143 N.Y.S. 365 | N.Y. App. Div. | 1913
The single question involved upon this appeal is as to the validity within this State of a clause in a contract for transportation from a point within a sister State to a point within this State, and of a release executed concurrently therewith, both of which werfe invalid in the State where executed but vahd when executed within this State, exempting a common carrier from liability to a person being transported as a caretaker, who was injured while traveling over the line of a connecting carrier wholly within this State, through the negligence of such connecting carrier.
The action was brought to recover damages on account of personal injuries alleged to have been sustained by the plaintiff at the city of Elmira, N. Y., by reason of the negligence of the defendant while the plaintiff was riding as a passenger upon one of its trains, the plaintiff alleging that at the time
The clauses of the answer demurred to allege that at the time of receiving any injuries, the plaintiff, who had shipped at Jackson, Mich., consigned to Ballston Spa, two horses and other property, was traveling upon what is commonly known as a drover’s pass, pursuant to a contract and release executed by him in order to obtain a reduced rate of transportation, by which he voluntarily assumed all risk of personal injury, and released the contracting railroad as well as all connecting carriers, of which defendant was one, from all liability on account of any personal injuries which he might sustain, whether caused by the negligence of the contracting railroad or of any connecting carrier or otherwise.
To these defenses the plaintiff demurred upon the ground that they were insufficient in law upon the face thereof. From the judgment overruling the demurrer this appeal has been taken.
If the appeal is to be decided upon the defenses demurred to as they stood at the time the demurrer was served and as they appear upon the record, unquestionably the judgment overruling the demurrer must be affirmed. The answer contains no allegation that under the decisions of the courts of Michigan a contract and release of this character are invalid, and the concession hereinafter stated did not operate to so amend it. Moreover, a demurrer does not admit an allegation of the pleading demurred to, that the law of another State as construed and enforced by the courts of that State is to a certain effect, nor does it admit conclusions of law. (Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54; Park & Sons Co. v. National Druggists’ Association, 175 id. 1.) It is the rule that the lex fori furnishes, prima facie, the rule of decision, and that if either party wishes the benefit of the lex loci contractus he must aver and prove it. We cannot take judicial notice of the laws of a foreign State, and in the absence of proof its laws will be presumed to be in accordance with our own. (Monroe v. Douglass, 5 N. Y. 447; Latham v. de Loiselle, 3 App. Div. 525; affd., 158 N. Y. 687; Humphreys v. Chamber
The first defense demurred to alleges that the Grand Trunk Railway Company, the Delaware, Lackawanna and Western Railroad Company, defendant herein, and the Delaware and Hudson Company, as common carriers, engaged in interstate commerce, and subject to the laws of the United States regulating the same, established a joint route at a rate of compensation pursuant to lawful tariffs, rules and classifications theretofore established, published and filed in accordance with the laws of the United States regulating interstate commerce, and that the contracts entered into between the Grand Trunk Railway Company and the plaintiff for the carriage of property over such joint route from Jackson, Mich., to Ballston Spa, N. Y., were for the benefit of all said common carriers
“ And it is further agreed by said shipper, that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge, other than the sum paid or to be paid for the transportation of the live stock in charge of which he is, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier, from all claims, liabilities and demands of every kind, nature and description by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or any of its or their employes, or otherwise.
“And G-eo. D. Fish does hereby acknowledge that he had the option of shipping the above described live stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers and thereby receiving the security of the liability of said carrier and connecting railroad and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned.”
The second defense demurred to alleges that at the time the plaintiff claims to have received personal injuries he was riding free of charge in a freight car as a caretaker of two horses, pursuant to his desire to so travel, having entered into the following written agreement with the common carriers who were engaged to transport the horses, of which carriers defendant was one:
“ Belease for Man or Men in Charge.
“ In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid for the carriage*98 upon said freight train of the live stock mentioned in said contract, of which live stock he is in charge, the undersigned does hereby voluntarily assume all risk of accidents or damage to his person or property and does hereby release and discharge the said carrier or carriers from every and all claims, liabilities, and demands of every kind, nature and description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be- caused by the negligence of the said carrier or carriers or any of its or their employes or otherwise.
“GEO. D. FISH.”
A similar contract and release were held to be invalid in the State of Michigan in the case of Weaver v. Ann Arbor Railroad Co. (139 Mich. 590), which was an action brought to recover damages on account of personal injuries sustained by plaintiff who was being transported within the State on a drover’s pass, having executed a contract and release in practically the terms of the contract and release in the case at bar. The court held that the plaintiff was rightfully riding as a passenger for hire, and that the release executed by him was invalid upon.grounds of public policy and that the defendant as a common carrier of passengers could not lawfully stipulate for exemption from responsibility for its own negligence. Upon the other hand it was held by the Supreme Court of Pennsylvania in an action brought by an employee of the defendant who was traveling upon a free pass issued to him by the defendant in the State of Hew Jersey, in which State an exemption clause contained in the pass was valid, who on his way to Elmira, H. Y., was injured in the State of Pennsylvania, in which State such exemption clause was invalid, “It is to be presumed that parties enter into a contract with reference to the laws of the place of performance, and unless it appears that the intention was otherwise, those laws determine the mode of fulfillment and obligation and the measure of liability for its breach.” (Burnett v. Pennsylvania R. R. Co., 176 Penn. St. 45.) Also, “Where a contract containing a stipulation limiting liability for negligence on the part of a common carrier, is made in one State, but with a view to its
In some other States such contract and release have been held to be valid and in other States to be invalid, but a further review of the decisions of the various States in which the question has been passed upon would be of little benefit. However, it is interesting to note the decision in 1873 of the United States Supreme Court in the case of Railroad Company v. Lockwood (17 Wall. 357), which was an appeal from the Circuit Court for the Southern District of New York. Lockwood was injured through the negligence of the New York Central Railroad Company while traveling on a drover’s pass from Buffalo to Albany. The court on appeal held that the railroad company could not lawfully stipulate exemption from responsibility for its own negligence, and that the release was void and Lockwood entitled to recover damages. That decision, however, has not been followed by the courts of our State, but as before observed such contract and release when executed within this State are held to be valid (Hodge v. Rutland Railroad Co., supra), and it would seem that such holding of the courts of our State, especially at the present day, in view of the Interstate Commerce Act and the Public Service Commissions Law, regulating the rates for the transportation of passengers and freight, is founded in reason and justice.
In the case of Cappel v. Weir (46 Misc. Rep. 441), which was an action against an express company to recover the value of property received by it at Philadelphia, Penn., for transportation to New York city, and through the negligence of the defendant not delivered at the latter place, the court held: “ While in Pennsylvania a carrier may not by contract limit its liability for negligence, the- rule only applies when the negligent act occurs in some jurisdiction whose laws forbid such limitation. But where as in this State [New York] such limitation is valid, a contract made by an express company in Philadelphia, Pa., to deliver goods at a particular address in this State limiting its liability to fifty dollars, will be enforced
It is undoubtedly the law of this State that the validity of ordinary commercial contracts is to be determined by the law of the place where the contract was executed, unless it can fairly be said that the parties at the time of its execution clearly manifested an intention that it should be governed by the laws of another State. (Union National Bank v. Chapman, 169 N. Y. 538; Grand v. Livingston, 4 App. Div. 589; affd., 158 N. Y. 688.)
The Grand Trunk Eailway Company, as well as the defendant, being engaged in interstate commerce, was required by the Interstate Commerce Act to establish through routes and just and reasonable rates applicable thereto, and the answer herein alleges that said contracts were part and parcel of the said tariffs and of the rules, regulations and classifications of the Grand Trunk Eailway Company, as well as those of the Delaware, Lackawanna and Western Eailway Company, published and filed pursuant to the laws of the United States regulating interstate commerce, and in connection with and as a part of said tariffs. It was this classification so made and filed by the defendant of which this contract and release were parts, under which the plaintiff was agreed to be carried by the defendant over its road from Buffalo through Elmira to Binghamton.
The plaintiff knew at the time he executed the contract that he was to be transferred to defendant’s railroad at Buffalo, as in his complaint he alleges that at Jackson, Mich., ón or about hiovember4, 1910, he “purchased and paid for transportation * * * entitling him to ride from Jackson, Michigan, to Ballston Spa, hi. Y., and over defendant’s lines between Buffalo, N. Y., and Binghamton, N. Y., and did thereupon enter as a passenger a car of defendant at Buffalo, N. Y., and was transported over defendant’s said lines as a passenger on one of defendant’s cars and train from Buffalo, N. Y., to the city of Elmira, N. Y.’
“In the case of transportation of property over several railroads constituting a continuous line, none of the roads can he said to be agents of the owner; each is exercising an independent employment, and is a contractor with the owner, the contract being either express or such as the law implies.” (Sherman v. Hudson River R. R. Co., 64 N. Y. 254, 260.) I think that no contractual relation existed between the plaintiff and defendant, and that the contract and release did not become binding as between them until the plaintiff was received by the defendant at Buffalo for transportation over its line, and hence that the validity of the contract and release as between the plaintiff and defendant is governed as to the negligence of the defendant by the laws of the State of New York, and that such must be presumed to have been the intention of the parties at the time the contract and release were executed.
I have not overlooked the cases cited by the appellant. (Dike v. Erie Railway Co., 45 N. Y. 113; China Mutual Insurance Co. v. Force, 142 id. 90; Grand v. Livingston, supra; Union National Bank v. Chapman, supra; Valk v. Erie R. R. Co., 130 App. Div. 446.) In each of these cases, so far as they relate to the question of validity of a clause of exemption in a contract for transportation, the consignee was a through carrier, and no delivery was made to a connecting carrier, and nothing appeared from which it might be inferred that it was the intention of the parties when entering into the contract that any law other than that of the State in which the contract was executed should prevail during the performance of the contract.
We more willingly reach the conclusion that the validity of the contract in question is to be determined as between the plaintiff and defendant by the laws of this State, for the reason that it would be an injustice to allow the plaintiff, who
All concurred.
Interlocutory judgment overruling demurrer affirmed, with costs, with leave to plaintiff to withdraw demurrer upon payment of costs in this court and in the court below.
