[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 335
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 336 The motion for nonsuit on the ground that deceased came to his death by his own negligence, was properly denied. He was lawfully engaged in loading the car. The contract required him to do this, the defendant furnishing laborers to assist. The engine and train that caused his death were not in sight from the car or freight house where he was at work. The train was not to leave for some hours, and there was nothing to indicate that extraordinary vigilance was demanded at his hands; nor was there any evidence to show any want of ordinary care in the manner in which he performed his work. So far as the evidence on the part of defendant tended to show any negligence by deceased, the question was put to the jury in proper form by the court.
The question of defendant's negligence was also a proper one for the jury. The freight despatcher gave the signal for the train to back down for the car which deceased was loading, without ascertaining that the lading was completed, and without giving the slightest notice or warning to the persons about the car. It was his duty, I think, to have seen to it, before he ordered the train to be backed down, that the persons engaged in loading were not exposed to injury.
The evidence tended also to show that the train approached without ringing the bell or sounding the whistle, and with force sufficient to drive the standing car back several feet while crushing the deceased between it and the walls of the freight house. The case was not, therefore, one to be taken from the jury on the question of negligence in any of its aspects. The court gave to the jury correct instructions as to the degree of negligence requisite to charge the defendant. It was not necessary that the negligence should be of a character that would render the servants of defendant indictable for crime.
But it is insisted that the contract between the parties, in reference to the use of the car, released the defendant from *Page 337 all liability. Two clauses of the contract are relied upon as producing this result: 1st. That which provides that James is "to load, tranship and unload said stock at his own risk." The risk here provided for is of that injury to which the property is or may be exposed in process of loading and unloading. In respect to those acts, the contract devolves all responsibility on the shipper, as principal, in performing them, treating the laborers furnished by defendant as his assistants. The risk of personal injury from the animals themselves, or from his manner of loading or unloading them, or from any negligence of his assistants in doing those acts, is thrown upon him by the contract, because he is made the principal in performing them for his own benefit. But by no sound construction can this clause of the contract be held to include personal injuries which the party may sustain from external causes produced by the negligence of defendant. An injury caused by negligently running a train of cars upon him over which he has no control, while he is carefully performing the labor he is authorized to do, is not at all within the scope or meaning of this clause of the contract; 2d. That which provides "that persons riding free, to take charge of the stock, do so at their own risk of personal injury from whatever cause." The power of the company to make this contract must be conceded under the late decisions of this court on that subject. (Buell v. N.Y.C.R.R., 25 N.Y., 442; Smith v. Same, 26 id. ___.) The fruits of this rule are already being gathered in increasing accidents through the decreasing care and vigilance on the part of these corporations, and they will continue to be reaped until a just sense of public policy shall lead to legislative restriction upon the power to make this kind of contracts. But it is clear that the rule referred to has no application to this case. The intestate was not "riding free totake charge of the stock." The journey had not commenced, nor had the train been formed that was to make it. He was in no sense a passenger "riding free" or otherwise. That relation had not begun, if it was designed to exist. There was nothing to show that deceased would have the right to ride free, or that he was *Page 338 the person contemplated to do so. The contract entitled no one to ride; it simply stipulated for a contingency, which was that if any person should ride free to take charge of the stock, he should take all risks of personal injury while on the passage. It appears, from the cases above cited, that a ticket is issued to the person so riding, evidencing his right to ride without pay, and specially subjecting him to the risk of personal injury. The person thus riding may be the owner of the property, or any agent of his; and to him, whenever the trip commences, the contract applies. The only relation, therefore, upon the facts of this case, in which the deceased stood to the defendant was that of a shipper, loading his own property in one of defendant's cars, by authority from defendant. And the duty the company owed to him in the management of its trains was the exercise of that ordinary care which every man owes to his neighbor, to do him no injury by negligence while both are engaged in lawful pursuits, a duty which begins and ends in the maxim "sic utere tuo ut non alienumlaedas."
The charge of the court, "that the contract did not cover the risk occasioned by collision with another train," had reference to the particular collision that caused the death of the intestate, and was, therefore, not erroneous.
In my opinion, the judgment should be affirmed.
Judgment affirmed.
Judges PORTER and POTTER take no part in the decision. *Page 339