[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 315 The defendant seeks exemption from liability for the injuries sustained by the plaintiff's intestate upon the ground that the intestate was bound by the terms of the contract entered into between the defendant and the express company, and that such contract exonerates the defendant from liability for negligence.
The original contract between the defendant and the express company, provided that the defendant should transport, free of charge, the money-safes, contents and messengers of the express company, "the party of the first part assuming no liability whatever in the matter." By the subsequent modification of the contract, provision was made that the railway company should assume the usual risks upon express matter, except that they should not assume any risk or loss upon any money, etc., for which, with the express company's safes and messengers no charge for carriage was to be made, and the latter were to pass free of charge. The condition referred to was general in its character, and evidently related to the liability and duty of the defendant in its ordinary dealings with the express company. It does not purport to control or adjust any other rights or duties. It contained no provision, and there was no agreement that the company should not be liable for negligence, and the scope of the contract is not to be extended beyond what was evidently intended and was in the contemplation of the parties. Conceding the doctrine that the defendant had a right to protect itself by contract, from any liability for negligence on the part of its employes, such protection cannot be invoked unless the contract contains a provision to that effect. None of the cases which hold that the defendant is exonerated under a special contract, go to the extent claimed or affect a contract of the character of the one now presented. In Smith v. The *Page 317 New York Central Railroad Company (24 N.Y., 222), the contract was, that "persons riding free to take charge of the stock, do so at their own risk of personal injury from whatever cause." The ticket also provided that such person takes "all the responsibility as to the injury of himself and stock." InBissell v. The Same (25 N.Y., 442), the contract was the same as in the last case cited, and on the ticket was an agreement that the company should not be liable under any circumstances, "whether of negligence of their agents or otherwise," for any injury to the person or stock. In the prevailing opinions in this case, the decision is placed upon the terms of the contract and some stress is laid on the same; but as such contract expressly provided that the person riding did so at his own risk of personal injury, I do not see that it bears any analogy to a contract which contains no such clause and does not stipulate against personal risks. In Poucher v. The New York CentralRailroad Company (49 N.Y., 263), the contract provided against negligence of the defendant or its agents or otherwise. (See, also, Stinson v. New York Central, 32 N.Y., 333.) It will thus be seen, that in each the cases cited there was an express provision which evidently guarded against every kind "of personal injury from whatsoever cause," which might, perhaps, include such as might arise from negligence. While here no language is employed which can be fairly interpreted as aimed against negligence, it would, I think, be extending the purpose and scope of the contract in this case far beyond its legitimate object, to hold that it was designed to protect the defendant against its own negligent acts. The English cases which are cited and which have been examined do not establish the proposition contended for, and no case has been referred to — where it is held, that any language, except such as was entirely clear and unmistakable in its terms, will exempt a railroad company from liability for negligence. It may also be observed that there is quite a distinction between cases where damages for injuries are expressly provided against, or where the traveler agrees to be *Page 318 carried at his own risk and those where the contract states generally, that the carrier assumes no liability. If the views enunciated are correct, then the defendant would not be exonerated from liability for negligence where the messenger was injured, and it would seem to follow that one who was temporarily injured in his place would stand in the same position.
There is no provision in the contract which prevents the employment by the express company, of any person as a messenger, or in the place of such messenger, when, for any reason, he is prevented from attending to his duties. The intestate therefore was lawfully upon the cars and entitled to the same protection as the messenger whose place he filled. The circumstances presented bear no analogy to that of a person who is invited by a conductor without authority, and contrary to the regulations of the company, to ride upon a train which is not intended to carry passengers without paying his fare, as was the case in Eaton v.Delaware, Lackawanna Western Railroad Company (57 N.Y., 382). For the reasons already stated, without considering the other questions raised, the judgment was right and must be affirmed.