#### Emma Ferrari, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

First Department,

May 1, 1914.

Railroad — special contract for transportation of circus outfit construed — when carrier relieved from liability for negligence — damage to goods by fire — sparks from locomotive — erroneous charge.

A contract made with several railroad companies for the transportation of a circus outfit from a point in this State to a point in another State, which in substance provides that the defendants are not to be considered carriers of the plaintiff’s goods but are merely to furnish the motive power, with engineers, trainmen, etc., who are to be deemed the servants of the plaintiff, and that the defendants shall not be liable to the plaintiff for any damages to persons or property, or for the negligence of the engineers, trainmen, etc.,,arising from any cause whatsoever, from which liability the plaintiff expressly released the defendants, relieves them from their liability as common carriers, both under the State and Federal rule, and the plaintiff cannot recover for injury to a portion of the circus outfit caused by fire, even though it originated from sparks from the defendant’s locomotive.

Evidence examined, and *held,*that the fire was not caused by sparks from the defendant’s locomotive, but on the contrary originated within one of the cars occupied by the plaintiff’s servants.

*It seems,*that in an action to recover for damage so caused it is error to charge that, if the fire occurred by reason of sparks emitted from the locomotive, the defendant is liable. This because it withdraws from the jury the question of the defendant’s negligence in allowing the sparks to escape.

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1913, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

*William*Mann, for the appellant.

*Charles Goldzier,*for the respondent.

McLaughlin, J.

On the 5th of June, 1909, the plaintiff entered into a written agreement with the defendant and two other railroad *7companies for the transportation of a circus outfit, of which she was the owner, from New York city to Burlington, Vt. The outfit consisted of " show material, show animals, apparatus and paraphernalia, and persons in charge thereof, employees and performers, and their respective personal baggage, in cars to be furnished, loaded and unloaded by and at the expense ” of the plaintiff. The total equipment, however, was not to exceed eleven flat cars, two box cars and one passenger coach. On the twenty-eighth of June following the equipment was presented to the defendant for transportation. It consisted of nine flat cars, several box cars and a passenger coach, one or two of the box cars and the coach being furnished by the defendant, but solely for plaintiff’s benefit. After the train had been made up, it proceeded over the defendant’s line from New York city to Dover Plains, N. Y., where a fire was discovered in one of the circus wagons which was loaded on a flat car. There is a conflict in the evidence as to which wagon first caught fire; plaintiff’s witnesses testifying that it was what was termed the organ wagon and in which no one was at the time; defendant’s witnesses testifying it was a wagon used for a dressing room and in which one of the performers connected with the circus was then living. Before the fire could be extinguished three of the wagons were damaged, two of them — the one used as a dressing room and the organ wagon — being practically destroyed. This action was brought to recover the damages sustained, upon the ground that the fire was caused by defendant’s negligence in permitting sparks to escape from the engine. Plaintiff had a verdict, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

There was a sharp conflict between the parties as to the origin of the fire. The evidence offered on the part of the plaintiff was to the effect that the same was started by sparks from the engine — one of the witnesses stating that the engine was emitting numerous sparks, some of them as large as marbles, which fell on the wagon which took fire, and on the car to the rear of it; and others that large cinders fell as far back’ as the rear end of the train. On the part of the defendant it appeared that the fire started in *8the wagon in which one of the performers was living; and that it was caused by an oil or gasoline stove. Several employees of the circus troupe who were on the train at the time of the fire were called by defendant as witnesses. _ Artis, one of them, testified that he was riding in one of the box cars at the time and when he first discovered the fire it was confined to the car in which Mme. Marcelle was living and it was then on the inside of that wagon; and that he saw a lighted oil or gasoline stove, with other blazing material, thrown out of this wagon after the train was stopped'. His testimony was corroborated by three other circus employees." A very significant fact, however, is that the wagon used for a dressing room (which was nearer the engine than the organ wagon) was practically destroyed, while the third wagon from it (which was immediately back of the organ wagon) was only slightly scorched. If the fire had started in the organ wagon it would have been communicated to the one in the rear of it sooner than to the one in front, not only because of the motion of the train but because the wind was blowing in that direction. This fact, together with the other evidence showing the condition of the engine, fairly shows that the fire started in the wagon used for a dressing room and was not caused, as claimed by plaintiff, by sparks from the engine. Thus, plaintiff’s witness Brown testified that he was familiar with the spark arrester used by defendant in 1909; that it was the standard type, made of quarter-inch mesh with one-eighth of an inch wire, and when in good condition particles of a larger size than one-quarter of an inch could not escape. Defendant’s witness Triber testified that he was a boiler inspector; that he examined the spark arrester on the engine attached to the train in question shortly after the fire; that it was of the standard kind, had the usual quarter-inch mesh and was in good condition. His testimony was not contradicted and when it is taken in connection with the testimony of defendant’s other witnesses as to the origin of the fire, I am of the opinion that the verdict that the fire was caused by the negligence of the defendant is against the weight of evidence.

The. court charged the jury that *“*If the fire occurred by reason of the sparks being emitted from the engine, then the *9defendant is liable and your verdict ought to be for the plaintiff. ” I think this was error. It withdrew entirely from the jury the question whether the sparks, assuming that they did escape from the engine, did so by reason of defendant’s negligence.

But irrespective of the question whether the verdict is against the weight of evidence, or the court erred in respect to the charge as made, I prefer to place the decision upon another ground, because if my conclusion be correct, then the judgment and order should not only be reversed, but the complaint dismissed. The contract by which the outfit was being moved provided that defendant was not to be considered a carrier of plaintiff’s goods, but simply as furnishing the motive power, men, etc., necessary for the transportation; that the conductors, engineers, trainmen and other employees furnished by defendant were to be deemed, so far as the transportation was concerned, the servants of the plaintiff; and that defendant *“*shall not be liable to the said party of the second part [plaintiff] nor to any person or persons for any injury or damage which may happen to said persons, cars or property to be or which shall be transported hereunder, which may be caused by defect in said railroad or tracks or unsuitableness thereof for such transportation, or by the negligence of said conductors, engineers, trainmen or other servants, or any or either of them, or arising from any cause whatsoever; ” and that plaintiff *“*doth hereby release and discharge the railroad company from all liability for loss or damage to any of its property while upon the railroad and premises of the railroad company, and hereby expressly agrees and binds itself to indemnify, save harmless and protect the said railroad company from and against any and all claims, damages, costs and demands in any way arising in or about or incident to the use and service or either thereof provided for by this agreement, whether in any case occasioned by the negligence of the railroad company, its agents or servants, or otherwise.” If the contract were valid defendant was not liable, even though it be assumed that the loss were occasioned by its negligence. It related to interstate commerce and if defendant in doing what it did were acting as a common carrier, then undoubtedly the clause quoted, *10relieving it from its own negligence, would be void under the amendment of the Interstate Commerce Act (24 U. S. Stat. at Large, 386, § 20, as amd. by 34 id. 593, 595, § 7), known as the Carmack Amendment to the Hepburn Bill, and against public policy. *(Santa Fe Railway*v. *Grant Bros.,*228 U. S. 177; *Kansas Southern Railway v. Carl,*227 id. 639; *Adams Express Co.*v. *Croninger,*226 id. 491; *Willcox*v. *Erie R. R. Co.,*162 App. Div. 94, decided herewith.) If, however, the services to be performed by the railroad company were not those of a common carrier, then the clause may be enforced since it neither violates the statute, nor is it against public policy.

In *Santa Fe Railway*v. *Grant Bros. (supra)*a railroad company made a contract for the repair or extension of its line, and in it was a provision that the contractor, in consideration of reduced rates of transportation of supplies and employees, assumed all risk of damage of any kind, even if occasioned by the company’s negligence. It was held that the contract was valid and should be enforced; that in dealing with transportation of supplies and employees of the contractor the railroad company did not act as a common carrier. Mr. Justice Hughes, who delivered the unanimous opinion of the court, after referring to the rule prohibiting a common carrier exempting itself from liability for its own negligence, said: *“*Manifestly, this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier. In such case, it is dealing with matters involving ordinary considerations of contractual relation; those who choose to enter into engagements with it are not at a disadvantage; and its stipulations even against liability for its own neglect are not repugnant to the requirements of its public service. The rule extends no further than the reason for it. It is apparent that there may be special engagements which are not embraced within its duty as a common carrier although their performance may incidentally involve the actual transportation of persons and things, whose carriage in other circumstances might be within its public obligation. * * * It is clear that in dealing with transportation of this character over its own road, in connection with construction or improvement, a railroad company is not acting in the performance of *11its duty as a common carrier, and the arrangement for free or reduced-rate carriage for the necessary materials and men used in the work, when it is a part of the contract, entered into in good faith and not as a subterfuge, is not obnoxious to the provisions of law prohibiting departures from the published tariffs, for the reason that such an agreement lies outside the policy of these provisions. * * * The parties then were free to make their own bargain as to this transportation and the liability which should attach to it. There is no rule of public policy which denies effect to their expressed intention, but on the contrary as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the contract which was actually made.”

As I read the contract in the case before us it was not for the transportation of goods or persons. The defendant merely agreed to furnish motive power, equipment, etc., necessary for the transportation of plaintiff’s property and servants in her special train, composed almost entirely of her own cars. At no time was the property out of her control or that of her own employees. It was expressly agreed that the engineer, firemen and trainmen furnished by defendant were to be considered, during the transportation, plaintiff’s servants. No receipt or bill of lading was issued by defendant. No schedule of rates for such -service had been filed with the Interstate Commerce Commission; on the contrary, the Interstate Commerce Commission had promulgated a rule which read: “Rule 63. Transportation of circus outfits. This rule was issued March 18, 1907. The Act to regulate commerce as amended June 29, 1906, applies to the transportation of circuses and other show outfits. But the Commission recognizes the peculiar nature of this traffic and the difficulty of establishing rates thereon in advance of shipper’s request describing the character and the volume of the traffic offered, and has therefore entered a general order authorizing carriers to establish rates on circuses and other show outfits by tariff to become effective one day after filing thereof with the Commission and relieving them from the duty of posting such tariffs in their stations. Such tariff may consist of a proper title page reading, ‘As per copy of contract attached,’ and to it may be *12attached a copy of the contract under which the circus is moved. As far as practicable general rules or regulations governing the fixing of rates should be regularly published and filed.” In pursuance of this rule defendant filed, immediately after the contract was entered into, a copy of it with the Interstate Commerce Commission. It also filed schedules of rates which were in effect at the time the contract was entered into for the transportation of circus outfits under the ordinary contract of carriage. The plaintiff was bound to take notice of this fact and she could have shipped her property in that way, in which case the defendant would have been liable as a common carrier. The rates, however, for such shipment were about double what plaintiff was charged, and she accordingly preferred to make the special agreement. The defendant, as a common carrier, was not obligated to transport the outfit in a special train, and when plaintiff induced it to do so she thereby relieved it as a common carrier.

The question does not seem to have been heretofore considered in this State, but the conclusion reached is supported by decisions in other jurisdictions. *(Clough*v. *Grand Trunk Western R. Co.,*155 Fed. Rep. 81; *Wilson*v. *Atlantic Coast Line R. R. Co.,*129 id. 774; *Chicago, M. & St. P. R. R. Co.*v. *Wallace,*66 id. 506; *Robertson*v. *Old Colony R. R. Co.,*156 Mass. 525; *Coup*v. *Wabash, St. L. & P. R. Co.,*56 Mich. 111.) The *Clou,gh*case is directly in point. There a circus company, owning its own cars, contracted with a railroad company for the hire of motive power and the use of tracks and trainmen, to be considered as the circus company’s servants, for the transportation of the train from one place to another — the contract exempting the railroad company from liability for the injuries to any person or persons using the train for whatsoever cause. It was held that the railroad company being under no legal duty to move the circus company In the manner specified, the contract was not contrary to public policy. Judge Ltjrton, who delivered the opinion of the court, said: “If the contract under which the Wallace Circus was being transported over the railway of the defendant was a valid contract, the relation of the railway company to the circus company was not that of a common carrier at all. That the railway company was under no common-law obligation to *13move the circus company over its line in the manner it was being transported at the time of the injury to the plaintiff in error must be conceded. If the railway company was under no statutory or common-law obligation to render the special service it was called upon to render, there were no reasons of public policy which forbade the rendition of such service upon such terms as the parties might stipulate. The right to make special stipulation under such conditions has been recognized and applied in a number of cases substantially like the case at bar when circus trains were hauled under special agreements relieving the company from carrier’s liability.”

The plaintiff entered into the contract with the defendant with her eyes open. She did so for the purpose of personal gain. In order to get the reduced rate she specifically agreed to exempt defendant from liability on account of its negligence, and I know of no reason why such agreement should not be enforced.

I am of the opinion, therefore, that irrespective of the errors to which reference has been made, the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Ingraham, P. J., Clarice and Scott, JJ., concurred; Laughlin, J., concurred on last ground.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.