I understand it to be settled law in this state, at the present day, that railroad corporations engaged in the transportation of property are subject to the absolute responsibility which, by the common law, rests upon common carriers; they are, except as against loss or injury occasioned by the act of God or of a public enemy, insurers of the safe transportation and delivery of the property entrusted to them for carriage.
In the carriage of living animals, except as to those injuries which result from the vitality of the freight, and could not by care and diligence be prevented, they are bound to the same responsibility as in the carriage of inanimate property.
Common carriers cannot, by contract, shield themselves *454from liability for their own fraud, or their own willful act or negligence, but -they may contract against liability for that low degree of negligence or want of care on their part, which is not equivalent to willful or wanton neglect of duty or recklessness.
They may also, by special" contract,, relieve themselves-from all responsibility for injury to or loss of-the property entrusted to them occasioned by the negligence, misconduct, fraud or felony of their employees or servants.
When the carrier is a corporation, whose affairs are entrusted to the management of a board of directors, it cannot exempt itself from liability for the willful negligence, misconduct or recklessness of its board of directors. This rule does not extend to its subordinate agents or servants,, and the weight of opinion seems to be that it does not extend to any officer or agent of the corporation other than, the directors. (Dorr agt. The New Jersey Steam Navigation Co. 1 Kern. 485; Clarke agt. Rochester and Syracuse Railroad Company, 14 N. Y. 570; Wells agt. The N. Y. C. R. R. Co. 24 N. Y. 180; Perkins agt. The N. Y. C. R. R. Co. 24 N. Y. 196, 214 ; Bissell agt. Same, 26 N. Y. 442.)
The right of common carriers to restrict their liability to-the extent above stated was, after some controversy, finally established in England, and it was the abuse of that right by carriers which'led to the passage, in 1854, of “ the railway and canal traffic act,” by which this right was limited. (Peck agt. N. S. Railway Co. 16 Eng. Com. Law R. 1005; Id. 96 Eng. Com. Law R. 958, 986.)
As early as Lord Coke’s time, it would seem that a common carrier could, by contract, restrict to a certain extent his common law liability (Note, Southcoate’s Case, Coke’s R. par. 4, p. 88).
But until within the last quarter of a century, the weight of authority in England and in this country, was that “ the salutary policy of the common law ” did not allow a common carrier, even by special contract, to shield himself from responsibility for the fraud, misconduct or gross negli- . gence of his servants. And the law is so laid down by *455Chancellor Kent and Judge Story in their commentaries. . [2 Kent’s Com. 608; Story on Bailments, § 549.]
But, as I have already said, it was finally established by the decisions of the courts in England and in this state, that the policy of the common law did not prevent the carrier from exonerating himself by agreement from liability for the negligence of his servants.
In view of the great extent to which the carrying business is monopolized in this country by corporations and combinations, and the power that they possess to dictate terms, it is quite probable that legislative interference will be successfully demanded, as has been done in England.
Indeed I see ih the Civil Code, which has been reported by the commissioners, a provision that “ a common carrier cannot be exonerated by any agreement made in anticipation thereof, from liability for the gross negligence, fraud or willful wrong of himself or his servants.”
The commissioners have, I think, divided negligence into degrees too refined for practical purposes.
The injury to the plaintiff’s property, for which this action is brought, was occasioned by the willful misconduct of the defendant’s servants and against responsibilities for which it •was lawful for the defendant to contract.
This brings us to the construction of the special contract of carriage between the parties.
The law being settled, the contract is to be construed according to the intent of the parties to be gathered from the language used, giving, if possible, some force and effect to every word made use of as evidence to some extent of their intent.
The contract is, “ the owner of the within mentioned animals undertakes all risk of loss, injury, damage and other contingencies in loading, unloading, conveyance and otherwise.”
These words are very general and comprehensive. I do not see how we can say that they do not embrace all (every) risk (hazard, danger, peril, chance) of loss, injury, damage and other contingencies (casualties, accidents, occurrences), *456in loading, unloading, conveyance and otherwise (other manner or way), which the plaintiff might lawfully take upon himself and the defendant lawfully throw off of itself. If we undertake to limit these general and comprehensive terms, I do not see where we are to draw the line. What have we to draw it by ? HI knew of any way upon the principles by which courts must be governed to secure certainty or safety to suitors, to draw the line where the plaintiff contends it should be, I would be pleased to do so. -
If we go outside of the writing to ascertain the intent of the parties as an independent fact, I think we would find that the defendant intended to get rid of all responsibility it lawfully could; that to avoid responsibility for the carelessness, negligence and misconduct of its servants was prominently in view, and that the plaintiff was compelled to accept the terms dictated.
Judgment ordered for defendant npon the exceptions.
Clinton, J., concurred. Vebplanck, P, J., dissented.