The action by representatives of one whose death is caused by the wrongful act, neglect or default of another, is confined to cases in which the act, neglect or default causing the death is such as would (if death had not ensued) have entitled the party injured to maintain an action for damages in respect thereof. (Laws of 1847, ch. 450, p. 575, § 1.) Therefore it must be some act, neglect or default of which the deceased, had he survived, might have complained, and for which the defendants would have been liable to him. If, by reason of the relation of the parties, or for any other reason, the defendant owed no duty to the deceased, and was not bound to do or forbear to do any act in respect to the deceased, the doing or omission of which caused the injury, neither the deceased, at common law nor the representatives, under the statute, can maintain an *Page 237 action. The duty of the party to be charged must arise from contract or be imposed by law resulting from the relation of the parties, and if no duty exists resting upon one of these foundations, then there can be no act, neglect or default which would give the party injured or his representatives an action, although under other circumstances the same act or omission would constitute a breach of duty and charge the guilty party with the consequences. The act, neglect or default which gives the action, takes its character as actionable or not actionable under the statute, not alone from its intrinsic and abstract qualities, but from the relation of the parties implicated. Had there been no special contract qualifying the common-law liability of the defendants as carriers of persons and property, no question could have been made as to their liability in this action. They would have been bound to respond, not only for gross but for any the slightest neglect on the part of their servants and agents. Whatever doubt may have at one time existed on the subject, it is now well settled that bailees, common carriers and others may relieve themselves of liabilities resting upon them at common law by special contract with those interested, and for whose benefit and protection such liabilities have been deemed necessary. The common law, from motives of public policy and for the protection of the public, has made common carriers of property chargeable with all damage to, and loss of property in, their possession as carriers, except only where such damage or loss has arisen from inevitable accident, sometimes called "the act of God," or the public enemies. Carriers of persons have, for similar reasons, been subjected to very stringent liability, and are held to the highest degree of care and skill, and made liable for the slightest neglect. Indeed, so exacting is the law, although founded on the wisest of reasons, that the consequences of the liabilities of this class of public servants are in extreme cases almost penal in their nature. But those rules are established and take the place of a special contract, not for the benefit of the public, but for that class of the public who have to do with those classes and for the protection of those who may suffer *Page 238 by neglect of duty on their part; and unless there is some exception which is to operate in this class of cases which does not affect any other right or duty, or the relation of parties in other situations, the individual for whose benefit the liability exists, and the duty is imposed, may waive them by agreement. No principle is better settled than that a party to whom any benefit is secured by contract, by statute, or even by the Constitution, may waive such benefit, and the public are not interested in protecting him or benefiting him against his wishes. (Broom's Leg. Max., 309; Lee v. Tillotson, 24 Wend., 337; People v.Murray, 5 Hill, 468; Donnelly v. Corbett, 3 Seld., 500.) The public have no interest in the question, which of the two, A or B, shall take the risk of the seaworthiness of a ship, or the fitness of a railway carriage, or the care and faithfulness of a third person employed in the performance of a duty, in which either or both have an interest, although by certain general rules the law has declared that in the absence of any contract the risk shall be upon A and not upon B. But if B elects to relieve A, and to assume his risks and liabilities, the public are not at all concerned and have no occasion to forbid such contracts. If the contract is induced by fraud or duress, it is, of course, void, and the common-law liabilities of the parties will remain unchanged. The character of the liability which one contracting party assumes in relief of the other, cannot affect the validity of the contract, it being wholly personal to the parties. If one is unwise enough deliberately to excuse another from liability for gross and very gross neglect, there is no good reason why he should not be permitted to do so, even for personal neglect of that character: that is, there is no reason why the contracting party should not be estopped from setting up a claim against his express contract not to do so. If the public have any claim against the negligent party, either criminally or otherwise, it will not be affected by the contract, and if the contract be in violation of the law, or for the commission of a criminal offence, neither party can maintain an action against the other upon it or in respect to the transactions *Page 239 to which it relates. Such a contract will not be construed — except its terms compel such construction — as authorizing or contemplating a crime, or as providing against the consequences of a crime, and hence would not ordinarily be held to embrace acts of culpable negligence resulting in death under circumstances that would constitute manslaughter, that is, culpable negligence of that degree in the principal and the contracting party. But the reason does not extend to or prohibit a contract shifting the pecuniary liability of A, for the acts of C to B, although such acts of C might be such as would subject him to punishment for manslaughter, for causing death by his culpable negligence, or for any other offence. A man should not be permitted to contract for impunity from his own criminal acts, but there is no reason why he may not contract for such impunity from the acts of his agents, for whom and for whose acts he is only pecuniarily responsible, in the nature of a guarantor. A man may be lawfully insured against risks and liabilities of all kinds, and this amongst others. The liability of the principal for the acts of the agent is the same as, and no different from, any other pecuniary liability resulting from contract or the relation of the parties. There is no recognized public policy which requires an individual under all circumstances to bear or be responsible for the grossest negligence, or even the fraud, of his agents and servants. Unless he is specially exempted by statute or express agreement, the law for good reasons makes him so liable. The well-understood doctrine of respondent superior furnishes the rule in such cases. But in fire policies the insured has indemnity against the negligence of his most confidential servants and agents, and in marine risks the undertaking of the underwriter may and does ordinarily include the fraudulent and barratrous acts of the master and mariners who are the employees and agents of the insured, notwithstanding the acts may constitute an offence made criminal by the laws of the land. (1 Story's Laws, 84; Cook v. The Commercial Ins. Co., 11 J.R., 40.) "The modern cases go far to establish the rule that for the conduct of the master or mariners, in the practical *Page 240 navigation, care and management of the vessels after the commencement of the voyage, the insurers are responsible, provided the actual loss arise from one of the perils insured against, although such peril was occasioned or increased by the negligence, carelessness, bad seamanship or other misconduct of the master and mariners, not amounting to barratry." (Per SHAW, Ch. J., in Copeland v. New England Marine Ins. Co., 2 Met., 440; Dixon v. Saddler, 5 M. W., 405.) Baron PARKE, in the last case, says: "The great principle established by the more recent decisions is, that if the vessel, crew and equipments be originally sufficient, the assured has done all he contracted to do and is not responsible for the subsequent deficiency occasioned by any neglect or misconduct of the master or crew." In this class of cases the law of respondeat superior, adopted as an equitable and a reasonable rule in the absence of any contract, is suspended by the agreement of the parties, the courts only looking to ascertain what in truth the parties have as between themselves agreed, shall be the rule and measure of responsibility. Public policy does not interfere with the freedom of the parties to make such contract as their own interests may dictate, and if a party may lawfully procure another to indemnify him against personal loss, by insurance against the negligence and fraud of his own agents, a fortiori he may, by the deliberate agreement of a third person in respect to whom he stands in the relation of insurer for the acts of his servant under the doctrine of respondeat superior, be relieved from that responsibility. The party may become his own insurer as he might have insured the principal.
Another class of cases establishes a principle utterly at war with the doctrine contended for, that public policy forbids a contract by which a principal may be discharged in advance from responsibility for the negligence of his servants, whatever the degree of negligence may be. I refer to the case of Coon v.The Syracuse and Utica Railroad Company (1 Seld., 492), and the cases in this and other states preceding and following it, which decide, that a principal is not liable to one of *Page 241 his agents or servants for injuries sustained through the negligence of another agent and servant, when both are engaged in the same general business. Chief Justice SHAW in Farwell v.The Boston and Worcester Railroad Corporation (4 Met., 49), lays down the general rule, "that he who engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accordingly." If a contract may be implied from the relation of the parties, which shall thrust aside the common-law rule ofrespondeat superior, there would seem to be no reason why it might not be put aside, by the voluntary and express agreement of those concerned. The question in all cases of special contract, is not what the law upon the ordinary principles which govern in the establishment or application of rules in the new and ever varying cases that constantly arise, would adjudge to be the reasonable and just duties and liabilities of the parties to each other, but what have the parties agreed in relation to their respective duties and liabilities. What relation have they, by the terms of their contract, established between themselves? The law only undertakes to do that for parties, when they omit to do it themselves, or rather the relation will be presumed to have been constituted in reference and subject to the ordinary and established rules governing such relation, when the parties are silent upon that subject. The attempt to regulate the right of parties to contract, by the shadowy and vague distinctions between the different degrees of negligence, and to hold that they may shift responsibilities for the consequences of ordinary neglect of third persons, but may not do so in respect of gross neglect of the same persons, is not satisfactory, for two reasons: 1st, it is not founded upon any principle, and 2d, it is not capable of any certain and satisfactory application to individual cases as they arise. Attempts have been made to fix a liability upon the distinction between gross negligence and negligence merely, but courts have been compelled to abandon the attempt, and to say that negligence *Page 242 does not change its character, and become anything but negligence, by the application of any epithet to it. The earlier cases have, so far as practicable, been reconciled with the more modern decisions, although all cannot be reconciled in this way, upon the ground that what was called in the earlier cases "gross negligence," was in fact actual misfeasance in the bailee. (Hinton v. Dibbin, 2 Q.B., 646; Owen v. Burnett, 2 Cr. M., 358; Wyld v. Pickford, 8 M. W., 443.) No definite meaning has yet been given to the term gross negligence, or any definition which will not leave the whole question to the discretion of the tribunal, that is to pass upon any particular case. The idea of distinguishing between gross negligence and negligence merely, as affecting the validity of contracts, of carriers and other bailees, had its origin in the supposed inviolability of the rule establishing the liability of those engaged in that branch of public employment. With the introduction and full establishment of the more reasonable rule, that the duties resulting from this employment, alike with every other employment, were the subject of special contract, this idea has gradually vanished: it is now entirely abandoned in England and has never been so firmly established anywhere as to have become an authoritative rule of decision. Wyld v. Pickford,supra, was an action against a carrier, and the question had respect to the limitation of the common-law liability by a notice, which in England is held to have the effect of a contract — an effect denied to it by the courts of this State — and the defendant was held liable for a misdelivery of the package. PARKE, B., in giving judgment, says, with some hesitation, "The weight of authority seems to be in favor of the doctrine, that in order to render a carrier liable after such notice, it is not necessary to prove a total abandonment of that character, or an act of willful misconduct, but that it is enough to prove an act of ordinary negligence, gross negligence in the sense in which it is understood in the last mentioned cases. (4 B. Ald., 30, and 3 B. B., 182.") The case was decided in 1841. In Shaw v.North Midland Railway Company, 13 Q.B., the defendants were held not liable for an injury to a horse while *Page 243 being transported by the defendants, resulting from a defect in the car, which was pointed out to a servant of the company, and who undertook but failed to remedy it, under a declaration charging the company as common carriers upon their duty "safely and securely to carry the horses," c. The horses had been received, and a ticket given for them with a memorandum thereon, that the ticket was issued "subject to the owner's undertaking all risks of conveyance whatsoever, as the company will not be responsible for any injury or damage (however caused) occurring to horses or carriages while traveling or unloading." The court held, that the carrier was only liable upon and according to the terms of the contract, and did not become liable as carriers by reason of the negligence of the servants of the company. Lord DENMAN, Ch. J., says, "It may be, notwithstanding the terms of the contract, the plaintiff might have alleged that it was the duty of the defendants to have furnished proper and sufficient carriages, and that a loss happened from a breach of that duty." This would depend, of course, upon the true construction of the contract. Under a similar contract, the court held, in Austin v. The Manchester, c., Railway Company (10 C.B., 454), that giving to the words of the contract their most limited meaning, they must apply to all risks of whatever kind, and however arising, to be encountered in the course of the journey; and, therefore, that the company were not responsible for injury done to a horse from the firing of a wheel, in consequence of the neglect of the servants of the company to grease it. CRESSWELL, J., delivered the opinion of the court, and remarked, that there was nothing in the declaration amounting to a charge of misfeasance or renunciation of the character in which the defendants received the goods, and after speaking of the risks assumed by the plaintiff, one of which was that of the wheel taking fire from a neglect to grease it, adds, "whether that is called negligence merely, or gross negligence, or culpable negligence, or whatever other epithet may be applied to it, we think it is within the exception from responsibility provided by the contract." The same principle is applied *Page 244 in The York, Newcastle and Berwick Railway Company v. Crisp (14 C.B., 527), where the damage was caused by delay in the forwarding of the cattle which were the subject of the contract, and in that case there was an express promise by the agent of the company to forward them at a particular time, no excuse was shown for the delay, and the receipt, which was the evidence of the contract, was given after dark, and not read by the party. In excusing the principal from liability for the negligence of his servants in acts occasioning injury to a fellow servant, no distinction is made in any of the cases between the degrees of negligence. For injuries to a servant traceable to the neglect of another servant as the proximate cause, the master is not liable, no matter how gross or culpable that neglect may be. (Wigmore v. Jay, 5 Exch. R., 353; Albro v. Agawam Coal Company, 6 Cush., 75; Boldt v. New York Central Railroad Company,18 N Y, 432; Gillshanon v. Stoney Brook Railroad Company, 10 Cush., 228; Russell v. Hudson Railroad Company, 17 N.Y., 134;Priestly v. Fowler, 3 M. W., 1; Cone v. Syracuse andUtica Railroad Company, 1 Seld., 492.)
In the absence of fraud or other circumstance vitiating the contract, the parties may divide and share the risks of travel and transportation concerning which they contract, and deal with each other as they please. All that courts have to do is to interpret the contract and ascertain what risks come within its terms, and place them upon the party assuming them by the terms of the agreement. It is the intent and mind of the parties as declared by the contract that determines the liability for risks of the journey or of the carriage, and damages accruing in the performance of the contract. Perhaps it would require very explicit language to excuse a party from the consequences of his own fraudulent act or any willful or wanton neglect to provide ordinarily safe and suitable conveniences and means of transportation or travel, and fit and proper agents for the performance of the contract, such as the other party had a right to expect would be provided. In Keegan v. The Western RailroadCorporation (4 Seld., 175), this court, distinguishing, *Page 245 not between negligence and gross negligence, but between the negligence of a servant and what was regarded as the actual fault or misconduct of the defendant, held the Company liable for using a defective and dangerous locomotive, by which one of its servants was injured. It may be, also, that, in the absence of an express provision in the contract to the contrary, a carrier of persons and property will be held to the duty of furnishing proper and reasonably safe carriages, at least such as are not known to be unsafe, and provide fit and suitable agents and such as are reputed faithful and trustworthy, as upon an implied contract to that effect — implied as a condition precedent to the agreement of the other party to the contract to take upon himself the risks of the travel and transportation proper. It might well be said that, in assuming the risks of the carriage, the traveler or owner of the property only had in his mind and intended to assume the proper risks of the transportation, and not to relieve the carrier from ordinary good faith in the performance of his duty. The most common risks in railroad traveling arise from the neglect of the engineers, conductors, switch-tenders and other subordinate agents in the progress of the journey; and such must be supposed to be in the mind of the parties when providing for risks by the contract. If these are excluded, the contract will be substantially unmeaning. They are the perils incident to that method of travel and transportation; and whether the neglect is such as may be called gross, in a servant upon every other occasion vigilant and faithful, cannot be material. That is one of the risks which attach to the running of every railroad train. Some person upon whom the safety of the train depends may fall asleep, become confused, be suddenly deprived of his reason, or purposely do some wicked act by which the train and all on board may be greatly periled and damaged, if not destroyed; and yet, as one of the contingencies and risks, it must be held to be in the minds of the parties and provided for in the compensation.
A statute exempting a carrier from liability in certain cases includes losses from gross negligence, as well as those arising *Page 246 from slight negligence. (Hinton v. Dibbin, 2 Q.B., 646.) And there is no reason why a statutory exemption should be more extensive than an exemption by contract in the same terms. There is no difficulty in interpreting the contract here. The deceased agreed that, on riding free (as he did), to take charge of his stock, he would do so at his own risk of personal injury "from whatever cause."
The contract is as comprehensive and worded in the very terms of that in Austin v. Manchester Railway Company, and TheYork, c., Railway Company v. Crisp (supra), which was held to excuse the Companies from the consequences of the gross negligence of their agents. It is true that carriers of persons by land or water, by any of the ordinary means of travel and conveyance, are not common carriers, or, in any sense, bailees; but, in many respects, they are governed by the same rules, or rules of a like character, and having their foundation in the same general principles, and the analogies between the two classes of public servants are very strong. In respect to both, the law, in the absence of any express contract, fixes the terms of the contract and determines the relative rights and duties of the respective parties. There is no reason, growing out of the service to be performed, or anything connected with the contract or duty or the interests of the public, which should prohibit, in either class of contracts, an express provision varying and shifting the common-law rights, risks and responsibilities of the parties, as connected with and incident to the contract, and the performance of the duty growing out of the contract. This, of course, would not give countenance to the idea that a contract might be made authorizing or excusing a criminal act. Such a contract could not be enforced by either party.
As, in the case of common carriers of goods and other bailees, the common-law liability, established for good reasons and for the protection of the public, may be varied by express contract, the corresponding liabilities attaching to carriers of passengers by the same common law may well be subject to variation by the deliberate assent or agreement of the parties concerned. *Page 247
A criticism is made upon the contract in this case, and was adopted and sanctioned by the learned justice upon the trial. The provision in the contract is, that "the persons riding free to take charge of the stock, do so at their own risk," c.; and it is said that the deceased was not riding free. The justice said to the jury that it was not strictly accurate to say that he was traveling under a free pass. In the view of a gratuity he was probably not traveling or riding free, that is, he was not riding without some equivalent, and that equivalent was the consideration growing out of the contract for the carriage of the cattle of the deceased. But he did not pay fare as a passenger, that is, he paid only for the carriage of his cattle, and nothing as a distinct consideration for his own carriage; and, in that sense, he was traveling or riding free. In that sense, the term "riding free" was used in the contract. He availed himself of that provision, and rode in the same train with his cattle, to take charge of them, without paying for his passage. He rode under a pass entitling him to the ride, by the terms of which he took "all the responsibility as to the injury of himself or the stock." The principles which should, in my judgment, govern this case, were decided by this court in Perkins v. The SameDefendants, at the present March term. The only distinction between the cases is, that, in the one cited, the deceased was riding upon a "free ticket," a pass, given without consideration and as a gratuity. The principle being conceded, that special contracts may be made by railroad companies, exonerating them from some or all of the ordinary risks of travel to passengers over their road, it would seem to follow that, in every case except where there was a simple understanding to carry for the fare allowed by law, or fixed by the company in pursuance of the authority of law, a company might contract with the traveler for such division of the risks as should be agreed upon. What should be a sufficient consideration for the agreement of the traveler to assume the risks, would be for him to determine. The courts would not assume his guardianship, and pass upon the adequacy or sufficiency of the consideration. The law, perhaps, would not tolerate *Page 248 the imposition of a ticket upon a passenger, paying the usual full fare, which would, by its terms, release the company from any of its ordinary common-law liabilities. But where a special contract, a contract out of the usual and ordinary course of things is made, and for a consideration other than that of the usual and ordinary fare for the carriage of passengers, the liabilities may be regulated by that contract. Whether the consideration upon and for which the traveler takes upon himself, in discharge of the company, certain risks, is the whole fare, or half fare, or any outside and independent consideration, is not material. It is enough that a special contract is made, upon a consideration which the parties have agreed to be adequate. Most certainly, the courts will not, in an action upon a policy of insurance, inquire into the sufficiency or adequacy of the premium as a consideration for the risks assumed. The deceased here agreed, in consideration that the defendants would take his stock at a given rate for transportation, and permit him to ride over the road without additional charge to take charge of the stock, that he would assume and bear all the risks of the journey; and who shall sit in judgment upon this contract, and say it was without consideration, or that the consideration was unlawful, or that the contract was against public policy? As said before, the decision in Perkins v. The New York CentralRailroad Company is decisive of this case. Had the case been put to the jury solely upon the question whether the defendants, in the carriage of the deceased, made use of a car unfit and unsafe for the purpose, and known by the managers of the Company to be unfit and unsafe, a different question would arise, and one which, as it cannot be now decided, I do not care to discuss. Its consideration would involve a critical and careful examination of the doctrine of corporate responsibility as connected with the acts of its directors or its principal and general managers, as distinguished from the acts of servants and agents in a subordinate capacity and subject to the control and direction of the superior or general officers and managers of the corporation. It is sufficient that, in this case, the learned justice, in charging *Page 249 the jury, distinguished between mere negligence and "wrongful or culpable negligence" on the part of the defendants and their agents; holding them excusable from the consequences of the former, but not of the latter, and that, if the contract was so construed as to include "wrongful and culpable negligence" of the defendants or their agents, it was "void as against public policy, and, either way, the agreement was no bar to the action." There was nothing in the charge to qualify this proposition; and this is clearly erroneous within the case of Perkins v. TheNew York Central Railroad Company. So long as the negligent or wrongful act is that of a servant or agent, there can be no doubt, I think, that the Company may contract for relief from liability for it; but the charge was to the contrary of this proposition. The use of the cars with a flattened wheel is alluded to in another part of the charge, and the use of it was charged to be great negligence, especially after its danger had been pointed out to the defendants' employees; and the jury were told, "they would probably have little difficulty in finding that the use of such a car in the transportation of passengers was a reckless exposure of life, amounting to gross negligence." And, for gross negligence of their servants and employees, the defendants were held responsible at the circuit, not on the ground that the furnishing a proper and suitable car was an implied condition of the contract by the deceased to assume the risks of the journey, or the omission to furnish such car a breach of good faith which released the deceased from his undertaking, but on the ground that gross negligence, even of the lowest and most subordinate employee of the Company was not within the contract, or, if within its terms, the contract was void. This position is directly overthrown by Perkins' case, cited above, and by Shaw v. North Midland Railway Company (supra). The cause was submitted to the jury upon this erroneous theory, and the whole tenor of the charge was wrong, and tended to mislead; and, as the exceptions reach the objectionable parts, the error cannot be overlooked. *Page 250
The cases which are somewhat in point, as involving principles to some extent analogous, are not in conflict with the conclusions to which I have come, but, on the contrary, will, I think, be found on careful examination to justify and bear me out in the result which I have indicated. In New Jersey SteamNavigation Company v. Merchants' Bank (6 How. U.S., 344), Judge NELSON, while deferring to what seemed to be the leaning of the New York cases, and of the English cases up to that time, yet, in effect, concedes the question to be what was the intent of the parties upon a fair and reasonable construction of the agreement. The loss there arose from the storage of a large quantity of cotton in dangerous proximity to the boiler-deck and steam chimney, and he was of the opinion that this risk was not embraced in the contract by which the Navigation Company were not to be "responsible for the loss of any goods, c., to be conveyed or transported by Harnden in said crate, or otherwise, in any manner in the boats of said company." Justice CATRON made gross negligence to consist in a failure of the servants of the company "in the lowest degree of prudence to guard against fire," and that such conduct was contrary to common honesty, and that the owners were as liable as they would have been in case of an affirmative and meditated fraud occasioning the same loss, and that the burning was a tort. He was also of the opinion that the boat was grossly and culpably deficient in facilities for extinguishing fires which made her unseaworthy. No case, I think, would now go with him to the full extent of the first part of his opinion, and the latter part is not inconsistent with any proposition advanced by me, and was sufficient to sustain the judgment. Justice DANIEL, with whom Justice GRIER concurred, was of the opinion that the company was not liable for the loss, being exempted by their contract with Harnden, which took from them the character of carriers and charged them merely with certain duties in respect to the goods, for the non-performance of which alone they were liable, and that such liability rested solely in the special contract. Justice WOODBURY declined to express an opinion upon the effect of *Page 251 the contract. In Alexander v. Greene (7 Hill, 533), the judges of the court for the correction of errors did not agree in the reasons for reversing the judgment of the Supreme Court. Senator BOCKES thought it against public policy to relieve those engaged in steam navigation, whether in towing of boats or carrying passengers from the consequences of the gross neglect of their servants, but finally was of the opinion that the risk occasioning the loss was not one of the risks intended to be assumed by the owner of the boat towed, and that to exempt the defendants from the legal consequences of their own neglect, the intention to do so should have been clearly and unequivocally expressed. He concludes his opinion thus: "But in this case I conceive no such contract was made, and the defendants remained liable for losses occasioned by ordinary neglect and so the case ought to have gone to the jury." Other senators were of the opinion that the defendants were common carriers, and did not consider the effect of the terms of the permit upon their liability. Senator PORTER was of the opinion that the contract would not admit of a construction that should protect the defendants from a loss arising from gross negligence. It would seem that the case was in truth decided upon the construction of the contract, as was the case of Wells v. The Steam NavigationCompany (4 Seld., 375), upon a precisely similar contract: seeS.C. (2 Comst., 204). Dorr v. The New Jersey SteamNavigation Company (1 Kern., 485), decides without qualification that common carriers may limit their liability by an express agreement, that is, that the parties may make their own contract and limit the precise extent of their respective risks and liabilities: and see Clark v. Rochester and Syracuse RailroadCompany (4 Kern., 470), and per ALLEN, J., in Mercantile MutualInsurance Company v. Calebs (20 N.Y., 176). Most certainly the result is in harmony with that class of decisions which exempt the principal from losses arising from the ordinary risks incident to the employment of a servant, including the negligence of his fellow servants, and hold him responsible for damages resulting from his own default and misfeasance. The first *Page 252 class of risks are impliedly assumed by the servant, but the law will not infer that he undertook to relieve the master from the consequences of his own omission of duty, for that would be unreasonable. As said before, the contract before us in terms embraces every degree of negligence that does not impute personal blame to the defendants, and the case is not within the difficulties of construction that were encountered in 7 Hill and 4 Selden.
I am for a reversal of the judgment and the granting of a new trial upon the usual terms.
SELDEN, Ch. J., and GOULD, J., concurred in this opinion.
Judgment affirmed.