I will briefly state the grounds of my dissent from the conclusion reached by my brethren. In the first contract the defendant agreed to transport, free of charge, the "money-safes, contents and messengers" of the express company, "assuming no liability whatever in the matter." In the second contract it is provided that the former contract shall continue and be binding on the parties except as modified by that contract, and the third clause of *Page 320 that contract is as follows: "It is further agreed that the Erie railway shall assume the usual risks taken by railroads on the express matter of the parties of the second part, excepting that the railway company shall not assume any risk or loss on any money, bank-notes, bonds, gold, bullion, or jewelry packages, and for which, with the express company's safes and messengers, no charge for carriage is to be made by said railway company." This clause contains a more minute specification of the things which were to be carried free of charge and free of risks. It cannot be supposed that it was intended to so alter the first contract that while the railroad company should be bound to continue to carry the safes and messengers free of charge, it was to assume risks in reference to them. Both contracts showed that it was the intention of the parties that the railroad company was to assume no liability in reference to any thing which it was to carry free.
It becomes important, then, to inquire into the meaning of the language used in the first contract exempting the defendant from liability in reference to express messengers. The language is as comprehensive as it well could be: "assuming no liability whatever." What did the parties mean? Railroad companies do not insure the safety of persons lawfully riding upon their cars. (McPadden v. The N.Y.C.R.R. Co., 44 N.Y., 479.) They are liable to such persons only in case they are injured by some kind of negligence. Hence, unless the language used was intended to exempt the defendant from liability for injuries occasioned by negligence, it has no meaning or force whatever. The parties must be held to have used the language for some purpose, and that purpose clearly was to exempt the defendant from liabilities which would otherwise rest upon it.
But it is claimed that the messenger was not bound by this agreement, in the absence of proof that he knew of it and thus can be held to have assented to it. He was not a passenger upon the train. He was upon the train in an express car engaged in the separate business of the express company. He was in that car lawfully only as he was there *Page 321 under the agreement. He knew that he had not paid any fare, and that he had made no contract for his carriage. He must have known that he was there under some arrangement between the express company and the defendant, and that whatever right he had to be transported was as the servant of the express company. He was there not in his own right, but in the right of the express company, and hence he was bound by the arrangement that company made for him.
I am, therefore, of opinion that the judgment ought to be reversed.
All concur for affirmance, except EARL, J., dissenting.
Judgment affirmed.