28 How. Pr. 275 | N.Y. Sup. Ct. | 1864
The referee has found as a fact in this case that the defendant was guilty of negligence in running the train of freight cars, when the accident occurred, on a dark and stormy night, at the rate of fourteen miles an hour, and adds that such negligence was not willful. Nor does he find that it contributed to produce the accident.
The contract was for the transportation of live stock belonging to the plaintiffs, over the Erie rail road, which was operated by the defendant as receiver, and exonerated the defendant from all liability for loss or damage that might happen from any other cause than the willful negligence or fraud of the defendant or his agents. The contract also states that the rate of compensation to be paid by the plaintiffs has been reduced in consideration of their assuming these risks. It is evident, then, that, if the contract is valid, the defendant is not liable for the damage arising from the accident mentioned in the case, as the occurrence was without any willful negligence on the part of the defendant or his agents.
The referee has found, however, as his conclusion of law, that the law does not permit the defendant to restrict his liability, as a common carrier, for negligence. In this conclusion, he appears from the recent decisions to be in error.
I think it must be considered as settled in this state, that common carriers may limit their liability for negligence in almost any respect by express contract, for such a consideration as will be satisfactory to the passenger or freighter, and that such contracts are not against public policy. (Dorr v. The N. J. Steam Nav. Co. 1 Kern. 485. Wells v. The N. Y. Central R. R. Co. 24 N. Y. Rep. 181. Bissell v. The N. Y. Central R. R. Co. 25 id. 442.)
The counsel for the plaintiffs insists that they are entitled
I am not prepared to assent, however, to the proposition that the defendant was liable to deliver the carcasses. The character of the freight was changed when the animals were dead. The defendant was bound to deliver the animals alive, unless relieved from so doing by some condition of his contract ; and the delivery of their dead bodies would not relieve him from responsibility for the failure to deliver them alive, if the loss arose from causes not within the risks from which the plaintiffs had agreed to relieve the defendant. The agents of the defendant, it appears by the report, offered to carry the dead stock through, if one of the plaintiffs, who accompanied the train and was present at the accident, would take charge of them. The plaintiffs refused to take charge of, or have any thing to do with the dead and dying animals.
The plaintiffs have no claim to recover, on the ground so urged by their counsel.
The judgment should be reversed, and a new trial had before the same referee; the costs to abide the event.
Not one of the cases cited by the counsel for the appellant, except Wells v. The New York Central
Gtbo. Gr. Barnard, J. also concurred.
Hew trial granted.
Leonard, Sutherland and Geo. G. Barnard, Justices.]