport, free of charge, the "money-safes, contents and messengers" of the express company, "assuming no liability whatever in the matter." In the second contract it is provided that the former contract shall continue and be binding on the parties except as modified by that contract, and the third clause of *320 that contract is as follows: "It is further agreed that the Erie railway shall assume the usual risks taken by railroads on the express matter of the parties of the second part, excepting that the railway company shall not assume any risk or loss on any money, bank-notes, bonds, gold, bullion, or jewelry packages, and for which, with the express company's safes and messengers, no charge for carriage is to be made by said railway company." This clause contains a more minute specification of the things which were to be carried free of charge and free of risks. It cannot be supposed that it was intended to so alter the first contract that while the railroad company should be bound to continue to carry the safes and messengers free of charge, it was to assume risks in reference to them. Both contracts showed that it was the intention of the parties that the railroad company was to assume no liability in reference to any thing which it was to carry free.
It becomes important, then, to inquire into the meaning of the language used in the first contract exempting the defendant from liability in reference to express messengers. The language is as comprehensive as it well could be: "assuming no liability whatever." What did the parties mean? Railroad companies do not insure the safety of persons lawfully riding upon their cars. (McPadden v. The N.Y.C.R.R. Co.,
But it is claimed that the messenger was not bound by this agreement, in the absence of proof that he knew of it and thus can be held to have assented to it. He was not a passenger upon the train. He was upon the train in an express car engaged in the separate business of the express company. He was in that car lawfully only as he was there *321 under the agreement. He knew that he had not paid any fare, and that he had made no contract for his carriage. He must have known that he was there under some arrangement between the express company and the defendant, and that whatever right he had to be transported was as the servant of the express company. He was there not in his own right, but in the right of the express company, and hence he was bound by the arrangement that company made for him.
I am, therefore, of opinion that the judgment ought to be reversed.
All concur for affirmance, except EARL, J., dissenting.
Judgment affirmed.