
    Henry A. Root, Resp’t, v. New York and New England Railroad Company, App’lt.
    
      {Supreme Court, Gteneml Term, Second Depa/rtment,
    
    
      Filed December 10, 1894.)
    
    Carriers—Exemption—Gross negligence.
    The company was held, under the facts and circumstances of this case, to have been guilty of gross negligence within a provision in the contract, of shipment that the carrier should not be liable except for gross negligence.
    Appeal from a judgment in favor of plaintiff, entered on a decision of the court without a jury.
    
      W. C. Anthony, for app’lt; Frederick S. Barnum, for resp’t.
   Brown, P. J.

This action was brought to recover the value of a horse shipped upon the defendant’s road, and which plaintiff claimed was killed through defendant’s negligence. The defense is that by the contract of shipment the defendant was released, from all liability for injury to the horse, except when proved to-have occurred through gross negligence. This case was before this court on a prior appeal (76 Hun, 23; 59 St. Rep. 613), and it was then held that the circumstances surrounding the execution of the contract justified the submission to the jury of the question whether it was binding upon the plaintiff. The evidence now before the court does not permit any different conclusion than was then expressed. The paper was not delivered to the shipper. Neither was it read to him, nor was his attention called to the provision which limited the defendant’s liability. But, independent ■of that question, the evidence is ample to sustain the conclusion that the defendant was guilty of gross negligence. The horse was shipped at Brewster’s Station, and put into a car which was designated by the company’s agent, and securely tied. One of the doors of the car, owing to some defect of construction or want of repair, ■could not be closed, and in this condition the car was placed in the train. No examination appears to have been made by the defendant, before the train started, to ascertain the condition of the car, and, if its condition was known, no effort was made to remedy it. And after the train started, in some way not explained in the evidence, the horse fell from the car, and received fatal injuries. The defendant’s liability was brought clearly within the terms of the contract, and the judgment should be affirmed.

All concur.  