to excuse them from misconduct or negligence. Mr. Justice NELSON, delivering the opinion of the court, said: "Although he, the carrier, was allowed to exempt himself from losses arising out of events and accidents against which he was a sort of insurer, yet, inasmuch as he had undertaken to carry the goods from one place to another, he was deemed to have incurred the same degree of responsibility as that which attaches to a private person engaged casually in the like occupation, and was therefore bound to use ordinary care in the custody of the goods." The next case which came before the Supreme Court of the United States was Philadelphia & Reading Railroad Company v. Derby. 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. Mr. Justice GRIER, 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 requires that they be held to the greatest possible care and diligence, and whether the consideration for such transportation be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents. Any negli gence in such cases may well deserve the epithet of gross':" 14 Howard 486 In a subsequent case this doctrine was reaffirmed "as resting not only on public policy but on sound principles of law" Steamboat New World v. King, 16 Howard 469-494. In York Co. v. Central Railroad, 3 Wall. 113, the same 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, "where such stipulation is made and it does not cover losses from negligence or misconduct, we can see no just reason for refusing its recognition and enforcement."

In the case of Express Company v. Ronnledge Brothers, the carriers were sued for the value 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. The company was held liable for a robbery by a predatory band of armed men (which was 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. The Supreme Court held this to be a correct statement of the law: 8 Wallace 342, 353.

The most recent case decided by the Supreme Court of the United States is the case of Railroad Company v. Lockwood, 17 Wallace 257. This case would seem to be exactly in point. It was a case of injury to a cattle drover travelling on a stock train upon a free pass, and when there was an express contract that he should take all risk of injury to the stock, and of personal injury to himself. The unanimous judgment of the court in that case established the following propositions, as laid down by Mr. Justice BRADLEY: 1. A common carrier cannot lawfully stipu

late for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. 2. It is not just and reasonable in the eye of the law to stipulate for exemption from responsibility for the negligence of himself or his servants. 3. These rules apply both to common carriers of goods and common carriers of passengers. 4. They apply to a case of a drover travelling on a stock train to look after his cattle, and having a free pass for that purpose.

I have thus far given the adjudications of the Supreme Court of the United States upon the question under consideration, as well as the opinions of authors of recognised authority, to show that a common carrier cannot by express contract limit his common law liability to the extent of exemption from responsibility for the negligence of himself or his servants.

I come now to notice the course of decisions in the different states of the Union.

First, as to the decisions in the state of New York: Up to the year 1858, the course of decisions in that state had been in conformity with the principles announced in the cases decided by the Supreme Court of the United States above referred to. But in a case decided in 1858Wells v. N. Y. Central Railroad Co., 26 Barb. 641-the Supreme Court of that state seems to have given its assent for the first time to the proposition that a common carrier may stipulate against responsibility for the negligence of his servants; and this, contrary to the decisions before that time, may now be taken as the settled law of New York. See opinion of Mr. Justice BRADLEY, 17 Wallace 369. But this conclusion was reached against the earnest protest of some of the ablest judges of that state. And Judge DAVIS, in Stimson v. N. Y. Central Railroad, 32 N. Y. 337, significantly remarks, in commenting on the recent decisions in that state: "The fruits of this rule are already being gathered in increasing accidents through the decreasing care and negligence on the part of these corporations, and they will be continued to be reaped until a just sense of public policy shall lead to legislative, restriction upon the power to make this kind of contracts."

In Pennsylvania a long course of decisions settles the doctrine that a common carrier cannot by notice or express contract limit his liability so as to exonerate him from responsibility for his own negligence or that of his servant.

In Farnham v. Camden Railroad Co., 55 Penn. St. 62, Chief Justice THOMPSON, delivering the opinion of the court, says, the doctrine is firmly settled in this state that a common carrier cannot limit his liability so as to cover his own or his servant's negligence. In Pennsylvania Railroad Co. v. Henderson, 51 Penn. 315, a drover's pass stipulated for immunity of the company in case of injury from negligence of its agents or otherwise. Judge READ, after a careful review of the Pennsylvania decisions, says: "This endorsement releases the company from all liability for any cause whatever, for any loss or injury to the person or property, however it may have been occasioned; and our doctrine settled by the above decisions made upon grave deliberation, declares that such a release is no excuse for negligence. See also 8 Penn. 479; 16 Id. 67; 30 Id. 242; 63 Id. 14.

In Ohio the cases are very decided on this subject, and reject all attempts of the carrier to stipulate against his own negligence or that

of his servants. In Davidson v. Graham, 2 Ohio State 131, the court, after conceding the right of the carrier to make special contracts to a certain extent, says: "He cannot, however, protect himself from losses occasioned by his own fault. He exercises a public employment, and diligence and good faith in the discharge of his duties are essential to his public duties. * And public policy forbids that he should be relieved by special agreement from that degree of diligence and fidelity that the law has exacted in the discharge of his duties. See also Welsh v. Pittsburg, Ft. Wayne & Chicago Railroad, 10 Ohio 76; Jones v. Vorhees, 10 Id. 145; 21 Id. 722; 19 Id. 1, 221, 260.

* * * *

The decisions of the Supreme Courts of Maine and Massachusetts are to the same effect, by one unbroken current. To the same purport are the decisions of many of the other states, which time and space only permit me to mention passim, but which are well worthy of attentive perusal and more particular notice. See 31 Ind. 394; 2 Rich. (So. Car.)286; 28 Georgia 543; 37 Alabama 247; 39 Miss. 822; 20 Louisiana Ann. 302.

After this hasty review of the decisions of the American courts on the question before us, I will now make brief reference to the English

cases.

Up to the year 1832 the course of the English decisions had been uniformly against permitting a common carrier to contract for exemption of responsibility for loss or injury resulting from his own negligence or that of his servants. And consequently, in Mr. Justice STORY's work on Bailments, published in 1832, he correctly gives the state of the English law as stated supra. But between that time and the passage of the Railway and Canal Traffic Act, passed in 1854, there was a change of opinion on the subject, and it was held in several cases that carriers could stipulate for exemption from liability, even for their gross negligence. See Carr v. Lancashire Railroad Co., 7 Exch. 707; Peck v. North Staffordshire Railway Co., 10 Ho Lords Cas. 473.

In the last named case, decided in 1862, Mr. Justice BLACKBURN, after an able and interesting review of the course of decisions in England on this subject, and referring to Mr. Justice STORY's work on Bailments, published in 1832, quoted in the opinion supra, says: "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 of 1854, was because it thought that the companies took advantage of these decisions, in STORY'S language, "to evade altogether the salutary policy of the common law." In the same case, Lord Chief Justice COCKBURN, referring to the case of Carr v. Lancashire & Yorkshire Railroad Co., supra, in which it was held that a common carrier might by express contract release himself from liability even for gross negligence, says: "In a very short time after the decision of this case was pronounced, the Act of Parliament was passed," known as the Railroad and Canal Act. "It cannot be doubted that the object of the legislature, in passing it, was to prevent

these contracts, in which any liability for negligence is either entirely excluded or made conditional on the payment of a premium."

The Railway and Canal Traffic Act, passed in 1864, adopted in consequence of these decisions, provides: "§ 7. Every such company shall be liable for the loss of, or any injury done to any horses, cattle or other animals, or to any articles, goods or things in the receiving, forwarding or delivery thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made or given by such company contrary thereto, or in any wise limiting such liability, every such notice, condition or declaration being hereby declared to be null and void."

It will thus be seen that by this Act of Parliament the salutary rule of public policy, which prohibits a common carrier from limiting his liability so as to exonerate him from the consequences of his own negli gence, has been in effect reinstated in England, and the evils growing out of the change in the course of decisions and the departure from those wise and salutary decisions which had prevailed in the English courts for more than half a century, had at last to be corrected by an Act of Parliament, restoring the older and better rule of law.

From this review of the American and English decisions I am constrained to conclude that the great weight of authority is in favor of declaring that the salutary rule of law and public policy, which forbids a common carrier from exempting himself from liability by express contract or otherwise for his own negligence, whether gross or ordinary, should be firmly adhered to and maintained by the courts of this state.

But it is argued with much force by the learned counsel for the appellants that parties have a right to make their own contracts; that it is no concern of the public on what terms an individual has his goods carried; that if he chooses to accept all the risks by paying less for the carriage, how does it concern the public, and what public policy does it violate; how are public morals or public interests affected? Is it not a restriction upon trade and commerce, and an invasion of personal rights, for the courts to interfere and to declare such agreements, voluntarily and deliberately made, null and void? Such arguments as these were also urged in the case of Railroad Company v. Lockwood, supra, 378, and were thus conclusively answered by Mr Justice BRADLEY, and I cannot do better than to adopt his answer: "Is it true," he says, "that the public interests are 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 one court. His business does not admit such a course. He prefers rather to accept every bill of lading or to sign every paper the carrief 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 his business." These cogent and just views of Mr. Justice BRADLEY are as strongly illustrated by the case we have before us as the one he was considering. In this case the railroad company required the drover to

pay on his cattle as first-class freight unless he signed the contract. He therefore would have had to pay the enormous sum of $6.60 per head for each animal, or $113 per car load, instead of $36. No drover could afford to pay these rates; and this case is a strong illustration of how completely parties are in the power of the railroad companies, and how necessary it is to stand firmly by those principles of law by which the public interests are protected. The inequality of the parties, the compulsion under which the customer is placed, and the obligations of the carrier to the public, operate with full force to divest such transaction of validity. The business of the common carrier is mostly concentrated in the hands of 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 policy and morality. Contracts of common carriers, like those of fiduciaries, giving them a position in which they can take an 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 these 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 the dangers of navigation, that no human skill 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 apprized 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 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 these without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of society and the better administration of the laws had diminished the opportunities of collusion and bad faith on the part of the carrier, and rendered less imperative the application of the iron rule that he must be responsible at all events. Hence the exemptions referred to were deemed reasonable and proper to be allowed; but the proposition to allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, ought never to be entertained.

I think, therefore, "that," to use the language of Chief Justice REDFIELD, "every attempt of carriers by general notices or special contract to excuse themselves from responsibility for losses or damage resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and therefore based upon principles and a policy which the law will not uphold."

But the learned counsel for the appellee, in his able argument in

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