Brewer v. New York, L.E.&W.R. Co.

Citation26 N.E. 324,124 N.Y. 59
PartiesBREWER v. NEW YORK, L. E. & W. R. CO.
Decision Date14 January 1891
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

D. C. Robinson, for appellant.

Frederick Collin, for respondent.

BRADLEY, J.

The plaintiff's interstate was an express messenger in the service of the United States Express Company, and, as such, occupied the express-car in a train upon the defendant's railroad, on January 23, 1881, when a portion of the train, including such car, was derailed, and he lost his life. The jury found that this was occasioned solely by the negligence of the defendant. The principal ground alleged by way of defense was that the defendant was exempt from liability by virtue of an agreement made between the Erie Railway Company and the express company, in 1877, to the rights of that railway company in which, and to its franchises, the defendant had succeeded. That was a contract for the transportation of property for the express company, and for that purpose the railway company agreed to provide suitable facilities. The third clause of the contract, upon which the main question for consideration arises, was as follows: ‘The railway company agrees that, between all stations on its main and leased lines and branches, it will carry, free of charge to said express companies, its messengers, wagons, horses, and grain, not exceeding three car-loads in any one month, and as well all packages of money, bank-notes, bonds, gold, bullion, jewelry, and other precious articles, including the safes in which such packages shall alone be transported; and, in consideration of such free carriage, said express company hereby assumes all transportation risks, and other liabilities whatsoever arising in respect thereof, and agrees to fully indemnify and protect the railway company therefrom.’ This provision, in its relation to property which the railway company should transport pursuant to the contract, did not have the effect to relieve or indemnify it against liability for loss or injury which should be occasioned by its negligence. The intent to accomplish that purpose cannot be inferred from general words, but must be distinctly expressed in the contract with the common carrier. Magnin v. Dinsmore, 56 N. Y. 168;Mynard v. Railroad Co., 71 N. Y. 180;Nicholas v. Railroad Co., 89 N. Y. 370.

It is said that this provision of the contract, in its application to the express messenger referred to in it, is not entitled to such application and effect, and that, by it, the defendant was exempt from liability for his personal injury and death, although caused by its negligence. It is true that a carrier of persons is not subjected by law to the obligations of a common carrier, nor is a carrier of persons a ‘common carrier,’ in the strict sense of the term applicable to it. While the latter, in the transportation of property, is an insurer of its safe transit, when the obligation is not qualified by contract, the negligence of the carrier of persons is essential to liability for injury to them. The settled doctrine in this state is that a carrier of persons as well as of property, and known as a ‘common carrier,’ may, by contract, have protection against liability for injury caused by its negligence. Wells v. Railroad Co., 24 N. Y. 181;Bissell v. Railroad Co., 25 N. Y. 442;Poucher v. Railroad Co., 49 N. Y. 263. But, in view of the fact that the liability of a carrier to a passenger can rest on no ground less than that of negligence, it renders it unnecessary to make the stipulation of the contract definite and distinct in that respect, for its relief from liability is not necessarily the subject of inquiry or consideration on this review. It may, however, be observed that, in those cases where the defense has been sustained, the contract has, by its terms, plainly guarded the carrier against liability for injury resulting from its negligence. The provision before mentioned of the contract contains no stipulation expressly exempting the railway from liability arising from that cause. But, in a later clause of the contract, it was provided that ‘the railway company agrees to assume the usual responsibility of railway companies in transporting express freights, such responsibility being, however, expressly limited to cases of negligence in running and handling its trains. But in no event, whether of negligence or otherwise, shall the railway company be responsible, and it is hereby released from, and the express company hereby assumes, all liability for money, bank-notes, jewelry, bullion, and precious packages hereinabove provided to be carried by the railway company free of charge.’ This is the...

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    ... ... 507; Hartford Ins. Co. v. Railroad, 70 F ... 201; Stephen v. Railroad, 41 P. 784; Brewer v ... Railroad, 26 N.E. 324; Kenny v. Railroad, 26 ... N.E. 626. Second, The contract was not ... ...
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    ...as a foundation for the defense of assumed risk. Miner v. Railroad, 153 Mass. 398, 26 N. E. 994; Brewer v. Railroad Co., 124 N. Y. 59, 26 N. E. 324, 11 L. R. A. 483, 21 Am. St. Rep. 647; Mellor v. Mfg. Co., 150 Mass. 362, 23 N. E. 100, 5 L. R. A. 792; Railroad v. Barber, 5 Ohio St. 541, 67 ......
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