It is said that this provision of the contract, in its application to the express messenger referred to in it, is not entitled to such application and effect; and that by it the defendant was exempt from liability for his personal injury and death, although caused by its negligence. It is true that a carrier of persons is not subjected by law to the obligations of a common carrier, nor is a carrier of persons a common carrier in the strict sense of the term applicable to it. While the latter, in the transportation of property, is an insurer of its safe transit, when the obligation is not qualified by contract, the negligence of the carrier of persons is essential to liability for injury to them. The settled doctrine in this state is, that a carrier of persons as well as of property, and known as a common carrier, may, by contract, have protection against liability for injury caused by its negligence: Wells v. New York etc. R. R. Co., 24 N. Y. 181; Bissell v. New York etc. R. R. Co., 25 N. Y. 442; 82 Am. Dec. 369; Poucher v. New York etc. R. R. Co., 49 N. Y. 263; 10 Am. Rep. 364. But whether in view of the fact that the liability of a carrier to a passenger can rest on no ground less than that of negligence renders it unnecessary to make the stipulation of the contract definite and distinct in that respect for its relief from liability, is not necessarily the subject of inquiry or consideration on this review. It may, however, be observed that in those cases where the defense has been sustained, the contract has, by its terms, plainly guarded the carrier against liability for injury resulting from its negligence. The provision before mentioned of the contract contains no stipulation expressly exempting the railway from liability arising from that cause. But in a later clause of the contract it was provided that "the railway company agrees to assume the usual responsibility of railway companies in transporting express freights, such responsibility being, however, expressly limited to cases of negligence in running and handling its trains. But in no event, whether of negligence or otherwise, shall the railway company be responsible, and it is hereby released from, and the express company hereby assumes, all liability for money, bank notes, jewelry, bullion, and precious packages herein above provided to be carried by the railway company free of charge."

This is the only provision of the contract specifically expressing any relief from the consequences of the negligence of the last-named company; and it may be that its protection from liability from such cause was intended to be limited by and

made dependent upon that clause. And in that view the provisions of the third clause of the contract may have been intended to furnish the means of indemnity to the railway company, so far as the express company assumed the risk and undertook to indemnify and protect it from liability. These considerations bear upon the construction of the last-mentioned provision of the contract; and if the messenger had been advised of it, the question may have arisen whether, in its application to him, the liability of the defendant would be deemed to have been any less qualified than in its relation to the property to which, in common with him, it there related. That is to say, whether the general words, apparently applied to the property and to him without discrimination, were entitled to a more extended import as to the messenger than could be given to them in their application to the other objects to which they, in the same connection, also equally related. It, however, does not appear that the plaintiff's intestate had any knowledge or information of the provisions of the contract between the two companies. When he entered into the service of the express company he assumed the ordinary hazards incident to that business in his relation to that company, but there was no presumption or implied understanding that the messenger took upon himself the risks of injury he might suffer from the negligence or fault of the defendant. He was in no sense the employee of the defendant, nor could he, without his consent, be subjected to the responsibilities of that relation: Missouri Pacific R'y Co. v. Ivy, 71 Tex. 409; 10 Am. St. Rep. 758. He was lawfully in the car, having the charge of the property and business there of the express company under its employment; and although he paid no fare to the defendant, was carried by virtue of no contract made by him personally with the latter, and must have understood that he was there pursuant to some arrangement of his employer with the defendant, he was not necessarily, by that fact, chargeable with notice of the provisions in question of the contract. Presumptively, he was entitled to protection against personal injury by the negligence of the defendant: Blair v. Erie R'y Co., 66 N. Y. 313; 23 Am. Rep. 55; Nolton v. Western R. R. Corp., 15 N. Y. 444; 69 Am. Dec. 623; Smith v. New York C. R. R. Co., 24 N. Y. 222; 29 Barb. 132; Collett v. London & N. W. R'y Co., 16 Ad. & E. 984. And it is not seen how Brewer could, without his knowledge or consent, be placed in such relation to the defendant as to relieve it from liability to him for the con

sequences of its negligence affecting him personally. His contract of employment with the express company for its service did not, so far as appears, impose upon him such hazards, nor was he chargeable with the stipulations in the contract between those companies except so far as they, through notice to him or otherwise, entered into that, pursuant to which he went into or remained in the service of the express company. The negligence of the defendant was the violation of its duty. It was the want of the care to which the plaintiff's intestate was entitled for his protection. This duty and such right did not depend or rest upon contract, but upon the relation as carrier of the plaintiff, and the care which the defendant as such was required to exercise. It is violated duty that furnishes the ground of an action for negligence, and where there is no duty there is no liability for such cause. We are unable to see in principle any legal support for the proposition that a person entering into a contract of service with one employer may, without his knowledge or assent, be made to assume the hazards of a service conducted by another, and in which he is not engaged, and be personally subjected to the consequences. of the negligence of the latter, without remedy against him. No such question was in the case of Seybolt v. New York etc. R. R. Co., 95 N. Y. 562, 47 Am. Rep. 75, which arose out of the same disaster.

The contract between the companies did not purport to relieve the defendant from its duty to exercise due care for the protection of the messenger. Nor did the defendant take from it any right to disregard such duty. But whatever right to relief from the consequences of its negligence in that respect the defendant derived from the contract arose by way of indemnity upon the stipulations of the express company. These views lead to the conclusion that the question of negligence (which fact was supported by evidence) was properly submitted to the jury. And the charge of the court to them, F "that the extent of the defendant's obligation to the deceased was to use ordinary care," was as favorable to the defendant as could be required by it. The deceased was a passenger, and therefore the refusal of the court to charge to the contrary was not error: Blair v. Erie R'y Co., 66 N. Y. 313; 23 Am. Rep. 55. The location of the express-car in the train did not deny to him the benefit of that relation.

No other question requires consideration.
The judgment should be affirmed.

MASTER AND SERVANT. Risks assumed by servant: Nadau v. White River Lumber Co., 76 Wis. 120; 20 Am. St. Rep. 29, and cases collected in note 41.

MASTER AND SERVANT-NEGLIGENCE. — A servant in the general em ployment and pay of one railroad company, but engaged in special services for another, through an agreement between the two companies, may recover of the company for whom such special services are performed for an injury received by reason of its negligence: Missouri etc. R'y Co. v. Jones, 75 Tex. 151; 16 Am. St. Rep. 879.

NEGLIGENCE, CONTRACTS EXEMPTING FROM LIABILITY FOR.- Contracts stipulating for exemption from liability for negligence are not favored in law, and should be strictly construed, with every intendment against the party seeking their protection: Crew v. Bradstreet Company, 134 Pa. St. 161; 19 Am. St. Rep. 681, and note 683. Without an express exemption provided by contract, a railroad company is liable for an injury caused by its negli. gence to a passenger lawfully on its train, although he pays no fare, as, for instance, the messenger of an express company: Blair v. Erie R'y Co., 66 N. Y. 313; 23 Am. Rep. 55, and note; see also Lemon v. Chanslor, 68 Mo. 340; 30 Am. Rep. 799.

CLARK V. DEVOE.

[124 NEW YORK, 120.]

COVENANT, RULE FOR INTERPRETATION OF. - The primary rule for the interpretation of a covenant contained in a deed is to gather the intention of the parties from their words, by reading, not simply a single clause, but the entire context, and where the meaning is doubtful, by consider. ing such surrounding circumstances as they are presumed to have considered when their minds met.

BASEMENT ATTACHED TO LAND BY PLAIN and Direct Language only. — It is only by the use of plain and direct language of a grantor that it can be held that he has created a right in the nature of an easement in land and attached it to one parcel as the dominant estate, and made the other servient thereto for all time to come. The creation of such a right will not be inferred by a forced construction of a covenant, nor by any am. plification of its language beyond its natural meaning. Where, therefore, the owner of two adjoining city lots conveys one of them by a deed in which he covenants, for himself, his heirs, executors, administrators, and assigns, to and with the grantee, his heirs, executors, administra tors, and assigns, that he will not erect or cause to be erected on said lot any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance, this covenant must be regarded as personal to the grantor, and solely against his own acts, and will not make him liable for the acts of his grantees or of subsequent owners, provided he neither does such acts himself nor causes them to be done.

ACTION to recover damages for the breach of a covenant contained in a deed from the defendant to the plaintiff's grantor. The covenant was in these words: "And the said

Moses Devoe, being also the owner of the adjoining lot known and distinguished as No. 22 Tenth Street, for himself, his heirs, executors, administrators, and assigns, does hereby covenant, to and with the said party of the second part, his heirs, executors, administrators, and assigns, that he will not erect or cause to be erected on said lot, No. 22 Tenth Street, any building which shall be regarded as a nuisance or which shall be occupied for any purpose which may render it a nuiBance." A building was erected upon the lot, which was afterwards converted into a livery-stable, and so used, according to the verdict of the jury, as to constitute a nuisance. Upon the trial of this case, it appeared that the defendant neither caused nor permitted the nuisance, but that it was created and maintained by his grantees and their lessees, without his consent. The trial court rendered judgment upon a verdict in favor of the plaintiff. The general term of the supreme court reversed this judgment, and the plaintiff appealed. Other facts appear from the opinion.

David Gerber, for the appellant.

Freling H. Smith, for the respondent.

VANN, J. This is not an action in equity to restrain the continuance of a nuisance, nor in tort to recover the damages caused by a nuisance, but is simply for a breach of the covenant set forth in the foregoing statement. It is not brought against one who personally, or through his agents or tenants, created the nuisance, nor against one who owned the property at any time when the nuisance existed thereon, but against a former owner of two city lots, who, in selling one, many years ago, made said covenant with reference to the other, which he soon conveyed away, and since then he has had no interest in either. The covenant, therefore, is not only the foundation of the plaintiff's claim, but is the limit of the defendant's liability. It is not denied that the plaintiff had a remedy for the nuisance against those who caused it, independent of any covenant, but this action depends strictly upon the covenant, and can be maintained only by showing a breach thereof.

A covenant is simply a contract of a special nature, and the primary rule for the interpretation thereof is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered