The opinion
Jenks, J. (dissenting):
I dissent. This action is by shipper against a common carrier for its negligent delay and detention of cattle so that the cattle sick end. The shipment was under a written contract, whereby the carriage was below the published tariff rate. When the plaintiff closed, the court dismissed the complaint on the ground that the defendant had limited its liability and that no damages were proven within the limitation. The said contract of shipment in part provided : " The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said live stock, occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking or goring, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of tracks, by riots, strikes or stoppage of labor, or from, causes beyond their control.
“ That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as. full compensation for all loss or damages sustained thereby, the amount actually expended by said shipper, *218 in the purchase of food and water for the said stock, while so detained.”
The contention of the learned and able counsel for the appellant is that the wrong complained of is not within the purview of the 2d paragraph. I think that it is not within the purview of the 1st paragraph, for the “injury” therein mentioned is not one occasioned by delay, but by delay caused by stress of weather and other specified mishaps. And the purpose of the 1st paragraph is not to avoid liability for negligence, but such liability as might arise upon the principle stated in Harmony v. Bingham ( 12 N. Y. 99, 107 ) and Lorillard v. Clyde ( 142 id. 456, 462). I think that the 2d paragraph does not contemplate only loss or damage arising from delay in delivery, such as, e. g., loss by a fall in market price, or failure to deliver to a consignee at a stipulated time. Its terms relieve the common'carrier from all loss or damages. sustained by unusual delay or detention caused by the negligence of said carrier, etc. I think that the sickness of cattle which impaired their value is a loss or damage within the intendment of the expression “loss or damages,” while the plaintiff pleads that the sickness, injury and damage were due to the negligent delay and detention.
The defendant could have relieved itself from all liability for negligence by special contract of explicit expression in unequivocal terms. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180 ; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 422.) If, instead of a contract for absolute immunity, it chose to except its liability for the actual expense of the shipper for food and water during a detention, the fact that this liability does not afford compensation in this case is not material in the construction of the contract. The appellant contends that the Words “ or otherwise ” must be returned to the word “ negligence,” so that the expression should read “ by the negligence of the said carrier or otherwise,” and thereupon argues that the sole purpose of the clause is not to provide for loss by negligence, But I construe the expression “ or otherwise ” as referring to negligence under the rule that the phrase “ or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. (People ex rel. Huber v. Feitner, 71 App. Div. 479 , and authorities cited ; affd. on opinion below, 171 N. Y. 683 .)
Judgment reversed and new trial granted, costs to abide the event.