Dow v. Syracuse, Lakeside & Baldwinsville Railway

Adams, P. J.: For the purposes of this review it must be assumed that the defendant’s negligence was established and consequently the only question now to be considered is whether or not it stands absolved from all liability therefor.. The contention that it does so stand is based, of course, upon the words printed upon the front cover of the pass book issued to the plaintiff by the defendant pursuant to its agreement to furnish her [365] free transportation over its railroad in part consideration for the conveyance by her to it of a strip of land for a right of way over her premises. We think there are two reasons why this contention cannot be sustained. In the first place, the written agreement in question specified the sole condition upon which transportation should be furnished the plaintiff, and that was that the passes issued therefor should be used by no other persons than those to whom they were issued, and that a violation of this condition should work a forfeiture of the same. Subject to this single condition the defendant agreed to provide the plaintiff with an annual pass each and every year of her life, to be used by her for transportation over the defendant’s railroad, “ as often as (she) may desire.” Ho limitation was placed upon this right, and the agreement contains no language which, by the most liberal construction, can be said to attach any conditions to its enjoyment other than the one already mentioned. In these circumstances we think the defendant obligated itself to furnish the plaintiff with transportation, relieved from any other condition ; and that when it assumed to attach to the fulfillment of such obligation an additional condition, and one which was never within the contemplation of the parties, it foisted upon the plaintiff a new contract for which no consideration passed. In other words, the defendant was bound by the subsisting contract between it and the plaintiff to furnish the latter with transportation over its road for a consideration agreed upon; but when it undertook to make for itself what was in .effect a new contract, by imposing upon the plaintiff a condition Which was not contained in the original contract, it furnished no consideration therefor, and, consequently, is in no position to enforce the same. (Corcoran v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 479; affd., 164 N. Y. 587; Trolan v. N. Y. C. & H. R. R. R. Co., 31 App. Div. 320; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562; Vanderbilt v. Schreyer, 91 id. 392.) If, therefore, the lack of consideration rendered the alleged release nudum pactum, then within the authority of one of the eases above cited (Seybolt v. N. Y., L. E. & W. R. R. Co.), the plaintiff’s acceptance of the pass book with the new condition printed upon its cover did not indicate any intention upon her part [366] to assent to the terms .thereof; and this view is not a little strengthened by the fact, made manifest by an examination of the book itself, that the only condition to which the plaintiff expressly assented over her signature was the one specified in the agreement, viz., that the passes therein contained were to be offered for fare by no one but herself. But if we are in error in the views thus far expressed, we think that our second reason for sustaining the order appealed from is one which cannot be successfully controverted. Although there was at one time apparently some contrariety of opinion in the Court of Appeals respecting the right of a carrier to limit its common-law liability for its negligent acts by a contract which did not contain express words to that effect (Gragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180; Holsapple v. R., W., etc., R. R. Co., 86 id. 275), it seems to be now pretty well settled that where such a limitation is intended it must be expressed in language so plain and unequivocal that it may be readily comprehended by every one (Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 370; Jennings v. G. T. R. Co., 127 id. 438; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 id. 48), and that this rule is as applicable to the carrier of passengers as to the carrier of freight. (Kenney v. N. Y. C. & H. R. R. R. Co., 125 N. Y. 422; McElwain v. Erie R. Co., 21 Wkly. Dig. 21.) It is to be observed that the release in question is very general in its terms. It does not even hint at any exemption from liability for negligence, but simply provides that the defendant shall be released “ from all claims for damages for personal injuries from whatever cause.” We are not unmindful of the contention of the appellant’s counsel that no effect whatever can be given to this language unless it be held to embrace negligence, inasmuch as a carrier of passengers is not an insurer of their safety; nor have we overlooked the language of some of the earlier decisions, which is to the effect that where general words máy operate without including negligence, it will not be assumed that they were intended to include it, but we think the rule laid down by the more recent authorities is based upon the broad principle that considerations of public policy require that [367] before a carrier may claim immunity from the consequences of its own negligence such immunity must be written into the contract of release strioti sensus (Kenney v. N. Y. C. & H. R. R. R. Co., supra), and while we do not think it impossible to affirm this order upon the ground that the language of the release might under some circumstances become operative without including the defendant’s negligence, and, therefore, will not be presumed to be thus inclusive, we prefer to rest our decision upon the broader principle to which allusion has been made and which we think it must be conceded now obtains in this State. The order appealed from should be affirmed. Spring, Williams, Hiscock and Nash, JJ., concurred. Order affirmed, with costs.