(rr) Hooper v. Wells, 27 Cal. 11; Earle v. Cadmus, 2 Daly, 237; Hopkins v. Westcott, 6 Blatch. 64.

(rs) Boorman v. Amer. Express Co. 21 Wis. 162; Scrohn v. Detroit R. R. Co. 21 Wis. 554. See also Southern Exp. Co.

1 In Massachusetts, acceptance by a consignor, without dissent, at the time of the delivery of property for transportation, of a shipping receipt containing a clause exempting the carrier from his common-law liability, authorizes an inference of assent Hoadly v. Northern Trans. Co. 115 Mass. 304. Contra, Erie, etc. Trans. Co. v. Dater, 91

Ill. 195.

It would follow then, that where the carrier interposes such general notice, as "all baggage at risk of owners," the carry the horse at the risk of the plaintiff. The words are, 'the owners undertaking all risk of conveyance whatsoever.' Now, under those terms, a question might be raised, whether the injury contemplated was such as must issue in injury to the thing conveyed; so that a doubt might arise whether the case of the horse being stolen was contemplated, as under such circumstances the accident would not issue in damage to the horse. But that question would not arise here, as in this case the horse itself has been injured. The result is, that if there has been gross negligence on the part of the defendants, they are protected against liability by virtue of the words of the contract." Platt, B.: "The declaration states that the defendants were guilty of gross negligence, and that fact was proved. The gravamen of the charge is the gross negligence. Now, undoubtedly, since the establishment of railways, new subjects of conveyance have arisen. Formerly, horses were seldom carried, but now they are ordinarily conveyed by the trains. It is, therefore, said, that new stipulations are necessary to guard carriers from risks which are incidental to this new mode of conveyance. It is suggested that the animal may be alarmed by the noise of the engine, by the speed of the carriages, and by various other causes; and that unless we take upon ourselves the office of legislation, this ticket absolves the carriers from all responsibility. I own I am startled at such a proposition, and considering the high authority by which it is supported, I feel I ought to doubt and to distrust my own opinion. But I am bound to say that I am not satisfied that the language of this ticket absolves the railway company from all liability for damage. I cannot help thinking that the owner of the goods never dreamed of such a thing when he signed this contract In truth, this accident had nothing to do with the conveyance of the horse. The accidents referred to are those which occur whilst the article is in a state of locomotion. The case of gross negligence, as it seems to me, is not pointed at by this contract." Martin, B.: "I agree in opinion with my brothers Parke and Alderson. This is the case of a special contract which the plaintiff has adopted and assented to. Without doubt, at common law, a carrier is entitled to make a special contract If, indeed, he refuses to carry goods, except on the terms of a special contract, he is liable to an action; but if he makes a special contract, it must be abided by. The Carriers Act says that a special contract may be made. It is, then, our duty to see what contract the parties have made. Insurers are answerable for gross negligence, and if goods may be insured, others may contract that they will not be answerable for their own gross negligence. In this case, the language used by the parties cannot be stronger than it is. I am unable to say what was passing in the mind of the owner of the horse. I am to look only at the terms of the notice, and if the carrier had been desirous of preparing a contract by which he would get rid of his liability in respect of gross negligence, he could not have used more apt words than those that are contained in this notice. With respect to the argument of inconvenience, the answer is, that we have nothing to do except to carry out this contract; the parties concerned, and not ourselves, are to judge of the inconvenience. If we hold the carriers in this case responsible for gross negligence, we shall place them in the situation of insurers and underwriters. There are, indeed, inconveniences attending either mode of constructing the contract, but, in my opinion, the defendants are not answerable under this contract for any risk arising from gross negligence. See also, as to reasonable notice, White v. G. W. R. Co. 2 C. B. (N. S.) 7; Pianciani v. L. & 8. W. R. Co. 18 C. B. 226; and as to such notice, and the liability of carriers for animals, McMa-nus v. L & Y. R. R. Co. 2 Hurl. & N. 593. In this country, however, it would seem to be pretty nearly, if not quite settled, that it is incompetent for a carrier, either by notice or express contract, to exempt himself from liability for his own negligence. The strongest case that we have seen to this effect is the case of Sager v. The Portsmouth R. R. Co. 31 Me. 228. There the defendants had transported the plaintiff's horse from Boston to Portland, It was upon a cold day in November. The horse was carried in an open car, and suffered serious injury from the exposure to the cold. This action was brought to recover damages for that injury. The defendants introduced a paper signed by the plaintiff, whereby he agreed to exonerate the company from all damage that might happen to any horses, oxen, or other live stock, that he should send over the company's road; sender * may disregard it, and the baggage will be at the risk of the carrier; or he may expressly refuse to be bound meaning thereby, that be took the risk upon himself of all and any damage that might happen to his horses, cattle, etc.; and that he would not call upon said company or any of their agents for any damage whatever. At the trial, the learned judge instructed the jury that this contract would not exempt the company from liability for their own malfeasance, misfeasance, or negligence. And this instruction was held correct. Shepley, C. J., after speaking of the construction put upon notices by the English courts, said: "The notices were usually given in terms so general, that a literal construction of the contract thus arising out of them, would have exonerated the carriers from liability for their own misfeasance or negligence, and for that of their servants. Yet the well-established construction of them has been, that they were not thereby relieved from their liability to make compensation for losses thus occasioned." The learned judge then proceeded to an examination of the authorities; and having stated that the court had formerly declared that the power of carriers to limit the liability imposed upon them by law should not be favored or extended, he continued: "If a literal construction of the agreement signed by the plaintiff would exonerate the defendants from losses occasioned by the negligence of their servants, it will be perceived that it could not be permitted to have that effect without a violation of established rules of construction, and without a disregard of the declared intention of this court not to extend the restriction of the liability of common carriers. The very great danger to be anticipated, by permitting them to enter into contracts to 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. It, however, requires no forced construction of that agreement, to regard it as effectual to place the defendants in the position of bailees for hire, and as not exonerating them from liability for losses occasioned by misfeasance or negligence. The latter clause, 'we will not call upon the railroad company or any of their agents for any damages whatsoever,' considered without reference to the preceding language, would be sufficiently broad to excuse them from making compensation for losses occasioned by wilful misconduct.