11 N.Y.S. 691 | Superior Court of Buffalo | 1890
While the evidence tending to establish defendant’s negligence was seriously controverted, yet there was sufficient upon that point to submit to the jury, and authorized the finding that the injury complained ■of was the result of such negligence. We are not, therefore, justified in disturbing the verdict for this reason. The claim is made, however, that, even though defendant’s negligence be conceded, no recovery can be had, for the reason that at the time of the injury plaintiff had, by effective stipulation, released defendant from all loss or damage occasioned by defendant’s negligence or otherwise, and herein lies the question to be considered. The plaintiff was an employe of the Western Union Telegraph Company. His field of labor embraced the city of Buffalo, and also all the territory lying between said city and Syracuse, N. Y., where the telegraph company’s lines ran. When called out of the city, use was made of defendant’s road for transportation, and between the telegraph company and defendant a contract :had been, entered into in and by which mutual stipulations were made allowing the telegraph company to erect its lines upon the property of defendant, and .giving to the latter free use of the lines for the purpose of its business. Upon the subject of the transportation of the officers and employes of the "telegraph company, the contract provided: “And will pass, free of charge, ■the officers and employes of said telegraph company when traveling on the telegraph business of said lines, provided said officers and employes have obtained and have in their possession, and exhibit, passes of the railroad company, (which it will give,) in which all responsibility of the railroad company for any loss or damage or injury to said officers and employes shall be waived and released in the form usual in such cases.” Upon the trial, defendant offered the contract in evidence, and also offered to prove, among -other things, that at the time of the accident plaintiff was an employe of the telegraph company, and was then riding upon a pass, issued under and in pursuance of the contract, for the purpose of prosecuting the business of said company. The pass was also referred to as number 278, and proof was offered that it was in the possession of the foreman of a gang of men of which plaintiff was one, and provided for the passage of the foreman and 12 men; that, at the time of the accident, there were less than 12 men riding thereon. The court excluded this evidence, holding that the facts, if proved,
