—It is insisted by the counsel of the plaintiff, that the court is at liberty to interpret this con*444tract by the attending circumstances, and to restrict the general language to cases which would still leave the defendants liable for same neglect.
Adopting this view, this at least is clear, that the plaintiff must show plainly, that the intention of the parties was to qualify and restrain the very comprehensive language used in the instrument.
So far from its being obvious, that there are cases other than those of negligence, which the parties may be reasonably supposed to have contemplated, it seems to us difficult to understand, in what cases the company could be rendered liable at all for injury to the person of the party, without some negligence on their part or on the part of their agents. An injury to his person, in the course of his being carried to Hew York in their cars, may have arisen either from his recklessness, without any fault of the defendants; or from an event wholly independent of fault of either party; or from some neglect or fault on the part of the defendants. The parties cannot be intended to have contemplated the exemption of the defendants in the two first cases. The natural interpretation is, that they meant to cover the last case.
The counsel of the defendants does not deny that there may be a degree of gross neglect, amounting to wilful and fraudulent misconduct for which they might be responsible, even under this contract. His answer is formed to negative such a case.
It may be difficult, or impracticable, as observed in Weller a. The Hew York Central Railroad Company (26 Barb., 646), to distinguish accurately between the different degrees of negligence. Yet one case can certainly be readily supposed in which a marked and practical distinction would exist. There might be a case of such misconduct on the part of an agent, as would indicate a wilful design to injure the party—a desperate recklessness which wantonly endangered the lives or property of all beneath his charge, a case of personal misconduct—-and yet the principal who employed him, be responsible. In Weed a. The Panama Railroad Company (5 Duer, 193; N. Y. R., 362), the wilful act of the conductor who managed the train, was not allowed to be a ground of exemption for the company.
The averments of the answer seem to us to cover all such cases *445as we can imagine of this nature; and the terms and import of the stipulation appear to amount to an agreement, that the party was to have no redress for injuries arising from other degrees or cases of negligence.
We consider also that the parties were fully at liberty to enter into a contract of this nature. (1 Sherm., 1185.)
We think that the court below erred, and that the order must be renewed, and the demurrer overruled.