
    Susan F. Brewer, Adm’rx, Resp’t, v. The New York, Lake Erie & Western R. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    1. Master and servant—Express messenger—Liability of railroad FOR NEGLIGENCE.
    A person entering into a contract of service with one employer cannot, without his knowledge or assent, he made to assume the hazards of a service conducted by another, and in which he is not engaged, and be personally subjected to the consequences of the negligence of the latter without remedy against him.
    3. Same.
    ’ Plaintiff’s intestate was an express messenger in the service of the U. S. Express Co., and as such occupied the express car on defendant’s railroad, when through the derailing of the car through defendant's negligence he was killed. Defendant had a contract with the Erie Railway Co., by which the latter agreed to carry certain specified express matter, “ and in consideration of such free carriage said express company hereby assumes all transportation risks and other liabilities whatsoever in respect thereof, and agrees to fully indemnify and protect the railway company therefrom.” Held, that although plaintiff’s intestate paid no fare, and must have understood that he was there pursuant to some arrangement of his employer with defendant, he was not necessarily by that fact chargeable with notice of the provisions of the contract, and presumptively was entitled to protection against personal injury by the negligence of the defendant.
    3. Same.
    He was a passenger, and the location of the express car in the train did not deny to him the benefit of that relation.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    
      D. C. Robinson, for app’lt; Frederick Collin, for resp’t.
    
      
       Affirming 45 Hun, 595, mem.
      
    
   Bradley, J.

The plaintiff’s intestate was an express messenger in the service of the United States Express Company, and as such occupied the express car in a train upon the defendant’s railroad on January 23, 1881, when a portion of the train, including such car, was derailed, and he lost his life. The jury found that this was occasioned solely by the negligence of the defendant The principal ground alleged by way of defense was that the defendant was exempt from liability by virtue of an agreement made between the Erie Railway Company and the express company in 1877 to the rights of that railway company in which and to its franchises the defendant had succeeded. That was a contract for the transportation of property for the express company, and for that purpose the railway company agreed to provide suitable facilities.

The third clause of the contract, upon which the main question for consideration arises, was as follows: “ The Railway Company agrees that between all stations on its main and leased lines and branches it will carry free of charge to said Express Company, its messengers, wagons, horses and grain, not exceeding three car loads in any one month, and as well all packages of 'money, bank notes, bonds,- gold, bullion, jewelry and other precious articles, including the safes in which such packages shall alone be transported ; and in consideration of said free carriage said Express Company hereby assumes all transportation risks and other liabilities whatsoever arising in respect thereof, an$L agrees to fully indemnify and protect the Railway Company therefrom.”

This provision, in its relation to property which the railway company should transport pursuant to the contract, did not have the effect to relieve or indemnify it against liability for loss or injury which should be occasioned by its negligence. The intent to accomplish that purpose cannot be inferred from general words, but must be distinctly expressed in the contract with the common carrier. Magniny. Dinsmore, 56 N. Y., 168; Mynard v. Syracuse, etc., R. R. Co., 71 id., 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id., 370.

It is said that this provision of the contract, in its application to the express messenger referred to in it, is not entitled to such application and effect; and that by it the defendant was exempt from liability for his personal injury and death, although caused by its negligence. It is true that a carrier of persons is not subjected by law to.the obligations of a common carrier, nor is a carrier of persons a common carrier in the strict sense of the term applicable to it. While the latter, in the transportation of property, is an insurer of its safe transit, when the obligation is not qualified by contract, the negligence of the carrier of persons is essential to liability for injury to them. The settled doctrine in this state is that a carrier Of persons as well as of property, and known as a common carrier, may by contract have protection against liability for injury caused by its negligence. Wells v. N. Y. C. R. R. Co., 24 N. Y, 181; Bissell v. N. Y. C. R. R. Co., 25 id., 442; Poucher v. N. Y. C. R. R. Co., 49 id., 268; 10 Am., 364. But whether in view of the fact that the liability of a carrier to a passenger can rest on no ground less than that of negligence, renders it unnecessary to make the stipulation of the contract definite and distinct in that respect for its relief from liability is not necessarily the subject of inquiry or consideration on this review.

It may, however, be observed that in those cases where the defense has been sustained the contract has by its terms plainly guarded the carrier against liability for injury resulting from its •negligence. The provision before mentioned of the contract contains no stipulation expressly exempting the railway from liability arising from that cause. But in a later clause of the contract it was provided that: “ The railway company agrees to assume the usual responsibility of railway companies in transporting express freights, such responsibility being, however, expressly limited to cases of negligence in running and handling its trains. But in no event, whether of negligence or otherwise, shall the railway company be responsible, and it is hereby released from and the express company hereby assumes all liability for money, bank notes, jewelry, bullion and precious packages, hereinabove provided to be carried by the railway company free of charge.” This is the only provision of the cóntract specifically expressing any relief from the consequences of the negligence of the last named company ; and it may be that its protection from liability from such cause was intended to be limited by and made dependent upon that clause. And in that view the provisions of the third clause of the contract may have been intended to furnish the means of indemnity to the railway company, so far as the express company assumed the risk and undertook to indemnify and protect it from liability. These considerations bear upon the construction of the last mentioned provision of the contract, and if the messenger had been advised of it, the question may have arisen whether in its application to him the liability of the defendant would be deemed to have been any less qualified than in its relation to the property to which in common with him it there related. That is to say, whether the general words apparently applied to the property and to him without discrimination were entitled to a more extended import as to the messenger than could be given to them in their application to the other objects to which they in the same connection also equally related. It, however, does not appear that the plaintiffs intestate had any knowledge or information of the provisions of the contract between the two companies. When he entered into the service of the express company he assumed the ordinary hazards incident to that business in his relation to that company, but there was no presumption or implied understanding that the messenger took upon himself the risks of injury he might suffer from the negligence or fault of the defendant He was in no sense the employe of the defendant, nor could he without his consent be subjected to the responsibilities of that relation. Mo. Pacific R. Co. v. Ivy, 71 Texas, 409; 10 Am. St., 758. He was lawfully in the car, having the charge of the property and business there of the express company under its employment; and although he paid no fare to defendant, was carried by virtue of no contract made by him personally with the latter, and must have understood that he was there pursuant to some arrangement of his employer with the defendant, he was not necessarily by that fact chargeable with notice of the provisions in question of the contract. Presumptively he was entitled to protection against personal injury by the negligence of the defendant. Blair v. Erie R. Co., 66 N. Y., 313; Nolton v. Western R. R. Cor., 15 id., 444; Smith v. N. Y. C. R. R. Co., 24 id., 222; 29 Barb., 132; Collett v. L. & N. W. R. R. Co., 16 Adol. & E., N. R, 984. And it is not seen how Brewer could, without his knowledge or consent, be placed in such relation to the defendant as to relieve it from liability to him for the consequences of its negligence affecting him personally. His contract of employment with the express company for its service did not, so far as appears, impose upon him such hazards, nor was he chargeable with the stipulations in the contract between those companies except so far as they through notice to him or otherwise entered into that pursuant to which he went into or remained in the service of the express company. The negligence of the defendant was the violation of .its duty. It was the want of the care to which the plaintiff’s intestate was entitled for his protection.

This duty and such right did not depend or rest upon contract, but upon the relation as carrier of the plaintiff and the care which the defendant as such was required to exercise. It is violated duty that furnishes the ground of an action for negligence, and where there is no duty there is no liability for such cause. We are unable to see in principle any legal support for the proposition that a person entering into a contract of service with one employer may without his knowledge or assent be made to assume the hazards of a service conducted by another, and in which he is not engaged, and be personally subjected to the consequences of the negligence of the latter without remedy against him. Ho such question was in the case of Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 562, which arose out of the same disaster.

The contract between the companies did not purport to relieve the defendant from its duty to exercise due care for the protection of the messenger. Hor did the defendant take from it any right to disregard such duty. But whatever right to relief from the consequences of its negligence in that respect the defendant derived from the contract, arose by way of indemnity upon the stipulations of' the express company. These views lead to the conclusion that the question of negligence (which fact was supported by evidence), was properly submitted to the jury ; and the charge of the court to them “ that the extent of the defendant’s ■obligation to the deceased was to use ordinary care” was as favorable to the defendant as could be required by it. The deceased was a passenger, and therefore the refusal of the court to charge to the contrary was not error. Blair v. Railway Co., 66 N. Y., 313. The location of the express car in the train did not deny to him the benefit of that relation.

No other question requires consideration.

The judgment should be affirmed.

All concur, except Follett, Ch. J., not sitting.  