in the conveyance of the article. But when the ticket Consequently the defendants have failed to shew a good condition, on which alone stat. 17 & 18 Vict. c. 31. authorizes them to restrict their common law liability; and the ticket by which they sought to restrict their liability failing, they are altogether unprotected against the claim of the plaintiff in respect of the loss, just as if they had contracted to carry as common carriers without any notice. Therefore the plaintiff is entitled to recover the full value of his dog independently of any question of negligence. I think that stat. 17 & 18 Vict. c. 31. s. 7. was intended to afford relief to the public against the decisions under which these great Companies protected themselves by requiring tickets to be signed by persons bringing things to be carried; and that the Legislature, looking to the new mode of conveyance introduced into [1860.] HARRISON v. LONDON and BRIGHTON Railway Company. [1860.] HARRISON v. LONDON and BRIGHTON Railway Company. the country, and to the monopoly which is in the hands of these Companies, to whom great powers are given; and, considering that the public, bringing things to be carried, must submit to sign the tickets presented to them, determined that these Companies should not have the advantage accruing to them from this extraordinary state of circumstances, and that they should not have the same power which other persons who contract to carry have of making their own bargains and stipulations; but should be subjected to this restraint, that if they impose terms upon their customers those terms must be such as a Court or Judge shall think just and reasonable. WIGHTMAN J. The plaintiff has obtained a verdict for 21., as the value of a dog which was to be carried by the defendants on their railway, and was lost. It is hardly necessary to enquire whether the loss was occasioned by negligence on the part of the Company or not; because the declaration does not charge that the defendants were guilty of negligence, but that they were liable upon their common law duty as common carriers safely and securely to carry and deliver the dog. If that be so, the case stands thus-a common carrier is only bound to carry goods of that description which his ordinary calling requires him to carry; and dogs are not such a description of goods as at common law carriers might be required to carry. But the Company may have so conducted their business as to agree to carry dogs like any other descriptions of goods, in which case the common law liability of common carriers would attach, unless that is restricted by any circum stances peculiar to their dealing with that particular species of property. The question is, whether in this case circumstances have not arisen to qualify the general liability of the defendants as common carriers. Now, although the Company have made it part of their dealings with the public, when carrying as common carriers, to carry dogs, yet they have always done so upon special terms and conditions; and then the question is, whether the special terms and conditions are such as exempt them from being liable to the extent which this verdict would charge them, viz., the full value of the dog, 21. The contract between the parties upon which the Company rely is this. [His lordship read the first condition of the ticket (a).] The question is, whether this contract is valid or not. It may be that if the plaintiff had brought his action alleging his dog to be of the value of 57., he might have recovered in that action. The common law liability would attach unless restricted by this contract. But the other conditions of the ticket are. [His lordship read them (a).] The Company do not say, "We will not carry any dog unless a declaration of value is made, and there be paid 2 per cent. upon the declared value, as for insurance;" but they say, "We will be liable only to the extent of 51." The plaintiff can send his dog to Worthing without a declaration, paying 3s., or whatever the charge for carriage may be, and he may run the risk if it be of greater value than 57. But he pays the smaller sum, and then he is in the position of his own insurer. If he wishes to make the Company responsible to a greater extent than 57. in case the dog is lost, he must then under the third condition (a) See ante, p. 126. VOL. II. L B. & S. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. (which seems to me for this purpose separable from the first) declare the value, and pay at the rate of 2 per cent. Whether that be a reasonable or unreasonable rate he has not the means of ascertaining, nor do I see how the Court can ascertain it, though there may be insurance Companies which insure at a less rate. But it seems to me that there is nothing so unreasonable in this special contract which is contained in the ticket offered to persons bringing a dog to be carried, and which the plaintiff by his agent's signature adopted, as should induce me to consider that the defendants have not a good defence to this action. I think the plaintiff might, if he chose to be his own insurer to any extent beyond 51., nevertheless have succeeded in an action against the Company to the extent of 51. But since he chooses to charge the Company as insurers to the full amount, I think he is bound by this contract, in which there is nothing flagrantly unjust, and the Company are protected on the ground that they are only insurers to the extent of 57.; as he has not chosen to declare the value, and make them insurers to a greater amount by paying the extra charge of 21 per cent. As the plaintiff sends his dog without making any declaration of value, and does not pay the extra charge, the Company are only liable upon the previous part of their undertaking. I think the one condition is severable from the other. For these reasons, I am of opinion that the verdict for the plaintiff for 21. cannot be sustained; but that it ought to be entered for him for 51. CROMPTON J. had gone to chambers. BLACKBURN J. I agree with the Lord Chief Justice that the plaintiff is entitled to recover the full amount of the verdict for 217. This being a case in which we are to draw inferences of fact, I do not think the facts are enough to shew that the Company were guilty of any negligence causing the loss of the dog. Nor do I draw the inference that the plaintiff was guilty of negligence conducive to the loss of the dog, which might have been a defence to the action. I infer simply that the dog was casually lost in the course of the journey. Also, I find nothing to lead me to the conclusion as an inference of fact that the dog was lost from fear or restiveness. In my view, it is not necessary to consider whether the conditions are severable or not, because the Court has power to amend the pleadings as it thinks fit. The question therefore is, whether the Company, having received the dog to be carried under the ticket, are answerable for the loss of it during the journey, arising from a casualty for which neither the plaintiff nor the defendants are blameable. That depends on the construction of the ticket, as regulated and affected by "The Railway and Canal Traffic Act, 1854," 17 & 18 Vict. c. 31. Before the passing of that Act a series of cases, among which were Austin v. The Manchester, Sheffield and Lincolnshire Railway Company (a), in the Common Pleas, and Carr v. The Lancashire and Yorkshire Railway Company (b), in the Court of Exchequer, decided that where a railway Company had made a contract contained in a ticket similar to the present, in which it was stipulated that they should not be answerable for any accident, however caused, the contract bound the parties, and the Company were not answerable for any loss or (a) 10 C. B. 454. (b) 7 Exch. 707. [1860.] HARRISON V. LONDON and BRIGHTON Railway Company. |