
    Lee and others vs. Marsh, receiver, &c.
    A rail road corporation, as a common carrier of goods, can by contract exempt itself from all liability for the loss of, or an injury to, goods, from negligence.
    The plaintiffs made an agreement with the defendant as receiver of the Erie rail road, for the transportation of live stock, over the road. The contract exonerated the defendant from all liability for loss or damage that might -happen from any other cause than willful negligence or fraud; and stated that the rate of freight to be paid by the plaintiffs had been reduced in consequence of their assuming these risks. Held that the defendant was not liable for damages to the plaintiffs’ cattle arising from the cars being thrown off the track, where it was found, by the referee, that the occurrence was without any willful negligence on the part of the defendant or his agents.
    Where animals, transported by rail road, were killed, by an accident for which the company was not liable, and the agents of the company offered to carry the dead stock through, if the owner, who accompanied the train and was present at the accident, would take charge of them, who refused to do so; Held that the owners had no claim to recover of the rail road company, on the ground that they had failed to deliver the carcasses of the dead animals.
    APPEAL from a judgment entered upon the report of a referee. The action was brought to recover damages for the breach of a contract made between the plaintiffs and the defendant, as receiver of the Erie rail road company, for the transportation by the latter, over the road, of a quantity of cattle and hogs. The agreement was as follows:
    “New York and Erie rail road, Dunkirk station, Oct. 31, 1861. Memorandum of an agreement made and concluded this day, by and between the receiver of the New York and Erie Bail Boad Company, Nathaniel Marsh, of the first part, by his station agent, at the above named station, and Lee and Elliott, of the second part, witnesseth: That whereas the said receiver of the New York and Erie Bail Boad Company transports cattle, horses, pigs, hogs, sheep, lambs, calves, or other live stock, only at first class rates, as per tariff, excepting in the following cases, namely: Where the said receiver transports them at a reduced rate, in consideration, of the owner or shipper assuming certain risks, as specified below. Now, in consideration that the said receiver of the said rail road company will transport for us such live stock, at the reduced rate of fifty cents per 100 lbs., the said Lee and Elliott do hereby agree to take the risk of injuries which the animals, or either of them, may receive in consequence of any of them being wild, vicious, unruly, weak, escaping or maiming themselves, or each other, or from delays, or in consequence of heat, suffocation or other ill effects of being-crowded, either upon the cars or barges of the company, or on account of being injured by the burning of hay or straw, or any other material used for feeding or bedding the stock, or in the train with the same, and for any damage occasioned thereby; and also all risk of any loss or damage which may be sustained by reason of any delay in such transportation, or by reason of the breaking of any rail or cars, or parts thereof, or that may happen from any other cause than the willful negligence or fraud of said receiver or his agents, and in no event shall the said Nathaniel Marsh be personally liable for loss or damage. And it is further agreed, that the said Lee and Elliott are to load, tranship and unload said stock at their own risk, the said receiver of the New York and Erie Eail Eoad Company furnishing the necessary laborers to assist. And this agreement further witnesseth, that the said Lee and Elliott have this day delivered to said receiver of the said rail road company, two car loads of cattle and hogs, to be transported to Bergen, on the conditions above expressed.”
    The referee found that this agreement was duly executed, at the time it bears date, by the plaintiffs and defendant, and that the said two car loads of cattle and hogs consisted of thirty-six head of beef cattle and sixty-six fat hogs, belonging to the plaintiffs; and that the said cattle and hogs, at the time of shipment, were in good order and condition, and were of about equal value and quality; that is, the cattle were of about equal value and quality one with, another, and so were the hogs. That after said cattle and hogs were shipped, the train in which they were shipped proceeded on its way until within forty-eight or fifty miles of Hew York, when, at about two and a half o’clock in the morning, an accident suddenly occurred to the train. The engine and tender were upset, and, with four or five cars, thrown off the track. The first four cars were badly-smashed and broken up, and the fifth one injured. The plaintiffs’ cattle and hogs were in the first two cars from the tender. One of the plaintiffs, Mr. John M. Lee, was on the train at the time, in "charge of the plaintiffs’ cattle and hogs. Fourteen of the plaintiffs’ cattle and twenty-six of their hogs were instantly killed, or so badly injured that they died soon after the accident. The remaining twenty-two head of the plaintiffs’ cattle, and forty of their hogs, were delivered at Bergen in a damaged condition. The accident was occasioned by a heavy rain storm, which had" washed away the track. That there was negligence on the part of the defendant in running at full speed in such a night as that. But the referee did not find willful negligence. That after the accident the plaintiffs refused to take charge of any of the cattle or hogs except conditionally. The condition was that the plaintiffs were to take charge of them to Bergen, to do the best thing they could with them, and the defendant would take no advantage of that. The defendant proposed and agreed to that" arrangement. The plaintiffs refused to take charge of the dead and dying cattle and hogs, and would have nothing do do with them. The plaintiffs paid to the defendant the full freight on all the cattle and hogs, without deduction for loss or damage by reason of the accident. The defendant exacted it before delivering the cattle and hogs brought. That if the cattle killed had been dressed immediately after the accident, and the meat, hides and tallow delivered with the other cattle, they would have been worth as much per head as the injured cattle that were delivered. The referee reported in favor of the plaintiffs for $1006.06.
    
      
      D. B. Eaton, for the appellant.
    
      A. Prentice, for the respondents.
   Leonard, P. J.

The referee has found as a fact in this case that the defendant was guilty of negligence in running the train of freight cars, when the accident occurred, on a dark and stormy night, at the rate of fourteen miles an hour, and adds that such negligence was not willful. Nor does he find that it contributed to produce the accident.

The contract was for the transportation of live stock belonging to the plaintiffs, over the Erie rail road, which was operated by the defendant as receiver, and exonerated the defendant from all liability for loss or damage that might happen from any other cause than the willful negligence or fraud of the defendant or his agents. The contract also states that the rate of compensation to be paid by the plaintiffs has been reduced in consideration of their assuming these risks. It is evident, then, that, if the contract is valid, the defendant is not liable for the damage arising from the accident mentioned in the case, as the occurrence was without any willful negligence on the part of the defendant or his agents.

The referee has found, however, as his conclusion of law, that the law does not permit the defendant to restrict his liability, as a common carrier, for negligence. In this conclusion, he appears from the recent decisions to be in error.

I think it must be considered as settled in this state, that common carriers may limit their liability for negligence in almost any respect by express contract, for such a consideration as will be satisfactory to the passenger or freighter, and that such contracts are not against public policy. (Dorr v. The N. J. Steam Nav. Co. 1 Kern. 485. Wells v. The N. Y. Central R. R. Co. 24 N. Y. Rep. 181. Bissell v. The N. Y. Central R. R. Co. 25 id. 442.)

The counsel for the plaintiffs insists that they are entitled to recover, although the referee may be wrong in respect to the law and the reasons which he has given for his report in favor of the plaintiffs, because a part of the stock, although killed by the accident, was not delivered at its destination according to the contract. It appears that the animals which were killed by the accident had a marketable value, if immediately dressed, and the plaintiffs insist that the contract is broken by reason of the failure to deliver the carcasses. But who was to dress the animals and prepare them for market immediately ? Certainly the defendant was under no such obligation. This attention was required in order to preserve any value in the dead animals, and overcome the loss which had apparently befallen the plaintiffs in consequence of the accident.

I am not prepared to assent, however, to the proposition that the defendant was liable to deliver the carcasses. The character of the freight was changed when the animals were dead. The defendant was bound to deliver the animals alive, unless relieved from so doing by some condition of his contract ; and the delivery of their dead bodies would not relieve him from responsibility for the failure to deliver them alive, if the loss arose from causes not within the risks from which the plaintiffs had agreed to relieve the defendant. The agents of the defendant, it appears by the report, offered to carry the dead stock through, if one of the plaintiffs, who accompanied the train and was present at the accident, would take charge of them. The plaintiffs refused to take charge of, or have any thing to do with the dead and dying animals.

The plaintiffs have no claim to recover, on the ground so urged by their counsel.

The judgment should be reversed, and a new trial had before the same referee; the costs to abide the event.

Sutherland, J.

Not one of the cases cited by the counsel for the appellant, except Wells v. The New York Central Rail Road Co. (24 N. Y. Rep. 181,) and Bissell v. The New York Central Rail Road Co. (25 N. Y. Rep. 442,) shows that even a common carrier of goods can by contract exempt himself, or itself, from liability for negligence. Hot a case in the New York Beports, prior to Wells v. The N. Y. Central Rail Road Co., and Perkins v. The same company, (24 N. Y. Rep. 196,) can be referred to, which, when carefully considered, can be Said to decide, or establish, any such doctrine. But in the cases last mentioned, and also in Bissell v. The N. Y. Central Rail Road Co. (25 N. Y. Rep. 442,) it was held by the court of appeals that a rail road corporation can by contract exempt itself from all liability for an injury to a passenger from negligence. If so, a fortiori, a rail road corporation, as a common carrier of goods, can by contract exempt itself from all liability for the loss of, or an injury to, goods, from negligence. These decisions of the court of appeals, therefore, force me to concur with the presiding justice, in the conclusion that there must be a new trial in this case.

[New York General Term,

November 7, 1864

Gtbo. Gr. Barnard, J. also concurred.

Hew trial granted.

Leonard, Sutherland and Geo. G. Barnard, Justices.]  