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A review of the cases decided by the courts of New York shows that though they have carried the power of the common carrier to make special contracts to the extent of enabling him to exonerate himself from the effects of even gross negligence, yet that this effect has never been given to a contract general in its terms. So that if we only felt bound by those precedents, we could, perhaps, find no authority for reversing the judgment in this case. But on a question of general commercial law, the federal courts administering justice in New York have equal and coördinate jurisdiction with the courts of that State. And in deciding a case which involves a question of such importance to the whole country, a. question on which the courts of New York have expressed such diverse views, and have so recently and with such slight preponderancy of judicial suffrage, come to the conclusion that they have, we should not feel satisfied without being able to place our decision upon grounds satisfactory to ourselves, and resting upon what we consider sound principles of law.

In passing, however, it is apposite to call attention to the testimony of an authoritative witness as to the operation and effect of the recent decisions referred to. “ The fruits of this rule," says Justice Davis, “are already being gathered in increasing accidents, through the decreasing care and vigilance on the part of these corporations ; and they will continue to be reaped until a just sense of public policy shall lead to legislative restriction upon the power to make this kind of contracts.” Stinson v. N. Y. Central R. Co. 32 N. Y. Rep. 337.

We now proceed to notice some cases decided in other states, in which a different view of the subject is taken.

In Pennsylvania, it is settled by a long course of decisions, that a common carrier cannot, by notice or special contract, limit his liability so as to exonerate him from responsibility for his own negligence or misfeasance, or that of his servants and agents. Laing v. Colder, 8 Barr, 479; Camden of Amboy R. Co. v. Baldauf, 16 Penn. 67; Goldey v. Pennsylvania R. Co. 30 Penn. 242; Powell v. Penn. R. Co. 32 Penn. 414; Penn. R. Co. v. Henderson, 51 Penn. 315; Farnham v. Camden & Amboy R. Co. 55 Penn. 53; Express Co. v. Sands, Ibid. 140; Empire Trans. Co. v. Wamsutta Oil Co. 63 Penn. 14. “ The doctrine is firmly settled," says Chief Justice Thompson, in Farnham v. C. f A. R. Co. “that a common carrier cannot limit his liability so as to cover his own or his servants' negligence.” 55 Penn. 62. This liability is affirmed both when the exemption stipulated for is general, covering all risks, and where it specifically includes damages arising from the negligence of the carrier or his servants. In Penn. R. Co. v. Henderson, a drover's pass · stipulated for immunity of the company in case of injury from negligence of its agents, or otherwise. The court, Judge Read delivering the opinion, after a careful review of the Pennsylvania decisions, says: “ This indorsement relieves the company from all liability for any cause whatever, for any loss or injury to the person or property, however it may be occasioned; and our doctrine, settled by the above decisions, made upon grave deliberation, declares that such a release is no excuse for negli


The Ohio cases are very decided on this subject, and reject all attempts of the carrier to excuse his own negligence or that of his servants. Jones

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:5: enviant P. F. Currem, 12 Bart. 1, Cenanti be. P. v. Pentin. Bu 1: AW E T. Brie R. Ibid. n. In Dendam T. Graham, toe san. after sing the right of the carrier to make serial nr 3 2 cersain eltart, says: - He canmir krerer, at himself from busses cocasinet br kos oma faalt. He exercises a babasa EDTment, api ense and good faith in the darhaaze od hadzties are essential to toz 3 se interests. .... And

felds that be soon be seed or specii agreement from that are

o n e and fotelty which the las nas essed in the discharze s hie duties." In Welsh 1. P- Pt. W. 4 Chiap R. the court

9:- In this State, at least, railmad ennpanies are rapidy becoming almost the ulosite carriers both of passengers and mods. In conse

rener, the pable character and agency which they have voluntarily neamed, the most important primers and privileges have been granted to them by the State." From these facts the court resses that it is specially inortant that railmed companies shald be head to the exercise of dre du genre at least. And as to the distinction taken by some, that negligence of servants may be stipalated for, the court pertinently says: - This doctrine, when applied to a corporation which can only act through its agents and servants, woald secure complete immunity for the neglect of every duty." Pp. 75, 76. And in relation to a drover's pass, substantially the same as that in the present case, the same court, in Clereland ke. R. y. Curran, 19 Ohio St. 1, held: 1. That the holder was not a gratuitoas passenger. 2. That the contract constituted no defence against the negligence of the company's servants, being against the policy of the law, and void. The court refers to the cases of Bissell v. The New York Central R. 25 X. Y. 442, and of Penn. R. v. Henderson, 51 Penn. St. P. 315; and expresses its concurrence in the Pennsylvania decision. Pp. 13, 14. This was in December term, 1869.

The Pennsylvania and Ohio decisions differ mainly in this, that the former give to a special contract (when the same is admissible) the effect of converting the common carrier into a special bailee for hire, whose daties are governed by his contract, and against whom, if negligence is charged, it must be proved by the party injured; whilst the latter hold that the character of the carrier is not changed by the contract, but that he is a common carrier still, with enlarged exemptions from responsibility, within which the burden of proof is on him to show that an injury occurs. The effect of this difference is to shift the burden of proof from one party to the other.' It is unnecessary to adjudicate that point in this case, as the judge on the trial charged the jury, as requested by the defendants, that the burden of proof was on the plaintiff.

In Maine, whilst it is held that a common carrier may, by special contract, be exempted from responsibility for loss occasioned by natural causes, sach as the weather, fire heat, frost, &c. (Fillebrown v. Grand Trunk R. Co. 55 Maine, 462), yet in a case where it was stipulated that a railroad company should be exonerated from all damages that might happen to any horses or cattle that might be sent over the road, and that the owners should take the risk of all such damages, the court held that Vol. I.]

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

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the company were not thereby excused from the consequences of their negligence, and that the distinction between negligence and gross negligence in such a case is not tenable. “ The very great danger," says the court, “ to be anticipated by permitting them” (common carriers) “ to enter into contracts to be exempt from losses occasioned by misconduct or negligence, can scarcely be over-estimated. It would remove the principal safeguard for the preservation of life and property in such conveyances.” Sager v. Portsmouth, 31 Maine, 228, 238.

To the same purport it was held in Massachusetts, in the late case of School District v. Boston, fc. Railroad Co. 102 Mass. 552, where the defendant set up a special contract that certain iron castings were taken at the owner's risk of fracture or injury during the course of transportation, loading, and unloading, and the court say: “ The special contract here set up is not alleged, and could not by law be permitted to exempt the defendants from liability for injuries by their own negligence.” P. 556.

To the same purport, likewise, are many other decisions of the state courts, as may be seen by referring to the cases, some of which are argued with great force and are worthy of attentive perusal, but, for want of room, can only be referred to here. Indianapolis R. v. Allen, 31 Ind. 394 ; Mich. South. R. v. Heaton, 31 Ind. 397, note; Flinn v. Phil., Wilm. & Balt. R. 1 Houston's Del. R. 472; Orndorff v. Adams Exp. Co. 3 Bush, (Ky.) R. 194; Swindler v. Hilliard f Brooks, 2 Rich. (So. Car.) 286; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247; Southern Express Co. v. Crook, 44 Ala. 468; Whitesides v. Thurlkill, 12 Sm. & Mar. 599 ; Southern Express Co. v. Moon, 39 Miss. 822 ; N. 0. Mutual Ins. Co. v. Railroad Co. 20 La. Ann. 302.

These views as to the impolicy of allowing stipulations against liability for negligence and misconduct are in accordance with the early English authorities. St. Germain, in The Doctor and Student, Dial. 2, c. 38, pointedly says of the common carrier : “ If he would percase refuse to carry it” (articles delivered for carriage) "unless promise were made un to him that he shall not be charged for no misdemeanor that should be in him, the promise were void, for it were against reason and against good manners, and so it is in all other cases like."

A century later this passage is quoted by Attorney General Noy in his book of Maxims as unquestioned law. Noy's Max. 92. And so the law undoubtedly stood in England until comparatively a very recent period. Sergeant Stephen, in his Commentaries, vol. 2, p. 135, after stating that a common carrier's liability might, at common law, be varied by contract, adds that the law still held him responsible for negligence and misconduct.

The question arose in England principally upon public notices given by common carriers that they would not be responsible for valuable goods, unless entered and paid for according to value. The courts held that this was a reasonable condition, and if brought home to the owner, amounted to a special contract, valid in law. But it was also held, that it could not exonerate the carrier if a loss occurred by his actual malfeasance or gross negligence. Or, as Starkie says, “ Proof of a direct misfeasance or gross negligence is, in effect, an answer to proof of notice.” Evid. vol. 2, p.

for negligence as to the impolio. 20 La. Anń: Moon, 39 Mis

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ordinary negligen on Bailments, se be rememberedd has

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. Dibbon, 2 A. & E. N. Ser. 646; 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 common 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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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 of 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 if they 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 ; but they 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 counection 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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