59 Barb. 104 | N.Y. Sup. Ct. | 1870
The injury here complained of arose directly from the detention of the plaintiffs’ cattle, on a side track of the railroad, between three and four days, at a place where they could neither be fed nor watered. Several head died, and the others were greatly reduced in flesh and strength.
It is quite difficult .to see how this detention of the train on the side track, for this length of time, can be regarded and held to be an act of negligence, in any degree. It was the deliberate, intentional act of the division freight superintendent of the defendant’s road. It is precisely of the character of the act of any Other party who, after he has undertaken the performance of a job, deliberately stops, and refuses to proceed until he -has-performed another job, subsequently undertaken. To call this negligence, or a
The only question in the case, in my judgment, is
If I am right in supposing that this is not a case of an injury arising from negligence in any degree, but a case of an injury arising from a deliberate and intentional refusal to perform, for the time being, then it is quite clear that the act of Barnard, the superintendent, was the act-of the defendant, and the defendant is liable. In every case where a party who has engaged to perform certain labor or services, employs others to perform on his account, and such others, after commencing to perform, refuse to go on, or to allow the work to proceed, such refusal is the refusal of their employer, and if it amounts to a violation of the contract, it is the breach of the employer. Their misconduct, in such a case, is his misconduct, so far as it operates upon the contract- and causes non-performance.
The order of the superintendent, who had charge of the freight business on that portion of the road over which
The position of the defendant is, in my view, the same precisely that it would have been, had the engineer and conductor, and all the other hands upon the train, willfully and intentionally deserted it, and refused to proceed any further, for the same length of time. In such a case, the question of the power of these persons to bind the-corporation does not arise. If the corporation,, by such agents, or by some other means, does not perform its engagements, it is bound to respond in damages for the breach, to the injured party, and must look for its redress to the agents who have failed to perform their .duty.
"When it is once settled that the contract was not performed by the defendant according to the true meaning and intention thereof, all other questions, except as to the proper measure of damages, become wholly immaterial.
The judgment should therefore be affirmed.
It is settled, by the decisions in this State, that a carrier, even a railway company, may, by express contract, exempt itself from liability for damages resulting. from any degree of negligence on the part of its servants, agents and employees. But it seems to be equally well settled, and to a great extent by the same authorities, that a contract, to have such effect, must be so clear and explicit in its terms as to leave no doubt that such was the intention of the parties. (The New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344. Wells and Tucker v. The Steam Nav. Co., 4 Seld. 375. French v. The Buffalo, N. Y. and Erie R. Co., 4 Keyes, 108.)
The stipulation relied upon by the defendant to show its exemption’ from liability, in the present case, is as follows:
“1. The owners-of the within mentioned animals, un
I am unable to distinguish the legal effect of the language here used, from the expression, “ at the risk of the master and owners,” or “ at owner’s risk.” I do not think the use of the word “ all ” has made the stipulation any more extensive than it would otherwise have been. Unless the word “ risk ” be in some manner qualified, it must .embrace all those circumstances which fall within the term “risk.” It seems to be well settled, and by the court of last resort, that the expression “ at the owner’s risk,” or any equivalent expression, in such a contract, does not cover the gross negligence of the employees of the carrier, so as to exempt the principal from liability for damage caused by it. (Scheiffelin v. Harvey, 6 John. 175. Alexander v. Greene, 7 Hill, 533. Wells and Tucker v. The Steam Nav. Co., 4 Seld. 375. Perkins v. The New York Cent. R. R. Co., 24 N. Y. 196,206. New Jersey Steam Nav. Co. v. The Merchants’ Bank, 6 How. U. S. 344. Smith v. The N. Y. Cent. R. R. Co., 24 N. Y. 222, 234, 235. French v. The Buff. N. Y. and Erie R. Co., 4 Keyes, 108.)
The contract in question in this case presents two circumstances which much aid in thus limiting its construction :
First. All the risk embraced in it is confined to “ contingencies,” a word which, though capable of a much larger signification, would ordinarily be understood as referring only to accidents, or casualties, and as designed only, in such a case as this, to exempt the carrier from his common law liability as insurer against accidents, unattended by negligence.
Second. The third stipulation of the contract, applicable to persons in charge of animals, and to whom free passes are given, expressly and in terms exempts*the company from responsibility for any negligence, default or misconduct of its servants. It is scarcely credible that the parties
There was evidence given in the case tending to show that the injury to some of the cattle of the plaintiffs, and the death of others, had resulted from the gross negligence, and even the absolute misconduct of the employees of the defendant.
It is not easy to see how, if the term risk does not embrace the gross negligence of the carrier, it can be held to cover any degree of such negligence. Yet this distinction seems to have been insisted on in the cases referred to. If it is to be held that although the word “ risk” does not cover the gross negligence of the carrier’s servants, in such a contract, yet it does cover the slight, or any less degree of negligence, than what -is teamed “gross,” there is a difficulty in upholding this verdict on the' ground of negligence, namely, that it does not appear that the jury had decided upon the degree of negligence. The learned justice at nisiprius appears to have adopted the view of the defendant’s counsel, that the contract, by its terms, did exempt the defendant from responsibility for any degree of negligence on the part of those who, in the language of the charge, are “ ordinarily known as the employees of the defendant.” But he further instructed the jury, in substance, that the defendant could not make a valid contract to exempt itself from liability for its own negligence, of whatever degree, and that the negligence of Barnard, the local superintendent of the defendant, was its own negligence, within the meaning of the instruction. To this I am unable to assent. To apply, with any degree of certainty, to a corporation, the two rules referred to by the learned justice, 1st. That the carrier cannot, by contract, exempt himself from liability for his own negligence; and, 2d. That such carrier may contract for exemption 'from
If it can be said that any agent who has the power, or is expected or accustomed to exercise any discretion, • within the purview of his duties, is an agent whose negligence is that of the railway company itself, it will be found, I apprehend, that all its agents, down to engineers, conductors and track-masters, are expected and accustomed to exercise more or less discretion within the scope of their special employment and duties. "We have not been referred to any adjudged ease which seems to be an intelligible and direct authority upon this point, except the case of Heineman against this same defendant, in the Superior Court of Buffalo, and decided by a divided court, (31 How. Pr. 454.) The suggestion of the court in that case is, that the negligence, against liability for which it is unlawful for the corporation to contract, is confined to that of the. board of directors. It seems to me, if the rule is to have any force, and it appears to be well established, the negligence^ against liability for which a railway corpora
It appears to me, therefore, that this verdict cannot be sustained under the charge of the court on the question of negligence. I am, however, inclined to the opinion that the verdict may be sustained upon the grounds stated in the accompanying opinion of my associate, Justice Johnson, to wit, that the question of negligence was wholly immaterial, inasmuch as the case, as admitted by the defendant, showed a willful abandonment of, and refusal to perform, the contract on its part, through its agents ; and therefore the instruction of the court, as to the right of the defendant to contract to relieve itself from responsibility for the negligence of its agents, could have produced no injury to the defendant, since a willful abandonment of, and refusal to perform, its contract, is something more than negligence, and something which it cannot be pretended was authorized by the stipulations annexed to the the contract.
Upon this ground, I concur in the affirmance of the judgment.
' Mullin, P. J., also concurred.
Judgment affirmed.
Mullin, P. J., and Johnson and Talcott, Justices.]