Bates v. Weir

Rich, J.

(dissenting):

I am of the opinion that the wording of the limitation clause in the receipt given Mrs. O’Dell, upon which exemption from liability is predicated, is such as to bring this case within the operation of the rule declared by the Court of Appeals in Mynard v. Syracuse, etc., R. R. Co. (71 N. Y. 180), cited with approval in Rathbone v. N. Y. C. & H. R. R. R. Co. (140 id. 51); Gillet v. Bank of America (160 id. 555); Marshall v. Com. Trav. Mut. Acc. Assn. (170 id. 438), and by this court in Galloway v. Erie Railroad Co. (107 App. Div. 210), that the exemption from liability (under a clause contained in a contract, of shipment, in consideration of transportation at a reduced rate) of the carrier for damages or injury to, or the loss of, the property shipped from whatsoever cause arising ” did not include a loss caused by the carrier’s negligence; that when general words in the contract of. a common carrier limiting liability may operate without including the negligence of the carrier or his servants, it will not be presumed that they were intended to include it; that every presumption is against such an intention, and that the contract will not be construed as *282exempting from liability for’ negligence resulting in the loss,, unless the intention is expressed in unequivocal terms. If the words “from whatsoever cause arisingáre- too general to include the negligence of the carrier, I fail to see how the -word's “in any. .event ” can accomplish that result, and relieve the defendant from • the result- of its negligence.' These conclusions require the affirmance of the judgment, with costs.

Hirschberg, P. J., concurred.

Judgment reversed and new trial - granted, costs to abide the event, ': . '■