Opinion
May 8, 1907.
Frederick Collin, for the appellant.
Lewis E. Mosher and John Deneen, for the respondent.
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 negligence 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 ahead 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 are 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 drawhead 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.