unreasonable and contrary to public policy, and therefore void;' and it is added, "it may be that as held by Judge Wallace in a case in the circuit court, a stipulation that 'no damage that can be insured against will be paid for,' would not protect the carrier from liability for his own negligence, because that would be to compel the owner of the goods to insure against a negligence of the carrier."" An express stipulation of exemption from liability for negligence of the carrier or his servants is held unreasonable and void. And the rule is applied to loss or damage by the perils of the sea arising from the negligence of the master and crew of the ship. The right of the carrier to exempt himself from liability for his own negligence is denied. The business of a carrier is a public one, and those who employ the carrier have no real freedom of choice, and the carrier cannot be allowed to impose conditions adverse to public policy and morality, and to stipulate for immunity from the negligence of his servants." In England, except as controlled by the statute, the carrier may contract to protect himself from the consequences of his own negligence, even in case of compensation from the traveler, as he may do with regard to goods or live stock. But the English statute, called the Railroad and Canal Traffic Act, passed in 1854, declared void all notices and conditions made by common carriers, except such as the judge at the trial or the courts, should hold just and reasonable, practically perhaps almost restoring the rule of common law. 1Ogdensburg & L. C. R. Co. v. Pratt, 89 U. S. 22 Wall. 123, 22 L. ed. 827; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872. The Hadji, 22 Blatchf. 235. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788. Inman v. South Carolina R. Co. 129 U. S. 128, 32 L. ed. 612. The Brantford City, 29 Fed. Rep. 373. See also Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717; Galt v. Adams Exp. Co. McArth. & M. 124. Hall v. North Eastern R. Co. L. R. 10 Q. B. 437; Great Western_R. Co. v. Glenister, 29 L. T. N. S. 422; Macauley v. Furness R. Co. L. R. 8 Q. B. 57; Taubman v. Pacific Steam Nav. Co. 26 L. T. N. S. 704; Gannell v. Ford, 5 L. T. N. S. 604; Mc Cance v. London & N. W. R. Co. 7 Hurlst. & N. 477; Carr v. Lancashire & Y. R. Co. 7 Exch. 707; York, N. C. & B. R. Co. v. Crisp, 14 C. B. 527; Austin v. Manchester, S. & L. R. Co. 10 C. B. 454: Slim v. Great Northern R. Co. 14 C. B. 647; Great Northern R. Co. v. Morville, 21 L. J. Q. B. 319; Harrison v. London, B. & S. C. R. Co. 2 Best & S. 122. § 80. Limitation of Liability by Contract. In New York the rule is well settled that a carrier may by contract relieve himself from liability even for negligence; but to have that effect the contract must in terms and expressly exempt the carrier from liability on this account; and hence general termssuch as a release from liability "from whatsoever cause arising," or for "damages occasioned by delays from any cause"--will not relieve the carrier from the results of negligence.' This rule is now observed without question in New York, where a shipper recovered, on proof of negligence on the part of the carrier, for the loss of goods through fire, although the special freight contract under which they were shipped released the carrier from liability for loss by fire, but contained no express release from liability for negligence. Although a carrier of freight and passengers may lawfully stipulate for exemption from liability for negligence of itself and servants, such stipulation is to be strictly construed, and the exemption must be expressed in terms; and if general words of release are used, such construction as will exclude exemption from negligence must obtain if the release is not thereby rendered inoperative. So held as to the messenger of an express company.* A contract of a railroad company to transport the employés of a telegraph company free of charge, upon their exhibiting passes, in which all responsibility of the railroad company for any loss, damage, or injury to the employés shall be waived and released in the form usual in such cases, is not effectual to release the company from acts of negligence. Under the New York authorities the effect has never been given to contracts general in their terms of releasing from liability, but has been under the decisions expressly restricted to special contracts." An agreement between a railroad company and an express com 1Magnin v. Dinsmore, 56 N. Y. 168; Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180; Nicholas v. New York Cent. & H. B. R. Co. 89 N. Y. 370. 'Tanner v. New York Cent. & H. R. R. Co. 11 Cent. Rep. 82, 108 N. Y. 623. Zimmer v. New York Cent. & H. R. R. Co. 42 N. Y. S. R. 63; Eliott v. New York Cent. & H. R. R. Co. 33 N. Y S. R. 861. Blair v. Erie R. Co. 66 N. Y. 313. See Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799. Elliott v. New York Cent. & H. R. R. Co. 33 N. Y. S. R. 861; Hopkins v. Westcott, 6 Blatchf. 64; St. Louis & S. E. R. Co. v. Smuck, 49 Ind. 302. pany, which provides that the former "is hereby expressly released from and guaranteed against any liability for any damage done to the agents of" the latter, will not operate to defeat an action by one of such agents to recover for personal injuries occasioned by the negligence of the railroad or its servants, as it may be construed as an agreement to indemnify the railroad company in the event of such an action.' A contract should not be held to include negligence from general words, nor will it be so construed unless expressed in unequivocal terms; and if the general words can be given effect without including negligence, the contract will not release from it.' Yet in New York, as already shown, and in some other states, it has been held that a common carrier may stipulate for exemption from loss through his own negligence or that of his servants, and a contract limiting liability is valid if free from fraud or imposition; and a common carrier may exempt himself by contract from liability for loss occasioned by ordinary negligence." In Ohio, the right of the carrier to exempt himself from the consequences of his own negligence, in any degree, or that of his servants, is denied, as will hereinafter appear, but his right is admitted to make special contracts, which will not change his character of a common carrier, with certain enlarged exemptions from responsibility, not relieving him from his negligence, but the burden of proof is on him to show that the injury occurs within 2 1Kenney v. New York Cent. & H. R. R. Co. 125 N. Y. 422; Elliott v. New York Cent. & H. R. R. Co. 33 N. Y. S. R. 861. Kenney v. New York Cent. & H. R. R. Co. 125 N. Y. 422; Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180, 27 Am. Rep. 28, rev'g 7 Hun, 399; Nicholas v. New York Cent. & H. R. R. Co. 89 N. Y. 370. Holsapple v. Rome, W. & O. R. Co. 86 N. Y. 275; Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180, 27 Am. Rep. 28, rev'g 7 Hun, 399. *Magnin v. Dinsmore, 56 N. Y. 168; Poucher v. New York Cent. R. Co. 49 N. Y. 263; Knell v. United States & B. S. S. Co. 1 Jones & S. 423; Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180; Spinnetti v. Atlas Steamship Co. 80 N. Y. 71. Dana v. New York Cent. & H. R. R. Co. 50 How. Pr. 428. Baltimore & O. R. Co. v. Brady, 32 Md. 338; Ashmore v. Pennsylvania S. T. Transp. Co. 28 N. J. L. 180; Lawrence v. New York, P. & B. R. Co. 36 Conn. 63; Peck v. Weeks, 34 Conn. 145; Hawkins v. Great Western R. Co. 17 Mich. 57; Adams Exp. Co. v. Haynes, 42 Ill. 89; Illinois Cent. R. Co. v. Adams, 42 Ill. 474; Mann v. Birchard, 40 Vt. 326; Jacobus v. St. Paul & C. R. Co. 20 Minn. 125; Minois Cent. R. Co. v. Read, 37 Ill. 484. the exemption.' In some other states while a common carrier cannot by notice or special contract limit his liability so as to exonerate him from his own negligence or that of his servants and agents, as is shown by the authorities hereafter cited, a special contract releasing him from his liability as an insurer has the effect of converting the common carrier into a special bailee for hire, and the party who claims to have suffered loss through the negligence of the carrier must establish negligence." A carrier may limit its liability as insurer but not from its neglect or fraud.' Other courts while they concede the right to make such exemption in all cases of ordinary negligence, refuse to apply the principle to cases of gross negligence. In other state courts the power to make a valid contract, exempting the carrier from liability for any degree of negligence of himself or his servants is denied, as it has been already stated to be in Ohio, Indiana, Missouri and Pennsylvania. 5 'Knowlton v. Erie R. Co. 19 Ohio St. 260; Cincinnati, H. & D. R. Co. v. Pontius, 19 Ohio St. 221; Welsh v. Pittsburg, Ft. W. & C. R. Co. 10 Ohio St. 75; Wilson v. Hamilton, 4 Ohio St. 722; Graham v. Davis, 4 Ohio St. 362; Davidson v. Graham, 2 Ohio St. 131; Jones v. Voorhees, 10 Ohio, 145. Empire Transp. Co. v. Wamsutta Oil Co. 63 Pa. 14; Farnham v. Camden & A. R. Co. 55 Pa. 62; American Exp. Co. v. Sands, 55 Pa. 140; Pennsylva nia R. Co. v. Henderson, 51 Pa. 315; Powell v. Pennsylvania R. Co. 32 Pa. 414; Goldey v. Pennsylvania R. Co. 30 Pa. 242; Camden & A. R. Co. v. Baldauf, 16 Pa. 67; Laing v. Colder, 8 Pa. 479. 'Rosenfeld v. Peoria, D. & E. R. Co. 1 West. Rep. 151, 103 Ind. 121; Carroll v. Missouri Pac. R. Co. 3 West. Rep. 842, 88 Mo. 239; Pennsylvania R. Co. v. Wilson (Pa.) 3 Cent. Rep. 915; Grogan v. Adams Exp. Co. 5 Cent. Rep. 298, 114 Pa. 523: Adams Exp. Co. v. Holmes (Pa.) 8 Cent. Rep. 155. Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, 133 Ill. 96; Nickey v. St. Louis, 1. M. & S. R. Co. 35 Mo. App. 79; Louisville & N. R. Co. v. Wynn, 88 Tenn. 320; Arnold v. Illinois Cent. R. Co. 83 Ill. 273; Adams Exp. Co. v. Haynes, 42 Ill. 89; American Exp. Co. v. Perkins, 42 Ill. 458; Erie R. Co. v. Wilcox, 84 Ill. 239; Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 80; Andrew v. Electric Tel. Co. 33 Eng. L. & Eq. 180, 185; Illinois Cent. R. Co. v. Adams, 42 Ill. 474; Illinois Cent. R. Co. v. Read, 37 Ill. 484. Pennsylvania R. Co. v. Raiordan, 12 Cent. Rep. 177. 119 Pa. 577; Adams Exp. Co. v. Holmes (Pa.) 8 Cent. Rep. 155; Mobile & O. R. Co. v. Hopkins, 41 Ala. 486, Ortt v. Minneapolis & St. L. R. Co. 36 Minn. 396; Hutchinson v. Chicago, St. P. M. & O. R. Co. 37 Minn. 524; Shriver v. Sioux City & St. P. R. Co. 24 Minn. 506; Rosenfeld v. Peoria, D. & E R. Co. 1 West. Rep. 150, 103 Ind. 121; Steele v. Townsend, 37 Ala. 247; Missouri Pac. R. Co. v. Harris, 67 Tex. 166; Laing v. Colder, 8 Pa. 479; Camden & A. R. Co. v. Baldauf, 16 Pa. 67; Goldey v. Pennsylvania R. Co. 30 Pa. 242; Carroll v. Missouri Pac. R. Co. 3 West. Rep. 842, 88 Mo. 239; Pennsylvania R. Co. v. Wilson (Pa.) 3 Cent. Rep. 915; Grogan v. Adams Exp. Co. 5 Cent. Rep. 301, 114 Pa. 523; Smith v. North Carolina R. Co. 64 N. C. 235; Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251; Atchison & N. R. Co. In Maine, while it is held that a common carrier may by special contract be exempt from responsibility for loss occasioned by natural causes, such as the weather, fire, heat, frost, etc.;' yet where it is stipulated that a railroad company should be exonerated from all damages that might happen to animals sent over the road, and that the owner should take the risk of all such damages, the court held that the company were not thereby excused from the consequences of their negligence, and the distinction between negligence and gross negligence in such a case is not tenable. It was said: "The very danger to be anticipated by permitting them (common carriers) to enter into contracts, to be be exempt from losses occasioned by misconduct or negligence, can scarcely be overestimated. It would remove the principal safeguard for the preservation of life and property in such conveyances." In another case it is said: "The special contract here set up is not alleged and could not by law be permitted to exempt the defendant from liability for injuries by their own negligence." v. Washburn, 5 Neb. 117; Camp v. Hartford & N. Y. SS. Co. 43 Conn. 1Fillebrown v. Grand Trunk R. Co. 55 Me. 462. Sager v. Portsmouth, S. & P. & E. R. Co. 31 Me. 228. Medfield School Dist. v. Boston, H. & E. R. Co. 102 Mass. 552. The following decisions are to the same general purport: Orndorf v. Adams Exp. Co. 3 Bush, 194; Swindler v. Hilliard, 2 Rich. L. 286; Whiteside v. Thurtkill, 12 Smedes & M. 599; Southern Exp. Co. v. Moon, 39 Miss. 822; New Orleans Mut. Ins. Co. v. New Orleans, J. & G. N. R. Co. 20 La. Ann. 302. |