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Vol. I)

X. Y. C. R. R. v. LOCKWOOD.

(No. 1.

205, 6th Am. ed. But the term “gross negligence” was so vague and uncertain, that it came to represent every instance of actual negligence of the carrier or his servant, or ordinary negligence in the accustomed mode of speaking. Hinton v. Dilbon, 2 A. & E. N. Ser. 616; Wild v. Pickford, 8 M. & W. 460. Justice Story, in his work on Bailments, originally published in 1832, says that it is now held, that in cases of such notices the carrier is liable for losses and injury occasioned not only by gross negligence, but by ordinary negligence; or, in other words, the carrier is bound to ordinary diligence. Story on Bailments, sec. 571.

In estimating the effect of these decisions, it must be remembered that in the cases covered by the notices referred to the exemption claimed was entire, covering all cases of loss, negligence as well as others. They are, therefore, directly in point.

In 1863, in the great case of Peek v. The North Staffordshire Railway Co. 10 House of Lords Cases, 473, Mr. Justice Blackburn, in the course of a very clear and able review of the law on the subject, after quoting this passage from Justice Story's work, proceeds to say: " In my opinion, the weight of authority was, in 1832, in favor of this view of the law; but the cases decided in our courts between 1832 and 1854 established that this was not the law, and that a carrier might, by a special notice, make a contract limiting his responsibility, even in the cases here mentioned, of gross negligence, misconduct, or fraud on the part of his servants; and, as it seems to me, the reason why the legislature intervened in the railway and canal traffic act, in 1854, was because it thought that the companies took advantage of those decisions in Story's language) 'to evade altogether the salutary policy of the cominon law.'"

This quotation is sufficient to show the state of the law in England at the time of the publication of Judge Story's work; and it proves that at that time common carriers could not stipulate for immunity for their own or their servants' negligence. But in the case of Carr v. Lancashire R. Co. 7 Excheq. R. 707, and other cases decided while the change of opinion alluded to by Justice Blackburn was going on several of which related to the carriage of horses and cattle), it was held that carriers could stipulate for exemption from liability for even their own gross negligence. Hence the act of 1854 was passed, called the railway and canal traffic act, declaring that railway and canal companies should be liable for negligence of themselves or their servants, notwithstanding any notice or condition, unless the court or judge trying the cause should adjudge the conditions just and reasonable. 1 Fisher's Dig. 1466. Upon this statute ensued a long list of cases deciding what conditions were or were not just and reasonable. The truth is, that this statute did little more than bring back the law to the original position in which it stood before the English courts took their departure from it. But as we shall have occasion to advert to this subject again, we pass it for the present.

It remains to see what has been held by this court on the subject now under consideration.

We have already referred to the leading case of the N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 383. On the precise point now under consideration, Justice Nelson said: “If it is competent at all for the carrier to stipulate for the gross negligence of himself and his servants or agents,

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Vol. I.]

N. Y. C. R. R. v. Lockwood.

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in the transportation of goods, it should be required to be done, at least in terms that would leave no doubt as to the meaning of the parties.”

As to the carriers of passengers, Mr. Justice Grier, in the case of Philadelphia f Reading R. v. Derby, 14 How. 486, delivering the opinion of the court, said: When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such a transportation be pecuniary or other. wise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross.'” That was the case of a free passenger, a stockholder of the company, taken over the road by the president to examine its condition ; and it was contended in argument, that as to him, nothing but “gross negligence ” would make the company liable. In the susequent case of The Steamboat New World v. King, 16 How. 469, which was also the case of a free passenger carried on a steamboat, and injured by the explosion of the boiler, Curtis, Justice, delivering the judgment, quoted the above proposition of Justice Grier, and said: * We desire to be understood to reaffirm that doctrine, as resting not only on public policy, but on sound principles of law.” P. 474.

In York Company v. Central Railroad, 3 Wall. 113, the court, after conceding that the responsibility imposed on the carrier of goods by the common law may be restricted and qualified by express stipulation, adds : " When such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement." In the case of Walker v. The Transportation Company, decided at the same term (3 Wall. 150), it is true, the owner of a vessel destroyed by fire on the lakes was held not to be responsible for the negligence of the officers and agents having charge of the vessel ; but that was under the act of 1851, which the court held to apply to our great lakes as well as to the sea. And in Express Co. v. Kountze Brothers, 8 Wall. 342, where the carriers were sued for the loss of gold-dust delivered to them on a bill of lading excluding liability for any loss or damage by fire, act of God, enemies of the government, or dangers incidental to a time of war, they were held liable for a robbery by a predatory band of armed men (one of the excepted risks), because they negligently and needlessly took a route which was exposed to such incursions. The judge at the trial charged the jury, that although the contract was legally sufficient to restrict the liability of the defendants as common carriers, yet

were guilty of actual negligence, they were responsible ; and that they were chargeable with negligence unless they exercised the care and prudence of a prudent man in his own affairs. This was held by this court to be a correct statement of the law. P. 353. Some of the above citations are only expressions of opinion, it is true ;

are the expressions of judges whose opinions are entitled to much weight; and the last cited case is a judgment upon the precise point. Taken in connection with the concurring decisions of state courts before cited, they seem to us decisive of the question, and leave but little to be added to the considerations which they suggest.

It is argued that a common carrier, by entering into a special contract

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wiha piry for carrying his gwis or PETS n oa mised terms, drops his cant and bones an ordinary baile for bire, azi, therefore, may make an ontrant he piases. That is, he may make any contract whateser. 2 150 he is an ordinary base; and he is an onlinary bailee sine he has made the contract.

We are unable to see the soundness of this reasoning. It seems to us more assurate to say that common carriers are such by virtue of their ocecpation, not by virtue of the responsibilities under which they rest. Those responsibiūties may vary in ditierent countries, and at diterent times, witout changing the character of the employment. The common lax subjects the common carrier to insuranse of the goois carried, except as against the art of God or public enemies. The civil law excepts, also, losses by means of any superior force, and any inevitable accident. Yet the employment is the same in both cases. And if by special agreement the carrier is exempted from still other responsibilities, it does not follow that his empoyment is changed, but only that his responsibilities are changed. The theory occasionally announced, that a special contract as to the terms and responsibilities of carriage changes the nature of the employment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of an ordinary bailee for hire, whilst the nature of his business renders him a common carrier still. Is there any good sense in holding that a railroad company, whose only business is to carry passengers and goods, and which was created and established for that purpose alone, is changed to a private carrier for hire by a mere contract with a customer, whereby the latter assumes the risks of inevitable accidents in the arriage of his goods? Suppose the contract relates to a single crate of glass or crockery, whilst at the same time the carrier receives from the same person twenty other parcels, respecting which no such contract is made; is the company a public carrier as to the twenty parcels, and a private carrier as to the one ?

On this point, there are several authorities which support our view, some of which are noted: Davidson v. Graham, 2 Ohio St. 131; Graham v. Daris f Co. 4 Ohio St. 362; Swindler v. Hilliard, 2 Rich. 286; Baker v. Brinuin, 9 Rich. 201; Steele v. Townsend, 37 Ala. 247.

A common carrier may undoubtedly become a private carrier, or a bailee for hire, when, as a matter of accommodation, or special engagement, he undertakes to carry something which it is not his business to carry. For example, if a carrier of produce, running a truck boat between New York city and Norfolk, should be requested to carry a keg of specie, or a load of expensive furniture, which he could justly refuse to take, such agreement might be made in reference to his taking and carrying the same as the parties chose to make, not involving any stipulation contrary to law or public policy. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character.

But it is contended, that though a carrier may not stipulate for his own negligence, there is no good reason why he should not be permitted to

Vol. 1.1

N. Y. C. R. R. v. LockWOOD.

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stipulate for immunity for the negligence of his servants, over whose actions in his absence he can exercise no control. If we advert for a moment to the fundamental principles on which the law of common carriers is founded, it will be seen that this objection is inadmissible. In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties — an object essential to the welfare of every civilized community. Hence the common law rule which charged the common carrier as an insurer. Why charge him as such ? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers, the highest degree of carefulness and diligence is expressly exacted. In the one case, the securing of the most exact diligence and fidelity underlies the law, and is the reason for it; in the other, it is directly and absolutely prescribed by the law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the essential duties of his employment. And to assert that he may do so seems almost a contradiction in terms.

Now, to what avail does the law attach these essential duties to the employment of the common carrier, if they may be waived in respect to his agents and servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants? It is carefulness and diligence in performing the service which the law demands, not an abstract carefulness and diligence in proprietors and stockholders who take no active part in the business.

To admit such a distinction in the law of common carriers, as the business is nuw carried on, would be subversive of the very object of the law.

It is a favorite argument in the cases which favor the extension of the carrier's right to contract for exemption from liability, that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to have his goods carried. Thus in Dorr v. N. J. S. Nav. Co. 1 Kern. 485, the court sums up its judgment thus : “ To say the parties have not a right to make their own contract, and to limit the precise extent of their own respective risks and liabilities, in a matter no way affecting the public morals, or conflicting with the public interests, would, in my judgment, be an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal right."

Is it true that the public interest is not affected by individual contracts of the kind referred to ? Is not the whole business community affected by holding such contracts valid ? If held valid, the advantageous position of the companies exercising the business of common carriers is such that it places it in their power to change the law of common carriers in effect, by introducing new rules of obligation.

The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any

Voi, J.

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Vol. I)

N. Y. C. R. R. v. LOCKWOOD.

[No. 1.

paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon bis business. In the present case, for example, the freight agent of the company testified that though they made forty or fifty contracts every week like that under consideration, and had carried on the business for years, no other arrangement than this was erer made with any drover. And this reason is obvious enough — if they did not accept this, they must pay tarifi rates. These rates were serenty cents a hundred pounds for carrying from Buffalo to Albans, and each horned animal was rated at 2.000 pounds, making a charge of $14 for every animal carried, instead of the usual charge of $70 for a car load ; being a difference of three to one. Of course no drover could afford to pay such tariff rates. This fact is adverted to for the purpose of illustrating how completely in the power of the railroad companies parties are ; and how necessary it is to stand firmly by those principles of law by which the public interests are protected.

If the customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment; then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish -an additional argument, if any were needed, to show that the conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public poliey and morality. The status and relative position of the parties render any such conditions void. Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness. It was for the reason that the limitations of liability first introduced by common carriers into their notices and bills of lading were just and reasonable, that the courts sustained them. It was just and reasonable that they should not be responsible for losses happening by sheer accident, or dangers of navigation that no human skill or vigilance could guard against; it was just and reasonable that they should not be chargeable for money or other valuable articles liable to be stolen or damaged, unless apprised of their character or value; it was just and reasonable that they should not be responsible for articles liable to rapid decay, or for live animals liable to get unruly from fright, and to injure themselves in that state, when such articles or live animals became injured without their fault or negligence. And when any of these just and reasonable excuses were incorporated into notices or special contracts assented to by their customers, the law might well give effect to them without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of


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