32 N.J.L. 407 | N.J. | 1868
The opinion of the court was delivered by
The question in this case, which we are now called on to decide, is not as to the construction of the contract, out of which the rights and liabilities of the parties respectively arose, but exclusively as to its legality. It appeared, to demonstration, at the trial, that the deceased, with full knowledge and of his own accord, entered into the agreement, for the consideration of a free passage, to assume the risk to himself of all accidents which might occur
This inquiry I must be permitted to regard as quite aside from many of the topics so learnedly discussed before us upon the argument. We were referred to many cases with regard to the incapacity of the common carrier to force, by means of general notices, or the delivery of tickets containing special stipulations, contraéis upon their employers, and cases were cited to show that agreements, couched in general terms, imposing the risk of carriage on the bailor, would not be interpreted to extend to losses proceeding from the negligence of the bailee, or his agents. These subjects are not considered pertinent, because, in the present case, it was clear that the contract between the deceased and the carriers received the voluntary assent of the former, and because such contract, in clear terms, gave immunity to the carriers from the negligent acts of their servants. As I have already remarked, the inquiry goes to the point, singly, as to the legal validity of agreement which these parties, beyond all question, entered into in good faith.
But another line in the reasoning of the counsel of the plaintiffs, seems to require a more deliberate notice. It was insisted that a common carrier could not, even by express contract, exempt himself from liability for his own negligence. But even on this head it does not strike my mind that it is necessary, for any present purpose, to enter upon the discussion of this vexed question. The duty of the common carrier is sui generis. His obligations are so peculiar, it is difficult, perhaps impossible, to apply closely, by way of analogy, the rules of law which control his conduct, and give rise to his responsibilities, to the situation of other contractors. By the usual principles of law, the common carrier is, with narrow exceptions, an insurer of the safe delivery of the goods coming to his hands. So, too, he is
Yor does the objection that this contract is not consistent with good morals or sound policy, appear to me of much weight. This consideration was urged on the argument, in rather a wider form than the facts will warrant, for the proposition was, that it is pernicious and immoral to allow a person to contract for a discharge from the effects of his ■own negligence. But the question to be decided is narrower, the case showing merely the presence of negligence in the servants of the defendants, but none whatever in the defendants themselves. Consequently, wo have to do simply with the more limited proposition, does the law prevent a person, in a matter not connected with any public employment, to stipulate for an immunity from the results of the omissions or oversights of his own agents.
Yow I think it will be plain to any one who will survey this ground, that there is nothing in natural justice which would hold the master responsible for the negligence of his servant. With relation to the moral code, a man performs, in this particular, his whole duty when he exercises proper prudence and care in the selection of competent agents to conduct his affairs. The rule of respondeat superior, is one of great severity, and has been adopted, not from its intrinsic equity, but from its general convenience. It subsists, incontestably, as an established legal technicality. Can it not be waived, and another rule adopted on any special occasion, between party and party ? I confess to an entire inability to comprehend the force of the objections to this being done. The fallibility of all human agency is an imperfection not to be eliminated from any transaction dependent on the employment of such means. In the absence of an express contract, the law, in order to lay down a fixed rule, throws the liability on him who employed the agent; but what, in the nature of the transaction, is there, which should prevent any party contracting with such principal to take on himself the risk of the servant’s misconduct. It was suggested
Nor do I find such a contract in any respect incompatible with legal principles on analogous subjects. Agreements of fire insurance are familiar instances much in point, for they are, in general, stipulations for indemnification against the results of a party’s own negligence or that of his employes. In truth, it is obvious that the doctrine asserted in support of the case of the plaintiffs, would, if carried to its logical result, subvert, equally with the present contract, almost the entire system of bailments; for that system is erected, in part, on the principle of allowing an immunity to the negligence of the bailee. Thus, in the case of a deposit, the depositary, in the Roman law, was answerable for the thing left with him in case of its loss only for fraud, and in the English and American law such bailee cannot be held, unless negligence so gross as almost to be evincive of bad faith, can be imputed to him. In such cases, then, the bailor virtually
From these considerations I have come to the conclusion, that the contract which the deceased made with the defendants was valid in law, and under the circumstances presented at the trial, afforded a full defence to this action.
It will be perceived from the following citations, that a similar doctrine has been held by the courts of New York. Wells v. N. Y. Central R. R. Co., 24 N. Y. 181 ; Perkins v. N. Y. C. R. R. Co., 24 Ibid. 208; Welles v. N. Y. C. R. R. Co., 26 Ibid. 641; 25 Ibid. 443.
It has not seemed to me proper to consider the other question mooted on the argument, whether the memorandum endorsed on the ticket in question, was of such a character as to require an United States revenue stamp. Such objection was not made at the trial, and it is now quite too late to interpose it. . The rule is entirely settled, that if an imperfection of this character is relied on, the point must be raised before the instrument is put in evidence. Robinson v. Lord Vernon, 7 Com. B. (N. S.) 231; Field v. Wood, 7 Ad. & El. 114; Israel v. Benjamin, 3 Camp R. 40.
The defendants are entitled to judgment on the verdict.
Affirmed, 5 Vroom 513.