217 A.D. 661 | N.Y. App. Div. | 1926
Lead Opinion
It appears from the complaint that, prior to July 9, 1921, the defendant Pennsylvania Railroad Company issued
“ Not Transferable
“ Pennsylvania System
“ Eastern Region Central Region
“ Northwestern Region Southwestern Region
“ May 28th, 1921, c.
“ Pass Mrs. L. M. Wilder and Sons Stanley
“ Clerk
“ Acct. S A L Ry
“ To Wash. D. C. or Norfolk, Va.
“ From New York, N. Y.
“ Good for one trip until August 28, 1921.
“ Not good on Main line trains Nos. 2, 5, 28, 29, 30 and 31 and Congressional Limited Trains Nos. 127 and 130.
“ Residence Norfolk, Va. Requested by S. D. W.
“ Valid when countersigned by I. A. Miller, W. W. Wells or Thos. Z. Heston. .
“ Countersigned
“ Thos. Z. Heston . ELISHA LEE
“ Vice-President.
“ In consideration of the issuance of this free pass, I hereby assume all risk of personal injury and all loss of or damage to property from whatever causes arising, and release the Company from liability therefor, and I hereby declare that I am not prohibited by law from receiving free transportation and that this pass will be lawfully used.
“ BK 31184 Sgd. Mrs. KATE WILDER.”
On the morning of July 9, 1921, having entered the Pennsylvania Terminal, New York city, for the purpose of boarding a train for Norfolk, and thus availing herself of said pass, plaintiff was injured by a fall on a slippery floor which was being cleaned with soap and water.
Paragraph “ tenth ” of the amended answer of one of the defendants, the defendant Pennsylvania Tunnel and Terminal Railroad Company, “ alleges on information and belief that under the terms and conditions of said pass * * * the Pennsylvania Railroad Company is released from all liability whatsoever caused by or any claim arising through the occurrence in the complaint mentioned; ” and “ that by virtue of the said release of the Pennsylvania Railroad Company under the terms and conditions of said pass the
It is the contention of the respondents that the provisions contained in the pass, “ I hereby assume all risk of personal injury and all loss of or damage to property from whatever causes arising, and release the Company from liability therefor,” constitute a valid release of the Pennsylvania Railroad Company and bar a recovery against the other defendant alleged in the complaint to be a joint tort feasor.
The unqualified release of one joint tort feasor operates to release the other. (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628.)
Instead of a release there may be merely a covenant not to sue, where it is usual to reserve the right to sue the other joint tort feasor.
In Gilbert v. Finch (173 N. Y. 455) the court said: “ Where the release contains no reservation it operates to discharge all the joint tort feasors; but where the instrument expressly reserves the right to pursue the others it is not technically a_ release but a covenant not to sue, and they are not discharged.”
From a holding that we have here a release, it does not follow that plaintiff cannot recover should it be established that the Pennsylvania Railroad Company would not have been hable in any event, that the only tort feasor was the other defendant.
The element necessary to be present is that the defendants are jointly hable because there can be but one satisfaction for one tort.
We beheve the writing here to be a release. It was the plain purpose of the provisions of the pass to release the company issuing it from ah liability because of any injury or loss or damage sustained “ from whatever cause arising.”
It has been held that such a release is not against pubhc pohcy. (Anderson v. Erie R. R. Co., 223 N. Y. 277; Kansas City Southern R. Co. v. Van Zant, 260 U. S. 459; Gill v. Erie R. R. Co., 151 App. Div. 131; Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442; Ulrich v. N. Y. C. & H. R. R. R. Co., 108 id. 80; Boering v. Chesapeake Beach R. Co., 193 U. S. 442; Quimby v. Boston & Maine R. R. Co., 150 Mass. 365.)
In reference to employees the situation is not the same. (Johnston v. Fargo, 184 N. Y. 379; Thompson v. Knights of Maccabees, 189 id. 294.)
In the Anderson case the court said: “ The sole question presented by the appeal is whether the release from liability for negh
Considering the circumstances surrounding the issuance of the pass, there is no reason why the plaintiff, having accepted the free pass on the conditions therein stated should not be held to have assumed, as the writing shows she agreed to assume, all risks to property and person while she was using the facilities afforded for her transportation.
It would be contradictory of the language of the pass to hold that she did not assume the risk of slipping on the floor of the railroad station provided for her convenience in boarding the train. It is clear that she was not to seek to recover for any injuries sustained irrespective of the fact that" the station may have been
The defense is good to this complaint which alleges the liability of both defendants as joint tort feasors.
The order should be affirmed, with ten dollars costs and disbursements.
Dowling and Finch, JJ., concur; McAvoy, J., dissents.
Dissenting Opinion
(dissenting). The joint tort feasor was not released by an antecedent agreement which is, in effect, a covenant not to sue the carrier. No liability ever attaching to the principal actor through the agreement, no liability of another tort feasor who jointly injured the passenger can possibly, logically, be released in advance, since there was then no liability to release, and the covenant with the tort feasor who is released through such agreement can run only to one in actual privity.
The order so far as appealed from should, therefore, be reversed and the motion denied.
Order affirmed, with ten dollars costs and disbursements.
