[1860.] HARRISON v. LONDON and BRIGHTON Railway Company. of stat. 17 & 18 Vict. c. 31. applies to all animals usually carried on a railway; the proviso must be read as if the words were "any of the animals hereinafter mentioned." There is the same reason for protecting the public with reference to the conveyance of dogs, poultry and asses, as other animals. Then the onus of shewing the reasonableness of the extra charge is on the defendants— all the circumstances are peculiarly within their knowledge-they can tell how many dogs on an average they carry in a given period, and how many on an average are injured, and to what costs and expences they are put. [Wightman J. If the Company make an unreasonable extra charge, might not a person who had declared the value offer a reasonable sum, and require them to carry at that rate?] If the plaintiff had refused to pay the extra charge, the Company would not have carried this dog. Lyon v. Mells (a) was decided before the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68., under which carriers may limit their responsibility even in case of negligence. In Phillips v. Clark (b) the stipulation was not that the carrier would not be responsible for leakage or breakage "in any case," or "however caused." COCKBURN C. J. I am of opinion that our judgment ought to be given for the plaintiff. At the same time I think it right at the outset to say that, upon the facts stated in this case, we should not be justified in drawing the inference that there was actual negligence on the part of the Company. My judgment proceeds upon the ground that the ticket by which the Company proposed to convert their common law contract into a special one (b) 2 C. B. N. S. 156. (a) 5 East, 428. is void, and that therefore their liability is that of common carriers at common law, unrestricted by the terms introduced into the ticket. Before stat. 17 & 18 Vict. c. 31., a railway Company could have restricted their liability as carriers at common law by entering into special contracts. The case cited by Mr. Brown, decided on the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68., and the cases decided independently of that Act with reference to special contracts entered into by railway Companies, establish the proposition that it was open to them to restrict their liability by notices within much narrower limits than those to which it extends at common law. But the consequence of those decisions was that the Legislature interposed. They thought (and I cannot but think wisely) that railways being in many instances the only means of carrying goods which modern convenience admits of, it would be for the public benefit to interfere by no longer permitting railway Companies to maintain, as they had succeeded in doing, the broad proposition, "We will by contract exempt ourselves from liability for our own negligence." Accordingly stat. 17 & 18 Vict. c. 31. s. 7., on which the question in this case arises, was passed. That section enacts in substance that it shall not be competent for a railway Company to limit their liability in respect of loss or injury arising from their own negligence, unless the circumstances under which they seek to restrict their liability make it just and reasonable for them to do so: and the conditions must be such "as shall be adjudged by the Court or Judge, before whom any question relating thereto shall be tried, to be just and reasonable." The first question is, whether this case is within sect. 7 of stat. 17 & 18 Vict. c. 31. It was ingeniously put by [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON Mr. Spinks that a dog is not one of the animals to which sect. 7 relates. On looking at the strange phraseology of the section, there may be some little doubt whether and it can be satisfactorily concluded that it does embrace BRIGHTON Railway this case; but to avoid the inconsistencies into which Company. one would be driven by an adherence to the literal language, the better way is to take refuge in the solution suggested by my brother Blackburn during the argument, that the proviso specifies compensation for the loss of or injury done to "any of the following of such animals ;" and this will give a reasonable construction to the section. If so, a dog is within this section; and then the next question which arises is, was it intended by the Company, by means of this notice, which was given with a view to limit their liability with reference to the carriage of a dog, to secure to themselves immunity if damage should arise from their own negligence? I think the language of the notice is quite wide enough to admit of that construction: the words "in any case" comprehend the case of negligence. But this does not rest on first impression. Our attention has been drawn to several instances in which, under the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68., and since, notices in this general form have been held to be applicable to loss or injury from negligence. Therefore the Company, by this ticket, did intend to protect themselves, in respect of the carriage of the dog, from liability for loss or injury arising from their own negligence. Consequently the case is within sect. 7 in these two respects. Then the question arises, is the notice reasonable? I think that several considerations make it unreason able. The Company are to be liable for loss or injury "notwithstanding any notice, condition or declaration made and given by such Company contrary thereto, or in anywise limiting such liability," if occasioned by the neglect or default of the Company or its servants. Then follows the proviso 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 Court or Judge, before whom any question relating thereto shall be tried, to be just and reasonable." The qualification or proviso on the previous enactment is, that the Company may limit their liability by conditions, which the Court or a Judge shall adjudge to be reasonable. I think that the burden lies upon the Company of making out the affirmative of the proposition that the conditions, which they seek to introduce, for limiting their liability in respect of negligence, are reasonable. What then are the facts? The charge is 3s. for the carriage of a dog of the value not exceeding 57., and if the value exceeds 57., they put on 24 per cent. on the value beyond 5l., or 6d. in the pound, which would make the charge two-thirds higher in amount than the ordinary charge for the carriage of a dog. At first sight, that looks like an excessive and exorbitant additional charge, though it may not be so. The Company could not charge 3s. for carrying a dog under the value of 51. and 11s. for a dog above the value of 57. I presume that there is a maximum rate of charge, and that the charge of 10s. would be much above the maximum charge which they could make; if not, our attention [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. would have been drawn to it. Mr. Spinks argued that the extra charge was in the nature of insurance. It may be, that, under special circumstances connected with the conveyance of dogs, 2 per cent. would not be excessive as insurance; but, in the absence of evidence on the part of the Company, it being incumbent on them to make out the reasonableness of the extra charge stated in the condition, by which their liability is to be limited, I cannot adjudge that this condition is a reasonable The effect is, that the condition precedent, imposed by the Legislature on railway Companies proposing to exempt themselves from their liability as carriers at common law, is not fulfilled, and therefore the ticket is void. one. Mr. Spinks, who argued the case very ably for the Company, also argued that the conditions in the ticket were divisible, and that the first condition was reasonable; which amounted to this, that if the dog was of less value than 5%. a declaration of the value need not be made, but that if it was of more value than 57. a declaration of the value must be made and signed by the owner or his agent on booking it, otherwise the Company would not be liable in any case to a greater amount than the value declared. If the ticket stopped there, and this condition stood alone, I do not know that it might not be a reasonable condition. When the value of an article of the same kind varies materially, it be reasonable that the carrier should be entitled to call upon the person desiring to have it conveyed to declare the value, in order that he may take such extra care as shall insure him against the contingency of being called upon to make good loss or damage occurring may |