17 N.Y.S. 855 | N.Y. Sup. Ct. | 1892
This action was brought to recover the value of wearing apparel in the plaintiff’s trunk, which was delivered to the defendant to be carried from Jersey City to East Eightieth street, Hew York, and in transit fell into the Hudson river, and was thereby saturated with salt-water, discolored, and damaged. The defendant denied negligence and value of property, and set up a special agreement that, in case of loss or damage to said trunk or its contents by reason of negligence or otherwise, it should not be liable for an amount exceeding $100, unless specially agreed for in writing, and noted in said contract, and the extra risk paid therefor. The question most seriously litigated, and the substantial one presented upon this appeal, relates to the defense thus interposed as to whether or not the defendant had limited its liability by the special agreement to $100. Upon the facts the referee
In view of the numerous decisions, we may regard the law as settled, that a common carrier has the right to limit his common-law liability by express contract, shielding him from damage occasioned even by his own negligence and that of his servants. But as stated in Madan v. Sherard, 73 N. Y. 329, where a traveler, on delivery of baggage to a local express company, receives a paper which, from the circumstances of the transaction, he has a right to regard simply as a receipt or voucher to enable him to follow and identify bis property, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than as a voucher, his omission to read the paper is not per se negligence, and he is not, as matter of law, bound by its terms The question Whether in a particular case the party receiving such a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence, to be determined by the jury. It will thus be seen that no such contract arises as a matter of law from the acceptance of the receipt, but the defendant, in order to relieve itself from full liability, is bound to establish a contract. Sunderland v. Westcott, 40 How. Pr. 469; Blossom v. Dodd, 43 N. Y. 264; Rawson v. Railroad Co., 2 Abb. Pr. (N. S.) 220; Limburger v. Westcott, 49 Barb. 283. In Woodruff v. Sherrard, 9 Hun, 323, which is a decision of this general term, wherein the cases were collated and discussed, Daniels, J., in writing the opinion, says: “To make a binding contract in such a ease as this, requires at least the implied assent of the party receiving the instrument.” In that case it appeared that a daughter of the plaintiff, in company with another young girl, delivered a check for a trunk to the clerk of a transfer company at its office in Yew York, with instructions to transport the same to her house in Brooklyn. She then turned away, and was leaving the office, but at the suggestion of her companion that she ought to have a receipt, she returned and demanded a receipt of the clerk, who thereupon delivered to her a receipt, by which it was, among other things, stipulated that the company should not be liable to an amount exceeding $100, unless a special contract was made. She did not read the receipt, or know its contents, until after the loss of the trunk. Held, that she never assented to