The statute upon which this action is founded makes the defendants liable, only in cases where they would have been liable "if death had not ensued." (Sess. Laws, 1847, ch. 450.) The question, therefore, is precisely the same as if the deceased had received an injury, from which he had recovered, and had himself brought an action for damages. At the time of the accident, which caused his death, he was traveling from Buffalo to Albany, in one of the defendants' cars attached to a cattle train, and had in charge two car-loads of cattle belonging to himself and another. The written agreement under which the cattle was transported, contained the following clause: "And it is further agreed, between the parties hereto, that the persons riding free to take charge of the stock, do so at their own risk of personal injury, from whatever cause." The deceased also received, upon entering into the contract, a ticket headed "New York Central Railroad, cattle dealer's ticket, on passenger train," upon the back of which was indorsed the following: "The owner of stock receiving this ticket assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents, or otherwise, for any injury to the person or for any loss or injury to the stock of said owner, shipped by stock or freight trains."
As the deceased at the time of the accident was not upon the passenger but on the stock train, he is to be deemed perhaps as having been traveling under the written agreement, rather than upon the ticket. As however the delivery of the ticket was simultaneous with the execution of the agreement, and both related to the same transaction, either may be referred to, to aid in interpreting the other. I do not see, however, that the construction of both together would be in any respect different from that of either taken by itself.
The case presents two questions. We are called upon, first, to interpret the agreement, and to see what risks are embraced by its terms; secondly, to determine how far a railroad company, engaged in carrying passengers, may, by special contract, limit its liability for injuries resulting from the want of *Page 209 due care. Although the responsibility of carriers of passengers differs essentially from that of common carriers of goods, the latter being substantially insured against every loss not arising from inevitable accident, while the former are only liable for injuries resulting from negligence, there is nevertheless a strong resemblance between the two kinds of employment; and some light may be obtained in cases like the present, from the decisions in regard to carriers of goods.
The very high responsibilities of common carriers being imposed upon grounds of public policy, the courts, both in this country and in England, have shown some reluctance to permit those responsibilities to be limited by any agreement between the parties. Hence, upon all questions of construction arising upon such agreements, they have uniformly inclined to preserve as much of the original liability of the carrier as possible. Still, it is only when there is something vague, uncertain, or equivocal in the terms of the agreement, that this disposition has been manifested. Whenever the language is clear and explicit, they have never refused to interpret it according to its plain and literal import.
Thus, in the case of Lyon v. Wells (5 East., 428), where a carrier by water had given notice "that he would not be answerable for any damage unless occasioned by want of ordinary care in the master or crew of the vessel," the court said, that notwithstanding the words "any damage," it was absurd to suppose that the carrier meant to make himself responsible for the negligence of the master and crew, and not for his own personal negligence; and therefore held, that he was not exempt from liability for a loss arising from his not having provided a sufficient vessel. But in the case of Chippendale v. TheLancashire and Yorkshire Railway Company (7 Law Eq. R., 395), where the terms upon which the defendants were to transport the plaintiff's cattle, were stated in a ticket as follows: "This ticket is given subject to the owners undertaking all risks of conveyance whatever, as the company will not be responsible for any injury or damage, however, caused occurring to live stock of any description traveling upon the *Page 210 Lancashire and Yorkshire Railway, or in their vehicles;" it was held that the company was not liable for an injury to the cattle arising from a defective track. The question was, as to the construction of the contract. COLERIDGE, J., speaking of the case of Lyon v. Wells, supra, which had been cited, and which was also purely a case of construction, said: "The court reasoned from the particular exception in the case of want of ordinary care in the master and crew, that it must be intended that want of ordinary care in the owner was also excepted; and that it was a want of ordinary care on his part in not providing a proper vessel. Now, the words here do not leave us open to adopt anysuch ground of construction as in that case."
So, in the subsequent case of Carr v. The Same Company (14 Law Eq. R., 340), where the plaintiff's horse, transported under an agreement identical in terms with that in the case of Chippendale, had been injured through the gross negligence of the defendants, and the question raised, was whether the agreement should be so construed as to exempt the defendants from liability for injuries arising from gross negligence, the court held that the company was not responsible. In reply to the argument of the plaintiff's counsel, PARKE, B., said: "we ought not to fritter away the meaning of contracts merely for the purpose of making men careful."
The terms of the contract in the present case are, I think, equivalent to those used in these two English cases. The persons traveling upon the train to take charge of the stock, were to do so "at their own risk of personal injury from whatever cause." Our language affords no words more comprehensive than these. Every possible injury to the person is clearly embraced in the terms used, and there is nothing in the other portions of the contract, as there was in the case of Lyon v. Wells, to render it improbable that the parties intended to give to these terms their full signification. Where the language of a contract is clear and unequivocal, courts are bound to interpret it according to its plain and ordinary import. The ticket delivered at the time of the execution of *Page 211 the written agreement, to which if necessary we are at liberty to refer, presents no obstacle to the construction of that agreement which I have suggested, but on the contrary strengthens and confirms it. Its terms are different, but equally comprehensive. I have no hesitation therefore, in holding, that the agreement in this case should be construed to exempt the company from every species of liability which the law will permit them to contract against, including injuries from negligence or fault of any kind, whether imputable to the company directly, or only through its subordinate agents.
Having thus disposed of the question of construction, it remains to inquire how far parties engaged in the business of transporting passengers, have a legal right to discharge themselves from responsibility for injuries to the persons of such passengers. There is clearly some limitation to this right. It will be generally conceded that an individual so engaged cannot by any agreement, exempt himself from liability for any injury resulting from any willful or wanton misconduct of his own. That a party should be permitted to contract, that he may with impunity inflict wanton injury upon others, is repugnant to every sentiment of justice and propriety. No one seems ever to have contended for such a proposition, and hence there are no decisions upon the point; although law writers and judges have incidentally expressed their opinions in regard to it. Sir William Jones speaking of the obligations of a bailee, says: "As an agreement that a man may safely be dishonest, is repugnant to decency and morality, and as no man shall be presumed to bind himself against irresistible force, it is a just rule that every bailee is responsible for fraud, even though the contrary be stipulated." (Jones on Bail., 11.)
Judge STORY also lays down the same rule. He says: "In respect to cases of loss by fraud, there is a salutary principle, belonging both to our own law and the civil law. It is: that the bailee can never protect himself against responsibility for losses occasioned by his own fraud; nay, not even by a contract with the bailee that he shall not be responsible for such losses. For the law will not tolerate such an indecency and *Page 212 immorality as that a man shall contract to be safely dishonest." The same principle is asserted by GARDINER, J., in Wells v.The Steam Navigation Company (4 Seld., 375), and by WELLES, J., in Parsons v. Monteath (13 Barb. S.C.R., 353). It is not confined to common carriers and other bailees, but from its nature must be general in its application.
But the question arises, how far does the principle extend. Are parties precluded from protecting themselves by contract from the consequences of their own negligence, or want of care? This, certainly, cannot be claimed as a general rule in respect to every degree of negligence. The restriction is limited in the passages quoted from Jones and Story to the frauds of the bailee. This corresponds with the principles applied to policies of insurance against fire. Although the terms of such policies are frequently general, embracing every loss by fire, from whatever cause, still, if the loss was produced by the fraud of the insured the other party is not liable. It is otherwise, however, when the loss occurs from negligence even of the insured himself, provided the terms of the policy are such as clearly to embrace such a loss. In the case of Catlin v. The SpringfieldInsurance Company (1 Sumn., 434), the policy bound the company to make good any loss or damage "by fire originating in anycause, except design in the insured," c. Judge STORY held that the company was liable for the loss which had occurred, although it appeared that the insured had himself negligently left the premises vacant, and that intruders had come in and burned them, but without his co-operation or knowledge.
So in the case of Thurtell v. Beaumont (1 Bing., 339), which also was an action upon a policy against loss by fire, the defence set up was that the plaintiff had willfully set fire to the premises, or had caused them to be set fire to. The judge charged the jury that to sustain the defence, the crime of willfully setting fire to the premises must be brought home to the plaintiff by evidence that would warrant them in finding him guilty of that offence; of course holding that showing that the fire was caused by the negligence of the plaintiff was no defence; and on motion for a new trial this charge was *Page 213 sustained. These cases show that there is no general rule which prohibits a party from contending for immunity from the consequences of his own negligence.
It does not follow, however, that such contracts can be made to cover every species of negligence of which the contending party may himself be guilty. There is a degree of recklessness which can scarcely be distinguished from a wanton or willful disregard of duty. It is equally reprehensible, and its consequences are in general held to be the same. It is to this degree of negligence that I understand Judge WELLES as referring, in Parsons v.Monteath, supra, when he says, "A contract which should excuse the carrier from liability for damage or loss arising from his own fraud or gross negligence would not be enforced." The same idea is suggested by Judge STORY in Catlin v. The SpringfieldInsurance Company, already referred to, where he says, "I do not say that the defendants would be liable for every loss occasioned by the gross personal negligence of the plaintiff, for it might, under circumstances, amount to a fraudulent loss."
The principle therefore is, that parties cannot contract that they themselves may with impunity be guilty of willful misconduct, or of that degree of recklessness which is its equivalent. To this extent, no doubt, carriers of passengers are precluded from absolving themselves by contract from their responsibilities. But the rule has no application to contracts exempting them from liability for the acts of third persons. There is some difficulty in applying these principles to railroad companies on account of the artificial nature of corporations. As they can act only through agents, it may with about equal plausibility be said, on the one hand, that every act of their authorized agents, and on the other, that no such act is to be regarded as a direct act of the corporation. But a distinction is no doubt to be made, between the directors or managing officers of a corporation and its subordinate agents. As the former exercise all the powers of the corporation and are its only direct medium of communication with outside parties, they must, in respect to all its external relations, be considered *Page 214 as identical with the corporation itself. No contract, therefore, can exempt a railroad company from liability for the willful or wanton misconduct or gross recklessness of its directors; but the rule extends to no other officer or agent of the company.
The supreme court seems to have supposed, that the verdict in this case, could be sustained upon the ground that the negligence which resulted in the death of Bissell, was to be attributed to the directors of the company, and was of such a degree, that the company could not protect itself from liability for its consequences by any contract. But it is evidently impossible to sustain the judgment upon that ground: because the jury was not required to pass upon the case in that aspect. The judge charged the jury, in substance, that if they were satisfied the death of Bissell was caused by gross negligence of the defendants, or their switch-tender, the plaintiff was entitled to a verdict, and to this the plaintiff's counsel excepted. It is impossible to sustain this charge, upon the basis of the particular rule under consideration, for two reasons — First, the terms `gross negligence' admit of great latitude of application, and do not alone adequately describe that degree of negligence which is necessary to bring the case within the rule in question. The negligence must be of that kind which is equivalent to a willful or wanton neglect of duty, and so the jury should in such cases be instructed; and secondly, no degree of negligence on the part of the switchtender would make a case for the application of the rule. It follows that the judgment in this case cannot be sustained upon the mere ground that parties are not permitted to protect themselves by contract from liability for their own personal misconduct.
But other grounds are taken which it is necessary to consider. The counsel for the respondent very justly likens this case to that of a common carrier of goods, and seems to think it not entirely settled that such carriers can by contract limit their common-law liability; or at least can exempt themselves from liability for the gross negligence of their servants or agents. This question, however, is too clear to require discussion. It has long been settled in England, that common *Page 215 carriers may by special contract regulate and control the extent of their responsibility. (Story on Bail., § 549; Angell on Carriers, § 220, et seq.) There can be no doubt that this right in England is held to extend to every degree of negligence however gross, and, as I apprehend, even to the fraudulent or willful misconduct of the servant or agent of the carrier. (Leeson v. Holt, 1 Stark., 186.) In this case which was an action against common carriers for negligence, in which the defence set up was, that there was a special contract exempting the carrier from liability, Lord ELLENBOROUGH said, "Under the terms of the present notice, if a servant of the carriers had in the most willful and wanton manner destroyed the furniture entrusted to them, the principals would not have been liable." That this is the rule in England there is no doubt. There are now various statutes on the subject in that country, commencing with that of 1 Geo. IV, but none which impair the force of this rule of the common law. In this state it was held in one or two cases, that common carriers were precluded upon grounds of public policy from limiting their responsibility by special contract. But these cases have been overruled, and the doctrine of the English courts is now the doctrine of this court. (Wells v. Steam NavigationCo., 4 Seld., 375; Dorr v. New Jersey Steam Navigation Co., 1 Kern., 485.)
Conceding, however, that common carriers of goods, may by special contract protect themselves from liability for the gross negligence or even frauds of their servants or agents, it is nevertheless contended that carriers of passengers cannot, by any contract, avoid responsibility for the negligence of their servants, when such negligence amounts to a crime. Our statutes provide "that every man who, by his culpable negligence causes the death of another, although without intent to kill, is guilty of manslaughter."
This position appears to involve some confusion of ideas. What connection there is between the liability of the servant to punishment for his crime, and the liability of the master in a civil action for the consequences of his servant's negligence, *Page 216 it is difficult to perceive. For the crime, the servant alone is responsible. The master neither participates in his guilt, nor is in the least degree involved in responsibility for it. The imposition of punishment for the public offence, and the enforcement of liability for the private injury, do not rest upon the same reasons, and bear no relation whatever to each other; nor can the latter with propriety be in the slightest degree influenced by the former. The idea suggested seems to have for its basis a blending of the principle already considered, which prevents a person from exempting himself by contract from responsibility for his own personal fraud, and that which holds a master liable for the negligence or fraud of his servant. But what these two principles have to do with each other, it is impossible to perceive. There is no doubt, I think, that the true rule is that stated by GARDINER, J., in Wells v. SteamNavigation Company, supra, when he says: "Although the law will not suffer a man to claim immunity by contract against his own fraud, I know of no reason why this may not be done in reference to fraud or felony committed by those in his employment." It is impossible therefore to uphold this judgment upon the ground that the negligence of the switch-tender is made a crime by statute.
It is however suggested, although not made a point upon the argument, that, on account of the very serious consequences and great risk to life which attends accidents upon railroads, public policy forbids that railroad companies should be permitted to exempt themselves by contract from those responsibilities for the safety of their passengers which the law devolves upon them.
This position calls upon the court to introduce a principle entirely new. It is not pretended that there is any precedent for such a rule. Passengers have been carried by stage-coaches for centuries without the application of any such restriction upon the natural right of individuals to take care of their own interests, and to provide for their own security. No such principle has ever been applied to transportation by vessels or by steamboats. It may be said that traveling by *Page 217 railroad is more hazardous than by other modes. Statistics would seem to prove the contrary: but this is immaterial. The question is, whether the principles of the common law which have always permitted men to manage their own affairs and to make their own contracts, provided they involve nothing immoral or illegal, are to be adhered to. Are the courts to interpose in a matter of mere private contract for the protection of individuals against the consequences of their own improvidence?
It may be urged that such contracts of exemption, if permitted, will tend to a relaxation of vigilance on the part of railroad companies, and that this affects the security of large numbers of persons, and is therefore a matter of public interest. But we have no reason to suppose that the practice ever has been carried to such an extent as to produce any appreciable effect in this way; and there is little danger that it ever will be. It is confined to the comparatively few cases in which persons travel gratuitously. If, however, it should ever prove productive of evil consequences, which I do not apprehend, it would, I think, be better to leave the remedy to the legislature than for the courts to break in upon the settled rules of law in respect to the right of individuals to bind themselves by contract. To establish the principle contended for would be an act of pure judicial legislation, and would, in my judgment, be an unwarrantable assumption of power. It would not be the mere application of a principle already established to a new class of cases — which is within the province of the courts, but the introduction of a new principle which has neither precedent nor analogy to support it. To this I am opposed. The judgment should, I think, be reversed, and there should be a new trial, with costs, to abide the event.
SMITH, J., in the Perkins case, was for affirmance, upon grounds thus stated by him: