Zimmer v. New York Central & Hudson River Railroad — 42 N.Y. St. Rep. 63

Majority

p. 63

Alvah J. Zimmer, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed December 5, 1891.)

Headnote

1. Cabriebs—Release.

Plaintiff's agent shipped a horse and executed a release exempting the railroad company from liability for injuries thereto, in consequence of being wild, vicious, etc., or in consequence of heat, suffocation or other ill effects of being crowded, or on account “ of being injured by

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the burning of hay, straw or any other materials for feeding the stock, or in any way." In consequence of bad management of the engine it crushed into the car far enough to cause the death of the horse. Held, that the terms of the release were not sufficiently clear to exempt the carrier from liability for its negligence.

2. Same—Damages.

A stipulation in such release, in consideration, of reduced rates, limiting the liability of the carrier in case of loss to the valuation therein mentioned, is valid, and in case of loss the recovery should be limited to such sum.

Appeal from a judgment for the plaintiff upon the verdict of a jury, upon the trial at the Fulton circuit, February, 1891.

O. D. Prescott, for app’lt; Porter & Walts, for resp’t.

The action was to recover $5,000, the alleged value of a horse which defendant was transporting upon one of its freight cars under a contract with the plaintiff to carry the same from West Albany to Antwerp; H. Y. The jury found, upon evidence sufficient to justify their verdict, that the horse was killed in consequence of the negligence of the defendant. They rendered their verdict in favor of the plaintiff for $3,100.

The horse was taken for transportation by the defendant under a contract made with the plaintiff’s agent from which the following are extracts material to the questions presented upon this appeal:

“Live Stock Contract of Release and Agreed Valuation, according to the ‘ Official Classification.’ Hew York Central & Hudson River Railroad. W. Albany Station, July 31, 1890.

“ Whereas, The Hew York Central & Hudson River Railroad Company transports live stock, either by the head, or by the car load, at certain prices, 1 carrier’s risk,’ and at reduced prices upon certain risks, as specified below, being assumed by the shipper or owner, and upon the further condition that the property is valued as'stated below.

“ How, in consideration that said company will transport at said reduced prices:

“ One Horses valued at not exceeding $100, each, Consigned to C. P. Coolidge at Antwerp, H. Y., via Rome.

“ It is agreed, that * * * neither this company, nor any of its connections, shall be liable -for any injuries which the animals, or either, or any of them may receive in consequence of any of them being wild, vicious, unruly, weak, or of escaping, maiming themselves or each other, or in consequence of heat, suffocation, or other ill effects of being crowded, either upon cars or in yards, or on account of being injured by the burning of hay, straw, or any other material for feeding the stock, or in any way. Also, that neither this company, nor any of its connections, shall be liable for any loss or damage sustained by reason of any delay in the loading, transportation or delivery of said stock, or in consequence of any displacement of car doors, or any other insecurity of the cars.

“ And it is also agreed, that in the event of the loss, death, or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not in any case exceed an amount to be fixed according to the above valuations.’’

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The defendant claims that this contract relieves it from all liability. The plaintiff’s horse was in the freight car next to the tender of the engine, and in the front part of that car. At St. Johnsville the train stopped. The engine was uncoupled from the cars, and moved forward to the coal bin. In attempting to back the engine toward the cars, the engine in some way became unmanageable or was improperly managed, with the result that it struck the freight car and crushed into it far enough to cause the death of the plaintiff’s horse. The contract so far as it purports to exempt the defendant from liability for its negligence must be construed so as not to include any kind or sort of negligence not specifically and expressly stated in it. Holsapple v. Rome, W. & O. R. R. Co., 86 N. Y., 278 ; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 id., 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id., 370; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id., 422; 35 St. Rep., 447 .

In the case first cited the court said: “ However broad or general may be the language of the contract which does not specifically and in express terms release the carrier from the consequence of his own negligence, it will not effect such release if the general words may operate without including such negligence.”

• Testing this case by these rules, it will be seen that this horse was not injured by any such negligence as is specifically and expressly mentioned in the contract. The horse was struck by an improperly managed engine. Rothing of that kind is provided against in the contract, unless the words “ in any way ” so provide. These are broad and general words, and they may operate without including this case. In the connection in which they are used they may be construed to mean “ or burning in any way ; ” the whole clause being, “ or on account of being injured by the burning of hay, straw, or any other material for feeding the stock, or in any way.” If they were intended to mean injured “ in any way ” the intention is not clearly expressed, and therefore may be rejected. But we think the contract limits the recovery to §100 and interest thereon. The contract first recites that the defendant transports live stock “ at reduced prices upon certain risks, as specified below, being assumed by the shipper or owner, and upon the further condition that the property is valued as stated below.” The valution is thus given: “One horse valued at not exceeding $100,” and then “it is also agreed that in the event of the loss, death or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not in any case exceed an amount to be fixed according to the above valuation.” The freight charged was $7.50, and was at the rates fixed by the defendant for the valuation stated. A higher valuation, according to the regulations of the company, would have increased the charge for freight. The general rule is that a carrier may by express contract with the shipper or owner limit the extent of his liability in case of loss or injury. Steers v. Liverpool, etc., Co., 57 N. Y., 1 ; Magnin v. Dinsmore, 70 id., 410; Belger v. Dinsmore, 51 id., 166; Mynard v. Syracuse, etc., supra.

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The question usually presented by such contracts is as to their terms, that is, whether the limitation expressed by the-contract covers the injury or loss as caused under the circumstances of the particular case. There seems to be no valid, objection to a contract by which the shipper, in consideration of reduced rates extended to him, agrees in case of damage or loss to accept a specified or limited sum in satisfaction of it. Such seems to be the contract in question. No-question of the willful wrong or misfeasance of the defendant, arises, nor of the defendant’s constructive conversion of the property. The defendant is liable for the loss, but the amount of it is fixed by the agreement.

The counsel for the defendant asks in his brief that the verdict, be reduced to $100, with interest from July 31, 1890. If the-plaintiff so stipulates, the reduction may be made, and judgment be modified, accordingly, and, so modified, be affirmed, with costs. Holmes v. Jones, 121 N. Y., 461 ; 31 St. Rep., 379 . Otherwise judgment reversed, with costs against plaintiff of this appeal,, and a new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concur.