Maslin v. Baltimore and Ohio Railroad Company. freight than $200, unless upon notice given of such amount and a special agreement therefor;" and no negligence on the part of the railroad company or its agents appearing, it was held that such contract as to the amount of the recovery was binding. In Kimball v. Rutland and Burlington Railroad Co., 26 Vt. 247, it was held that a common carrier may by special contract with a shipper so change his relations as to become a private carrier, and in such case he cannot be sued as a common carrier. In Illinois Central Railroad Co. v. Morrison, 19 Ill. 136, it was held that a common carrier might enlarge or diminish his liability by express contract, but not so as to exempt itself from gross negligence or willful misfeasance of duty. And the same was held to be the law in Illinois Central Railroad Co. v. Adams, 42 id. 474, in which case it was held that the failure of the conductor of a train to throw water on hogs being transported, which were in danger of dying from heat, was gross negligence, and no contract could protect the railroad company from liability therefor. In Hawkins v. Great Western Railroad Co., 17 Mich. 57, and 8. C., 18 Mich. 427, the court held, that a contract resembling the one in this case did not relieve the company, where the injury resulted from the insufficiency of the flooring of the cars and their breaking through during the transportation of the cattle, the contract being silent on the subject of the cars to be furnished; and that a suit against the company as common carriers was proper. In the B. & O. R. R. Co. v. Brady, 32 Md. 333, the court laid down the general proposition, that by express contract a railroad company may limit its responsibility as a common carrier, but says nothing about the effect of negligence on their part. These decisions and the dicta of judges in them give perhaps some countenance to the recent New York decisions; but the great mass of the American authorities are in direct and irreconcilable conflict with these recent New York cases. Thus in Pennsylvania it is settled by a long course of decisions that a common carrier cannot limit his liability so as to cover his own or his servant's negligence. See Farnham v. Camden and Amboy Railroad Co., 55 Penn. St. 53; Laing v. Colder, 8 id. 479; Camden ana Amboy Railroad Co. v. Baldauf, 16 id. 67; Goldey v. Pennsylvania Railroad Co., 30 id. 242; Powell v. Same, 32 id. 414; Pennsylvania Railroad Co. v. Henderson, 51 id. 315; Express Co. v. Sands, 55 id. 140; Empire Transportation Co. v. Wamsutta Oil Co., 63 id. 14; s. c., 3 Am. Rep. 515. And Maslin v. Baltimore and Ohio Railroad Company. we may observe, that the case of Pennsylvania Railroad Co. v. Henderson, above cited, was the case of a drover's pass and the contract stipulated for immunity in case of injury from negligence of its agents or otherwise. In Ohio by numerous decisions the law is settled, that a railroad company cannot by special contract exempt itself from liability for losses occasioned by its negligence or that of its servants. See Jones v. Voorhees, 10 Ohio 145; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 id. 362; Wilson v. Hamillon, id. 722; Welsh v. Pittsburgh and Fort Wayne Railroad, 10 id. 75; Cleveland Railroad Co. v. Curran, 19 id. 1; s. c., 2 Am. Rep. 362; Cincinnati Railroad Co. v. Pontius, 19 Ohio St. 221; Knowlton v. Erie Railway Co., id. 260; s. c., 2 Am. Rep. 395. In the case of Cleveland Railroad Co. v. Curran, above cited, it was held in relation to a drover's pass similar to the one in this case, that the holder was not a gratuitous passenger, and that in such case a contract exempting a company for loss by reason of the negligence of the company's servants would be void as contrary to pub lic policy. It approves of the Pennsylvania cases above cited on this subject. The main difference between the Pennsylvania and Ohio decisions is, that the former give to a special contract not in violation of public policy the effect of converting the common carrier into a special bailee for hire, whose duties are governed by the contract; and if negligence is charged, it must be proved by the party injured; whilst the latter hold, that the character of the carrier is not changed by the contract; but he is still a common carrier, with enlarged exemptions from responsibility, within which the burden of proof is on him to show proper care and diligence, when an injury occurs. The effect of this difference is to shift the burden of proof from one party to the other. This diversity between the decisions of these two States is pointed out by Justice BRADLEY in the Railroad Co. v. Lockwood, 17 Wall. 370. Reason and justice are with the Ohio decisions on this point of diversity from the Pennsylvania cases. In Maine it is held that a railroad company cannot by express contract exempt itself from responsibility for damages that may happen to cattle by their negligence, and that in such case it makes no difference, whether the negligence be ordinary or gross, such distinction in such case being untenable. See Sayer v. Portsmouth etc., R. R. Co., 31 Me. 228. 238. Maslin v. Baltimore and Ohio Railroad Company. The same views are held by the courts of Massachusetts. See School District v. Boston, etc., Railroad Co., 102 Mass. 552, 556; s. c., 3 Am. Rep. 502. There are also numerous other cases in other States which are referred to in Railroad Co. v. Lockwood, 17 Wall. 571, which are to the same purport. They are: Indianapolis Railroad v. Allen, 31 Ind. 394; Michigan Southern Railroad v. IIeaton, id. 397, note; Flinn v. Philadelphia, Wilmington & Baltimore Railroad, 1 Houst. 472; Orndorff v. Adams Express Co., 3 Bush, 194; Swindler v. Hilliard & Brooks, 2 Rich. 286; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247; Southern Express Co. v. Crook, 44 id. 468; s. c., 4 Am. Rep. 140; Whitesides v. Thurlkill, 12 S. & M. 599; Southern Express Co. v. Moon, 39 Miss. 822; New Orleans Mutual Ins. Co. v. Railroad Co., 20 La. Ann. 302. The Supreme Court of the United States, too, while holding that a common carrier for hire may exempt itself from certain commonlaw liabilities by a special contract, holds that it cannot exempt itself from responsibilities for any loss occasioned by any degree of negligence on its part or on the part of its servants. See New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. 383; Philadelphia & Reading Railroad Co. v. Derby, 14 id. 486; Steamboat New World v. King, 16 id. 469; York Company v. Central Railroad, 3 Wall. 107; Waller v. Transportation Company, id. 150; Express Company v. Kountz Bros., 8 id. 342; Railroad Company v. Lockwood, 17 id. 357. And in such a case there is no distinction between negligence and gross negligence as laid down in the last case cited. Precisely the same position is held by the Court of Appeals of Virginia. See Virginia and Tennessee Railroad Company v. Sayres, 26 Grat. 328. This was a case in which there was a special contract for the transportation of cattle in consideration of reduced charges and a free pass to the shipper. These authorities sustain the position that common carriers for hire by special contract, based on a valuable consideration, may exempt themselves from losses or damages resulting from inevitable accident, though such accident was not the result of the act of God or of the public enemy, provided the negligence of the common carrier or its servants in no manner contributed to such accident; but a common carrier for hire by special contract, though based on a valuable consideration, cannot exempt itself from loss Maslin v. Baltimore and Ohio Railroad Company. or damage which has in any degree been caused by his own negligence or that of his servants. This position is in consonance with the old decisions in England and New York; but the latter part of this proposition is opposed by the English decisions between 1832 and 1854 and by the recent New York cases; and this portion of the proposition is not sustained by a few scattering decisions in some of the States before referred to, and which, while not in direct opposition to it, may be regarded as to some extent conflicting therewith. The proposition is however fully sustained by the decisions in Pennsylvania, Ohio, Maine, Massachusetts, Indiana, Kentucky, South Carolina, Georgia, Alabama, Mississippi, Louisiana and Virginia, and also by the Supreme Court of the United States; and as controlled by this proposition, is the case of a drover travelling on a free pass to take care of cattle being transported for compensation. The railroad company being in such case considered as a common carrier for hire. This proposition is in opposition to New York decisions; but the law was settled in New York by a divided court and in opposition to a decision of the Supreme Court of that State, and not in consonance with a previous decision of the Court of Appeals of that State. But on the other hand this proposition is held to be true by the Supreme Courts in Ohio, Pennsylvania and Virginia, and by the Supreme Court of the United States. I have reviewed the authorities at some length, because there is a decision of the Supreme Court of Appeals of the State of West Virginia, which is in conflict with the views I have expressed and with the great weight of authority. In the case of the Baltimore & Ohio Railroad Co. v. Rathbone, 1 W. Va. 87, the court decides: "That it is competent for a common carrier to diminish and restrict his common-law liabilities by special contract; and that he may by express stipulations, absolve himself from all liability resulting from any and every degree of negligence however gross, if it falls short of misfeasance or fraud, provided that the terms and language of the contract are so clear and definite as to leave no doubt that such was the understanding and intent of the parties." This case was decided during the war. It was argued at some length, and no doubt all the authorities then accessible were examined by the counsel and court; yet few authorities were then accessible. The authorities referred to on this point by counsel were only the English and New York cases and the decisions of the Su Maslin v. Baltimore and Ohio Railroad Company. preme Court of the United States up to that time. The court in its opinion cites but a single case. We have seen that the recent New York and English cases are in conflict with the great weight of authority. A decision of such importance, rendered by a court under such disadvantageous circumstances, and in conflict with. both reason and the great weight of authority, though it be our own court, we cannot follow. The court in that case also drew a distinction between ordinary and gross negligence. In speaking of this distinction the Supreme Court of the United States in Railroad Co. v. Lockwood, 17 Wall. 382, 383, say: "We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence, which is due from a party, and which he fails to perform, than the amount of inattention, carelessness or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross carelessness. If very great care is due, and he fails to come up to the mark required, it is called slight negligence. And if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. "In each case, the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply negligence. And this seems to be the tendency of modern authorities (citing 1 Smith's Lead. Cas. (7 Am. ed.) 453; Story on Bailments, § 571; Wyld v. Pickford, 8 M. & W. 460; Hinton v. Dibbin, 2 Q. B. 66; Wilson v. Brett, 11 M. & W. 113; Beal v. South Devon Railway Co., 3 H. & C. 337; Grill v. Iron Screw Collier Co., L. R., 1 C. P. 600; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 id. 274)," to which I will add, Virginia & Tennessee Railroad Co. v. Sayers, 26 Gratt. 348. The Supreme Court adds: "If these cases seek to abolish the distinction of degrees of care, skill and diligence required in the performance of various duties and the fulfillment of various contracts, they go too far, since the requirement of different situations is too firmly settled and fixed in the law to be ignored or changed." The decided preponderance of authority is to hold a public car. rier bound, whenever it is shown, that the loss or damage is occa |