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Vol. I.)
N. Y. C. R. R. v. LOCKWOOD.

[No. 1. tiff, and that the negligence of the defendants caused the injury, they must find for the plaintiff, which they did.

It is 'unnecessary to notice the subordinate points made, as we are of opinion that all the questions of fact were fairly left to the jury, and that the whole controversy depended on this main question of law.

It may be assumed in limine, that the case was one of carriage for hire; for though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle. The question is, therefore, distinctly raised, whether a railroad company carrying passengers for hire can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to . such carriage.

As the duties and responsibilities of public carriers were prescribed by public policy, it has been seriously doubted whether the courts did wisely in allowing that policy to be departed from without legislative interference, by which needed modifications could have been introduced into the law. But the great hardship on the carrier in certain special cases, where goods of great value or subject to extra risk were delivered to him without notice of their character, and where losses happened by sheer accident without any possibility of fraud or collusion on his part, such as by collisions at sea, accidental fire, &c., led to a relaxation of the rule to the extent of authorizing certain exemptions from liability in such cases to be provided for, either by public notice brought home to the owners of the goods, or by inserting exemptions from liability in the bill of lading, or other contract of carriage. A modification of the strict rule of responsibility, exempting the carrier from liability for accidental losses, where it can be safely done, enables the carrying interest to reduce its rates of compensation ; thus proportionately relieving the transportation of produce and merchandise from some of the burdens with which it is loaded.

The question is, whether such modification of responsibility by notice or special contract may not be carried beyond legitimate bounds, and introduce evils against which it was the direct policy of the law to guard ; whether, for example, a modification which gives license and immunity to negligence and carelessness on the part of a public carrier or his servants, is not so evidently repugnant to that policy as to be altogether null and void ; or, at least null and void under certain circumstances.

In the case of sea-going vessels, Congress has, by the act of 1851, relieved ship-owners from all responsibility for loss by fire, unless caused by their own design or neglect; and from responsibility for loss of money and other valuables named, unless notified of their character and value; and has limited their liability to the value of the ship and freight, where losses happen by the embezzlement or other act of the master, crew, or passengers; or by collision, or any cause occurring without their privity or knowledge ; but the master and crew themselves are held responsible to the parties injured by their negligence or misconduct. Similar enactments have been made by state legislatures. This seems to be the only important modification of previously existing law on the subject, which in this country has been effected by legislative interference. And by this it is seen, that though intended for the relief of the ship-owner, it still leaves him liable to the extent of his ship and freight for the negligence and misconduct of his employés, and liable without limit for his own negligence.

Vol. I.)

N. Y. C. R. R. v. LOCKWOOD.

(No. 1.

It is true that the first section of the above act relating to loss by fire has a proviso, that nothing in the act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners. This proviso, however, neither enacts nor affirms anything. It simply expresses the intent of Congress to leave the right of contracting as it stood before the act.

The courts of New York, where this case arose, for a long time resisted the attempts of common carriers to limit their common law liability, except for the purpose of «procuring a disclosure of the character and value of articles liable to extra hazard and risk. This they were allowed to en· force by means of a notice of non-liability if the disclosure was not made. But such announcements as “ all baggage at the risk of the owner,” and such exceptions in bills of lading as “ this company will not be responsible for injuries by fire, nor for goods lost, stolen, or damaged,” were held to be unavailing and void, as being against the policy of the law. Cole v. Goodwin, 19 Wend. 257; Gould v. Hill, 2 Hill, 623.

But since the decision in the case of The New Jersey Steam Navigation Company y. Merchants' Bank, by this court, in January term, 1848 (6 How. 344), it has been uniformly held, as well in the courts of New York as in the federal courts, that a common carrier may, by special contract, limit his common law liability, although considerable diversity of opinion has existed as to the extent to which such limitation is admissible.

The case of The New Jersey Steam Navigation Company v. Merchants' Bank, above adverted to, grew out of the burning of the steamer Lexington. Certain money belonging to the bank had been intrusted to Harnden's Express, to be carried to Boston, and was on board the steamer when she was destroyed. By agreement between the steamboat company and Harnden, the crate of the latter and its contents were to be at his sole risk. The court held this agreement valid, so far as to exonerate the steamboat company from the responsibility imposed by law; but not to excuse them for misconduct or negligence, which the court said it would not presume that the parties intended to include, although the terms of the contract were broad enough for that purpose ; and that inasmuch as the company had undertaken to carry the goods from one place to another, they were deemed to have incurred the same degree of responsibility as that which attaches to a private person engaged casually in the like occupation, and were, therefore, bound to use ordinary care in the custody of the goods, and in their delivery, and to provide proper vehicles and means of conveyance for their transportation ; and as the court was of opinion that the steamboat company had been guilty of negligence in these particulars, as well as in the management of the steamer during the fire, they held them responsible for the loss.

As this has been regarded as a leading case, we may pause for a moment to observe that the case before us seems almost precisely within the category of that decision. In that case, as in this, the contract was general, exempting the carrier from every risk and imposing it all upon the party ; but the court would not presume that the parties intended to include the negligence of the carrier or his agents in that exception.

It is strenuously insisted, however, that as negligence is the only ground of liability in the carriage of passengers, and as the contract is absolute Vol. I.]

(No. 1.

N. Y. C. R. R. v. LOCKWOOD.

istinct mabion of theakage, and other

in its terms, it must be construed to embrace negligence as well as accident, the former in reference to passengers, and both in reference to the cattle carried in the train. As this argument seems plausible, and the exclusion of a liability embraced in the terms of exemption on the ground that it could not have been in the mind of the parties is somewhat arbitrary, we will proceed to examine the question before propounded, namely, whether common carriers may excuse themselves from liability for negligence. In doing so we shall first briefly review the course of decisions in New York, on which great stress has been laid, and which are claimed to be decisive of the question. Whilst we cannot concede this, it is, nevertheless, due to the courts of that State to examine carefully the grounds of their decision, and to give them the weight which they justly deserve. We think it will be found, however, that the weight of opinion, even in New York, is not altogether on the side that favors the right of the carrier to stipulate for exemption from the consequences of his own or his servants' negligence.

The first recorded case that arose in New York, after the before-mentioned decision in this court, involving the right of a carrier to limit his liability, was that of Dorr v. The New Jersey Steam Navigation Company, decided in 1850 (4 Sandf. 136). This case also arose out of the burning of the Lexington, under a bill of lading which excepted from the company's risk “ danger of fire, water, breakage, leakage, and other accidents.” Judge Campbell, delivering the opinion of the court, says: “ A common carrier has in truth two distinct liabilities : the one for losses by accident or mistake, where he is liable as an insurer; the other for losses by default or negligence, where he is answerable as an ordinary bailee. It would certainly seem reasonable that he might, by. express special contract, restrict his liability as insurer ; that he might protect himself against misfortune, even though public policy should require that he should not be permitted to stipulate for impunity where the loss occurs from his own default or neglect of duty. Such we understand to be the doctrine laid down in the case of The New Jersey Steam Navigation Co. v. The Merchants' Bank, in 6 Howard, and such we consider to be the law in the present case.” And in Stoddard v. Long Island R. Co. (5 Sandf. 180), another express case, in which it was stipulated that the express company should be alone responsible for all losses, Judge Duer, for the court, says: “Conforming our decision to that of the supreme court of the United States, we must, therefore, hold: 1. That the liability of the defendants as common carriers was restricted by the terms of the special agreement between them and Adams & Co., and that this restriction was valid in law. 2. That by the just interpretation of this agreement the defendants were not to be exonerated from all losses, but remained liable for such as might result from the wrongful acts, or the want of due care and diligence of themselves or their agents and servants. 3. That the plaintiffs, claiming through Adams & Co., are bound by the special agreement.” The same view was taken in subsequent cases (Parsons v. Monteath, 13 Barb. 353; Moore v. Evans, 14 Barb. 524), all of which show that no idea was then entertained of sanctioning exemptions of liability for negligence.

It was not till 1858, in the case of Welles v. N. Y. Cent. R. Co. 26

hephas insureblie policy showhere the de to be the

tion withe defled for suelligence of through was

remained liable plants were not by the just i

Vol. I)

N. Y. C. R. R. v. LOCKWOOD.

[No. 1.

Barb. 641, that the supreme court was brought to assent to the proposition that a common carrier may stipulate against responsibility for the negligence of his servants. That was the case of a gratuitous passenger travelling on a free ticket, which exempted the company from liability. In 1862, the court of appeals, by a majority, affirmed this judgment (24 N. Y. 181), and in answer to the suggestion that public policy required that railroad companies should not be exonerated from the duty of carefulness in performing their important and hazardous duties, the court held that the case of free passengers could not seriously affect the incentives to carefulness, because there were very few such, compared with the great mass of the travelling public. Perkins v. N. Y. Čent. R. Co. 24 Ñ. Y. 196, was also the case of a free passenger, with a similar ticket, and the court held that the indorsement exempted the company from all kinds of negligence of its agents, gross as well as ordinary ; that there is, in truth, no practical distinction in the degrees of negligence.

The next cases of importance that arose in the New York courts were those of drovers' passes, in which the passenger took all responsibility of injury to himself and stock. The first was that of Smith v. N. Y. Cent. R. Ř. Co. 29 Barb. 132, decided in March, 1859. The contract was precisely the same as that in the present case. The damage arose from a flattened wheel in the car which caused it to jump the track. The supreme court, by Hogeboom, J., held that the railroad company was liable for any injury happening to the passenger, not only by the gross negligence of the company's servants, but by ordinary negligence on their part. “For my part,” says the judge, I think not only gross negligence is not protected by the terms of the contract, but what is termed ordinary negligence, or the withholding of ordinary care, is not so protected. I think, notwithstanding the contract, the carrier is responsible for what, independent of any peculiar responsibility attached to his calling or employment, would be regarded as fault or misconduct on his part.”. The judge added that he thought the carrier might, by positive stipulation, relieve himself to a limited degree from the consequences of his own negligence or that of his servants. But, to accomplish that object, the contract must be clear and specific in its terms, and plainly covering such a case. Of course, this remark was extrajudicial. The judgment itself was affirmed by the court of appeals in 1862 by a vote of five judges to three. 24 N. Y. 222. Judge Wright strenuously contended that it is against public policy for a carrier of passengers, where human life is at stake, to stipulate for immunity for any want of care. “ Contracts in restraint of trade are void," he says, “because they interfere with the welfare and convenience of the state; yet the state has a deep interest in protecting the lives of its citizens." "He argued that it was a question affecting the public, and not alone the party who is carried. Judge Sutherland agreed in substance with Judge Wright. Two other judges held that if the party injured had been a gratuitous passenger the company would have been discharged, but in their view he was not a gratuitous passenger. One judge was for affirmance, on the ground that the negligence was that of the company itself. The remaining three judges held the contract valid to the utmost extent of exonerating the company, notwithstanding the grossest neglect on the part of its servants.

Vol. I.)

N. Y. C. R. R. v. Lockwood.

(No. 1.

In that case, as in the one before us, the contract was general in its terms, and did not specify negligence of agents as a risk assuined by the passenger, though by its generality it included all risks.

The next case, Bissell v. The N. Y. Cent. R. R. Co. 29 Barb. 602, first decided in September, 1859, differed from the preceding in that the ticket expressly stipulated that the railroad company should not be liable under any circumstances, “ whether of negligence by their agents, or otherwise," for injury to the person or stock of the passenger. The latter was killed by the express train running into the stock train, and the jury found that his death was caused by the gross negligence of the agents and servants of the defendants. The supreme court held that gross negligence (whether of servants or principals) cannot be excused by contract in ref. erence to the carriage of passengers for hire, and that such a contract is against the policy of the law, and void. In December, 1862, this judgment was reversed by the court of appeals, four judges against three. 25 N. Y. Rep. 442. Judge Smith, who concurred in the judgment below, having in the mean time changed his views as to the materiality of the fact that the negligence stipulated against was that of the servants of the . company, and not of the company itself. The majority now held that the ticket was a free ticket, as it purported to be, and, therefore, that the case was governed by Wells v. The Central Railroad Co.; but whether so, or not, the contract was founded on a valid consideration, and the passenger was bound to it, even to the assumption of the risk arising from the gross negligence of the company's servants. Elaborate opinions were read by Justice Selden in favor, and by Justice Denio against the conclusions reached by the court. The former considered that no rule of public policy forbids such contracts, because the public is amply protected by the right of every one to decline any special contract, on paying the regular fare prescribed by law, – that is the highest amount which the law allows the company to charge. In other words, unless a man chooses to pay the highest amount which the company by its charter is authorized to charge, he must submit to their terms, however onerous. Justice Denio, with much force of argument, combated this view, and insisted upon the impolicy and immorality of contracts stipulating immunity for negligence, either of servants or principals, where the lives and safety of passengers are concerned. The late case of Poucher v. N. Y. Cent. R. Co. 49 N. Y. 263, is in all essential respects a similar case to this, and a similar result was reached.

These are the authorities which we are asked to follow. Cases may also be found in some of the other state courts, which, by dicta or decision, either favor or follow more or less closely, the decisions in New York. A reference to the principal of these is all that is necessary here: Ashmore v. Penn. R. Co. 4 Dutch. 180; Kinney v. Cent. R. Co. 3 Vroom, 407; Hale v. N. J. St. Nav. Co. 15 Conn. 539; Peck v. Weeks, 34 Conn. 145 ; Lawrence v. N. Y. R. Co. 36 Conn. 63; Kimball v. Rutland R. Co. 26 Vt. 247 ; Mann v. Birchard, 40 Vt. 332; Adams Exp. Co. v. Haynes, 42 Ill. 89; Ibid. 458; Ill. Cent. R. Co. v. Adams Exp. Co. Ibid. 474; Hawkins v. Great IVest. R. Co. 17 Mich. 57; S. C. 18 Mich. 427; Balt. f 0. R. Co. v. Brady, 32 Md. 333; 25 Md. 328; Levering v. Union Transportation Co. 42 Mo. 88.

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