95 N.Y.S. 17 | N.Y. App. Div. | 1905
Lead Opinion
The plaintiff, a shipper,, contracted with the defendant, a common carrier, for the transportation of twenty-three cows and a calf at reduced rates from East Buffalo in Erie county to Monroe, Orange, county. The cattle were placed in a car attached to a train at East. Buffalo at about three o’clock in the afternoon of November 25* 1901, and left East Buffalo at about six o’clock. The train reached Port Jervis, Orange county, within thirty-eight miles of the destination of the cattle, between four and five o’clock on the afternoon of November twenty-sixth. They were then in good condition, but. at that station the car containing them was detached from the train and left standing in the Port Jervis yard until eight o’clock, when,
The provisions of the contract- which bear upon the' question are as follows : “ The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes to wit ^ Overloading, crowding one upon another, kicking Or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from causes beyond their control.
“ That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper, agrees to accept as full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained.”
No cause or excuse was presented upon the trial for the deliberate severing of the car containing the cattle from the train at Port Jervis, or for the delay in transportation from that place to Monroe, and it must accordingly be assumed on this appeal that the detention was caused by the defendant’s negligence. If under the terms of the contract the injury which resulted to- the cattle is to be
In construing the contract strictly against the defendant some motive and purpose must be ascribed to the division of the hazards into two classes, differing in the results as well as in the extent of the exemption. The motive and purpose seem obvious. The first clause relates to the risks specifically enumerated and to delay caused not by the defendant’s negligence, but by events beyond the defendant’s control. If such risks or delay occasion injury to the cattle as a separate and distinct thing from loss or damage to the owner not incidental to such injury, the exemption is to be absolute. The second clause relates to loss or damage to the owner as a separate and distinct thing from injury to the cattle, and which may easily be occasioned without such injury. If this loss or damage, not •including injury to the cattle, is occasioned by delay due to the defendant’s negligence, the limit of liability is to be recompense for the cost of sustenance during the period of neglect. ^Neither clause, it will be seen, exempts the defendant in precise words from liability for its neglect resulting in injury to the cattle. In this, view the contract is reasonable and intelligible. In any other view
The principle of construction applicable to this case is illustrated by many decisions of the Court of Appeals. In Perkins v. New York Central Railroad Company (24 N. Y. 196) the general rule was laid down that a railroad corporation cannot by contract exempt itself from liability to a passenger for damages resulting from its own willful misconduct or recklessness which is equivalent thereto.
In Blair v. Erie Railway Co. (66 N. Y. 313) it was held that the terms of a contract which will exempt a railroad corporation from liability for negligence must be clear and unmistakable.
In Mynard v. Syracuse, etc., R. R. Co. (71 N. Y. 180) the exemption in consideration of transportation at a reduced rate included “all claims, demands and liabilities of every kind and character whatsoever, for or on account of or connected with any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising.” It was held that the exemption did not include a loss arising from the carrier’s negligence; that where general words in the contract of a common carrier limiting
In Holsapple v. Rome,Watertown, etc., R. R. Co. (86 N. Y. 275) the carrier, in consideration of a reduction in freight, was released from liability for injuries to sheep “caused by burning of hay, straw, or any other material used for feeding, said animals, or other-wiser It was held that the carrier was liable for the burning of the sheep, inasmuch as it had omitted to supply the train with appliances for the extinguishment of the fire, and there were no express word's in the contract exempting it from liability for its own negligence. The theory underlying the decision is that the shipper in relieving the carrier from liability assumes the exercise on. its part of every care and duty which the law enjoins and, which is not expressly covered by the precise language of the exemption.
In Nicholas, v. N. Y. C. & H. R. R. R. Co. (89 N. Y. 370) the exemption was for “ damage occasioned by delays from any cause or change of weather,” and it was held- that the exemption did not include a loss occasioned by the- negligent delay of the carrier in the transportation.
■ In Canfield v. Baltimore & Ohio R. R. Co.(93 N. Y. 532) the transportation was expressly “ at the owner’s risk,” but it was field that the defendant was nevertheless bound to exercise reasonable care and prudence in the transportation, and was liable for loss resulting from a failure in that respect.
To the same effect is Kenney v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 422). The -court said (at p. 425): “ The rule -is firmly established in this State that a common carrier may contract for immunity from its negligence, or that of its agents; but that, to accomplish that object, the contract must be so expressed, and it must not be- left to a, presumption from the language. Considerations based upon public policy and the nature of the carrier’s Undertaking influence the. application of the rule, and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis.”
The judgment should be reversed.
Woodward, Rich and Miller, JJ., concurred; Jenks, J., read for affirmance.
Dissenting Opinion
I dissent. This action is by shipper against a common carrier for its negligent delay and detention of cattle so that the cattle sick end. The shipment was under a written contract, whereby the carriage was below the published tariff rate. When the plaintiff closed, the court dismissed the complaint on the ground that the defendant had limited its liability and that no damages were proven within the limitation. The said contract of shipment in part provided : "The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from, causes beyond their control.
“ That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as. full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper,
The contention of the learned and able counsel for the appellant is that the wrong complained of is not within the purview of the 2d paragraph. I think that it is not within the purview of the 1st paragraph, for the “injury” therein mentioned is not one occasioned by delay, but by delay caused by stress of weather and other specified mishaps. And the purpose of the 1st paragraph is not to avoid liability for negligence, but such liability as might arise upon the principle stated in Harmony v. Bingham (12 N. Y. 99, 107) and Lorillard v. Clyde (142 id. 456, 462). I think that the 2d paragraph does not contemplate only loss or damage arising from delay in delivery, such as, e. g., loss by a fall in market price, or failure to deliver to a consignee at a stipulated time. Its terms relieve the common'carrier from all loss or damages. sustained by unusual delay or detention caused by the negligence of said carrier, etc. I think that the sickness of cattle which impaired their value is a loss or damage within the intendment of the expression “loss or damages,” while the plaintiff pleads that the sickness, injury and damage were due to the negligent delay and detention.
The defendant could have relieved itself from all liability for negligence by special contract of explicit expression in unequivocal terms. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 422.) If, instead of a contract for absolute immunity, it chose to except its liability for the actual expense of the shipper for food and water during a detention, the fact that this liability does not afford compensation in this case is not material in the construction of the contract. The appellant contends that the Words “ or otherwise ” must be returned to the word “ negligence,” so that the expression should read “ by the negligence of the said carrier or otherwise,” and thereupon argues that the sole purpose of the clause is not to provide for loss by negligence, But I construe the expression “ or otherwise ” as referring to negligence under the rule that the phrase “ or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. (People ex rel. Huber v. Feitner, 71 App. Div. 479, and authorities cited ; affd. on opinion below, 171 N. Y. 683.)
Judgment reversed and new trial granted, costs to abide the event.