The plaintiff having sued the defendants for the loss, it was held by the majority of the Court of Exchequer : first, that the meaning of this ticket, the whole of which must be read together, was, that if the value of a dog was above 57., and its value was not declared, and the extra price paid accordingly, the defendants would not be liable at all, even for loss or injury caused by their own negligence, and that the Condition was therefore within 17 & 18 Vict. c. 31, s. 7; secondly, that this Condition was not just and reasonable, inasmuch as the extra charge of Two and a half per cent. (without proof to the contrary, which it lay on the defendants to give) appeared excessive and unreasonable; and, thirdly, that the Condition being void, the plaintiff, although there was no negligence on the part of the defendants, was entitled to recover the full value of the dog against them as Common Carriers. The judgment in this case was reversed in the Exchequer Chamber (e), and, as reversed, was the subject of some discussion in Ashendon v. The London, Brighton and South Coast Railway (f), where it was held that a Condition that a Railway Company will not be liable "in any case for loss or damage to a Horse or dog above certain specified values delivered to them for carriage, unless the value is declared, is not reasonable, as it is in its terms unconditional, and would, if valid, protect the Company even in case of the negligence or wilful misconduct of their servants; and the Court further gave its opinion that the judgment of the Exchequer Chamber was in effect overruled by Peck v. North Staffordshire Railway Company (g). clared. But where the Condition as to an increased rate for Where value increased value is not objectionable on the ground of unruly deexcess or otherwise, a wilfully false statement as to the value of a Horse to be conveyed made by the plaintiff in order that it might be conveyed at the lower rate will disentitle him from recovering in damages, if it is injured, upon any other value than that which was falsely declared to be its real value (h). In the case of Gregory v. West Midland Railway Com- Condition as pany (i), a cow and a heifer had been placed by the defen- to general non-liability. dants' servants without halters in a sheep or calf truck (e) 31 L. J., Q. B. 113. (f) L. R., 5 Ex. D. 190; 42 L. T., N. S. 586. (9) Ante, p. 271. (h) M'Cance v. London and North Western Railway Co., 34 L. J., Ex. 39. (i) Gregory v. West Midland Railway Co., 33 L. J., Ex. 155. Condition as lity beyond their own without rails, and during the journey the cow fell or jumped out of the truck, and was injured. An action was brought for the damage thus occasioned, and the Company relied upon the Special Contract made by them with the plaintiff, among the Conditions of which were these:That "the Company are to be free from all risk and responsibility with respect to any loss or damage arising in the loading or unloading, or injury in the transit from any cause whatever, it being agreed that the animals are to be carried at the owner's risk, and that the owner of the cattle is to see to the efficiency of the waggon, before his stock is placed therein; complaints to be made in writing to the Company's officer before the waggon leaves the Station." In accordance with the decision of the Exchequer Chamber in M Manus v. The Lancashire and Yorkshire Railway Company (j), these Conditions were held to be neither just nor reasonable. In Rooth v. The North Eastern Railway Company (k), a Contract for the conveyance of cattle by railway, signed by the party sending them, contained the two following, amongst other, Conditions:-"The owner undertakes all risks of loading, unloading and carriage, whether arising from the negligence or default of the Company or their servants, or from defect or imperfection in the station, platform or other places of loading or unloading, or of the carriage in which the cattle may be loaded or conveyed, or from any other cause whatsoever." "The Company will grant free passes to persons having the care of live stock, as an inducement to owners to send proper persons with and to take care of them:"-It was held that the first of these Conditions was unreasonable, and that its unreasonable character was not removed by the fact that the Company, under the second condition, granted, and the owner accepted, a free passage for a person who travelled with the cattle sent. If Carriers receive a chattel to carry to a particular to non-liabi- place, they must be said to have the carrying of it to the end of the journey, whether they themselves carry it all the way or not. Therefore any parties to whom they may hand it over are their agents and they are clearly liable, unless the facts show that their responsibility has limits. (j) M'Manus v. Lancashire and Yorkshire Railway Co. (Ex. Ch.) 4 H. & N. 327. See also Peek v. North Staffordshire Railway Co., 32 L. J., Q. B. 241, ante, p. 271. determined (1). But a Company (which is within the Railway and Canal Traffic Act) may divest itself of this responsibility for goods beyond its own limits, as the following Conditions have been held to be just and reasonable, viz., that "in respect of goods destined for places beyond the limits of the Company's railway, the Company's responsibility will cease when such goods shall have been delivered over to another Carrier in the usual course for another conveyance." And "that any money, which may be received by the Company as payment for the conveyance of goods beyond their own limits, will be so received for the convenience of the Consignors, and for the purpose of being paid to the other Carrier" (m). tract is rea If a Railway Company puts two Conditions into their If part of carrying clause, one of which is unreasonable, they may special conrely upon the other, which is reasonable. So, too, if part sonable, such of a Condition, which is severable from the rest of it, is part may be reasonable ("). relied on. It has been said that the principle deducible from the Alternative authorities is, that a contract, primâ facie unreasonable, Rates. becomes reasonable if an alternative rate is offered to the customer, i. e., if the company have two rates, at one of which, the higher, it undertakes the ordinary risk of a carrier, while at the other, the reduced rate, it carries upon condition of being relieved from that risk (0). But the principle would not be applied in a case where the higher rate is excessive, and the Court of Common Pleas refused to apply it to a case where wax-work was carried "at owner's risk" (p). But it seems that it would apply where the expression "at owner's risk" is modified by an exception of the wilful misconduct of the defendants' servants (q). Where alternative rates are charged for the conveyance of cattle or goods, the lower rate being at owner's risk, à priori the higher rate, if within the parliamentary limit, (1) Muschamp v. Lancaster and Preston Junction Railway Co., 8 M. & W. 421; Watson v. Ambergate, Nottingham and Boston Railway Co., 15 Jur. 448. (m) Aldridge v. Great Western Railway Co., 33 L. J., C. P. 161. (n) M'Cance v. London and North Western Railway Co., 7 H. & N. 477. (0) Gallagher v. Great Western Railway Co., Ir. R., 8 C. L. 326; see also Hodges on Railways, 6th (p) D'Arc v. London and North (a) Lewis v. Great Western Railway Co., L. R., 3 Q. B. D. 195, 203; 47 L. J., Q. B. 131; 37 L. T., N. S. 774. What is wilful misconduct. is not necessarily unreasonable or prohibitory (r). It is a question for the jury whether the higher rate is unreasonable in the sense that it is so high as to be prohibitory; and the mere fact that the lower rate is so low that cattle dealers invariably avail themselves of it is not, standing alone, evidence that the higher rate is unreasonable or prohibitory (s). When a Railway Company agrees to carry, at a reduced rate, upon condition of being relieved from the ordinary liability for negligence, and to be responsible only for the consequences of the wilful misconduct of their servants, it will be for the plaintiff, in an action for injury to the goods carried, to prove more than culpable negligence. There must be evidence of actual wilful misconduct causing the injury (t). Thus, where a Railway Company contracted with the plaintiff to carry a van at a reduced rate, on the terms that the Company should not be liable for damage or delay, except such as was occasioned by wilful misconduct on the part of its servants; and the van was to be delivered at a station outside the Company's system, and on the line of another Company; and a delay was occasioned by the van having been loaded on a truck which was too high to allow of its passing under the other Company's gauge, although it passed under that of the Company; it was held that there was not sufficient evidence of wilful misconduct on the part of the Company's servants to go to a Jury, inasmuch as it was not proved that they knew that the truck was too high to carry the van under the other Company's bridge (u). But where a Railway Company had carried goods from one of its stations to another, and the station master at the place to which they were carried, without making inquiries of the Consignor, after a delay of a week, delivered the goods to a person of a very similar name to that of the person named as Consignee; and the Contract of Carriage was at a reduced tariff, conditioned to exclude all liability except for wilful misconduct; the delivery of the goods was held to amount to wilful misconduct (x). (r) Foreman v. Great Western (t) Great Western Railway Co. v. (u) Webb v. Great Western Rail way Co., 26 W. R. 111. See also (x) Hoare v. Great Western Railway Co., 37 L. T., N. S. 186; 25 W. R. 63. The onus of proving that a Condition is reasonable, lies Onus of proof. upon the Company (y). sions as to It will have been seen by a consideration of the cases General effect that the reasonableness or unreasonableness of a Condition of the decidepends upon the nature of the articles to be conveyed, the Conditions. degree of risk attendant upon their conveyance, the rate of charge made, and all the circumstances of each particular case (z). Very slight evidence of non-delivery is sufficient to call Delivery by upon the defendant to prove delivery (a). If the carrier Carrier. deliver the goods at the place directed in accordance with the ordinary usage, he has fulfilled his obligation, although he has delivered them to a person the sender did not intend (b). Where cattle sent by railway were kept at the arrival station with the sanction of the plaintiff's servant, until they could be removed according to the police regulations, it was held that the liability of the Railway Company as carriers had ceased when the alleged loss and damages occurred (c). refusal to There is no general rule of law requiring Carriers to Notice of give notice to the Consignor of the refusal of the Con- Consignee's signee to receive goods, but Carriers are merely bound to Consignor. do what is reasonable, under the particular circumstances of each case (d). However, Bramwell, B., said in the case of Hudson v. Baxendale (d), that "the judgment of the majority of the Court" (from which however he dissented) "in Crouch v. Great Western Railway Company (e) seemed to show that it was the duty of the Carrier to communicate with the Consignor." refusal. If the Consignee makes default in receiving the goods Effect of the Carrier is entitled to recover from him the expenses consignee's reasonably incurred in taking care of the goods. A person sent a Horse by railway, consigned to himself at a station on the line, and paid the fare. When the Horse arrived at the station there was no one on his behalf to receive it, and the Railway Company therefore placed it with a livery stable-keeper; and it was held that the Company (y) Harrison v. London, Brighton and South Coast Railway Co., 29 L. J., Q. B. 209. (z) See Addison on Torts, 2nd ed. p. 403. (a) Griffiths v. Lee, 1 C. & P. 110; Hawkes v. Smith, Car. & M. 72; Roscoe, N. P., 14th ed. 585. (b) M'Kean v. M'Iver, L. R., 6 Ex. 36; 40 L. J., Ex. 30; 24 L. (c) Shepherd v. Bristol and Exeter (d) Hudson v. Baxendale, 27 L. J., Ex. 93. (e) Crouch v. Great Western Railway Co., 26 L. J., Ex. 418. |