First Department, March, 1910. [Vol. 137. rier, receiving goods marked for shipment to a point beyond its own line, is not liable for anything occurring after the delivery of the goods to the next connecting carrier. (See Pennsylvania R. R. Co. v. Jones, 155 U. S. 333; Myrick v. Michigan Central R. R. Co., 107 id. 102.) The rule in England and in some of the States, is that the mere receipt of goods marked for shipment to a point beyond the line of the receiving carrier operates as a contract to carry to the point of destination, and that in the absence of special contract varying the rule, the initial carrier is solely liable to the shipper for whatever occurs at any point of the entire route. (See Bristor & Exeter R. Co. v. Collins, 7 H. L. Cas. 194.) No doubt, it would be competent for Congress to change the common law as declared by the courts as to interstate commerce and to adopt the so-called English rule. Under that rule, however, the carrier could by special contract restrict its liability. The Federal courts, differing with the courts of this State, have held that a contract of a common carrier, exempting itself from liability for its own or its servant's negligence, is void as against public policy. (Railroad Co. v. Lockwood, 17 Wall. 357.) If the courts, upon grounds of public policy, can limit the right of the carrier to contract for an exemption from liability, a fortiori Congress may do so. It may be said that a carrier is not obliged to contract to carry beyond its own line, that the statute does not prohibit it from contracting for an exemption from liability, but commands it to contract for an extension of liability. Theoretically, that is unjust, and in the case of ordinary individuals, not engaged in the discharge of quasi-public functions, could not legally be justified; but in the case of transportation companies the difficulty is theoretical only, and it would appear to be less if the English rule had first been adopted, if Congress had taken two steps instead of one to accomplish its purpose. Practically, the statute will result in no hardship to the carriers and will prevent injustice to shippers. The carriers will have no difficulty in fixing responsibility for, and in adjusting among themselves, losses occasioned by loss, damage or injury to property transported by them. Whereas, if the shipper had to follow the goods so as to fix the responsibility for any loss, damage or injury he would usually be remediless. Plainly, the statute rests upon a reasonable basis. App. Div.] First Department, March, 1910. While liberty to contract is included within the words "liberty or property" in the Federal Constitution (5th Amendt.) as broadly interpreted by the courts, that does not mean an unrestrained liberty. (Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Patterson v. Bark Eudora, 190 id. 169.) It is unnecessary to cite the numerous instances of valid legislative acts, passed in the exercise of the police power, restricting freedom of contract. The contention that the act authorizes a taking of property without due process of law really depends upon the contention that it is an unwarranted inter ference with the freedom of contract. The act merely regulates the liability of the carrier and prevents it from exempting itself from liability by contract. The question of due process is not involved. The statute is plainly within the express power of Congress to regulate interstate commerce, granted by the Federal Constitution (Art. 1, § 8, subd. 3). It is now settled that that grant of power is to be broadly construed. (Howard v. Illinois Central R. R. Co., 207 U. S. 463.) If an act regulating the relation of employer to employees is within the power to regulate commerce, an act regulating the liability of carrier to shipper certainly is. The appellant relies upon the case of Adair v. United States (208 U. S. 161), but there is no analogy between the statute in question here and an act making it a criminal offense to discharge an employee from the service of a carrier because of his membership in a labor organization. The determination of the Appellate Term is affirmed, with costs. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and DowLING, JJ., concurred. Determination affirmed, with costs. First Department, March, 1910. [Vol. 137. MARIE DRESCH, an Infant, by CHARLES POPE CALDWELL, Her Guardian ad Litem, Respondent, v. JOHN G. ELLIOTT, Individually and as Executor, etc., of JAMES ELLIOTT, Deceased, Appellant. Master and servant First Department, March 11, 1910. negligence-injury to arm not affecting function evidence age of minor seeking employment trial challenge prejudice of juror. - excessive verdict photograph inadmissible Where a woman has recovered a verdict of over $17,000 for burns and bruises which, while disfiguring her arm, do not cause any loss of function and there is no evidence giving a basis on which to reduce the verdict, and in addition prejudicial evidence has been admitted, a new trial will be granted in furtherance of justice. In an action against a master to recover for injuries received by a female servant who was employed in a factory at an age prohibited by the statute, where the evidence was conflicting as to whether she stated that she was of the requisite age when seeking the employment, it is error to admit in evidence her photograph taken in her communion costume one year before the date of her employment for the purpose of showing her physical appearance at the time of the employment. In such action it is an abuse of discretion to refuse to allow the defendant to ask a jury man whether he has a prejudice against the employment of girls in a factory in order to determine whether he will exercise his right to a peremptory challenge. APPEAL by the defendant, John G. Elliott, individually and as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1909, upon the verdict of a jury for $17,500, and also from an order entered in said clerk's office on the 25th day of June, 1909, denying the defendant's motion for a new trial made upon the minutes. David Leventritt, for the appellant. J. Edward Murphy, for the respondent. MILLER, J.: The cumulative force of all the reasons urged by the appellant for a new trial at least justifies the conclusion that one should be granted in App. Div.] First Department, March, 1910. the furtherance of justice. The negligence complained of was the employment of the plaintiff by the defendant when she was only thirteen years and six months old, in violation of a statute of the State of New Jersey (Laws of 1904, chap. 64), prohibiting the employment of children under the age of fourteen years in any factory, workshop, mill or place where the manufacture of goods of any kind is carried on. The plaintiff was set to work on a mangle and got her arm caught between the rollers of it, whereby the hand and arm were severely burned and the muscles and tendons bruised. It appears in the record that she suffered pain, that the arm is badly scarred and that its condition, whatever it may be, is permanent. There is no evidence whatever to show any loss of function except the testimony of the plaintiff to the effect that, after the accident, she went to a business school for seven months; that she did clerical and office work and typewriting, but that she gave up the typewriting because her fingers did not have power enough to run the machine. The verdict is for $17,500, and there is not sufficient evidence in the record even to furnish a basis to reduce it. The plaintiff claims that she was employed and set to work without any inquiry respecting her age. The testimony of the defendant's forelady, who employed the plaintiff, was that the latter stated, upon inquiry, that her age was fifteen years, and that she appeared to be sixteen, being a tall, well-developed girl. The plaintiff admitted that she knew that a girl had to be fourteen years old to be employed in a factory; that she had undertaken to procure employment for another girl, who was under fourteen, and had told her to say, if she was asked her age, that she was over fourteen. The question whether the defendant was led to believe that the plaintiff was over fourteen years and was justified in so believing was one of the principal questions of fact in the case. (See Koester v. Rochester Candy Works, 194 N. Y. 92.) A photograph of the plaintiff, taken a year before the employment, in the dress worn by her when she received her first holy communion, was admitted in evidence over the defendant's objection, upon testimony to the effect that it correctly represented the plaintiff's appearance at the time of the accident; that she was about the size indicated by the photograph when employed, and that the picture looked as she did when she was employed. We all know that dress alone makes a First Department, March, 1910. [Vol. 137. great deal of difference in the apparent age of a person. The combination of dress and a photograph would be doubly deceptive. When employed the plaintiff was six months below the age fixed by the statute. A photograph taken a year before, dressed as she was, with veil and flowers on her head, short white dress, white slippers and stockings, was no evidence of her appearance as to age when employed. The prejudicial character of the photograph is manifest. It could have served no possible purpose except to mislead, and its misleading character is the more manifest when we consider that the question at issue was the apparent age of a girl at a rapidly developing period of her life. In the preliminary examination of the jurors the defendant's counsel asked the following question: "Have any of you gentlemen any objection to a girl being employed in a factory," and the objection to the question was sustained. While the latitude allowed counsel in the examination of jurors rests somewhat in the discretion of the court, we think the question was proper and should have been allowed. To be sure, the question was somewhat crude; but there was no difficulty in understanding it, and counsel had the right to ascertain the state of mind of the jurors on that subject, at least for the purpose of determining whether to exercise his right to a peremptory challenge. For all the reasons stated the judgment and order should be reversed and a new trial granted, with costs, to the appellant to abide the event. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. |
