truck from Liverpool to York for reward, and the owner was required to sign a ticket containing a memorandum to the effect that the ticket was issued subject to the owner's undertaking all risk of conveyance, loading and unloading, as the company would not be responsible for any injury or damage, however caused, occurring to live stock travelling upon the railway, or in their vehicles, and the defendant's servants provided a truck which, in external appearance, and so far as the defendant's servants knew, was sound, and sufficient for the conveyance of the horses, but it was in fact unsound, and of insufficient strength for the purpose, and a hole was made in the bottom of the truck during the journey, and one of the horses got his leg through the hole and was injured, it was held that the railway was responsible for the damage done to the horse, notwithstanding the terms of the special contract signed by the owner of the horse. "We are of opinion," observes the court, "that the condition or special contract in this case is not just and reasonable. In order to bring the defendants within its protection, it is necessary to construe it as excluding responsibility for loss occasioned, not only by all risks of whatever kind directly incidental to the transit, but also for that caused by the insufficiency of the carriages provided by the defendants, though occasioned by their own negligence or misconduct. The sufficiency or insufficiency of the vehicles by which the companies are to carry is a matter, generally speaking, which they, and they alone, have the means of fully ascertaining; and it would be unreasonable and mischievous if they were to be allowed to absolve themselves from the consequence of neglecting to perform properly that which seems naturally to belong to them as a duty. It is unreasonable that the company should stipulate for exemption from liability for the consequences of their own negligence, however gross, or misconduct, however flagrant; and that is what the condition under consideration professes to do. That condition is therefore void, and the case stands simply upon the ground that the plaintiff has employed the defendants to carry his horses safely, and that they have used an insufficient and improper vehicle for that purpose, whereby the horses have been injured." (3)

(2) M Manus v. Lanc. and Yorkshire Rail. Co., 4 H. & N. 327; 28 Law J.

The court is bound to look at the particular matter in each case, to see whether the condition is reasonable or not; and it has been held that a condition which seeks to relieve a railway company from the consequences of the loss or non-delivery of goods, by reason of insufficient or improper package, is not reasonable; (a) and if the condition is framed without limitation or exception, so as to exempt the company from all responsibility for injury, however caused, it will be void, as being neither just nor reasonable. (b) But a condition qualifying their liability only, for instance, one annexed to the carriage of meat that the company will not be responsible for the loss of a market, is a reasonable one. (c)1

Exch. 353.
M'Cance v. Lond. and
North-West. Rail. Co., 7 H. & N. 477;
31 Law J, Exch. 65.

(a) Simons v. Gt. West. Rail. Co., 18 C. B. 830; 26 Law J., C. P. 25. Ld. Wensleydale, Peek v. North Staff. Rail.

Co., ante.

(b) Peek v. North Staff. Rail. Co., ante. Gregory v. West. Mid. Rail. Co., 33 Law J., Exch. 155.

(c) Lord v. Midland Rail. Co., L. R., 2 C. P. 339.

1 A common carrier, by a mere notice, can not limit his liability as a common carrier, even though the notice is brought home to the knowledge of the shipper. Steele v. Townsend, 37 Ala. 247; Derwoort v. Loomer, 21 Conn. 245; Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Jones v. Voorhees, 10 Ohio, 145: Michigan Cent. R. R. Co. v. Hale, 6 Mich. 243; Southern Express Co. v. Newby, 36 Ga. 635.

In Railroad Co. v. Mfg. Co., 16 Wallace (U. S.) 318, this question was raised under the following circumstances. The plaintiff's agent delivered to the defendant a quantity of wool at Jackson, Michigan, to be transported to the Mineral Springs Mfg. Co., at Stafford, Conn., and took a receipt for it as follows:

MICHIGAN CENTRAL R. R. Co., Jackson, Oct. 11, 1865. Received from Wm. Bostwick, as consignor, the articles marked, numbered and weighing as follows:

(Here described.)

To be transported over said railroad to the depot in Detroit, and there to be delivered to, agent, or order, upon the payment of the charges thereon and subject to the rules and regulations established by the company, a part of which notice is given on the back hereof.-This receipt is not transferable.

The notice on the back was as follows:

HASTINGS, Freight Agent.

"The company will not be responsible for damage occasioned by delays from storms, accidents, or other causes and all goods will be at the risk of the owners thereof, while in the company's warehouse, except such loss or injury as may arise from the negligence of the agents of the company.”

Bostwick gave verbal instructions that the wool be sent from Detroit to Buffalo, by lake, in steamboats, which instructions were embodied in the bill of lading accompanying the wool. The goods reached Detroit and laid there six days, at the end of which time it was destroyed by an accidental fire, without fault on the part

667. Commencement and duration of the liability-Damage or loss of goods in warehouses.-When the common carrier of goods carries on the business both of a warehouseman of the company. It was held by the court that, while a company may limit its liability as a carrier by special contract, he can not do so by a notice printed on the back of a receipt, though the receipt with such notice printed thereon may be accepted by the consignor without dissent. Kimball v. R. & B. R. R. Co., 26 Vt. 247. See also Moses v. Boston & Maine R. R. Co., 32 N. H. 323; Powell v. Myers, 26 Wend. (N. Y.) 591; Dwight v. Brewster, I Pick. (Ma-s.) 53; Cole v. Goodwin, 19 Id. 251. But he may by such notice reasonably modify his liability. Sager v. Portsmouth, &c. R. R. Co., 31 Me. 228; Smith v. North Carolina R. R. Co., 64 N. C. 235. And by special contract it may restrict its liability. Michigan Central R. R. Co. v. Wood, 2 Mich. 538; Kimball v. R. & B. R. R. Co., 26 Vt. 247; Wallace v. Matthews, 30 Ga. 617; Ill. Cent. R. R. Co. v. Frankenberg, 54 Ill. 88 ; Thayer v. Alton, &c. R. R. Co., 22 Ind. 26; Hannibal R. R. Co. v. Swift, 12 Wall. (U. S.) 262. Thus it may restrict its liability to its own line, even though the goods are to be delivered to another line for shipment beyond. Chicago, &c. R. R. Co. v. Montfort, 60 Ill. 175; Detroit, &c. R. R. Co. v. Farmers', &c. Bank., 20 Wis. And connecting lines are entitled to the benefit of the special provisions of the contract of shipment made with the first line. Babcock v. Lake Shore, &c. R. R. Co., 43 How. Pr. (N. Y.) 317; Maghee v. Camden & Amboy R. R. Co., 45 N. Y. 514; Lamb v. Camden, &c. R. R. Co., 2 Daly (N. Y. C. P.) 454; Manhattan Oil Co. v. Camden R. R. Co., 54 N. Y. 197. But any such limitation is restricted to their liability as insurers, and does not excuse them from liability for loss or injury resulting from their actual negligence. Penn. R. R. Co. v. Butler, 57 Penn. St. 335; Stedman v. West. Trans. Co., 48 Barb. (N. Y.) 97; Evansville R. R. Co. v. Young, 28 Ind. 516; Farnham v. Camden, &c. R. R. Co., 55 Penn. St. 53; Ashmore v. Penn., &c. R. R. Co., 28 N. J. 180; Southern Express Co. v, Moon, 39 Miss. 822; Seller v. Pacific, 1 Oregon, 409; Mercantile Ins. Co. v. Chase, 1 E. D. S. (N. Y.) 115; Am. Trans. Co. v. Moore, 5 Mich. 368; Boorman v. Am. Ex. Co., 21 Wis. 152; Darr v. N. J. Steam Nav. Co., 4 Sand. (N. Y.) 174; York Co. v. Cent. R. R. Co., 3 Wall. (U. S.) 107; Harmony v. Bingham, 12 N. Y. 99; Parsons v. Monteath, 13 Barb. (N. Y.) 353.

122.

But a common carrier can not by contract limit or excuse its liability from the effects of its negligence. Such contracts are void, as against public policy. Berry v. Cooper, 28 Ga. 543; Cincinnati, &c. R. R. Co. v. Pontius, 19 Ohio St. 221; Indianapolis, &c. R. R. Co. v. Allen, 31 Ind. 394; Michigan, &c. R. R. Co. v. Heaton, 37 Id. 448; Farnham v. Camden, &c. R. R. Co., 55 Penn. St. 53; Lamb v. Same, 2 Daly (N. Y.) 454; York Manufacturing Co. v. Illinois Central R. R. Co., 1 Biss. (U. S.) 377; Union Mu. Ins. Co. v. Indianapolis, &c. R. R. Co., 1 Disney (Ohio) 480; Adams & Co. v. Reagan, 29 Ind. 21; School Dist. in Medford v. Boston, &c R. R. Co., 102 Mass. 552; York Co. v. Ill. Centl. R. R. Co., 3 Wall. (U. S.) 107; Kansas Pacific R. R. Co. v. Reynolds, 8 Kan. 623; Reno v. Hagan, 12 B. Mon. (Ky.) 63. But contra, see Baltimore, &c. R. R. Co. v. Rathbone, 1 W. Va. 87. And the taking of a receipt limiting the carrier's liability, brought to the attention of the consignor, has been held binding as a part of the contract in the following cases: IH. Centl. R. R. Co. v. Frankenberg, 51 Ill. 88. But the assent must be fairly established by showing full notice of the provisions of the receipt. Levering v. Union Transportation Co., 42 Mo. 88; French v. Buffalo, &c., R. R. Co., 2 Abb.

and a common carrier, the nature and extent of his liability will depend upon the character in which he holds the goods at the time of the loss. If they are received into his warehouse to await the future orders of the owner or consignor as to their destination, he is clothed only with the ordinary. duties and responsibilities of a warehouseman or bailee for hire. (d) Goods received at the cloak-room of a railway company, therefore, are not received by the company in their capacity of common carriers, but simply as bailees for hire. (e) But if the destination is marked out, and he has nothing to do but to forward the goods on the earliest opportunity to the place indicated, he is responsible as a common carrier for any loss or damage that may occur to the goods in the warehouse, as they are then in transitu in contemplation of law. (ƒ)' Whenever the common carrier receives goods to be kept until called for, or until he has orders from the consignee to forward them, he holds them as a bailee for hire, and not as a gratuitous bailee, although he does not charge warehouse rent. (g)

668. Delivery of goods at the place of destination.-The common carrier of goods is bound, in common with all carriers for hire, to carry the goods intrusted to him for conveyance to their place of destination with reasonable expedition, () and deliver them into the hands of the consignee, or of some person expressly or impliedly authorized by him to receive

(d) Cairns v. Robbins, 8 M. & W. 263. Garside v. Trent Navigation Co., 4 T. R. 582.

(e) Van Toll v. South-East. Rail. Co., 31 Law J., C. P. 241.

(f) Forward v. Pittard, I T. R. 27; Buller, J., in Hyde v. Trent and Mersey

Nav. Co., 5 T. R. 398. As to accidental fires in warehouses, see ante.

(g) White v. Humphery, 11 Q. B. 43. (h) Raphael v. Pickford, 6 Sc. N. R. 478; 2 Dowl. N. S. 916. Black v. Baxendale, I Exch. 410; 17 Law J., Exch.

50.

(N. Y.) App. Dec. 176; Strohn v. Detroit, &c. R. R. Co., 21 Wis. 483; Fillebracon v. Grand Trunk R. R. Co., 55 Me. 462; Adams Ex. Co. v. Nock, 2 Dur. (Ky.) 562; Peck v. Weeks, 34 Conn. 145.

1 The liability of a common carrier does not begin until the goods have been delivered to him or to his agent, at the place where such goods are usually received, or at a place designated by him. Grosvenor v. N. Y. Centl. R. R. Co., 39 N. Y. 34; Clark v. Needles, 25 Penn. St. 338; Merriam v. R. R. Co., 20 Conn. 354 ; Trowbridge v. Chapin, 23 Id. 195. Thus a package delivered to the carrier's agent at the post-office, and received by the agent, was held delivered to the carrier, and he was held liable for the loss. Phillips v. Earl, 8 Peck. (Mass.) 182. And a private arrangement between the carrier and his servant, by which the servant is to have the proceeds for carrying certain packages, will not exempt him from liability. Mayall v. Boston & Me. R. R. Co., 19 N. H. 122.

them; and he must, of course, in all cases, take especial care that they are delivered into the hands of the right person. (1) If, however, they are imposed upon by a fictitious order, they will not be responsible if they act according to the usual custom of business, and in accordance with their instructions. (k) When the carriage is by land, the goods must be sent to the residence of the consignee, for the common carrier is not released from responsibility by leaving them at the coach-office, or at an inn by the road-side at which the coach usually stops, unless he has received directions from the consignee so to do. (4) If he tenders them at the residence of the consignee, and is ready to deliver them on receiving payment of his hire, he has fulfilled his contract as a carrier; and if the hire is not paid he is not bound, as we have already seen, to part with the possession of the goods; but he may lawfully take them back to his own warehouse, or place of business; and he holds them thenceforward not as a common carrier, but as a bailee for hire, or (if he is not entitled to charge, or does not charge, warehouse rent) as a gratuitous bailee, (m) and is only liable, therefore, to act with reasonable care and caution with respect

(1) Golden v. Manning 3 Wils. 433; 2 W. Bl. 916, Birket v. Willan, 2 B. & Ald. 356. Duff v. Budd, 6 Moore, 469. Stephenson v. Hart, 1 M. & P. 357; 4 Bing. 476.

(k) If they are imposed upon by a fic

titious order, see McKean v. McIvor, L. R., 6 Exch. 36.

(1) Lond. and North-West. Rail. Co. v. Bartlett, 7 H. & N. 400; 31 Law J., Exch. 92.

(m) Storr v. Crowley, M'Clel. & Y. 136.

The mere leaving of property in the place where goods are usually received for shipment, without calling the agent's attention thereto, will not, in the absence of previous arrangements by which the property was to be left there, be treated as a delivery to the carrier. Ball v. N. J. Steamboat Co., 1 Daly (N. Y.) 491. And the liability continues until a reasonable time after their arrival at the place of destination. The carrier may deliver by landing the goods, as on a wharf, and giving the consignee notice of their arrival, and such notice, or a valid excuse for not giving it, is indispensable. The Peytona, 2 Curtis (U. S.) 21; Alabama, &c. R. R. Co. v. Kidd, 35 Ala. 209; Jeffersonville R. R. Co. v. Cotton, 29 Ind. 498; Barclay v. Clyde, 2 E. D. S. (N. Y.) 95; Withers v. N. J. &c. Co., 48 Barb. (N. Y.) 455; Herman v. Goodrich, 21 Wis. 356. After the lapse of a reasonable time after notice, the carriers cease to hold the goods as carriers, and stand to it in the simple relation of bailees or warehousemen, and liable only for ordinary care. Baltimore, &c.

R. R. Co. v. Schumacher, 29 Md. 168; Chicago, &c. R. R. Co. v. Scott, 42 Ill. 132; Rowland v. Miln, 2 Hilt. (N. Y.) 150; Ely v. New Haven Steamboat Co., 53 Barb. (N. Y.) 207. But the mode of delivery may be controlled by a usage. See Hemphill v. Cheney, 6 W. & S. (Penn.) 62; Ely v. Steamboat Co., ante. But it must be well defined and known.