Eliza Hodge, as One of the Administrators, etc., of James Hodge, Deceased, Respondent, v. The Rutland Railroad Company, Appellant

Eliza Hodge, as One of the Administrators, etc., of James Hodge, Deceased, Respondent, v. The Rutland Railroad Company, Appellant. Third Department, March 7, 1906. Negligence — contract relieving common carrier from liability for negli- . geñce — administratrix Of party to such contract'cannot recover for Ms death. As section 1903 of the Code of Civil Procedure, allowing an action for death caused by negligence, Creates such action only when the defendant “would have been liable to an action in favor of the decedent * * * if death had. not, ensued,” the administratrix of a person who, in consideration of a free passage, has signed a contract -relievingthe carrier from liability for injuries caused-by its. negligence cannot recover for the death of such person, although caused by the negligence of the carrier. Appeal by. the defendant, The Rutland Railroad Company, from a judgment of the 'Supreme Court' in favor of the plaintiff, entered in the office of the clerk of-the county of Franklin pn the 15th day of September, 1905, upon the verdict of a jury for $2,000*, and also from an order entered in said clerk’s office on the 16th day of September, 1905, denying the defendant’s motion for a new trial made upbn the minutes.- - One 'McGrath shipped potatoes over the defendant’s road in the winter, under a written contract by which, for a reduced freight/ rate- and the carriage of the, person accompanying them' without charge other than the sum paid for carriage of the potatoes, .he agreed that the company should' not be liable for any injury, by negligence or otherwise, to the potatoes or the person accompanying them.\ The shipper acknowledged that he had an option fcr'aceept this reduced rate and those terms or pay the official tariff, and thereby receive the security of the liability of the company as á common carrier, and that he had voluntarily accepted the reduced-rate under the contract. Attached to the contract was a contract signed by the .decedent, who was in charge of the potatoes, reciting that in consideration of his-carriage upon a freight train in charge. of the potatoes without a charge other than the sum paid for carrying-the potatoes mentioned in the contract, he voluntarily assumed all risk of accident or damage to his person and released and discharged the company from every and all claims, liabilities and demands of every kind, nature and description, for or on account of any personal in jury-or damage of any kind sustained by him, whether caused by the negligence of the company or otherwise. While the potatoes in the intestate’s charge were in transit, he was killed by reason of the alleged negligence of the defendant, or its servants. By the judgment appealed from his administratrix recovers damages for his death, the court ruling that the exemption from liability provided by the contract did-not include any liability to the next of kin, which question was not contemplated by the contract, but if it was intended to be included in the contract that the intestate had no power to make it, and that the contract in that respect was void, and the court charged the jury that if the defend- ’ ant was negligent the plaintiff could recover, to which rulings exceptions were duly taken. The charge allowed a recovery for negligence, .without regard to whether it was the act or omission of the defendant’s servants in not performing their duties, or of the company itself, or whether the uegligencd was gross or otherwise. John T. Badger, for the appellant. R. M. Moore, B. W. Berry and C. A. Burke, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: If Hodge (the decedent) had survived he could not recover against the defendant for an injury caused by the negligence of its servants. (Poucher v. N. Y. C. R. R. Co., 49 N. Y. 263; Bissell v. N. Y. C. R. R. Co., 25 id. 442.) The cause of-action for causing death by negligence is given by section 1902 of the Code of Civil Procedure, and is given only against a person “ who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.” In Northern Pacific Railway Co. v. Adams (192 U. S. 440), where the Idaho statute gave a cause of action “ against the person causing the death ” and contained no provision similar to the one above quoted from our statute, it. was held that the company was not liable to the estate of a person killed by the company’s negligence, where he was riding on a contract which provided that the company should not" be liable for any injury to his person. The same rule Fas been applied in this. State. (Bissell v. N. Y. C. R. R. Co., supra; Perkins v. N. Y. C. R. R. Co., 24 N. Y. 196.) . The judgment and order are, therefore, reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed, and new trial granted, with costs to appellant to abide event.