
    Porter v. New York, L. E. & W. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Carriers—Injury to Passengers—Limiting Liability.
    A shipper of cattle entered into a contract with defendant railroad company whereby, in consideration of reduced rates of transportation, and a free pass to accompany the cattle, he released defendant from all damages to such cattle, except such as might arise from the fraud or willful misconduct of the company. Plaintiff was employed by the shipper to go with the cattle, and was designated in the contract and in the way-bill as in charge free. Held, that the contract with the shipper did not affect defendant’s liability to plaintiff for injuries received while traveling in charge of such cattle.
    Appeal from circuit court, Orange county.
    Action by Ira Porter against the New York, Lake Erie & Western Railroad Company for personal injuries. There was a judgment for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Lewis B, Carr, for appellant. W. ff. O'Neil, for respondent.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff against the defendant, and from the order denying a motion for a new trial, in an action for damages sustained, by the plaintiff on the defendant’s railroad. The plaintiff was riding on a freight train in charge of a car-load of cattle belonging to James Schoonmaker, who shipped the cattle over the defendant’s railroad from Cochecton to Yewburgh. In consideration of a reduced rate for transportation and a free pass, Schoonmaker entered into a written contract in which he released the railroad company from ail damages attending the transportation, custody, and delivery of the stock, except such as might arise from the fraud or willful misconduct of the company. The plaintiff was employed by Schoonmaker to go in charge of the stock, and he was designated by name in the contract and in the way-bill as in charge free. At Otisville, on a descending grade, the train was detached from the caboose to take in some other cars, and the plaintiff remained in the caboose. When the other cars were attached the caboose car was permitted to run down to the train, and the defendant claims that the concussion caused by the impingement of the two cars when they came together to be coupled was the cause of the plaintiff’s injury, and that such shock was not severe or unusual, and was" not the result of negligence, but of the ordinary operation of the train, and that the brakeman made the coupling in the usual way, and the train proceeded on its way. On the other hand, the plaintiff claims there was then or immediately afterwards a collision of some kind, which threw him from his seat, and .caused his injuries. It did not appear with much precision how the shock was caused which resulted in the injury to the plaintiff, but the jury must have found negligence against the defendant in the management of the train. It is not important for us to decide between the two theories of the parties, for if the shock resulted from the rapidity with which the caboose car was permitted to move, and the severity with which it struck the car to which it was to be coupled, that fact would be sufficient to justify the verdict. The serious question in the case has relation to the effect of the contract of Schoonmaker with the company, and it is to be observed that such contract relates exclusively to the transportation of the live-stock, and in consideration of reduced rates, and the issuance of a free pass to accompany the same, the corporation is released from all damage to the stock which shall not result from fraud or willful misconduct. But the contract contains no release for personal injuries, and all the way-bill contains on the subject is a statement that Ira Porter is in charge free, and yet Porter was not, in the eye of the law, a gratuitous passenger. The contract stipulated for a pass and reduced rates, and as a consideration for these the company received a release from certain legal liabilities. The plaintiff was therefore a passenger, with all the rights of that relation towards the company which the law gave him. Waiving that view, however, for a moment, and conceding to th,e contract the scope for which the defendant contends, it can have no binding force or legal effect upon the plaintiff. He neither made the contract nor assented to it, and he made no agreement to assume any risk, and the defendant could not avoid responsibility to him by any contract with Schoonmaker. Such a contract, to be obligatory upon him, must have been made by him, or some one on his behalf. We have examined the exceptions, and find no error, and we cannot say the damages are excessive. The judgment and order denying the motion for a new trial should be affirmed, with costs.  