But it is

roads, as by signals, whistles, ringing the bell, etc. wisely held, that their duty is to take sufficient care when crossing roads; and a mere compliance with these requirements, if not sufficient in any given case from its peculiar circumstances, leaves them liable.(fi)

A railroad company is also liable for injury to one of its own servants, if the company have been guilty of negligence, but not otherwise. (fj)

In cases of injury by collision, he whose negligence *232 causes the injury is responsible. What is called the law of the road, is, in this country, little more than that each party shall keep to the right; in England, each party keeps to the left. At sea, a vessel going free must give way to one on the wind; one on the larboard tack gives way to one on the starboard tack. And steamers must give way to sailing vessels. These rules, as to vessels, are based upon the simple principle, that the vessel which can alter her course most easily must do so; and they are often qualified by an application of this principle. (g) An observance of these rules, or a disregard of them, is often very important in determining the question of negligence; especially where the parties meet very suddenly. But the law of the road alone does not decide this question; for a violation of it may be for good cause, or under circumstances which negative the presumption of negligence which might otherwise arise from it. (h)

It is said that he who suffers injury from collision caused by the negligence of another, cannot recover damages if he was himself at all negligent, and if his negligence helped to cause the injury. In some cases this principle has been applied with great rigor, and asserted in very broad terms; but it is obvious, that, as a general rule, it must be considerably modified. It is impossible that he who seeks redress for a wrong which he has sustained by the negligence of another, should always lose all right, where he has himself been in any way negligent. There must be some comparison of the negligence of the one party with that of the other, as to its intensity, or the circumstances which excuse it,

(fi) Richardson v. New York Central R. R. Co., 45 N. Y. 846.

(f) Harrison v. Central R. R. Co., 1 Rob. 482; Nashville R. R. Co. v. Elliott, 1 Cold, 611; Hands v. London, &c. R. R. Co., Law Rep. 2 Q. B. 439, n.

(g) Lowry v. The Steamboat Portland, 1 Law Rep. 313; Lockwood v. Lashell, 19 Penn. St. 344.

(h) See Pluckwell v. Wilson, 5 C. & P. 375; Kennard v. Burton, 25 Me. 39; Chaplin v. Hawes, 3 C. & P. 554 ; Clay v. Wood, 5 Esp. 44; Wayde v. Carr, 2 Dow. & R. 255; Butterfield v. Forrester, 11 East, 60; Turley v. Thomas, 8 C. & P. 103; Wordsworth v. Willan, 5 Esp. 273; Mayhew v. Boyce, 1 Stark. 423; McLean v. Sharpe, 2 Harring. (Del.) 481.

or the degree in which it enters as a cause into the production of the injury complained of. In each case, it must be a question of mixed law and fact, in which the jury, under the direction of the court, will inquire whether the defendant was guilty of so great a degree of negligence as, in the

particular 233 case, will render him liable, and then, whether the plaintiff was also guilty of so much negligence as to defeat his claim. (i)1(x)

As the carrier of goods must allow a consignee a reasonable time to receive and remove his goods, so a carrier of passengers is bound to allow his passengers a reasonable time to leave the cars or carriages. (ii) And this is the time within which prudent persons usually get off the cars in like circumstances. (i)

Several cases have come before the courts, raising the question as to the obligation of carriers of passengers in respect to providing for their safety when leaving the cars or boat. In an English case a hulk was hired by a steamer company, to which the steamer came, and in which passengers bought tickets, and from which they went on board the steamer. A passenger fell down a hatchway negligently open in the hulk, and recovered damages. (ik) In three English cases, when the train stopped the last car was beyond the platform. The name of the station was called, and the passenger stepping out fell on the rails and was hurt; and it was held that he could not recover. (il) 2 In a fourth case the

(i) See Rigby v. Hewitt, 5 Exch. 240; Greenland v. Chaplin, id. 243; Thorogood v. Bryan, 8 C. B. 115; Kennard v. Burton, 25 Me. 39; Marriott v. Stanley, 1 Man. & G. 568; Clayards v. Dethick, 12 Q. B. 439; Beatty v. Gilmore, 16 Penn. St. 463; Trow v. Vermont Central R. R. Co., 24 Vt. 487; Catlin v. Hills, 8 C. B. 123; Bridge v. The Grand Junction Railway Co., 3 M. & W. 244; Davies v. Mann, 10 id. 546; Robinson v. Cone, 22 Vt. 213; Moore v. Inhabitants of Abbot, 32 Me. 46; Munroe v. Leach, 7 Met. 274; Churchill v. Rosebeck, 15 Conn. 359; Carroll v. N. Y. & N. H. R. R. Co., 1 Duer 571. In C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255, it is said, that if the negligence of one party is only slight, and that of the other appears gross,

a recovery may be had. See also ante, p. *230, note (e). Fox v. Town of Glastenbury, 29 Conn. 204; Willis v. L. I. R. R. Co., 32 Barb. 398.

(ii) Southern R. R. Co. v. Kendrick, 40 Miss. 374; Jeffersonville R. R. Co. v. Hendrick, 26 Ind. 228.

(j) Inchoff v. Chicago R. R. Co., 20 Wis. 344.

(ik) John v. Bacon, L. R. 5 C. P. 437. See also Gaynor v. Old Colony, &c. R. R. Co., 100 Mass. 208.

(il) Cockle v. London, &c. R. R. Co., L. R. 5 C. P. 457; Bridges v. North London R. R. Co., L. R. 5 C. P. 459; Praeger v. Bristol, &c. R. R. Co., L. R. 5 C. P. 460, n. l.

1 The doctrine of comparative negligence is in force in Illinois and Georgia, but in most other jurisdictions if the plaintiff was guilty of any negligence which contributed proximately to the injury, he cannot recover. See Marble v. Boss, 124 Mass. 44. — W. 2 In these cases, on appeal, it was held that the several plaintiffs could recover.

(x) The case of Thorogood v. Bryan, 8 C. B. 115, is now treated as overruled. See Little v. Hackett, 116 U. S. 366, 375,

6 S. Ct. 391, 29 L. Ed. 652; Randolph v. O'Riordon, 155 Mass. 331, 337, 29 N. E. 583.

train went too far, and the leading car was opposite the parapet of a bridge. Here, too, a passenger stepped on the parapet, which resembled a platform, and was hurt. He recovered damages, on the ground that he was invited to step out at a dangerous place, and the conductor was negligent in not stopping the train earlier. (im) In a case in Indiana, where the train ran by the station, and stopped over a culvert, and the conductor called the name of the station, and a passenger getting out fell into the culvert, the company was held liable. (in)

In this country railroad companies usually check the baggage of passengers, giving a duplicate check to the passengers. The question has arisen how long the passenger may leave a trunk thus checked in the depot, and still hold the company to their liability as carriers. It is impossible to give a precise rule. The passenger is not bound to take his baggage with him at once; but he cannot leave it in the depot a considerable time, for his own convenience, and hold the company liable, except as warehousemen, for negligence. Twenty-four hours have been held too long a delay; and, in another case, not too long. (io)

SECTION XV.

OF SPECIAL AGREEMENTS AND NOTICES.

We have seen how severe a responsibility is cast upon the common carrier by the law; and it is a very interesting question, how far he may remove it or lessen it, with or without the concurrence of the other party. Can the carrier do this by a special contract with the owner of the goods? and, if so, is a notice by the carrier brought home to the owner equivalent to such con

(im) Whittaker v. Manchester, &c. R. R. Co., L. R. 5 C. P. 464, n. 3.

(in) Columbus, &c. R. R. Co. v. Farrell, 31 Ind. 408. See also Delamatyr v. Milwaukee, &c. R. R. Co., 24 Wis. 578, and Dillayev. N. Y. Central R. R. Co., 42 N. Y. 468.

(io) Compare Holdridge v. Utica, &c. R. R. Co., 56 Barb. 191, 34 N. Y. 548, with Mote v. Chicago R. R. Co., 27 Iowa, 22. See also Jacobs v. Tutt, 33 Fed. Rep. 412; Louisville, &c. R. R. Co. v. Mahan, 8 Bush, 184.

Cockle v. London, &c. R. Co., L. R. 7 C. P. 321 ; Bridges v. North London R. Co., L. R. 7 H. L. 213; Praeger v. Bristol, &c. R. Co., 24 L. T. N. s. 105. So Hartwig v. Chicago, &c. R. Co., 49 Wis. 358, where the caboose passenger car was stopped beyond a platform, and opposite a cattle-guard, into which the plaintiff fell on his way to the car. The starting a train suddenly, either backwards or forwards, after stopping at a station, so as to throw a passenger off, is negligence. Milliman v. N. Y. Cent., &c. R. Co., 66 N. Y. 642. See Lewis v. London, &c. R. Co., L. R. 9 Q. B. 66; Weller v. London, &c. R. Co., L. R. 9 C. P. 126; Robson v. North Eastern R. Co., 2 Q. B. D. 87. See ante, p. * 220, n. - K.

tract? and if the carrier cannot in this way relieve himself entirely from his responsibility, can he lessen and qualify it? Some of these questions are not yet definitely settled.

There is no doubt that, originally, this responsibility was considered as beyond the reach of the carrier himself. It is but about fifty years since he was permitted to qualify or control it by his own act. And courts have been influenced in their opinion of his rights in this respect, by the view they have taken of the nature of his responsibility. The more they have regarded it as created by the law for public reasons, the less willing have they been that it should be placed within the control of one or both parties to be modified at their pleasure.

The first question is, Can the peculiar responsibility of the common carrier be destroyed by express contract between himself and one who sends goods or takes them with him, so as to reduce the carrier's liability to that of a private * 234 carrier, and make him liable only for his own default? It seems to be well settled by the weight of authority that this may be done; (j) although

in some of the cases in

* 235

(5) It seems now to be perfectly settled coach proprietors, had published a notice in this country and in England that a spe- to the effect that all baggage sent by their cial contract between the owner of goods line would be at the risk of the owners. and a carrier, limiting the common-law The question was, whether such notice, liability of the latter, is valid. It is brought home to the knowledge of the wholly unnecessary to cite authorities to plaintiff, should exempt the defendants show that such is the case in England; from their common-law liability. And it for, although, as we shall presently see, was held, that it should not. And Mr. scarcely a volume of English reports Justice Cowen, who delivered the opinion, appears which does not contain more or declared that there was no difference beless cases concerning contracts of this tween such notice brought to the plaintiff's description, no question is ever made as knowledge and an express contract; that to their validity. Nor do we conceive both were evidence of an agreement bethis to be a departure from the ancient tween the parties to limit the carrier's principles of the common law; for it no liability; but that both were void as conwhere appears that such contracts were travening the policy of the law. In 1840, ever prohibited as contravening the policy the case of Jones v. Voorhees, 10 Ohio, of the law. "There is no case,' says 145, was decided by the Supreme Court Lord Ellenborough, in Nicholson v. Willan, of Ohio. That case raised precisely the 5 East, 507, "to be met with in the books, same question that was raised in Cole v. in which the right of a carrier thus to Goodwin; and, although the decision went limit, by special contract, his own respon- no further than to declare that a notice sibility, has ever been, by express decision, brought to the plaintiff's knowledge did denied." It should be observed, moreover, not exempt the defendant from his comthat this question is not at all affected by mon-law liability, Wood, J., who delivered the Carriers Act, 2 Geo. IV. & 1 Wm. IV. the opinion of the court, manifested a c. 68, for by the 6th section of that act it strong inclination to adopt the views of is provided, that nothing in the act con- Mr. Justice Cowen, in their full extent. tained shall in any wise affect any special In 1842 came the case of Gould v. Hill, 2 contract for the conveyance of goods and Hill (N. Y.), 623. [That case held that merchandise. On this side of the Atlantic even a contract assented to by the shipper we are not aware of any case in which the exempting the carrier from his commonvalidity of such contracts is denied until law liability, would be ineffectual.] We Cole v. Goodwin, 19 Wend. 251 (1838). are not aware that this decision has ever There the defendants, who were stage- been sanctioned by any court in this

*

which it is allowed, it is intimated that this is a departure *236 from the ancient principles of the common law. It [was also said in a case] in New York, (k) that no such contract * is valid or has any efficacy. But this case seems to rest upon a previous decision, () that the carrier's responsibility is not affected by a notice from him made known to the other party; and upon the difficulty of distinguishing this from an express contract.

* 237

Undoubtedly it may be difficult to discriminate very clearly between the case where the carrier and the sender expressly agree

that the carrier shall not be responsible for the property, 238 and that in which the carrier says to the sender," If you

send goods by me, I will not be responsible for them," and the sender thereafter, without reply, sends goods by him. But we think there may be a real difference. The rule of law, derived from public policy, may not go so far as to say that the carrier and the sender shall not agree upon the terms on which the goods are to be transported; but it may nevertheless say, that the carrier has neither the right to force such an agreement on the sender, nor to infer, merely from his silence, that he accepts the proposed terms. (m) He may be silent, either because he assents to them, or because he disregards them, and chooses to stand

country. It received the approbation of Mr. Justice Nisbet, in Fish v. Chapman, 2 Ga. 349; but that case did not call for any decision upon the question. On the other hand, in 1848, the Supreme Court of the United States, in the case of The New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 344, denied the authority of Gould v. Hill, and held such a contract to be valid. Since that time, Gould v. Hill has been expressly overruled in New York. Parsons v. Monteath, 13 Barb. 353; Dorr v. N. J. Steam Nav. Co., 4 Sandf. 136; Stoddard v. The Long Island R. R. Co., 5 Sandf. 180; Dorr v. New Jersey Steam Nav. Co., 1 Kern. 485; The Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith, 115. In the case of Moore v. Evans, 14 Barb. 524, Gould v. Hill is again explicitly overruled. The result is, that there is no case which is any longer to be regarded as an authority, that decides that an express contract between the owner of goods and a carrier, limiting the liability of the latter, is void. For cases, besides those already cited, which hold that such a contract is valid and binding, see the following: Swindler v. Hilliard, 2 Rich. L. 286; Camden & Amboy Railroad Co. v. Baldauf, 16 Penn. St. 67; Bingham v.

Rogers, 6 W. & S. 495; Beckman v. Shouse, 5 Rawle, 179; Reno v. Hogan, 12 B. Mon. 63; Farmers & Mechanics Bank v. Champlain Transportation Co., 23 Vt. 186; Kimball v. Rutland & B. R. R. Co. 26 Vt. 247; Sager. v. The Portsmouth R. R. Co., 31 Me. 228; Walker v. York & N. Midland R. Co., 3 Car. & K. 272; Roberts v. Riley, 15 La. An. 103. See also the editor's notes to Austin v. The M. S. & L. Railway Co., 11 E. L. & E. 506; s. c. 11 C. B. 454, and Carr v. The L. & Y. Railway Co., 14 E. L. & E. 340; s. c. 7 Exch. 707, where the cases are collected. And Slim v. The Northern Railway Co., 26 E. L. & E. 297; s. c. 14 C. B. 647; Smith v. N. Y. Centr. R. R. Co., 29 Barb. 132. To what extent a carrier may thus exempt himself from his common-law liability, we shall inquire in another note.

(k) Gould v. Hill, 2 Hill (N. Y.), 623 [overruled, see note, (i) supra].

(2) Cole v. Goodwin, 19 Wend. 251. (m) In Simons v. Great Western R. Co., 2 C. B. N. s. 620, the plaintiff was told by the clerk who offered a paper to be signed, "that the signature was a mere form," and it was held, that the goods were not delivered to the carriers under the special contract.