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Mynard v. Syracuse, etc., R. R. Co.

said: "This man with his fervid passion and strong love was not well matched against an accomplished woman, in the incipient stages of their engagement." "The contest was unequal. A woman can always exercise an undue influence over the man she professes to love." "The woman felt and knew her power and exercised it. She replied, 'There is no use of further talk of our marriage.' This accomplished the object. Appellant yielded, and executed the deed. She had an undue influence over him, and took advantage of the relation between them. That this influence existed, and was exercised to the great benefit of one, and to the great disadvantage of the other, there can be no doubt. There could be no other relations between persons where a greater influence could be exerted, and an undue purpose more easily achieved. This situation of the parties with respect to each other; the close intimacy; the loving correspondence; the threat to annul the marriage contract; the great difference in the value of the two pieces of property, all raise the presumption of undue influence."

Russell's Appeal, 75 Penn. St. 269, A. D. 1874. It was here held that while the mere omission of counsel to advise the insertion of a power of revocation in an ante-nuptial agreement made by a woman is not ground to set aside a voluntary conveyance, yet the absence of such a power, and failure of counsel to advise the insertion, are circumstances to show a want of deliberate execution,'and cast upon the person claiming the benefit under the agreement the burden of proving its fairness. Here the husband was dead, and the claimants were others provided for by the agreement.

The best review of the adjudications on this subject is White and Tudor's Leading Cases in Equity, 4th American edition, page 1156, case of Huguenin v. Basely, and notes.

MYNARD V. SYRACUSE, ETC., R. R. Co.

(71 N. Y. 180.)

Common carrier-contract relieving from his own negligence.

In a contract limiting the liability of a common carrier, an exemption of liability for his own negligence will not be inferred unless unequivocally expressed. So where by a contract of shipment of animals, a carrier, in consideration of a reduced rate of freight, was released from "liability of every kind whatsoever," by reason of damage "from whatsoever cause arising;" held, that this did not include a loss arising from the carrier's own negligence.*

A carrier of animals is under the same liability as other common carriers, except where the damage for which compensation is sought is a consequence of the conduct or propensities of the animals.†

*See Christenson v. American Express Co. (15 Minn. 270), 2 Am. Rep. 122, and note, 129; Adams Express Co. v. Stettaners (61 Ill. 184), 14 Am. Rep. 57; Westcott v. Fargo (61 N. Y. 542), 19 Am Rep. 300; Michigan Southern, etc., R. R. Co. v. Heaton (37 Ind. 448), 10 Am. Rep. 89, and note, 90; Lamb v. Camden & Amboy R. R. & Transp. Co. (46 N. Y. 271), 7 Am. Rep. 327.

+ See Michigan Southern & Northern Ind. R. R. Co. v. McDonough (21 Mich. 165), 4 Am. Rp. 466; Lake Shore & Michigan South. R. R. Co. v. Perkins (25 Mich. 329), 12 Am. Rep. 275; Kinsas Pacific Ry. Co. v. Nichols (9 Kans. 235), 12 Am. Rep. 494, and note, 500; Louisville, etc., R. R. Co. v. Hedger (9 Bush, 645), 15 Am. Rep. 740.

A

Mynard v. Syracuse, etc., R. R. Co.

CTION for damage for the loss of a steer in transportation on defendant's road. The facts appear in the opinion. The defendant had judgment, and the plaintiff appealed.

Wm. H. Warren, for appellants.

Ruger & Jenney, for respondents. Plaintiffs are presumed to have assented to the contract. Pindar v. Res. Fire Ins. Co., 47 N. Y. 114; Breese v. U. S. Tel. Co., 48 id. 132; Kirkland v. Dinsmore, 62 id. 171; Fibel v. Livingston, 64 Barb. 179. A common carrier can exempt himself from liability for any loss or damage to freight he transports, even though caused by his negligence. Wells v. N. Y. C. R. R. Co., 24 N. Y. 181 ; Perkins v. N. Y. C. R. R. Co., id. 196; Bissell v. N. Y. C. R. R. Co., 25 id. 442; Poucher v. N. Y. C. R. R. Co., 49 id. 263; Wells v. St. Nav. Co., 4 Seld. 375; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Lee v. Marsh, 43 Barb. 102; Keeney v. G. T. R.R. Co., 59 id. 104; French v. B., etc., R. R. Co., 4 Keyes, 108; Nicholas v. N. Y. C. R. R. Co., 4 Hun, 327; Magnin v. Dinsmore, 56 N. Y. 168; Boswell v. H. R. R. Co., 5 Bosw. 699; Peek v. N. S. R. Co., 10 H. L. Cas. 494; Shaw v. York, etc., R. Co., 13 Q. B. 347; Austin v. Man., etc., R. Co., 16 id. 600; 10 C.B. 454; Chippendale v. Lan., etc., R. Co., 7 Eng. L. & Eq. 395; Carr v. Lan., etc., R. Co., 7 Exch. 707; Wyld v. Pickford, 8 M. & W. 443; Walker v. York, etc., R. Co., 2 El. & B. 750; Hughes v. G. W. R. Co., 14 C. B. 637; Morville v. G. N. R. Co., 10 Eng. L. & Eq. 366; Pardington v. So. Wales Co., 1 H. & N. 392; McCawley v. Furness R. Co., L. R., 8 Q. B. 57; Bissell v. N. Y. C. R. R. Co., 25 N. Y. 445.

CHURCH, C. J. The parties stipulated that the animal was lost by reason of the negligence of some of the employees of the defendant without the fault of the plaintiff. The defense rested solely upon exemption from liability contained in the contract of shipment by which, for the consideration of a reduced rate, the plaintiff agreed to "release and discharge the said company from all claims, demands and liabilities of every kind whatsoever for or on account of, or connected with, any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising." The question depends upon the construction to be given to this contract, whether the exemption "from whatever cause arising,"

Mynard v. Syracuse, etc., R. R. Co.

should be taken to include a loss accruing by the negligence of the defendant or its servants. The language is general and broad. Taken literally it would include the loss in question, and it would also include a loss accruing from an intentional or willful act on the part of servants. It is conceded that the latter is not included. We must look at the language in connection with the circumstances and determine what was intended, and whether the exemption claimed was within the contemplation of the parties.

The defendant was a common carrier, and as such was absolutely liable for the safe carriage and delivery of property intrusted to its care, except for loss or injury occasioned by the acts of God or public enemies. The obligations are imposed by law, and not by contract. A common carrier is subject to two distinct classes of liabilities--one where he is liable as an insurer without fault on his part; the other, as an ordinary bailee for hire, when he is liable for default in not exercising proper care and diligence; or, in other words, for negligence. General words from whatever cause arising may well be satisfied by limiting them to such extraordinary liabilities as carriers are under without fault or negligence on their part.

When general words may operate without including the negligence of the carrier or his servants, it will not be presumed that it was intended to include it. Every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed, unless expressed in unequivocal terms. In New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344, a contract that the carriers are not responsible in any event for loss or damage, was held not intended to exonerate them from liability for want of ordinary care. NELSON, J., said: "The language is general and broad, and might very well comprehend every description of risk incident to the shipment. But we think it would be going further than the intent of the parties upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for willful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands." This rule has been repeatedly followed in this State. In Alexander v. Greene, 7 Hill, 533, the stipulation was to tow plaintiff's canal boat from New York to Albany at the risk of the master and owners, and the Court

Mynard v. Syracuse, etc., R. R. Co.

of Errors reversed a judgment of the Supreme Court with but a single dissenting vote, and decided that the language did not include a loss occasioned by the negligence of the defendants or their servants. In one of several opinions delivered by members of the court, it was said, in respect to the claim for immunity for negligence: "To maintain a proposition, so extravagant as this would appear to be, the stipulation of the parties ought to be most clear and explicit, showing that they comprehend in their arrangement the case that actually occurred."

Wells v. Steam Nav. Co., 8 N. Y. 375, expressly approved of the decision of Alexander v. Greene, and reiterated the same principle. GARDNER, J., in speaking of that case, said: "We held, then, if a party vested with a temporary control of another's property for a special purpose of this sort would shield himself from responsibility on account of the gross neglect of himself or his servants, he must show his immunity on the face of his agreement; and that a stipulation so extraordinary, so contrary to usage and the general understanding of men of business, would not be implied from a general expression to which effect might otherwise be given.”

So, in the Steinweg Case, 43 N. Y. 123; 3 Am. Rep. 673, the contract released the carrier "from damage or loss to any article from or by fire or explosion of any kind," and this court held that the release did not include a loss by fire occasioned by the negligence of the defendant; and, in the Magnin Case, still more recently decided by this court (56 N. Y. 168), the contract with the express company contained the stipulation "and, if the value of the property above described is not stated by the shipper, the holder thereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of, or damage to, the property aforesaid."

It was held, reversing the judgment below, that the stipulation did not cover a loss accruing through negligence, JOHNSON, J., in the opinion, saying: "But the contract will not be deemed to except losses occasioned by the carrier's negligence, unless that he expressly stipulated." In each of these cases, the language of the contract was sufficiently broad to include losses occasioned by ordinary or gross negligence, but the doctrine is repeated that, if the carrier asks for immunity for his wrongful acts, it must be expressed, and that general words will not be deemed to have been intended to relieve him from the consequences of such acts.

Mynard v. Syracuse, etc., R. R. Co.

These authorities are directly in point, and they accord with a wise public policy, by which courts should be guided in the construction of contracts designed to relieve common carriers from obligations to exercise care and diligence in the prosecution of their business, which the law imposes upon ordinary bailees for hire engaged in private business. In the recent case of Lockwood v. Railroad Co., 17 Wall. 357, the Supreme Court of the United States decided that a common carrier cannot lawfully stipulate for exemption from responsibility for the negligence of himself or his servants. If we felt at liberty to review the question, the reasoning of Justice BRADLEY in that case would be entitled to serious consideration; but the right thus to stipulate has been so repeatedly affirmed by this court, that the question cannot with propriety be regarded as an open one in this State. 8 N. Y. 375; 11 id. 485; 24 id. 181-196; 25 id. 442; 42 id. 212; 49 id. 263; 51 id. 61.

The remedy is with the legislature, if remedy is needed. But, upon the question involved here, it is correctly stated in that case that "a review of the cases decided by the courts of New York shows that, though they have carried the power of the common carrier to make special contracts to the extent of enabling him to exonerate himself from the effects of even gross negligence, yet that this effect has never been given to a contract general in its terms." Such has been the uniform course of decisions in this and most of the other States, and public policy demands that it should not be changed. It cannot be said that parties, in making such contracts, stand on equal terms. The shipper, in most cases, from motives of convenience, necessity or apprehended injury, feels obliged to accept the terms proposed by the carrier, and practically the contract is made by one party only, and should, therefore, be construed most strongly against him; and especially should he not be relieved from the consequences of his own wrongful acts under general words or by implication.

There was a period when the courts of England were inclined to relax this rule, and this led to the adoption of an act of Parliament on this subject, under which the courts have since acted. See 10 House of Lords Cases, 473.

It is argued that the rule does not apply to the carriage of animals; that, in respect to such property, the common-law liabilities of common carriers do not attach; that the carrier is only liable for negligence, and hence that the stipulation can apply to nothing else.

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