1862. HARRISON V. LONDON and BRIGHTON Railway Company. Judge who presides at the trial in which the condition is sought to be used sees then the application that is contended for, and an adjudication upon an application of the condition to the circumstances of a particular case can only be judged of when that case is ripe for judg ment. In any other sense than this, a power to make contracts which the party cannot by possibility ascertain to be valid till an action has been tried, and the contingency of the test of justice in the mind of the Court or Judge who happens to preside has been ascertained, seems an illusory privilege; and if the Legislature intended that all the conditions of such general contracts as are required for the practical conduct of railways should be construed according to the application which the parties sought to make, rather than according to a perverted meaning which ingenuity might discover, the interest of truth would be promoted. The provisoes that follow, except as above excepted, have also the legitimate effect of qualifying the enactment. By the second proviso the liability for negligence thus created by compulsion is limited to a maximum of value, unless the customer pays a premium for insuring a higher value. By the third the burden of proving the value is thrown on the customer; and by the fifth the rights and liabilities created by the Carriers' Act, 11 G. 4 & 1 W. 4. c. 68., are preserved. The fourth proviso, that railway and canal Companies can only bind a customer by a written contract signed, does not operate as a proviso, nor cohere with that which precedes nor with that which follows. It stands therefore as a separate enactment. The section thus construed fulfils the supposed purpose for which it was introduced; it combines with the law regulating the rights and liabilities of railways and canal Companies; it may be defective perhaps in omitting any attempt to define the culpable conduct which is included in the terms "neglect or default," but it introduces no anomaly in the law relating to railways, before the decision in M'Manus v. The Lancashire and Yorkshire Railway Company, on appeal (a), introduced what I pray leave to call semi-paralysed contracts, valid for the one party, but contingently void for the railway Company. That case affirmed that special contracts were within the enacting clause: so far the decision binds, but the question now raised is, not whether special contracts are within the section, but whether it relates to any special contracts except those exempting from liability for misconduct. That point is new, and upon that point I have submitted the reasons why the construction above mentioned should be sanctioned. I now proceed to shew that the construction contended for by the plaintiff ought not to be sanctioned. The plaintiff contends that the 7th section imposed an incapacity on all railway Companies in respect of all their contracts relating to traffic;—namely, they are to have power to contract and thereby create obligations binding on themselves, but they cannot by any contract create an obligation certainly binding on the opposite party. In other words, any contractor with a railway Company concerning traffic may break his promise with impunity if the Court or Judge who tries thinks it reasonable to allow it. The Lord Chief Justice, at the end of his judgment in the Court below, thus explains his view of the law (b). "The Legislature, looking to the new mode of conveyance" (by railway) "introduced into the country, and (a) 4 H. & N. 327. (b) Ante, p. 143. 1862. HARRISON V. LONDON and BRIGHTON Railway Company. 1862. HARRISON V. LONDON and BRIGHTON Railway Company. to the monopoly which is in the hands of these great express such an intention. If there are such words it is for the plaintiff to shew them; and if there are none the enactment is not made. But after the judgments that have been given, I am bound to assume that there are words capable of being construed in the sense contended for by the plaintiff. Then if there are, and the choice is to be made between two constructions of the same words, the reasons in support of each become material. With regard to the defendants' construction, I have before shewn that it gives effect to every word, and accords with the purpose of the Legislature in making the enactment, and comes conveniently into practical operation with the general body of our law; and I proceed to the reasons, as I understand them, on which the plaintiff relies to support his construction. First. It is said that all power of making contracts absolutely binding should be taken away, because railway Companies are supposed to have great capital, and to afford the only means of transit which the public in general choose to adopt; in the language of the judgment above cited "are great Companies, having a monopoly of transit." As to this argument, I before attempted to answer it (see M'Manus v. The Lancashire and Yorkshire Railway Company, on appeal, 4 H. & N. 346). I repeat the attempt here, and I say, 1st. That the Legislature has not referred to monopoly, nor used a word indicating that railway Companies ought to be deprived of any of their rights because they have large capital, and are practically the sole carriers on their lines. Such an enactment, in plain terms, would be revolting in sense and feeling; it is not the less revolting if expressed circuitously. 2nd. I submit that the railway Companies have no monopoly, they are subject to external competiB. & S. VOL. II. M 1862. HARRISON V. LONDON and BRIGHTON Railway Company. 1862. HARRISON V. LONDON and BRIGHTON Railway Company. tion among each other, and the evils arising from that competition, in hindering the traffic of competing lines, led in great measure to the first five sections of this statute; they are also subject to internal competition by rival carriers making them carry and taking from them a part of the profit arising from such carriage. 3rd. Even if railways are so convenient to travellers in haste that they require to be controlled, the same reason does not apply to canal navigation where there is neither monopoly nor speed, and yet the seventh section applies to canal Companies as much as to railways. It may be reasonable to prevent exemption from liability for wilful wrong in canal Companies, but it is not reasonable to cripple their power of contracting on account of the supposed prosperity of their rivals, the railways. Furthermore, if the results of the two constructions are compared, the comparison supports the defendants' case. 1st. The result of the enactment, as construed by the plaintiff, would produce a remarkable anomaly— the whole of the community would be struck with incapacity, as between it and the railway and canal Companies, analogous to the incapacity of infants as between them and the rest of the community. For, as no infant can bind himself, except so far as the contract is for his benefit, so no person can bind himself to a railway or canal Company, except so far as a Court or Judge shall find the contract just. This anomaly is not so prominent where the contract relates to 6d. in the pound for a dog; but take such a contract as that of the Ruabon Company, affecting the price of fuel for millions, set out in Re Nicholson v. The Great Western Railway Company (a), whereby the Railway Company contracts to carry to London and (a) 5 C. B. N. S. 366. |