for damage or loss to any article by fire," the stipulation is made on the legal implication that the carrier cannot reap the benefit of it, where the loss occurs through his negligence, even by the agency of fire. The terms of exemption are to be carried into effect, without enlarging their true scope and meaning.2

§ 563. While the effect and mode of enforcing contracts differ but slightly in the different States, we find quite recently a decided current of opinion, denying to the common carrier the right to make conditions and stipulations inconsistent with the principal contract. The doctrine assumes the form of these distinct propositions: 1, that a common carrier cannot lawfully stipulate for exemption from responsibility, when such exemption is not just and reasonable in the eye of the law; 2, that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants; 3, that these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter; 4, that a drover travelling on a pass, for the purpose of taking care of his stock on the train, is a passenger for hire.3

A carrier's agreement to carry and deliver goods for hire, with a stipulation on his part that he is not to be held liable for their loss by the negligence of his servants, has on the face of it a double and doubtful look. An individual would scarcely propose such a contract. "It would require a man of a good deal of effrontery to ask another to insert in his contrac for performing a service, a clause permitting him to be negligent in its performance, and relieving him from all liability for the injuries which his gross negligence might occasion; and the man who would insert such a clause in the contract would be a fit subject for a committee to take charge of his person and property."5.

1 Steinweg v. The Erie Railway, 43 N. Y., 123; York Co. v. Cent. R. R., 3 Wallace, 107.

2 Gleadell v. Thompson, 56 N. Y., 194; Guillaume v. Hamburgh & Am. Packet Co., 42 N. Y., 212; 46 N. Y., 271.

3 Railroad Company v. Lockwood, 17 Wallace, 357 384. The opinion in this case by Mr. Justice BRADLEY contains an elaborate review of modern decisions, and his conclusions were concurred in by the unanimous judgment of the court; and wero afterward reaffirmed in Railroad Company v. Pratt, 22 Wallace, 123, 131; see Henderson v. Stevenson, 13 English (Moak) R., 141, and note, 152.

4 Commonwealth v. Vt. & Mass. R. Co., 103 Mass., 7. Here, under an indietment of the railroad company for causing the death of a passenger by its gross negligence, a like scipulation for exemption was treated as a nullity.

Judge MASON, interpreting a contract to tow a boat at the risk of the owner of it: 8 N. Y. (4 Seld.), ♬ts, 339. Judge SHARSWOOD throws the contract into

§ 564. Under the line of English decisions giving effect to the carrier's notice, prior to the statute already mentioned, the carrier was not allowed

this form: "We do not undertake to tow the boat as we ought." 69 Penn. St., 36.

Graham & Co. v. Davis & Co., 4 Ohio St., 262. The carrier may exonerate himself by a special contract from liability for losses arising from causes over which he has no control and to which his own fault or negligence does not in. any way contribute; but he cannot relieve himself from responsibility for losses caused by his negligence or want of care and skill. "The dangers of river navigation, fire and unavoidable accidents excepted ;" under a bill of lading containing this exception, after the plaintiff proves a non-delivery of the goods, the carrier must show a loss within the terms of the exception, and that proper care and skill were excrcised to prevent the loss.

Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St., 1 (A. D. 1869). Curran rode in a car on a drover's pass, having indorsed upon it these words: "The person accepting this free ticket assumes all risk of accident, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket, and agrees that as for him, he will not consider the company as common carriers, or liable as such." And the court held that the stipulation exempting the company from liability for negligence, was against the policy of the law and void. Penn. R. Co. v. Henderson, 51 Penn. St., 315; see Knowlton v. Erie R. Co., 19 Ohio St., 260. In Illinois (Ill. Central R. R. Co. v. Reed, 37 Ill., 484), carriers are not permitted to exempt themselves from liability, by a special contract, for willful inisfeasance or gross negligence by itself or by its agents and servants.

Mann v. Birchard, 40 Vt., 326. A railway company cannot in this State so limit its responsibility that it can carry freight for a reward, and at the same time not be liable for a failure to exercise ordinary care in the business. In Lancaster Co. National Bank v. Smith, 62 Penn. St., 47, 55, the court held that a bailee cannot stipulate against liability for its own negligence; and in Wolf v. Western U. Tel. Co., 62 Penn. St., 83, that a carrier may limit his responsibility by express contract, when it does not cover neglect of duty. In Empire Transp. Co. v. Wamsutta Oil Co., 63 Penn. St., 14, the court again holds that a carrier cannot by notice or limitation in a contract or bill of lading, protect himself from liability for the negligence of himself or his servants; and in Colton v Cleveland & Pittsburgh R. Co., 67 Peun. St., 211, it was held that an exception of losses by fire in a bill of lading, did not excuse the carrier where the fire occurred through his negligence. 63 Penn. St., 33; American Ex. Co. v. Second Nat. Bank, 69 Penn. St., 394, A. D. 1871, the doctrine is again asserted that common carriers cannot so limit their liability by special notice or contract as to relieve themselves from the consequences of their own or their servants' negligence.

In Illinois, it is adjudged contrary to good morals and public policy that' common carriers should be allowed to stipulate against their own gross negligence or that of their employees, or their willful defaults. Ill. Central R. R. Co. v. Adams, 42 Ill., 474, 488. They are not allowed to relieve themselves from reasonable care and diligence. Adams Ex. Co. v. Stettauers, 61 Ill., 184; York

to exempt himself from liability for losses caused by gross negligence on the part of himself or his servants.1 And the custom was to submit the question to the jury as one of fact;2 giving them the liberty to hold the carrier liable for the want of that reasonable care and skill which may properly be expected from him.3

Under the statute of 1830 the carrier is allowed to make a special contract for the carriage of goods, with the same freedom as he might prior to its passage; and there is nothing in the statute to increase his freedom in the making of special contracts. He is obliged under the

4

Co. v. Central R. R. Co., 3 Wallace, 113; Farnham v. Camden & Amboy R. Co., 55 Penn. St., 58; the carrier's stipulation will not relieve him from liability for actual carelessness, as where he has a choice of two routes and one of them is dangerous, and he goes by that one and loses the property. Ex. Co. v. Kountze, 8 Wallace, 342, 352.

School District v. B., H. & Erie R. Co., 102 Mass., 552; here the court holds that a special contract to carry castings at the shipper's risk of injury during the transportation, does not exempt the carrier from liability for injuries to the goods arising from negligence. And in the N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344, 383, the Court holds that a stipulation by the carrier that the property shall remain at the shipper's risk, does not exempt the carrier from liability for willful misconduct, gross negligence, or want of ordinary care, relating to the ship, her equipments, and furniture, and management.

Ind., Pittsburgh & C. R. R. Co. v. Allen, 31 Ind., 394. A common carrier is not allowed to contract against liability for loss arising from his ordinary neg ligence; the stipulation is void as against public policy. He is not permitted to shield himself by agreement from liability for the loss of goods arising from his own negligence, or from the negligence of his agents and servants. He can no more stipulate for a slight degree of negligence, than for gross negligence. Michigan S. & N. I. R. Co. v. Heaton, 37 Ind., 448. The principal contract is not to be defeated by exceptions. Great Western R. Co. v. Hawkins, 18 Mich., 427.

Sager v. Portsmouth, S. & P. & E. R. R. Co., 31 Maine, 229. The Court discusses the doctrine of notice, and holds that no notice or contract will exonerate a common carrier from liability for damage, occasioned by his negligence, or misconduct. In Fillebroun v. The Grand Trunk R. Co., 55 Maine, 462, the doctrine of notice is admitted, whero the party delivering the goods assents to the terms proposed; and the Court cites Buckland v. Adams Ex. Co., 97 Mass., 125. It must appear that the party delivering the goods assented to the exemption. Adams Ex. Co. v. Haynes, 42 Ill.,89.

1 Birkett v. Willon, 2 B. and A., 356; Beck v. Evans, 16 East, 244; 3 Camp., 267; Bodenham v. Bennett, 4 Price, 31; Smith v. Horne, 2 Moore, 18; 8 Tannt., 144; Garnett v. Willon, 5 B. and A., 53; Sleat v. Fagg, 5 B. and A., 342; Beckford v. Crutwell, 5 C. and P., 242; Riley v. Horne, 5 Bing., 217.

2 Duff v. Budd, 6 Moore, 469; 3 B. and B., 177; Batson v. Donovan, 4 B. and A., 21.

3 Beal v. South Devon R. Co., 3 H. and C., 337; 12 W. R., 1115.

• Ante § 555; 1 Wm. IV. and 11 Geo. IV., ch. 68.

statute to accept and carry goods when tendered to him; and he is at liberty to demand full freight for their transportation according to their value; and he may prescribe by express notice to the party delivering goods, belonging to the enumerated class, the terms on which he receives them, which will amount to a special contract. Receiving goods. in this manner, he is held bound to take ordinary care of them.2 The fourth section of the statute, covering goods not enumerated, was interpreted as applying only to public notices given by the carrier.3 And in respect to the goods enumerated in the first section, delivered without declaring their value and paying the insurance rates on them, the carrier was exempted from liability for the loss of them through or by means of any degree of negligence on the part of himself or his servants.* Under this interpretation of the statute, the English decisions leave parties sending packages without declaring their value and insuring them, without much protection; they make the carrier liable for a loss of a package by the misconduct of servants, only when the injury or loss arises from the felonious act of his servant.5

G

§ 565. From an early day the carrier has been exonerated by notice and without notice, from liability for the loss of goods and parcels delivered to him in such a manner as to withdraw attention from their true nature and value: as where a merchant packs a trunk with silks and other fine goods of great value, and delivers it to the carrier without calling his attention to its contents; or where the carrier has given notice that he will not be answerable for parcels of value unless entered and paid for as such, and the owner with a knowledge of this, delivers a parcel containing bank notes to a large amount, without informing the carrier of its contents: or where the owner delivers a box or a valise containing money, to a carrier without in any manner calling his attention to its value, so as to insure proper care of it; or where the owner

Pickford v. The Grand Junction R. Co., 8 Mees. and Wels., 372.

2 Wyld v. Pickford, 8 Mees. and Welsby, 443.

3 Walker v. York & North M. R. Co., 2 Ell. and B., 750; 22 Eng. L. and Eq., 315.

4 Hinton v. Dibbin, 2 Q. B., 646; 2 Adolph. and Ellis, N. S., 646. Lord Denman interprets the statute by a full consideration of the different sections, finally giving full effect to the broad language of the first section.

Section 8; Hearn v. London & South W. R. Co., 10 Exch., 793 ; 29 Eng. L. and Eq., 494.

6 Pardeo v. Drew, 25 Wend., 459.

Batson v. Donovan, 4 Barn. & Ald., 21; and Marsh v. Horne, 5 Barn. & Cres., 322; Harris v. Packwood, 3 Taunt., 354; Levi v. Waterhouse, 1 Price R., 280. Ante § 529, 530.

8 Chicago & A. R. R. Co. v. Thompson, 19 Ill., 578.

delivers to the carrier a diamond pin, in a box, in such a manner as to induce him to regard the contents of the box as of trifling value;1 or where a carrier is engaged in transporting and delivering letters, and receives one containing an article of special value without any notice of its contents or value:2 or where things of great value are packed in a box so as to give the impression that it is of little value, and thus delivered to the carrier.3 The use of any means or artifice of such a nature as to mislead the carrier, will relieve him from any liability beyond the apparent value of the article.

Under a special acceptance by the carrier, limiting his liability to the sum of fifty dollars unless specially insured and receipted, the owner delivering a package worth over two thousand dollars without disclosing its contents, is not permitted to recover the value of the parcel, on showing a loss of it by ordinary negligence on the part of the carrier. The shipper's silence in regard to its value, on delivering the parcel, is fraud in law, sufficient to preclude a recovery. By agreeing with the carrier on a limited liability, he does in effect represent the package as an ordinary article; he indicates his judgment in respect to the care required in its transmission; he treats it, he pays the charges on it as a thing of little value; and, under the circumstances, without regard to his actual intent, his concealment of its value amounts to a fraud in law upon the carrier.4

§ 566. Under ordinary circumstances, a general exemption from liability is not construed to exonerate a carrier from losses by negligence or misconduct on the part of himself or his servants. Embodied in a receipt given for the goods, it is to be construed most strictly against the carrier; and where the language will permit, he is to be held chargeable with losses by negligence, notwithstanding general words of exemption; as that the parcel or goods are carried at the risk of the owner. Affirming the right of the carrier, a corporation, as the courts

'Southern Ex. Co. v. Everett, 57 Ga., 688.

2 Hayes v. Wells, 23 Cal., 185.

3 Warner v. Western Transp. Co., 5 Robt., 490.

* Magnin v. Dinsmore, 62 N. Y., 35. The opinion by FOLGER, J., contains a full review of the authorities bearing on the subject. S. C., 56 N. Y., 168. Ante 561; §§ 529, 530.

5 Magnin v. Dinsmore, 56 N. Y. 163; Oppenheimer v. U. S. Express Co., 9 Albany Law Journal, 187; Stedman v. Western Transp. Co., 48 Barb., 97; Hooper v. Wells, Fargo & Co., 5 Am. Law Reg. (N. S.), 16.

6 Guillaume v. Hamburg & Am. Packet Co., 42 N. Y., 212.

7 Westcott v. Fargo, 6 Lansing, 319; S. C., 61 N. Y., 542; cited with approbation in Magnin v. Dinsmore, supra, 56 N. Y., 163, 174; School District v. B., H. & Erie R. Co., 102 Mass., 552; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How.