the animals to which the proviso in sect. 7 of The Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31., relates; and, per Wightman J., and the Exchequer Chamber, that the defendants had made themselves liable as common carriers for carrying the dog. 3. Held, per Cockburn C. J. and Blackburn J., that the conditions in the ticket were not just and reasonable within that section, in two respects: first, because the meaning of the ticket was, that if the value of the dog exceeded 5l., and its value was not declared, the Company would not be liable for loss or damage occasioned by their own negligence: secondly, because, in the absence of evidence by the Company shewing the contrary, the extra charge of 2 per cent. was excessive; and therefore, the conditions being void, the Company were liable, as common carriers, for the full value of the dog. But, per Wightman J., the meaning of the ticket was that the Company would not in any case be liable for loss or damage beyond 57. unless the value was declared, and that this was a reasonable condition; and that the Court had no means of ascertaining whether the extra charge of 2 per cent. was reasonable or not, and therefore the plaintiff was not entitled to recover more than 5. 4. Held by the Exchequer Chamber, Erle C. J., Williams and Keating JJ., and Channell B., reversing the judgment of the Queen's Bench (Wilde B. dissentiente), that, assuming sect. 7 applied to the case, the conditions in the ticket were just and reasonable within that section; because the effect of the first condition was not to exempt the defendants from liability for loss or injury occasioned by wilful wrong; and if it exempted them from responsibility for any negligence it was severable, and valid to exempt when there was no negligence; and it lay upon the plaintiff to shew that the extra charge in the third condition was exorbitant or unfair, and the question whether it was so was for a jury, and not for the Court. 5. Held by Erle C. J. and Keating J., that sect. 7 was confined to cases in which the loss or injury was occasioned by misconduct on the part of the Company, and did not apply where it occurred through pure accident. HE declaration stated that the defendants were the THE owners and proprietors of The London, Brighton and South Coast Railway, and common carriers of goods for hire on the said railway; and the plaintiff caused to be delivered to the defendants, and they accepted and received of and from the plaintiff, a certain dog, to wit, a retriever of the plaintiff, of great value, to be safely carried and conveyed by them as such common carriers from the defendants' station at London Bridge to Worthing, and there safely and securely to be delivered for the plaintiff within a reasonable time, for certain reasonable reward to the defendants in that behalf: Yet the defendants, not regarding their duty as such common carriers, did not nor would safely or securely carry or convey the [1860.] HARRISON v. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. said dog from the defendants' station at London Bridge to Worthing, and there deliver the same for the plaintiff; and by reason of the breach of duty, carelessness, negligence and default of the defendants in the premises, the said dog became and was wholly lost to the plaintiff: and the plaintiff claims 217. Pleas: 1. Not guilty. 2. That the plaintiff did not cause the said dog to be delivered to the defendants, nor did the defendants accept or receive the same of or from the plaintiff, upon the terms or for the purposes in the declaration in that behalf alleged. 3. That the plaintiff caused the said dog to be delivered to the defendants, and the defendants received the said dog from the plaintiff, to be carried and conveyed by the defendants in their railway, to wit, from and to the places in the declaration mentioned, under and subject to certain conditions and a certain contract, signed on behalf of the plaintiff by the person delivering such dog for carriage as aforesaid, whereby it was provided and agreed by and on behalf of the plaintiff, and whereby the defendants gave him notice, that the defendants should not nor would be liable in any case for loss or damage to any dog above the value of five pounds, unless a declaration of its value, signed by the owner or his agent at the time of booking, should have been given to them; and that the said dog in the declaration mentioned, before and at the time it was so delivered to and received by them for carriage as aforesaid, and afterwards while the same was on their railway for carriage, was a dog of a value above five pounds, to wit, of the value of ten pounds, and that no declaration of the value of the said dog signed by the owner or his agent was given to them at the time of booking the said dog, or at any time before or afterwards. 4. That the dog in the declaration mentioned was received by the defendants from the plaintiff, to be carried by the defendants for the plaintiff, on their railway, from their station in the declaration mentioned to Worthing, subject to a certain special contract, signed on behalf of the plaintiff by the person delivering the said dog for carriage as aforesaid, at the time of such delivery, whereby it was provided and agreed, and the plaintiff had notice, that the defendants should and would in no case be liable for injury to any dog, of whatever value, where such injury arose wholly or partially from fear or restiveness. And that the injury to the dog, whereby the same became and was lost to the plaintiff, as in the declaration mentioned, happened and arose from the fear and restiveness of the said dog while on the defendants' said railway for carriage as aforesaid. Issues on all the pleas. On the trial, before Lord Campbell C. J., at the Sittings in London after Hilary Term, 1859, a verdict was found for the plaintiff for 217. damages, subject to the following case. On the 29th October, 1858, the plaintiff, accompanied by his brother, Daniel Alfred Harrison, proceeded to the terminus station of the defendants at London Bridge, for the purpose of travelling as a passenger on the defendants' line of railway from London to Worthing. He took with him two horses and the dog mentioned in the declaration, to be conveyed by the defendants on their railway to Worthing, and delivered them to the defendants' servants for that purpose at the said station; and at the same time Daniel Alfred Harrison, on behalf of the [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. plaintiff, paid to the defendants the sum charged by them for the carriage of the two horses and the dog from London to Worthing; and also, at the request of the defendants, signed, at the time of booking the horses and dog, and as agent of the plaintiff, the owner thereof, a printed ticket or paper, in the form required by the Company to be signed by persons sending horses or dogs by their railway. The ticket was as follows: "London, Brighton and South Coast Railway. "Horse, carriage, and dog ticket. "Received the annexed ticket subject to the following conditions: "The Company will not be liable in any case for loss or damage to any horse or other animal above the value of 401., or any dog above the value of 57., unless a declaration of its value, signed by the owner or his agent at the time of booking the same, has been given to them, and by such declaration the owner shall be bound, the Company not being in any event liable to any greater amount than the value so declared. The Company will any horse or other in no case be liable for injury to declared value of any horse or other animal exceed 407., "The owner, or on the owner's behalf. "A. G. S., Booking Clerk." And at the same time a ticket was delivered to Daniel Alfred Harrison, as agent for such owner, which was a duplicate of the above. No declaration of the value of the dog was made. The plaintiff requested one of the porters in the service of the defendants to place the dog in the train, then about to proceed from London Bridge to Worthing, and to put it into a dog-box. The dog-boxes ordinarily used and furnished by the defendants for the carriage of dogs upon their railway are placed under the seats of the second-class carriages used by the defendants for the conveyance of passengers, of which dog boxes there were some in this train; but the porter suggested that it would be better to place this dog in the same horse-box in which the two horses of the plaintiff had been placed, and in which they were to travel on the journey from London to Worthing. The plaintiff made no objection, and the dog was accordingly placed in the same horsebox with the horses of the plaintiff, and fastened in the horse-box by means of a leather collar round its neck, and a strap thereto, which was passed through a ring fixed to the side of the horse-box: the collar and strap were furnished by the plaintiff, and were his property. The horse-box was attached by the defendants' scrvant [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. |