
    George B. Boswell, Administrator, &c., of John B. Boswell, deceased, Plaintiff, (Respondent,) v. The Hudson River Railroad Company, Defendants, (Appellants.)
    1. To an action for an injury to the person sustained, by one who was riding in a car of a Railroad Company, through the alleged negligence of the servants of the Company, it is a good defense that the person injured was at the time riding by virtue of a special contract which was evidenced by a pass or free ticket accepted and used by him to enable him to take charge and care of his live stock while on the railroad, and as part of the contract for transporting such stock, which contained an express stipulation that “ by accepting or using it he expressly releases the Company, in consideration of this pass and the reduction of price below the tariff rates, from all liability for injury to said stock from, suffocation, crowding, trampling, or delay m transportation, or for injury to his person or stock arising from any cause whatsoever,” the answer also averring that the injury to the person was not caused by any fraudulent, willful or reckless act or misconduct or gross neglect.
    2. A Railroad Company may limit their common law liability as carriers of passengers, by express contract with the passenger upon sufficient consideration, so as not to be liable for casualties not arising from fraud, willfulness, recklessness, or gross neglect.
    (Before Hoffman, Woodruff, Honorief and Robertson, J. J.)
    Heard, April 14th;
    decided, April 28th, 1860.
    
      Appeal from an order sustaining a demurrer to the defend-' ants’ answer and ordering judgment for the plaintiff, with leave to the defendants to amend within twenty days.
    The complaint alleged in substance and among other allegations, that John B. Boswell, the plaintiff’s intestate, on the 8th of September, 1858, at the defendants’ request became a passen-' ger in their car to be carried by them as common carriers .from East Albany to the city of New York. That defendants undertook and it became their duty to carry him safely, but defendants and their agents conducted so negligently that the car, in which he was, came in contact with another car or locomotive and was demolished or thrown-from the track, and the said John B. Boswell, then and there, from such gross negligence of the defendants, was instantly killed or received great injury, from which he immediately died. And the death of said John B. Boswell yras caused by and was the result of the gross negligence of the defendants.
    The answer contained denials of many of the allegations in the complaint, but the defense demurred to was as follows:
    “ And for a further and separate defense, the defendants further answering, say: that at the time and place in the complaint mentioned, the said John B. Boswell was upon the cars of the defendants, not as a passenger, nor upon the payment of, or promise to pay, any fare, but under and in virtue of a special contract made between the said Boswell and the said defendants, which contract was evidenced by the pass or free ticket given to him by the defendants, and accepted and used by bim, and by virtue of which he was riding upon the road and in the cars of the defendants at the time of' the alleged injury. That the conditions of the said contract, by which the defendants agreed to carry the said Boswell, were printed upon the face of the said ticket or pass; and were in the words following: ‘ Conditions. This ticket is issued to the owner of Live Stock, or his agent, to enable him to take the entire charge and care of his stock while on the Hudson River Railroad, and is part of the contract for transporting the same. By accepting or using it, he expressly releases the Company, in' consideration of this Pass, and the reduction of price below the Tariff Rates, from all liability for injury to said stock from suffocation, crowding, trampling or delay in transportation, or for injury to his person or stock, arising from, any cause whatsoever.’
    “ That the said ticket was accepted and used by the said Boswell at the time of the injuries alleged to have been sustained by him, and that the said injuries were not caused by any fraudulent, willful or reckless act or misconduct or gross neglect or default on the part of the defendants, and that the defendants are not liable therefor.”
    The plaintiff’s demurrer was on the general ground that the facts stated did not constitute a defense.
    
      William Fullerton, for defendants, (appellants.)
    I. Common carriers of goods may, by express contract, limit their liability and exempt themselves from responsibility for loss or damage unless caused by their own fraud or gross neglect. (Merc. Mat. Ins. Co. v. Chase, 1 E. D. Smith, 115; Dorr v. N. J. Steam Nav. Co., 4 Sand., 136; 1 Kern., 485; Holford v. Adams, 2 Duer, 471; Newstadt v. Adams, 5 id., 43; Wells v. Steam Nav. Co., 4 Seld., 381; Moore v. Evans, 14 Barb., 524; Parsons v. Monteath, 13 id., 353.)
    II. So may carriers of passengers. (Welles v. N. Y. Cent. R. R. Co., 26 Barb., 641.)
    III. The answer alleges that the injuries were not caused by fraudulent, willful or reckless act or misconduct or gross neglect. The demurrer admits this.
    IT. From all other negligence the contract exempts the defendants.
    V. ‘The defendants could exempt themselves from liability for any negligence of its servants, provided due diligence was exercised in the selection of such servants. (Wells v. Steam Nav. Co., 4 Seld., 381; Welles v. N. Y. Cent. R. R. Co., 26 Barb., 641.)
    
      George Stevenson, for plaintiff, (respondent.)
    I. Passage tickets are mere tokens, not contracts. (Quimby v. Vanderbilt, 17 N. Y. R., 306.)
    II. Accepting or using such a pass cannot be construed into an assent to the terms printed thereon. The deceased was entitled to the full protection of the law of carriers though he paid no fare otherwise than by paying for his stock. (Phil. and Read. R. R. Co. v. Derby, 14 How. U. S. R., 468.)
    HI. If the deceased did assent, the terms “ any cause whatever,” do not embrace the negligence of the carrier. (Wells v. The Steam Nav. Co., 4 Seld., 375; Alexander v. Green, 7 Hill, 544.)
    IV. In the part of the answer demured to an issue is attempted to be made on the question of gross negligence. Actual negligence is therefore admitted, and in a case like this any negligence is gross. (1 Parsons on Contracts, 694, note.)
   By the Court—Hoffman, J.

It is insisted by the counsel of the plaintiff, that the Court is at liberty to interpret the contract between the defendants and the plaintiff’s intestate by the attending circumstances, and to restrict the general language to cases which would still leave the defendants liable for some neglect.

Adopting this view, this at least is clear, that the plaintiff must show plainly that the intention of the parties was to qualify and restrain the very comprehensive language used in the instrument.

So far from its being obvious that there are cases other than those of negligence, which the parties may be reasonably supposed to have contemplated, it seems to us difficult to understand in what cases the Company could be rendered liable at all for injury to the person of the party, without some negligence on their part or on the part of their agents. An injury to his person, in the course of his being carried to New York in their cars, could have arisen either from his own negligence, without any fault of the defendants; or from an event wholly independent of fault of either party; or from some neglect or fault on the part of the defendants.

The parties cannot be intended to have contemplated the exemption of the defendants in the first two cases. The natural interpretation is, that they meant to cover the last case.

• The counsel of the defendants does not deny that there may be a degree of gross neglect, amounting to willful and fraudulent misconduct, for which they might be responsible, even under this contract. His answer is framed to negative such a case.

It may be difficult or impracticable, as observed, in Welles v. The New York Central R. R. Co., (26 Barb., 646,) to distinguish accurately between the different degrees of negligence. Yet one case can certainly be readily supposed in which a marked and practical distinction would exist. There might be a case of such misconduct on the part of an agent as would indicate a willful design to injure'the party, a desperate recklessness which wantonly endangered the lives or property of all those who are in his charge, a case of personal misconduct, and yet the principal be responsible. In Weed v. The Panama Railroad Company, (5 Duer, 193, and 17 N. Y. R., 362,) the willful act of the conductor who managed the train was not allowed to be a ground of exemption for the Company.

But the averments of the answer seem to us to cover all such cases by denying that the injuries were caused by any fraudulent, willful or reckless act or misconduct, or gross neglect, or default; and the terms and import of the stipulation appear to amount to an agreement that the party was to have no redress for injuries arising from other degrees or cases of negligence.

We consider, also, that the parties were fully at liberty to enter into a contract of this nature. (1 Kern., 485.)

We think that the Court below erred, and that the order must be reversed, and the demurrer overruled.

Order reversed and demurrer overruled, with leave to withdraw demurrer, &c., on the usual terms.  