
    Patrick Jones, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
    
      Qa/rrier — right of, to limit its liability —power of the agent of the owner to bind him.
    
    A common carrier has a right to limit its liability, and may, by a contract, fix the sum beyond which it will not be liable for a loss upon a carload of animals.
    Where an owner of animals intrusts them to an agent for shipment the agent has power to sign a contract limiting the liability of the carrier, and the principal will be bound thereby.
    Appeal by the defendant, The New York, Labe Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of October, 1894, upon the verdict of a jury for $2,000, rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 15th day of October, 1894, denying" the defendant’s motion for a new trial made upon the minutes.
    
      Charles Howland Russell, for the appellant.
    
      Augustus,N. Weller, for the respondent.
   Willard Bartlett, J.:

I think the plaintiff was entitled to recover in this action, but that the amount of the recovery should have been limited to $1,200.

The plaintiff, through his agent, shipped a carload of polo ponies for transportation over the Erie railroad from Buffalo to New York. Near Middletown the freight train in which the animals were being carried became separated into three parts, and a collision occurred, which inflicted considerable injury upon a number of the ponies. The proof sufficed to establish the negligence of the defendant; and the only question really litigated related to the. effect of a release denominated a uniform live stock contract, which was signed by the . plaintiff’s agent at the time of the shipment at Buffalo. This agreement limited the liability of the carrier to a sum not exceeding $100 each for horses and an aggregate amount not exceeding $1,200 upon any carload of animals.

The learned trial judge correctly instructed the jury that the defendant had a right to make a contract of this kind limiting its liability, and that the plaintiff, when he intrusted his horses to the man who signed the release, gave that person the power to make such an agreement with the railroad company. In other words, the agency , to ship the animals carriód with it the power to make a contract as to the terms and conditions of the shipment; so that unless the plaintiff was able in some way to avoid the agreement which his agent signed, he Was. not entitled to recover more than $1,200 for the injury suffered by the'animals in consequence of the collision,

The view of the evidence on which the case went to the jury, so far as the validity of this release was concerned, seems to have been that there was testimony from which it could be fairly inferred that the. plaintiff’s agent was misled by the shipping clerk of the defendant at Buffalo in regard to the character of the paper, which he signed, and was given to understand -that it related to his own application for a pass on the freight train as a caretaker of the animals, and had no reference to the transportation of the ponies themselves.

It does not seem to me, however, that such a view of the evidence is warranted by the record. The plaintiff’s agent, who made the shipment and brought the ponies down, did not say a word indicating that anything whatever occurred between him and the shipping clerk from which he could have received a false idea as to the character of the release. According to his testimony he signed the paper at the request of the representatives of the railroad at. Buffalo, without reading it or having time to read- it, just before the train' left with the horses on board. He does not testify to' any statement made to him by any person as to the nature or effect of the paper, nor does he say anything from which it can be inferred that he believed it to relate in some way to. a pass for himself. The latter suggestion must have come from the testimony of the shipping clerk, who, upon his cross-examination, stated that the plaintiffs agent came into the office at Buffalo to get his pass and was told, when requested to. sign the, contract, that, he would not require any pass, inasmuch as his name was put upon' the running' bill which went-with the train, But this same witness had previously stated that' the release was signed by the plaintiff’s agent before the ponies were upon the train and while he still had plenty of time' to read the contract; and subsequently answered two questions by the court, as follows: “ Q. When you spoke to him did you say that this was a live stock release ? A. . Yes; I always call them ‘ releases.’ Q. Those are the words you used to Smith \ A. Those are the words.”

The plaintiff’s agent, Smith, was not called to contradict the shipping clerk in this respect, so that there is uncontradicted testimony in the case to the effect that he was told what the instrument was at the time he signed it. This evidence, it seems to me, should have been deemed controlling, particularly in view of the fact that two documents were signed by the plaintiff’s agent at the time of the shipment. One was the release relating to the animals, which bears the signature “P. Jones, Shipper, by Chas. Smith, Shipper’s Agent.” The other was a release of liability for any injury which might be sustained by the caretaker. This bears the signature Chas. Smith, in charge.” It is apparent, therefore, that Smith must have known that he signed more than one instrument, and having heard one of them characterized or described as a live stock release, could not have supposed that it referred to anything else but the ponies. There would have been a question for the jury on this branch of the case, if he had testified to anything tending to show that he was misled as to the true nature of the contract limiting the liability for injury to the ponies, and had been able to deny the statement of the shipping clerk, that he called the instrument a live stock release,” when he asked for the signature; but in the absence of any denial in this respect I think the contract should have been deemed valid and effectual.

If it had been so regarded, the amount of the verdict would have been restricted to $1,200. If the respondent will consent that the verdict be reduced to that amount and the extra allowance to sixty dollars, the judgment should be affirmed. Otherwise I think there should be a reversal and a new trial.

All concurred, except Cullen, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event, unless plaintiff stipulates, within twenty days, to reduce the verdict to $1,200 and the extra allowance to sixty dollars. If such stipulation, is filed, the judgment so modified is affirmed, without costs.  