1862. HARRISON v. LONDON and BRIGHTON Railway Company. Railway Company (a); Austin v. The Manchester, Sheffield and Lincolnshire Railway Company (b); Carr v. The Lancashire and Yorkshire Railway Company (c).) Then, is the defence which would have existed before that Act defeated thereby? I think not, on two grounds; 1st, Because the 7th section of that statute has no application to this case; and, 2ndly, If the statute has any application thereto, because the condition in the contract of the plaintiff was just and reasonable. As to the first point, I am of opinion that the 7th section of the statute is confined in its operation to losses and injuries occasioned by misconduct on the part of the railway Company, and not to those occurring through pure accident. In the construction of this section, I differ from some of my brethren for whose opinion I have a very real respect, but I purposely abstain from expressing deference towards them or regret for myself, being sure that they regard only the interest of truth, and would desire that, if possible, I should make my opinion clear, though opposed to theirs. The enactment in effect runs thus. Every railway and canal Company shall be liable for the loss of or injury to any horse or thing in the carrying thereof occasioned by the neglect or default of such Company, notwithstanding any condition, &c., made by such Company to the contrary thereof, or limiting such liability; every such condition, &c., being hereby declared void. Then follow the provisoes, all of which qualify this enactment, except that relating to contracts in writing, which is a distinct matter. The section declares that the Company shall be liable (b) 16 Q. B. 600. (a) 13 Q. B. 347. (c) 7 Exch. 707. for the loss of an animal, occasioned by the neglect or default of the Company, and if the loss was not so occasioned, the section has no application. In common parlance, neglect or default would express culpable conduct. If the Legislature intended to provide for all loss, however occasioned, the words "loss occasioned by the neglect or default of the Company," would have no meaning, and no operation. The history of the section, as contained in all the judgments from Johnson v. The Midland Railway Company (a) downwards, shews that the Legislature, by the words "loss occasioned by the neglect or default of the Company," meant loss occasioned by culpable conduct, and not a mere failure to deliver occasioned by inevitable accident without any blame. All the Judges have agreed that the Legislature interfered on account of the interpretation put by the Courts on certain conditions imposed by railway Companies on customers, in relation to the carriage of live animals, to the effect that the Company would not be liable for any damage, however incurred. Although in each case the Company only sought to apply the condition reasonably, the Courts held that they claimed to be irresponsible "for negligence, however gross, or misconduct, however flagrant" (see M'Manus v. The Lancashire and Yorkshire Railway Company, on appeal (b); and these decisions created a panic, lest the Companies should inflict wilful injury and claim immunity. The evil, therefore, to be remedied was irresponsibility for negligence or other culpable conduct created by a condition, and the purpose of the Legislature was to apply a remedy for that evil. The exemption from liability had been claimed where animals had either been killed or injured. The contest (a) 4 Exch. 367. (b) 4 H. & N. 327. 1862. HARRISON V. LONDON and BRIGHTON Railway Company. 1862. V. LONDON and BRIGHTON Railway Company. was whether the Companies ought to be exempt from HARRISON liability for such damage, if caused by their culpable conduct; and the more minutely the section is examined the more clear does it become that every word of the enactment has a rational effect, if it is construed to take away that exemption and no more. It creates a liability, not for any loss in respect of the non-performance of the duty of carrier, which would include delay, detention, and other similar causes of complaint, but for the loss of or injury to a horse or other thing. The actions which are said to have caused this legislation being actions for injuries to horses. Further, it creates a liability for loss of or injury to a thing, not howsoever caused, but occasioned by the neglect or default of the Company, the contest being whether a Company could exempt themselves from liability for misconduct. Under this construction the statute would only come into operation where, in an action for the loss of or injury to a thing carried, the defence should be a condition exempting from liability. Then if the plaintiff shewed that the loss of or injury to the thing was occasioned by the neglect or default of the defendant, the condition would be void unless the proviso which follows the enacting clause applies. By this it is provided that nothing contained in the statute should prevent Companies from making sach conditions as a Court or Judge before whom any question relating thereto should be tried, should adjudge to be just and reasonable. The enactment is that the Companies shall not exempt themselves from liability for losses, &c., by any condition, and that any condition to the contrary shall be null. Then follows the proviso to this effect, viz., unless the Court or Judge before whom the trial is shall think such condition just and reasonable. The meaning is that it should be applied in the case above supposed as an answer to the replication either by way of rejoinder or otherwise; alleging that the said condition was just and reasonable. In this sense the statute was understood and applied by the parties and the Court in Simons v. The Great Western Railway Company (a). So the pleadings are framed, and, on demurrers to the replication and rejoinder, the Court before whom the contract was in question adjudged the fourteenth article to be unreasonable, and the fifteenth to be reasonable. By this construction this proviso has its proper effect of limiting the preceding enactment; and the discretional power of declaring such a condition, so used, to be just and reasonable within this proviso, is vested in the Court or Judge presiding at the trial in which it is brought forward, probably because the circumstances to which it is sought to be applied must be either in proof or capable of being put in proof to their satisfaction then. If the party sought to apply the condition unreasonably, as for the purpose of justifying wilful misconduct, the Court or Judge who had all the circumstances before them would be best qualified to adjudge that it was an unreasonable application. On the other hand, if it was sought to be used for exemption from liability for conduct which, though found to be actionable negligence, should appear to them to be culpa levissima, they might hold it to be a reasonable ground for exemption, taking into their account all the terms of the contract, as was done in respect of the 15th article, adjudged to be reasonable in Simons v. Great Western Railway Company (a). Contracts by railway companies applicable to all customers must be expressed in wide terms, capable of application to a countless variety of occasions. The Court or (a) 18 C. B. 805. 1862. HARRISON V. LONDON and BRIGHTON Railway Company. 1862. HARRISON v. LONDON and BRIGHTON Railway Company. Judge who presides at the trial in which the condition is sought to be used sees then the application that is contended for, and an adjudication upon an application of the condition to the circumstances of a particular case can only be judged of when that case is ripe for judg ment. In any other sense than this, a power to make contracts which the party cannot by possibility ascertain to be valid till an action has been tried, and the contingency of the test of justice in the mind of the Court or Judge who happens to preside has been ascertained, seems an illusory privilege; and if the Legislature intended that all the conditions of such general contracts as are required for the practical conduct of railways should be construed according to the application which the parties sought to make, rather than according to a perverted meaning which ingenuity might discover, the interest of truth would be promoted. The provisoes that follow, except as above excepted, have also the legitimate effect of qualifying the enactment. By the second proviso the liability for negligence thus created by compulsion is limited to a maximum of value, unless the customer pays a premium for insuring a higher value. By the third the burden of proving the value is thrown on the customer; and by the fifth the rights and liabilities created by the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68., are preserved. The fourth proviso, that railway and canal Companies can only bind a customer by a written contract signed, does not operate as a proviso, nor cohere with that which precedes nor with that which follows. It stands therefore as a separate enactment. The section thus construed fulfils the supposed purpose for which it was introduced; it combines with the law |