Ulrich v. New York Cent. & H.R.R. Co.

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 80,15 N.E. 60
• Parties: ULRICH v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 80

15 N.E. 60

ULRICH

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

January 17, 1888.

Action by Charles F. Ulrich, respondent, against the New York Central & Hudson River Railroad Company, appellant, to recover for injuries to person and property caused by a railroad collision.

Frank Loomis, for appellant.

W. W. Rowley, for respondent.

RUGER, C. J.

This action is brought by the plaintiff to recover damages of the defendant for injuries to his person and property occasioned by a collision on the defendant's railroad near Spuyten Duyvil, in January, 1882, while he was riding from Albany to New York on a regular train of the defendant's railroad.

The distance from Albany to New York is about 150 miles, and the regular fare is $3.10. It will be assumed in the consideration of the case that the collision occurred through the negligence of the defendant's servants, and that, in the absence of the special agreement hereinafter referred to, the defendant would have been liable for the injuries suffered by the plaintiff. The plaintiff, however, was at the time riding upon a free pass issued to him by the company in 1881, and which had been duly extended to cover a period during which the injuries were sustained. This pass bore the following printed indorsement: ‘In consideration of receiving this ticket, the person who uses it voluntarily assumes all risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether by negligence of their agents or otherwise, for any injury to his person, or for any loss or injury to his property, and that, as for him, in the use of thus ticket, he will not consider the company as common carriers, or liable to him as such.’ It is conceded that the plaintiff used this pass on the trip during the course of which the accident occurred, and exhibited it to the conductor when his passage ticket was demanded of him.

Unless the contract indicated by this pass, and its indorsements, has been rescinded or annulled by some other valid contract between the parties, it is clear that their rights and liabilities must be governed by its provisions. It is not claimed by the respondent but that if this contract was in full force, and the plaintiff was actually riding at the time of the accident solely by virtue of it, it would control the liability of the defendant, and exempt it wholly therefrom. Seybolt v. Railroad Co., 95 N. Y. 562. It is claimed, however, that, by reason of the purchase of a ticket entitling him to the use and occupation of a particular seat during the passage in the drawing-room car ‘Empire,’ he became a passenger for hire, and that the contract expressed in the pass must be deemed to have been abrogated and annulled to a certain extent by the new contract. By reference to the opinion delivered in the court below upon a former appeal of this case, and which is contained in the appeal-book, we infer that the judgment in favor of the plaintiff rendered by the trial court was affirmed upon the theory that the contract for a seat in the drawing-room car was made with the agents of the defendant, and that such a contract subverted or modified for this trip that formed by the pass and its indorsements.

It is not pretended but that the plaintiff secured his transportation on this occasion by virtue of his pass, but it is suggested by the opinion referred to that the contract for the purchase of a seat annulled the express condition upon which the pass was issued to the plaintiff, while it left the pass in full vigor so far as it gave the plaintiff a right to be carried on defendant's road from Albany to New York. Perhaps the language used by the court below will afford a more accurate view of its position, viz.: ‘The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the provisions of the free pass.’ The vice of this argument is in the assumption that ‘the defendant has taken money from the plaintiff for carrying him.’ Assuming, for the purposes of the argument, that the purchase, by a passenger on a train, of a drawing-room ticket from a...