Argued April 13, 1872
Decided April 30, 1872
Samuel Hand for the appellant.
J. Welling for the respondent.
The questions of negligence on the part of the defendant, and of contributing negligence on the part of the plaintiff, were upon the evidence proper for the consideration of the jury, and on these questions their verdict is conclusive.
But we are of opinion that, under the contract between the plaintiff and the defendant, the latter was exempted from liability for the injury sustained by the plaintiff through the negligence of its servants, and that the motion for a nonsuit on this ground should have been granted. The injury complained of was sustained by the plaintiff while he was on the defendant's premises, moving about the train on which his animals were laden, for the purpose of taking care of them, and engaged in the performance of that duty. His only business there was to take charge of the stock in pursuance of the terms of the contract. The train was about starting, and he was to go in it according to the terms of the contract, being provided with a free pass for that purpose. The contract provided that he should go or send some person on the same train with the stock, to take charge of it, who should be carried free of charge, and that such person so riding free should take all the risk of personal injury from whatever cause, whether of negligence of the defendant or its agents or otherwise. We do not think it necessary, to bring the plaintiff within the operation of this stipulation, that he should have been actually riding at the time of his injury. The train had been formed and was about to start. The plaintiff was there, under the contract, as a passenger, furnished with a pass, entitling him to ride free, and coming from the performance of the duties contemplated by his contract. These features did not exist in the case of Stinson v. N.Y.C.R.R. Co. ( 32 N.Y., 333), and the decision in that case comments upon their absence. We think the plaintiff was fairly within the stipulation contained in this contract. ( Northrup v. R.R. Pass. As. Co., 43 N.Y., 516.)
The judgment should be reversed, and a new trial ordered, with costs to abide the event.
GROVER, FOLGER and ALLEN, JJ., concur; CHURCH, Ch. J., and PECKHAM, J., not voting.