Maslin v. Baltimore and Ohio Railroad Company.

limiting his responsibility even in the case of gross negligence, misconduct or fraud on the part of his servants. The cases from which Justice BLACKBURN deduces this conclusion, that this was substantially the holding of the English courts subsequently to 1832, are: Wyld v. Pickford, 8 M. & W. 443; Hinton v. Dibbin, 2 Q. B. 646 (46 E. C. L. 847); Shaw v. York and North Midland Railway Co., 13 Q. B. 347; Austin v. Manchester, Sheffield and Lincolnshire Railway Co., 16 Q. B. 600; Chippendale v. Lancashire and York River Railway Co., 21 L. J. (N. S.) Q. B. 22; Austin v. Manchester, Sheffield and Lincolnshire Railway Co., 10 C. B. 454; Carr v. Lancashire and Yorkshire Railway Co., 7 Exch. 707; Great Northern Railway Co. v. Morville, 21 L. J. (N. S.) Q. B. 319; York, Newcastle and Berwick Railway Co. v. Crisp, 14 C. B. 527; Hughes v. Great Western Co., id. 637; Slim v. Great Northern Railway Co., id. 647.

In the case of Carr v. Lancashire and Yorkshire Railway Co., 7 Exch. 70%, the defendant had received a horse to be carried for him in a horse box, subject to conditions at the foot of a ticket for the conveyance of a horse, in these words: "This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the company will not be responsible for any injury or damage (however caused) occurring to live stock of any description traveling upon the Lancashire and Yorkshire Railway Company, or in their vehicles." The horse was killed, as the jury found, by the gross negligence of the defendant. Yet the court held, that the plaintiff was not entitled to a judgment. Baron PARKE concluded his judgment thus: "It is not for us to fritter away the true sense and meaning of these contracts merely with a view to make men careful. If any inconvenience should arise from their being entered into, this is not a matter for our interference, but it must be left to the legislature, who may, if they please, put a stop to this mode which carriers have adopted of limiting their liability." This case was decided May, 1852.

In the case of Walker v. York and North Midland Railway Co., 2 El. & Bl. 750, decided in 1853, the facts were these: The defendant had caused notices to be served personally on a number of fishermen at Scarborough, stating that they would not carry fish except subject to certain conditions limiting their responsibility. The fishermen made much objection to this. The notices were torn up; and something of a riot occurred. The court instructed

Maslin v. Baltimore and Ohio Railroad Company.

the jury, that they might draw the inference from the service of the notice and the plaintiff subsequently sending the fish, unless the plaintiff had unambiguously refused to deliver the fish on the terms of the notice, and the defendant had acquiesced in that refusal. The verdict was for the defendant; and it was sustained by the Court of Queen's Bench.

The railroad companies under these decisions were enabled in a great measure "to evade altogether the salutary policy of the common law."

To correct this course of decisions Parliament enacted the 7th section of the Railway and Traffic Acts of 1854, which is found much fault with on account of its obscurity; but when these previous decisions are considered, the intention of the legislature seems clear enough. So much of this section as bears upon the present discussion is in these words: "Every such company as aforesaid shall be liable for the loss of, or for any injury done to, any horses, cattle, or other animals, to any articles, goods, or things, in the necessary forwarding and delivery thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made or given by such company contrary thereto, or in any wise limiting such liability, every such notice, condition or declaration being hereby declared null and void. Provided always that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding and delivering of any of the said animals, articles, goods or things as shall be adjudged by the courts or judges, before whom any question relating thereto shall be tried, to be just and reasonable. Provided also that no special contract between such company and other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods or things as aforesaid, shall be binding upon or affect any such party, unless the same be signed by him, or by the person delivering such animals, articles, goods or things, respectively, for carriage."

Much controversy has arisen in the English courts in construing this act, which is certainly inartificially drawn and badly expressed. Thus it has been said by some judges, that a condition incorporated in a signed contract was not within the enactment in the begin ning of this 7th section, etc. Pardington v. South Wales Railway Co., 1 H. & N. 392.

Maslin v. Baltimore and Ohio Railroad Company.

The true construction of this act is thus given by Lord Chief Justice JERVIS: "The fair meaning of this section, as it seems to me, is this: the first branch of it declares, that all notices, conditions and declarations made and given by the company shall be null and void, in so far as they go to relieve the company from liability for loss or injury to goods, etc., in the receiving, forwarding and delivery thereof, occasioned by the neglect or default of the company or its servants. But then it goes on to provide in the next branch, that this shall not prevent the company from making such conditions, which shall be adjudged by the court or judge before which any question relating thereto shall be tried, to be just and reasonable, and further though just and reasonable, such condition and special contract shall not be binding, unless signed by the per son sending or delivering the goods."

This construction was adopted by the Queen's Bench in Peek v. North Staffordshire Railroad Co., and by the Exchequer Chamber in McManus v. Lancashire & Yorkshire Railway Co., and was approved in Peek v. North Staffordshire Railroad Co., in the House of Lords. See 10 H. of L. 473. So construed, so much of this act as declared that the special contract made by the shipper with the common carrier relieving it from any portion of its commonlaw liability must be just and reasonable in law, or otherwise it should be void, was nothing but an affirmation of common-law principles as held prior to the recent English cases made after the year 1832.

Various decisions have been rendered in England since the passage of this act, as to what exemptions by special contract are justand reasonable. The act was passed specially with reference to those exemptions by special contract of all loss or damages by negligence of the servants of common carriers. This exemption under this act is of course unjust and unreasonable. But it is held, that there are other exemptions which are also unjust and unreasonable, and therefore void, though provided for by special contract.

I shall not review the English cases on this subject further than o state that in Peek v. North Staffordshire Railway Co., 10 H. of 473, it was held, that an exemption by special contract from loss or damage to marble chimneys, unless their value was declared, and they were insured, the rate of insurance being fixed at 10 per cent on their declared value, was an unreasonable and unjust exemption and therefore void.

Maslin v. Baltimore and Ohio Railroad Company.

In New York the same inconsistent course of decisions has been followed as in England. For a long time the New York courts resisted the attempts of common carriers to limit their common-law liability, except for the purpose of procuring a disclosure of the character and value of articles liable to extra hazard and risk (Cole v. Goodwin, 19 Wend. 257, and Gould v. Hill, 2 Hill, 623); they then advanced somewhat, extending the right of common carriers to exempt themselves from common-law liability by special contract, the position maintained by them then being thus stated by Judge CAMPBELL in Dorr v. New Jersey Steam Navigation Company, 4 Sandf. 136, decided in 1850. He says: "A common carrier has two distinct liabilities, the one for loss by accident and mistake, when he is liable as an insurer; the other for losses by default or negligence, when he is answerable as an ordinary bailee. It would certainly seem reasonable that he might, by express special contract, restrict his liability as insurer, that he might protect himself against misfortune, even though public policy should require that he should not be permitted to stipulate for impunity where the loss occurs from his own default or neglect of duty."

In apparent accord with these views were the decisions in the cases of Parsons v. Monteath, 13 Barb. 353, and Moore v. Evans, 14 id. 524.

In 1858 the Supreme Court advanced still further in the same direction, and held in Wells v. New York Central Railroad Co., 26 Barb. 641, that in case of a gratuitous passenger traveling on a free ticket a common carrier may stipulate against responsibility for negligence of its servants. And this judgment was affirmed by a majority of the Court of Appeals, 24 N. Y. 181. This decision was followed in Perkins v. New York Central Railroad Co., 24 id. 196; and it was held that this exemption might be extended to all kinds of negligence of its agents, gross as well as ordinary. A considerable controversy then arose as to whether a drover, who had a free pass to enable him to go with and care for his cattle, which were being transported for him, was to be regarded as a free passenger under this rule which had been laid down; and the judges were much divided in opinion on the question.

This controversy was decided by the judgment of the Court of Appeals in Bissell v. New York Central Railroad Co., 25 N. Y. 442, the majority of the court, four judges against three, holding that a drover in such case was to be regarded as a free passenger. VOL. XXXV-95

Maslin v. Baltimore and Ohio Railroad Company.

In this case they on this point reversed the decision of the case by the Supreme Court. See 29 Barb. 602. Nor was this decision in consonance with the decision in Smith v. New York Central Railroad Co. See 29 Barb. 132, and 24 N. Y. 222. Subsequent New York decisions have not only followed this decision, but have carried the right of a common carrier to exempt itself from its common-law liability still further; and it may now be regarded as settled in New York that a common carrier for hire may by special contract exempt itself from all responsibility or loss arising from the negligence of its servants, though this negligence be gross. See Poncher v. New York Central Railroad Co., 49 N. Y. 263; Cragin v. New York Central Railroad Co., 51 id. 61; s. c., 10 Am. Rep. 559; Magnin v. Dinsmore, 56 N. Y. 168; Steers v. Liverpool, New York and Philadelphia Steamship Co., 57 id. 1; s. c., 15 Am. Rep. 453.

But even in New York it is held that while a common carrier may stipulate for exemption from liability for losses occurring through his negligence, yet his contract will not be construed to contain such exemption unless it is so expressly agreed. Magnin v. Dinsmore, 56 N. Y. 168.

The New York cases were carefully reviewed by the Supreme Court of the United States in Railroad Co. v. Lockwood, 17 Wall. 35, and the modern New York cases were disapproved.

There are cases in some of the other States in which dicta of judges and some decisions either follow or favor more or less these modern New York decisions. In Ashmore v. Pennsylvania Steam Towing Transportation Co., 28 N. J. 180, the question we are considering was much discussed, but a decision of it, the court considered, was not properly involved in the case, and it was therefore waived. And in Kinney v. Central R. R. Co., 32 N. J. 407; 34 id. 513; s. c., 3 Am. Rep. 265, it was decided that a contract that in consideration of a free passage a passenger will assume the risk of injuries to his person from the negligence of the servants of a railroad company is valid in law, but the court expressly waives deciding whether such a contract with a passenger who paid fare would or would not be valid.

In the case of Lawrence v. New York, Providence and Boston R. R. Co., the special contract contained in the bill of lading provides "that no responsibility will be admitted under any circumstances to a greater amount upon any single article of