
    Albert R. Galloway, Appellant, v. Erie Railroad Company, Respondent.
    
      Contract with a common carrier for the transportation of cattle—provisions exempting the common carrier from liability-held not to cover a case of injury to the cattle by delay'—criminal cruelty.
    
    Cattle were shipped over a railroad at a reduced rate under a contract containing „ the following clauses: “The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes to -wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from causes beyond their control. That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food ■ and water for the said stock, while so detained.”
    Through the negligence of the carrier in failing promptly to convey the cattle to-their destination one of the cattle died and all the others were injured by the continuous and protracted confinement.
    
      Held, that the proper construction of the contract was that, if there was injury to the cattle from the specified causes, or from delay for which the defendant was not chargeable because of any fault on its part, the plaintiff should not receive anything, even although all his cattle were killed, but if there was a delay by reason of the defendant’s negligence, he should be paid back the money he might have spent in caring for the cattle " wdiile so detained,” as full compensation for the loss or damage which he might suffer solely by the-lapse of time in delivery, and on the assumption that he finally, although tardily, received his property unimpaired;
    That the present case did not come within the 2d paragraph quoted from the contract limiting the shipper’s recovery to “ the amount actually expended hy said shipper, in the purchase of food and water for the said stock, while so detained,” for the reason that such provision of the contract was only intended to cover a case where the shipper finally, although tardily, received the cattle unimpaired, and where the delay in transportation resulted in loss to the shipper, but was not intended to cover a case where the delay in transportation resulted in the death or physical injury of the cattle;
    That, aside from this consideration, the' railroad company was liable for the entire damage sustained by the shipper, because the proof was sufficient to justify the conclusion that the cattle were injured through criminal cruelty (Penal Code, § 663), a cause not embraced within either of the quoted provisions of the contract;
    That a contract by which a common carrier assumes to limit its common-law liability must be construed strictly against the carrier; that the court is not at liberty to read into such a contract anything which is not clearly and unequivocally expressed.
    Jenks, J., dissented.
    Appeal by the plaintiff, Albert R. Galloway, from a judgment; of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 16t-h day of June, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.
    
      M. N. Kane, for the appellant.
    
      Philip A. Rorty [Henry Bacon with him on the brief], for the respondent.
   Hirschberg, P. J.:

The plaintiff, a shipper,, contracted with the defendant, a common carrier, for the transportation of twenty-three cows and a calf at reduced rates from East Buffalo in Erie county to Monroe, Orange, county. The cattle were placed in a car attached to a train at East. Buffalo at about three o’clock in the afternoon of November 25* 1901, and left East Buffalo at about six o’clock. The train reached Port Jervis, Orange county, within thirty-eight miles of the destination of the cattle, between four and five o’clock on the afternoon of November twenty-sixth. They were then in good condition, but. at that station the car containing them was detached from the train and left standing in the Port Jervis yard until eight o’clock, when, it was attached to another train and carried to Monroe, stopping and switching at almost every station, and reaching Monroe at about two o’clock on the morning of November twenty-seventh. It appears to be undisputed that the cattle were confined in the car without unloading during the entire thirty-five hours, and it is also undisputed that on reaching Monroe one of them died and all the others were found to be injured from the continuous and protracted confinement. The plaintiff sued for the damages resulting from the injury to the cattle^ alleging that the defendant in violation of its contract “ did 'not safely and properly and promptly carry and deliver” them in proper condition, and the complaint was dismissed at the close of his case upon the ground that by the terms of the contract he had expressly, relieved the defendant from liability or had so limited the liability that there could be no recovery upon the proof given.

The provisions of the contract- which bear upon the' question are as follows : “ The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes to wit ^ Overloading, crowding one upon another, kicking Or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from causes beyond their control.

That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper, agrees to accept as full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained.”

No cause or excuse was presented upon the trial for the deliberate severing of the car containing the cattle from the train at Port Jervis, or for the delay in transportation from that place to Monroe, and it must accordingly be assumed on this appeal that the detention was caused by the defendant’s negligence. If under the terms of the contract the injury which resulted to- the cattle is to be regarded as included within the expression contained in the 2d clause of the contract above quoted, viz., “ all loss or damages sustained thereby,” the plaintiff is clearly confined to a recovery of the expense incurred in the purchase of food and water. In a general sense it must be conceded that injury to the cattle necessarily involves loss or damage to the owner equally as would a fall in market values during a period of detention, of damage by reason of his failure to deliver the cattle to a purchaser pursuant to an agreement to do so. If the contract could be construed broadly and liberally in favor of the carrier, it would probably be necessary so to hold. But the law requires' that a contract should be construed strictly against a common carrier where its purpose is to limit the common-law.liability, and so construed there is nothing in this contract which expressly or in set terms limits the defendant’s liability for what has actually occurred, viz., injury to the live stock owing to delay or detention caused by the defendant’s negligence. The exemption provided by the contract relates solely to injury to the cattle from causes which it is conceded have not occurred, and the limit of liability provided for relates to a loss or damage ostentatiously dissociated from injury to the cattle as such.

In construing the contract strictly against the defendant some motive and purpose must be ascribed to the division of the hazards into two classes, differing in the results as well as in the extent of the exemption. The motive and purpose seem obvious. The first clause relates to the risks specifically enumerated and to delay caused not by the defendant’s negligence, but by events beyond the defendant’s control. If such risks or delay occasion injury to the cattle as a separate and distinct thing from loss or damage to the owner not incidental to such injury, the exemption is to be absolute. The second clause relates to loss or damage to the owner as a separate and distinct thing from injury to the cattle, and which may easily be occasioned without such injury. If this loss or damage, not •including injury to the cattle, is occasioned by delay due to the defendant’s negligence, the limit of liability is to be recompense for the cost of sustenance during the period of neglect. ^Neither clause, it will be seen, exempts the defendant in precise words from liability for its neglect resulting in injury to the cattle. In this, view the contract is reasonable and intelligible. In any other view it is difficult to see why the exemption and limitation have been divided into two elaborate clauses, dependent upon differing results, if one is included in the other, when a single simple provision would have sufficed exempting the defendant from all liability for the specified causes and-delay beyond its control, and limiting such liability for delay through its own negligence. The defendant, in this view, is to pay nothing if it is not blamable, and to pay but little even for its own fault (nothing for Compensation, but only reimbursement of actual expenditure), with the reasonable proviso that the negligence has not been so gross or effective as to damage or destroy the plaintiff’s property. In other words, as I construe this contract, if there is injury to- the cattle from the specified causes, or from delay for which the defendant is not chargeable because of any fault on its part, the plaintiff is not to receive a cent, even although all his cattle are killed, but if there is a delay by reason of the defendant’s negligence, he is to be paid back the money he may have spent in caring for the cattle “ while so detained,” as full compensation for the loss or damage which he may suffer solely by the lapse of time in delivery, and on the assumption that he finally, although tardily, receives his property unimpaired. The view taken further avoids the absurdity of so construing the contract as to permit the defendant to sidetrack the cattle anywhere and to negligently leave them there until they should die from confinement and neglect, with the understanding that the owner would be reimbursed as full compensation on receiving the value of such food and water as he might manage to furnish them during the throes of dissolution. It certainly challenges credence to assert that a sane shipper has'intentionally contracted that if a carrier kill his cattle by neglect he will be perfectly satisfied on receiving back the trifling sum he may have spent in a fruitless effort to avert the fatality. The primary purpose of the shipper in making the contract was to procure the transportation and delivery of live stock, and only compelling words will justify a construction which renders that purpose secondary or immaterial. • Aside from these considerations, however, the liability of the defendant was clearly established, because the proof was sufficient to justify the conclusion that the cattle were, injured by criminal cruelty no.t embraced within either of the clauses referred to. By section 663 of the Penal Code it is provided that a railway corporation which confines cattle or causes or suffers them to be confined in cars, in the course of or for transportation for a longer period than twenty-four consecutive hours, without unloading for rest, water and feeding during ten consecutive hours, unless prevented by storm or inevitable accident, is guilty of a misdemeanor. The allegations of the complaint are broad enough to sustain the proof, and the question was raised upon the trial and decided adversely to the plaintiff. It is true that the section of the Penal Code also includes in its condemnation an owner, agent, consignee or person in charge of the cattle, but it does not appear that the plaintiff had any control of the operation or movement of the defendant’s trains, or that he had any power to enforce compliance with the requirements of the statute. He did protest at Port Jervis against the leaving of the car there, and caused the telegraph operator at that station to send an unavailing request to the company’s main office for permission to have the car proceed with the train which had brought it there. The statute is aimed against cruelty to animals, and the plaintiff’s acquiescence as a bar to a recovery would seem to be a proper question for the jury in any event rather than one of law. But as the proof stands, it certainly cannot be said as matter of law that he was so far in fault as to justify a nonsuit.

The principle of construction applicable to this case is illustrated by many decisions of the Court of Appeals. In Perkins v. New York Central Railroad Company (24 N. Y. 196) the general rule was laid down that a railroad corporation cannot by contract exempt itself from liability to a passenger for damages resulting from its own willful misconduct or recklessness which is equivalent thereto.

In Blair v. Erie Railway Co. (66 N. Y. 313) it was held that the terms of a contract which will exempt a railroad corporation from liability for negligence must be clear and unmistakable.

In Mynard v. Syracuse, etc., R. R. Co. (71 N. Y. 180) the exemption in consideration of transportation at a reduced rate included “all claims, demands and liabilities of every kind and character whatsoever, for or on account of or connected with any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising.” It was held that the exemption did not include a loss arising from the carrier’s negligence; that where general words in the contract of a common carrier limiting liability may, operate without including the -negligence of the carrier or his servants, it will not be presumed that they were intended to include it; that every presumption is against such an intention, and that the contract would not be construed as exempting from liability for negligence, unless the intention is expressed in unequivocal terms.

In Holsapple v. Rome,Watertown, etc., R. R. Co. (86 N. Y. 275) the carrier, in consideration of a reduction in freight, was released from liability for injuries to sheep “caused by burning of hay, straw, or any other material used for feeding, said animals, or other-wiser It was held that the carrier was liable for the burning of the sheep, inasmuch as it had omitted to supply the train with appliances for the extinguishment of the fire, and there were no express word's in the contract exempting it from liability for its own negligence. The theory underlying the decision is that the shipper in relieving the carrier from liability assumes the exercise on. its part of every care and duty which the law enjoins and, which is not expressly covered by the precise language of the exemption.

In Nicholas, v. N. Y. C. & H. R. R. R. Co. (89 N. Y. 370) the exemption was for “ damage occasioned by delays from any cause or change of weather,” and it was held- that the exemption did not include a loss occasioned by the- negligent delay of the carrier in the transportation.

■ In Canfield v. Baltimore & Ohio R. R. Co.(93 N. Y. 532) the transportation was expressly “ at the owner’s risk,” but it was field that the defendant was nevertheless bound to exercise reasonable care and prudence in the transportation, and was liable for loss resulting from a failure in that respect.

To the same effect is Kenney v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 422). The -court said (at p. 425): “ The rule -is firmly established in this State that a common carrier may contract for immunity from its negligence, or that of its agents; but that, to accomplish that object, the contract must be so expressed, and it must not be- left to a, presumption from the language. Considerations based upon public policy and the nature of the carrier’s Undertaking influence the. application of the rule, and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis.”

It follows from the logic of these decisions and many others which might be cited, that the court is not at liberty to read into the agreement between the parties in this case- anything, which- is not clearly and unequivocally expressed; that there is not to be found so expressed either exemption from;, or limitation of, liability resulting from delay by reason of the defendant’s negligence of such a, character as to occasion injury to the animals in process of transportation ; and that beyond all possible question there is not to be found so expressed any immunity whatever from the consequences of cruel treatment inflicted by the defendant upon the animals in its charge in violation of a penal statute, assuming for the moment that such immunity could lawfully be conferred.

The judgment should be reversed.

Woodward, Rich and Miller, JJ., concurred; Jenks, J., read for affirmance.

Jenks, J. (dissenting):

I dissent. This action is by shipper against a common carrier for its negligent delay and detention of cattle so that the cattle sick end. The shipment was under a written contract, whereby the carriage was below the published tariff rate. When the plaintiff closed, the court dismissed the complaint on the ground that the defendant had limited its liability and that no damages were proven within the limitation. The said contract of shipment in part provided : "The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from, causes beyond their control.

“ That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as. full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained.”

The contention of the learned and able counsel for the appellant is that the wrong complained of is not within the purview of the 2d paragraph. I think that it is not within the purview of the 1st paragraph, for the “injury” therein mentioned is not one occasioned by delay, but by delay caused by stress of weather and other specified mishaps. And the purpose of the 1st paragraph is not to avoid liability for negligence, but such liability as might arise upon the principle stated in Harmony v. Bingham (12 N. Y. 99, 107) and Lorillard v. Clyde (142 id. 456, 462). I think that the 2d paragraph does not contemplate only loss or damage arising from delay in delivery, such as, e. g., loss by a fall in market price, or failure to deliver to a consignee at a stipulated time. Its terms relieve the common'carrier from all loss or damages. sustained by unusual delay or detention caused by the negligence of said carrier, etc. I think that the sickness of cattle which impaired their value is a loss or damage within the intendment of the expression “loss or damages,” while the plaintiff pleads that the sickness, injury and damage were due to the negligent delay and detention.

The defendant could have relieved itself from all liability for negligence by special contract of explicit expression in unequivocal terms. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 422.) If, instead of a contract for absolute immunity, it chose to except its liability for the actual expense of the shipper for food and water during a detention, the fact that this liability does not afford compensation in this case is not material in the construction of the contract. The appellant contends that the Words “ or otherwise ” must be returned to the word “ negligence,” so that the expression should read “ by the negligence of the said carrier or otherwise,” and thereupon argues that the sole purpose of the clause is not to provide for loss by negligence, But I construe the expression “ or otherwise ” as referring to negligence under the rule that the phrase “ or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. (People ex rel. Huber v. Feitner, 71 App. Div. 479, and authorities cited ; affd. on opinion below, 171 N. Y. 683.)

Judgment reversed and new trial granted, costs to abide the event.  