Upon a reasonable interpretation of the contracts between the defendant and express company, there is no stipulation that the persons riding free, as messengers of the latter company, shall take and bear all risks of personal injury, without recourse to the carrier for compensation for damages sustained through its negligence, or the negligence of its servants. There is no provision in terms restricting the liability of the railway company to the messengers of the express company, or distinguishing the latter from other passengers carried upon the road, or who may be lawfully on the trains as passengers. Without an express exemption, provided by contract, the defendant is liable for the consequences of its negligence, or that of its servants, to all persons traveling and carried upon its trains, as messengers or agents of the express company, to the same extent as to other passengers. *Page 319 (Nolton v. W.R. Corporation, 15 N.Y., 444.) The clause in the contract of 1858, relating to this subject, was abrogated by the third paragraph in the contract of 1871, which covers the whole subject, and makes provision for the carriage of the passengers of the express company, without charge, and limits the exemption from liability to risks or loss on money, bank notes, bonds, gold, bullion or jewelry packages. These packages, with the safes and messengers of the express company, are to be carried free of charge, but the latter are not included within the clause exempting the carrier from liability, but are only included within the exemption from charges for carriage. The contract of 1858, in this respect, is ambiguous, and does not clearly and certainly exempt the railway company from liability for personal injury to the passengers carried under it, resulting from negligence. An exemption can only exist when expressly created by contract, and can only be claimed here upon a strained construction of the contract. But this ambiguity is cleared up by the contract of 1871, and whether the latter contract is the only one to be considered, or both are to be read together, there is no exemption of the railway company from liability to the messengers and agents of the express company. The latter are carried as passengers, the carrier company receiving its compensation from the incidental benefits of the contract, and it must respond to them as to others for injuries caused by negligence.
This leads to an affirmance of the judgment, without considering the other questions raised.