#### GEORGE W. NICHOLAS and AMOS A. NEWSON, Respondents, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

*Common ca/rri&r—when contract sufficient to exempt from liability for negligence.*

Where the plaintiff, at the time of shipping certain quince trees, released the defendant from all liability for “damage to perishable property of all kinds, occasioned by delays from any cause, or change of weather * * * or loss or injury by fire or water, heat or cold:” *held,*that the defendant was not liable for the damage caused by the freezing of the trees, though such freezing occurred through its own negligence.

Appeal from an order made at Special Term, denying a motion for a new trial, in an action tried at the Ontario Circuit in February, 1873, where a verdict was rendered in favor of the plaintiffs.

The action was brought to recover damages for the loss of a quantity of quince stock, claimed to have been destroyed by frost through the negligence of -the defendants. The stock was shipped in New York, March 4, 1872, and consisted of fifteen cases of trees delivered to the company on the said fourth of March, and arrived at Geneva, the place of destination, on the twelfth of the same ' month. The proofs show that a. heavy snow-storm began on the said fourth of March, and continued for several days thereafter, blocking up the defendant’s road westwardly of Utica, and at Syracuse particularly, accompanied by very cold weather. When the property was delivered at the defendant’s depot, in New York, the plaintiff executed an instrument of release which recited the fact of the said shipment, and released the defendants, among other things, from all liability for any loss or “ damage to perishable property of all kinds, occasioned by delays from any cause or change of weather; ” also, for *“*breakage or chafing, or loss or injury by fire or water, heat or cold.”

At the close of the evidence the defendant’s counsel asked the court to nonsuit the-plaintiff on the ground that, by the terms of the said contract, the defendant was absolutely discharged from the claim of damages mentioned in the complaint, irrespective of the question as to whether it was occasioned by the neglect of the defendant or otherwise, and also asked the court to direct a verdict *328for the defendant on the same ground, which motions the court denied respectively, and the defendant’s counsel duly excepted.

The case was submitted to the jury, who found a verdict for the plaintiff for $2,000 damages.

The defendant’s counsel excepted to the charge upon the same ground stated in the motion for a nonsuit, and moved for a new trial at Special Term, which was denied.

*E. G. Lapham,*for the appellant.

The release in question exempted the defendant from liability for want of ordinary care. (7 Alb. L. J., p. 15, citing 27 L. T. R.; also p. 10 of same vol. ; 42 Barb., 102; *French*v. *R. R. Co.,*4 Keyes, 108; *Keeny*v. *R. R. Co.,*59 Barb., 104; *Cragin*v. *R. R. Co.,*51 N. *Y.,*61.)

*Theodore Sill,*for the respondents.

The alleged release does not extend to negligence of the defendant, its servants or agents. (Alb. L. J., Dec. 13, 1873, pp. 371, 372, and cases there cited; 44 Barb., 665 ; 25 N. Y., 442; 1 Kern., 485; 24 N. Y., 222; Alb. L. J., May 30, 1874, p. 357; id., Nov. 15, 1873, and cases there cited.)

E. Darwin Smith, J.

The issue submitted to the jury was, simply, whether the loss of the plaintiff’s quince stock was caused by the defendant’s negligence. The judge stated to the jury that the gist of the action was the alleged negligence of the defendant, and that if they came to the conclusion, in view of all the evidence, that the freezing — the injury to the trees — was the result of neglect — of the want of due care on the part of the employes of the railroad company, the plaintiff was entitled to recover. No complaint is made that the judge did not direct or allow the jury to take into consideration all the facts relating to the snow-storm and the extreme cold weather accompanying the same, so far as such facts furnished an excuse for delay in the delivery of said property and repelled the charge of negligence. The verdict of the jury must therefore be deemed a conclusive finding against the defendant on the issue of negligence.

The only question for our consideration is, therefore, the same raised, discussed and decided at the Circuit: whether the instru*329ment of release, executed by the plaintiff, includes this question of negligence, and discharges the defendant from all loss and damages consequent therefrom.

It is well settled in this State and country that a common carrier may, by express contract, limit his common-law liability as an insurer, in respect to property received by him for transportation, as against all loss and damage, however occasioned, except as against his own persona] negligence or fraud. The cases in this State which assert and sustain this doctrine * have recently been reviewed and considered in the United States Supreme Court, in the case of *Railway Company*v. *Lockwood,*
      † in an elaborate opinion by Judge Bradley, in which he questions the soundness of these cases so, far as they allow the carrier to exonerate himself by contract for his own negligence or that of his servants. If the courts of this State have erred in relaxing too far the rule of the common law on this point, they have done so in a large degree from respect to the decision of the Supreme Court of the United States, in the case of the *New Jersey Steam Navigation Co.*v. *Merchants' Bank,*
      ‡ which they have generally followed and regarded, as it is, the leading case on this subject. The cases of this State have uniformly held that a contract of a carrier, exempting himself from liability for loss or injury in the carriage of goods, should not be deemed to include negligence by any general words, nor unless the contract, in clear and explicit terms, embraces negligence. In this particular, too, they have followed the case of *New Jersey Nav. Co.*v. *Merchants’ Bank,*
      *§*
      **in which Judge Nelson said: || “ If it is competent at all for a carrier to stipulate for the gross negligence of himself and his servants or agents in the transportation of goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties.” The release in this action, set up by the defendant, does not, by its terms, embrace negligence, or purport to discharge the *330defendant from loss or damage caused by or resulting from the negligence of the defendant, its agents or servants. The question, therefore, arising upon such release, is, whether it does not necessarily embrace - negligence to give it any real or practical effect. It must do so, as Judge Nelson states the rule, *“*in terms that would leave no doubt as to the meaning of the parties.” In the said instrument of release, the plaintiff, in express terms, “ releases the defendant from liability for loss or damage *to*perishable property of all kinds, occasioned by delays from any cause, or change of weather; ” also, for damages or loss from *“*breaking or chafing, or loss or injury by fire or water, heat or cold.” The' loss or damage in this case was clearly occasioned by “ delays,” by change of weather, and by *cold.*All three of these elements or causes of loss and damage, are expressly mentioned in the release, and are particularly and expressly released and discharged. It is difficult to give any force to these terms in the release, which shall leave the defendant liable for negligence from such causes. The property was perishable. The defendant, in respect to such property, would not be liable at common law for loss by heat dr cold, unless it or its servants were guilty of some negligence in its care or dispatch. For mere delay in its transportation, the defendant is discharged. This was really the only ground, of complaint, and would constitute the only basis for a cause of action, independent of this release. While these trees were in the process of transportation by the carrier, they were injured and destroyed by cold— by change and severity of *weather.*This was an act of God, against which the defendant could not guard, and in respect to which it was not responsible. The case seems to me to fall completely within the rule asserted in *Cragin*v. *The New York Central R. R. Co.*
      ***
      **In that case the contract stipulates, in regard to a lot of hogs transported from Buffalo to Albany by the defendant, “that the defendant should not be liable for any loss or damages which might be sustained by reason of any delays, or in consequence of heat, suffocation or ill effects from being crowded.” The hogs, for the loss of which the action was brought, died from the effects of heat, the result of the negligence of the defendant’s agents id not watering, wetting, washing and cooling off said hogs *331on the way to their destination. The Commission of Appeals held that, to give any effect to this stipulation, it must be held to be intended to exempt the defendant from negligence, in consequence of which the hogs died 'from heat. I do not see how the two cases can be distinguished. The damage in this action was the result of *cold)*and, in the case of Cragin, it was the result of heat. The parties must have intended that the release should have some effect. The particular risks are specified in the release, and the contract must be applied to the risks particularly named, and to which the property, at that season of the year when it was made, was especially exposed. The plaintiff stipulated, in consideration that the defendant received and carried such property, liable to extra hazard, at ordinary tariff' rates, to release them from the risks in question.

This release should be considered and construed, like all other contracts, in view of the facts existing when it was made. The plaintiffs’ quince trees were presented for shipment at the defendant’s depot in New York, on the fourth of March. They were perishable property, and were liable to be injured or destroyed by freezing. It was essential, therefore, to their preservation in the then state of the weather, which was very cold and growing colder, that they should be forwarded to their place of destination, where they could be housed and protected, with dispatch. The defendant’s agents, understanding these facts as well as the plaintiff, acted in reference to them, and caused the car containing these trees to have attached to it a large card, nailed to the door and marked : *“ Perishable property; hurry through. This car must not he*detained.” And, also: “ *If this car is disabled transfer the property and hurry*forward.” Also one other large card marked: *“*Trees, perishable, *hurry*through.” These cards indicate the exigency of the case, as related to said trees, as understood by both parties at the time. With the knowledge that these instructions were thus given, and upon the assumption that they would be observed and obeyed by the agents and employes of the defendant with ordinary care and diligence, the plaintiff might not unreasonably execute the release in question, and take upon himself all the risks attending the transportation of said trees from New York to Geneva. At least, the release was executed by him under these circumstances, and is *332before us. We can only hold that it, by its explicit terms, does clearly and necessarily include all negligence committed by the agents and. employes of the defendant in the charge and transportation of said property, which occasioned its loss.

If the Supreme Court of the United States is right in the view as stated in one of the conclusions in the case of Lockwood,* that it is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants, the law can now only be changed in this State by. an act of the legislature, as it has been in England by an act of parliament, passed in *185i,*called the railway and canal traffic act.

The order denying the motion for a new trial must therefore be reversed, and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Morgan, JJ.

Order reversed and new trial granted, costs to abide event.

To wit: Dorr v. The New Jersey Steam Nav. Co., 1 Kern., 485; Parsons v. Monteath, 13 Barb., 353; Welles v. N. Y. C. R. R. Co., 26 id., 641; S. C., 24 N. Y., 184; Smith v. Same, 29 Barb., 132; 24 N. Y., 222 ; Bissell v. Same, 29 Barb., 602; S. C., 25 N. Y., 442 ; Poucher v. Same, 49 N. Y., 263; Perkins v. Same, 24 id., 196, and others.

17 Wall., 366.

**6 How. (U. S.), 384.

*Swpra.*

Page 383.

51 N. Y., 61.

17 Wall., 366.