
    Ira Porter, Resp’t, v. The New York, Lake Erie & Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Negligence—Carriers—Release.
    One S. shipped live stock over defendant’s road, and in consideration of reduced rates and a free pass executed a contract releasing defendant from all damages attending the transportation, custody and delivery of the stock except such as might arise from its fraud or wilful misconduct. Plaintiff was employed by S. to take charge of the stock and was named in the contract and way bill as in charge free. While so in charge he was injured by a concussion between two of the cars. Held, that the contract related wholly to the live stock and did not release the company from liability for plaintiff’s injuries.
    Appeal from judgment in favor of plaintiff, entered, upon a verdict.
    
      Lewis E. Carr, for app’lt; W. F. O'Neill, for resp’t.
   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 carload of cattle belonging to James Schoonmaker, who shipped the cattle over the defendant’s railroad from Cochecton to New-burgh.

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 all damages attending the transportation, custody and delivery of the stock, except such as might arise from the fraud or wilful 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 impingment 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 wilful 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 those the company received a release from certain legal liabilities.

The plaintiff was, therefore, a passenger with all the rights which that relation towards the company under the law gave him.

Waiving that view, however, for a moment, and conceding to the 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.

Barnard, P. J., and Pratt, J., concur.  