[1860.] HARRISON V. LONDON and BRIGHTON Railway Company. to the train, which started immediately afterwards, under the conduct of the defendants' servants. At the time when it left the London Bridge Station both the doors and windows of the horse-box were shut and fastened in the usual manner, and the plaintiff travelled as a first class passenger by the same train from London to Worthing. On the arrival of the train at the Worthing Station, it was found that the window of the horse-box was half open, and that the dog had escaped through it. The hook to which the dog had been fastened remained fixed in the horse-box, and the strap by which the dog had been fastened thereto remained fastened to the hook, but the collar was gone. The horse-box was one of those ordinarily used by the defendants for the conveyance of horses on their line of railway; opening with doors at the side, and with windows having wooden shutters, which slide backwards and forwards and are of light construction, either secured with a catch, or if not secured with a catch, made heavy and to work stiffly, which is a sufficient fastening. The shutters of the horse-box in which the dog was placed were not fastened, and opened very easily; the windows of it were about four feet four inches from the floor, and were about two feet six inches square, and for the purpose of opening them the shutters have a small hole sufficient to admit three fingers. None of the defendants' servants opened the window, nor did any of such servants see any one open it, but there is no doubt that the dog escaped through the window, and that, if placed in one of the ordinary dog-boxes above mentioned, he would not have escaped. The dog, which was a retriever, and of the value of 217., was lost by the means aforesaid; and the plaintiff, having applied to the defendants to make satisfaction for the loss, which they refused, brought this action. The plaintiff, amongst other things, objected that the condition relating to dogs above 57. in value, contained in the notice and ticket, was not just and reasonable, or binding on him; and that, if it were binding, it did not extend to a loss by negligence; and that in any case he was entitled to recover 5l. It was agreed that the Court might draw any inferences a jury might draw from the facts stated, and make any necessary amendments in the pleadings. The question for the opinion of the Court was, whether the plaintiff was entitled to recover in this action; and if the Court should be of opinion that he was, then the verdict was to stand for the plaintiff for 217., or 57., as the Court might direct; but if the Court should be of a contrary opinion, then the verdict was to be entered for the defendants. Joseph Brown, for the plaintiff.-First, the defendants. were guilty of negligence in two ways. They put the dog into a horse-box the window of which was not properly secured; and it has been decided in M'Manus v. The Lancashire and Yorkshire Railway Company, in error (a), that the providing an improper carriage for the conveyance of live stock is negligence in a railway Company. Also, they did not fasten the dog in a proper manner by a proper collar. And there was no negligence of the plaintiff contributing to the loss. He did not know that the horse-box was not a proper place for carrying the dog, and consequently there was no fault in his not objecting to it being put there; and he was not bound to provide a proper strap for fastening the dog in the horse-box. VOL. II. (a) 4 H. & N. 327. K B. & S. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. Secondly, assuming that there was no negligence in the defendants, they are not protected from liability by the signed contract, as it contains conditions which are unjust and unreasonable. Sect. 7 of "The Railway and Canal Traffic Act, 1854,” 17 & 18 Vict. c. 31., which was passed for the protection of the public, makes a contract with such conditions absolutely "null and void," and consequently the defendants remain liable to the plaintiff upon their common law liability as carriers. And by the first proviso it is for the Court to say whether the conditions of any contract are just and reasonable. [He also cited Simons v. The Great Western Railway Company (a), M'Manus v. The Lancashire and Yorkshire Railway Company, in error (b).] Reading the first and third conditions together, the meaning of the ticket which the plaintiff's agent was required to sign is that if the value exceed 57. the defendants will not be liable in any case for loss or damage unless the value be declared, and the extra charge on the declared value be paid. The ticket cannot be read as if it contained two separable conditions-one exempting the defendants from liability for their own negligence if the value is not declared, and the other as stating the terms on which they will be liable as insurers. Nor is it necessary to contend that, if the ticket contained two conditions, one of which was reasonable and the other unreasonable, the whole would be void. The condition which professes that the Company will not be liable "in any case for loss or damage," unless certain things are complied with, exempts them from liability (a) 18 C. B. 805. 829. (b) 4 H. & N. 327, 348, 349. for loss occasioned by their own negligence-it is the same as the protection given by the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68. s. 1.; Hinton v. Dibbin (a). This was the construction put upon such a contract; before stat. 17 & 18 Vict. c. 31., in Austin v. The Manchester, Sheffield and Lincolnshire Railway Company (b), Carr v. The Lancashire and Yorkshire Railway Company (c), Austin v. The Manchester, Sheffield and Lincolnshire Railway Company (d); and since stat. 17 & 18 Vict. c. 31., in Simons v. The Great Western Railway (e) and McManus v. The Lancashire and Yorkshire Railway Company (f), reversed, in error, Erle C. J. dissentiente. The second condition, as to fear and restiveness, applies only to a case of injury and not to a case of total loss; and even if that condition does apply to a total loss, there is no evidence that the escape of the dog from the carriage arose from fear or restiveness. [Blackburn J. MacAndrew v. The Electric Telegraph Company (g) shews that if a bonâ fide reasonable alternative is offered to the person bringing goods to be carried, there is nothing unreasonable in the Company saying that they will not be liable at all unless that alternative is complied with.] The alternative offered here by the third condition imposing an extra charge of 21 per cent. on the declared value for the carriage of a dog of above a certain value is unreasonable: it amounts to a prohibition against dogs exceeding 57. in value being carried on the defendants' line: add to which the charge is no more for (a) 2 Q. B. 646. (e) 18 C. B. 805. 829. (b) 10 C. B. 454. (d) 16 Q. B. 600. (f) 4 H. & N. 327. 348, 349. (g) 17 C. B. 3. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON and BRIGHTON a journey of fifty miles than for a journey of five miles. The onus of shewing that such a rate of charge is reasonable is upon the Company. Lastly, dogs are within the general words, "horses, cattle, or other animals," in sect. 7. There is no mention of poultry, deer, or asses, but they would be within the section. The proviso which limits the sums to be recovered in the case of certain specified animals does not restrict the operation of the general words in the enacting part of the section; so that the Company are able to protect themselves by reasonable conditions as to the carriage of other animals besides those enumerated in the proviso. The defendants publicly profess that they carry dogs, and therefore they are bound to carry them as common carriers; Johnson v. The Midland Railway Company (a). F. L. Spinks, contrà.-First, the Court will not draw the inference that there was negligence in the defendants. The plaintiff's agent assented to the dog being placed in the horse-box; and the probability is that the collar, which belonged to the plaintiff, was broken owing to its insufficiency, or by the dog under the influence of fear. Secondly, stat. 17 & 18 Vict. c. 31. s. 7., which does not apply unless there was "neglect or default," that is, culpable negligence, of the Company or their servants, does not deprive the defendants of the protection sought to be obtained by the conditions in the ticket. Looking at the substance of the contract contained in the ticket, the conditions are just and reason(a) 4 Exch. 367. |