
    Charles Coppock, Resp’t, v. Long Island Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    ■Cabbiebs—Passengers—Limiting liability.
    A person in charge of his employer’s horses, who takes passage in the car in which the horses are transported, without making any personal contract with the company, though he knows that his employer made arrangements with tile company for his transportation, is not chargeable with knowledge that such contract exempted the company from liability for any injuries that he might receive while traveling in such car.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a morion for new trial, made on the minutes.
    
      William J. Kelly, for app’lt; Dailey, Bell & Orane, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon

a verdict in favor of the plaintiff and against the defendant after trial at the circuit, and also from an order denying a motion for new trial upon the minutes of the court. The case discloses the following facts: On the 6th day of December, 1893, the plaintiff was in" the employ of Dr. Wyckoff as a groom, and on that day was going from the summer residence of his employer, at Southampton, to Long Island City upon the railroad of the defendant. The plaintiff, in company with the coachman, Thomas Adcock, was to transport the horses of his employer with them on the train irom Southampton in what was known as the “Wagner Palace Horse Car." About nine o’clock on the morning of December 6, 1893, Thomas Adcock, the coachman, went to the ticket office at Southampton, to pay for the car, and he did pay for the car $48, which included Dr. Wychoff’s horses and carriage, and two men in charge. He asked the agent if that charge included everything and was informed that it did. He hired the whole car, which included everything, and the agent told him it included the fare of two men; and he signed, as he says, at that time, the printed paper which he always signed for shipping; and as appears bn the cross-examination of the plaintiff, he supposed, and was informed by Adcock, that he (Adcock) had bought his ticket and paid his fare so that when the plaintiff boarded the defendant’s train at twelve o’clock noon, with the horses, he supposed his fare had been paid by Adcock, whoso informed him. The’time at which the train left Southampton for Long Island City was two o’clock in the afternoon, but for the convenience of the defendant the plaintiff, the coachman, and the horses were taken on the train at twelve o’clock, which stopped at Southampton, coming from Long Island City, and proceeding easterly to Sag Harbor. This, as was explained, was for the reason that it was easier to load horses and carriage on trains going east than trains going west, and also for the sake of saving time on the western trip. The Wagner car into which the horses were placed also had the usual car seats for passengers. That car was taken to Sag Harbor on the twelve o’clock train going east, and there switched upon a siding, to be made part of the train going west, due at Southampton at two o’clock. While this palace horse car was on this siding at Sag Harbor, the train to which it was to be attached came back from the main track onto the switch, and collided with great force with the car in which the horses were at that time, and inflicted the injuries upon the plaintiff for which this action is brought.

There is no denial of the collision, or of the negligence from which it resulted. The defense to the action is that the plaintiff made a special contract with the defendant, whereby it was relieved from all liability in carrying the plaintiff, even for the negligence of its servants. Upon that subject the trial judge charged the jury that:

“Although the blank contract was made between Dr. Wyckoff, and the railroad company,—that is, between Dr. Wyckoff, through his agent, Adcock, of whoever did it, and the railroad company, —nevertheless, if this plaintiff did not know that in the contract there was any clause exempting the railroad company from liability to him for any negligence of the railroad companj'-, and if the jury found that the plaintiff did not know it, and also found that he did not have the opportunity of knowing it, that it was not in any way called to his attention, that he was not put on inquiry sufficient to make the jury say that he should have known it, if he did not know it, the exemption would not hold in favor of the railroad company, and the plaintiff would be able to recover. Traveling in this horse car, without having made any personal contract himself it may well be that he knew or that he supposed — which I charge you would be the same thing-—that Dr. Wyckoff had made some contract or provision for him. But I charge you that although riding as he was, and knowing that Dr. Wyckoff must have done it, or presumed that he must have done it, which was the same thing, nevertheless, that in itself did not necessarily bring home to him the knowledge that in that contract which Dr. Wyckoff or somebody else had made for him, or to cover his case,—that did not necessarily bring home to him knowledge that in the contract the negligence of the railroad company had been exempted, so that he could not recover for its negligence ; because, gentlemen, the rule of law is that the company is liable for its negligence. And while I charge you that you can go to a railroad company, and enter into a contract exempting it from any negligence, if you see fit, nevertheless, the position that the plaintiff was in toward this company, riding on this’road in that way, the fact that he knew or supposed that the contract had been made covering his case did not necessarily carry home to him the knowledge that the railroad company had been exempted from the liability which the law casts upon it.”

This charge was a correct exposition of the law applicable to the case, and gave the facts fairly to the jury; and therefore, in view of the fact that the verdict was rendered by the jury in favor of the plaintiff, it must be assumed that the facts were found in accordance with the charge, and therefore that the plaintiff in this action was destitute of knowledge that any contract had been made exempting the railroad company from negligence toward him. The jury, in obedience to the rules thus laid down, were the sole judges of the facts, and rendered a verdict in favor of the plaintiff. No principle of law has been violated, and the verdict is not excessive.

The judgment and order denying a new trial should be affirmed, with costs. All concur.  