ERROR or the Circuit Court for the Southern District of New York; the case being thus:
Lockwood, a drover, was injured whilst travelling on a stock train of the New York Central Railroad Company, proceeding from Buffalo to Albany, and brought this suit to recover damages for the injury. He had cattle in the train, and had been required, at Buffalo, to sign an agreement to attend to the loading, transporting, and unloading of them, and to take all risk of injury to them and of personal injury to himself, or to whomsoever went with the cattle; and he received what is called a drover's pass; that is to say, a pass certifying that he had shipped sufficient stock to pass free to Albany, but declaring that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. The agreement stated its consideration to be the carrying of the plaintiff's cattle at less than tariff rates. It was shown on the trial, that these rates were about three times the ordinary rates charged, and that no drover had cattle carried on those terms; but that all signed similar agreements to that which was signed by the plaintiff, and received similar passes. Evidence was given on the trial tending to show that the injury complained of was sustained in consequence of negligence on the part of the defendants or their servants, but they insisted that they were exempted by the terms of the contract from responsibility for all accidents, including those occurring from negligence, at least the ordinary negligence of their servants; and requested the judge so to charge. This he refused, and charged that if the jury were satisfied that the injury occurred without any negligence on the part of the plaintiff, and that the negligence of the defendants caused the injury, they must find for the plaintiff, which they did. Judgment being entered accordingly, the railroad company took this writ of error.
It is unnecessary to notice some subordinate points made, as this court was of opinion that all the questions of fact were fairly left to the jury, and that the whole controversy depended on the main question of law stated.
The case was elaborately argued by Mr. T. R. Strong, for the company, plaintiff in error, and by Messrs. Truman Smith and Cephas Brainerd, contra, early in the last term, with a full citation of authorities; the counsel for the plaintiff in error relying especially on the New York cases of Welles v. The New York Central Railroad Company, [1] Perkins v. Same, [2] Smith v. Same, [3] Bissell v. Same, [4] Poucher v. Same, [5] by which he argued that the case was to be determined; those being decisions of the highest court of the State of New York, within whose jurisdiction the contract was made and to be executed, and where the alleged cause of action occurred. Being held under advisement till this term—
Mr. Justice BRADLEY delivered the opinion of the court.
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