Albert Wilson, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant

Albert Wilson, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant. Third Department, May 8, 1907. . Negligence — injury to passenger in box car by slipping of strut used to push, car from, switch—use of such- strut not gross negligence — release of claims for damage in consideration of free transportation — gross negligence defined. The not uncommon practice of pushing a car from a switch by placing a tie or strut between the engine and the bumpers of the car is not gross negligence, and a plaintiff who accompanied horses in a box car and has released the railroad from claims for personal damage in consideration of free transportation is not entitled to recover for injuries received by the slipping of the tie which was used to push the car. ' Gross negligence means something more than ordinary mistake of judgment, and must refer either to a willful or reckless disregard either of right, property dr life, . . Appeal by the defendant, The Delaware, Lackawanna and Western Bailro.ad Company, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 14th day of November, 1906,. upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes. On October-30, 1902, plaintiff placed in a freight car át Gribson five horses'to be carried by defendant to .West Philadelphia.. The horses were owned by one Doctor Lane of Corning, bút plaintiff had an interest'in them and was to"go with them to West Philadelphia ' as caretaker. Prior to the loading of the horses Doctor Lane had made arrangements over the telephone for their shipment. It seems that in the shipping of horses an arbitrary weight is charged for the' first horse, 4,000 pounds, and for each subsequent horse 3,000 pounds, except that where the whole car is taken 20,000 pounds is charged for. The ordinary charge for the freight is thirty-five cents per 10Ó. In this case the charge was at the' rate, of twenty-eight cents per 100 for 20,000. After the horses were placed in the car the plaintiff was called into the freight 'office and received the bill of. lading and signed two papers. One ‘ of them recited in substance that on, account of the reduced rate at which the horses were taken and in. consideration thereof the plaintiff released all claims for damages to the stock from various causes and among others by reason of any negligence of the employees of the defendant, and fin the same paper in consideration of the free transportation of himself without extra charge other than the charge for transportation of the horses, he released the company from all claims for any personal damages which might arise by reason of thé negligence of the servants of the company. In the second paper, which was entitled, “ Contract with man or men in charge,” was recited substantially the same release of any claim for personal damages against the defendant by reason of the negligence of the defendant or of its employees. During the following night the train reached Delaware, N. J. • The car containing the plaintiff and the horses was separated from the train .and run upon a switch track. The switch track was located four or -. five feet fi’om the main track. The engine and two other cars then moved upon the main track and backed with the rest of the train until the engine was.somewhere in the rear of this car standing upon the switch. The purpose was to place this car in front of the engine upon the train. . In order to push out the car from the switch a light railroad tie was placed'upon the right corner of the engine and between the bumpers of the car and against the right hand bumper, resting upon the drawhead of the car in which the plaintiff was being carried. Two brakemen held the tie until the engine came against it and then stepped aside. The engine was- started ahead, the tie slipped and in some way the hind trucks of -the car in which plaintiff was riding were .pushed from the track and the» plaintiff was thrown against the side of the car and injured. ■ One of the horses was thrown down. It was claimed by the plaintiff that at the time he signed these releases he did not read them over and that the defendant’s clerk told him to sign a receipt for the bill of lading and that he must hurry as the train was then due. ' The trial judge submitted two questions to the jury: First, whether the. plaintiff was induced to sign these releases "without reading them by the false statement,of the agent that he was signing a receipt for the bill of lading an'd that he must hurry as the train was then due. Second, whether the .defendant was guilty of gross negligence by which plaintiff suffered the injuries for which he has sued. A verdict was rendered for the plaintiff and a motion for a new trial was entertained'. Before that motion was heard Justice Forbes died and the motion was heard before Justice Sewell, who denied the same pro forma. From the judgment entered .upon the verdict and from the order denying the motion for a new trial this appeal has been taken. Frederick Gollm, for the appellant. Lewis F. Mosher and John Meneen, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: As the case was finally submitted to the jury plaintiff was allowed to recover only upon proof that the defendant was guilty, of gross negligence - through -which the plaintiff suffered his injuries. Defendant contends that by the contract it was released from all-injuries caused by the negligence of the defendant or its servants and the law does not distinguish between' different degrees of negligence; that the plaintiff is not relieved from his contract of exemption though his injuries were suffered through the gross negligence of defendant. In my judgment it is not necessary to determine whether such a contract is against public policy so far as it releases the defendant from any gross negligence. In the light most favorable to the plaintiff there was no such negligence shown in the case at bar as to relieve the plaintiff from the effect of his contract made ■upon sufficient consideration to exempt the defendant from liability for the négligence of its employees. It is perhaps impossible to define gross, negligence as that term is used in the various cases bearing upon the interpretation of these contracts. It must mean something more than ordinary mistake of judgment, and must refer-either to a willful or to a reckless disregard either of right of property or of life. It appears from the evidence that this manner of pushing cars ahe.ad" by means of a stake of no greater length than the tie which was used in this case was not uncommon practice. The engineer of this train swore that he had frequently made use of the practice without accident, and in fact that he «never before had had any accident arising from the use either of a stake or a tie in pushing forward a car upon an adjoining track. The. two bumpers upon the back of a car aré. not separated more than one or two feet and the placing of a tie between-the bumpers and against the further bumper whereby it could rest upon the drawliead which was between the' bumpers cannot in any event be held to evince a reckless disregard of either property or life. In view of the fact that this was not an uncommon way to push cars forward while the car Was upon an adjoining track, in our judgment the jury was not authorized to find that the defendant or its servants had been guilty of any gross negligence whereby the plaintiff suffered his injuries. It follows that the judgment and order must be reversed and a. new trial granted, with costs to appellant to abide the event. ■ All concurred ; Kellogg, J., in result. Judgment and order reversed and new trial granted, with costs to appellant to abide event.