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[1860.] HARRISON H
Then arise two questions, “What is the construction of the ticket ?” and “ Is the condition reasonable or unreasonable ?”
I cannot think that the statute does not apply to dogs as well as horses. Sect. 7 says, “every such Company as aforesaid shall be liable for the loss of, or for any injury done to, any horses, cattle, or other animals, or to any articles, goods, or things.” Words could hardly be devised more comprehensive to include animals and things usually carried by railway Companies. It is true that the subsequent proviso, awkwardly limiting the amount to be recovered for injury to certain animals, omits “dogs ;” and it is argued that we are to read the enactment with that proviso, and then damages would not be recoverable for injury to any animals except those enumerated in the proviso. But I do not think that that proviso restricts the generality of the words in the enactment. I think that we must put a reasonable construction upon the proviso, and read the words “any of such animals beyond the sums hereinafter mentioned,” as "such of the animals as hereinafter mentioned beyond the sums following.” Then a dog is as much within the statute as a horse. The point, whether a live animal, being a new species of things to be carried, was an article to the carrying of which the common law liability of a carrier attached, which had been thrown out by Parke B. in Carr v. The Lanca hire and Yorkshire Railway Company (a), arose direcily in M Munus v. The Lancashire and Yorkshire Railway Company (1), and was noticed in the judgment of the Court (p. 702). I argued the case as counsel for the plaintiff, and I looked for authorities which might bear upon the point, but found none. It is sufficient to say that the decision of (a) 7 Exch. 707.
(5) 2 H. 4 1. 63.
the Court of Exchequer Chamber was, that the railway Company were responsible for the carriage of a live animal; in that case it was a horse; and that decision bears upon the present case, if the condition is unreasonable.
The condition laid down in the ticket is, that “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 51., 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.” And afterwards it is stated, “ If the declared value of any horse or other animal exceed 401., or any dog 51., the price of conveyance will, in addition to the regular fare, be after the rate of 21 per cent., or 6d. in the pound, upon the declared value above 401. [or 51.].” I cannot construe these as not being parts of the same condition. And if the Act had not passed, I should have been obliged to construe the ticket as containing this contract between the railway Company and a person bringing a dog above a certain value to be carried, “It shall not be at any risk to the Company, unless the value is declared, for the purpose of regulating the extra charge to be made thereupon.” Then, is this extra charge reasonable? I say this; because some extra charge may be reasonable. Looking at Simons v. The Great Western Railway Company (a), where it was decided that a condition, that the Company were not to be responsible for any loss or damage in the case of goods conveyed at a special or mileage rate, was just and reasonable; and coupling that with MacAndrew y. The Electric Telegraph Company (b), and the other cases (a) 18 C. B. 805.
(6) 17 C. B. 3.
referred to in the argument, which supply the key to the decision of the Court in the first mentioned case, I think that a condition is reasonable and proper which meets the evil of the monopoly possessed by railway Companies, and which gives persons applying to them a bonâ fide alternative of paying the extra rate of charge, or doing something which is reasonable. But I construe this ticket as saying, that if there is no declaration of value, the Company will not be liable in any case for loss or injury to any animal if the value is more than 51. So that if a man brings such a dog with him to be carried, the Company say, “Either we shall not take your dog to be carried, or you shall pay 21 per cent. upon the value by way of insurance, or we will not be liable in any case for loss or injury by the negligence of our servants."
I have had doubts, not whether this condition in itself was reasonable or not, but whether, on the facts here stated, we are put in a position to see that it was not reasonable ; for the statute allows such conditions “as shall be adjudged by the Court or Judge” “to be just and reasonable.” Are we to adjudge that this condition is just and reasonable, or that it is not just and reasonable, or that we cannot adjudge? But we are to draw inferences of fact, and considering that the charge of 21 per cent. is primâ facie excessive, and that the Company have all the materials within their own knowledge for shewing the condition to be just and reasonable, and that they have not produced that evidence before us, I think that there is enough to justify me as a Judge in drawing the conclusion, which I have no doubt of as a private individual, that this per centage is excessive; and consequently that the condition, which I construe to mean, “ We will not
[1860 ) HARRISON
be responsible in any case for any loss or injury unless you pay this excessive amount,” is unreasonable, and is to be rejected. Hence it follows that the Company contracted to carry safely, perhaps excepting the case of loss from fear or restiveness, which is not now in question, and they have not done so; and therefore they are responsible to the owner for the value of the dog.
Judgment for the plaintiff for 211. (a).
(a) The arguments and judgments in this case have been partly compiled from the note book of the late T. F. Ellis, Esq.
IN THE EXCHEQUER CHAMBER.
30 HARRISON against THE LONDON, BRIGHTON, AND
South Coast Railway Company.
For head note, see ante, p. 122.
THE defendants having brought error upon the above
judgment, the case was argued in Michaelmas Vacation, November 27th, 1861, before Erle C. J., Williams, Willes, and Keating JJ., and Channell and Wilde BB., by
F. L. Spinks, for the defendants; and
Joseph Brown, for the plaintiff.
The arguments were substantially the same as in the Court below. The only additional case referred to was Beal v. The South Devon Railway Company (a), by Channell B.
Cur. adv. vult.
There being a difference of opinion on the Bench, the following judgments were now delivered.
(a) 5 H. $ N. 875
ERLE C. J. The declaration was for the loss of a dog delivered to be carried. The pleas are to be amended according to any inference of fact that may be drawn; thus the question is raised whether, upon the facts, the plaintiff proves a right to judgment. .
The facts shew that the defendants profess to the public to carry dogs, and in that sense are common carriers of dogs; at the same time they profess that their liability in respect of dogs of more value than 51. is limited by this condition, that if the excess of value above 51. be not declared and paid for, the Company will not in any case be liable for loss or damage thereto. The plaintiff delivered to the defendants a dog which he proved to be of the value of 211.; he signed the contract containing the condition above mentioned, and the provision for the payment of 2 per cent. on the excess above 51., as stated in the case, and he neither declared the value nor paid for the excess above 51. The loss of the dog occurred through pure accident, and was not occasioned by any neglect or default on either side—this being the inference of fact drawn in the Court below and this Court. For that loss the plaintiff had a verdict for 211., and so the question was raised whether he was entitled to keep a verdict for any sum. The judgment of the Court below was for him; but upon error, I am of opinion that it ought to be reversed and entered for the defendants.
If the case had occurred before “The Railway and Canal Traffic Act, 1854,” 17 & 18 Vict. c. 31., the defendants would have been entitled to succeed, being exempt from liability for loss by the terms of their contract. (See Austin v. The Manchester, Sheffield, and Lincolnshire Railway Company (a); Shaw v. The York and Midland
(a) 10 C. B. 454.