In one, the carrier exempts himself from liability for all injuries which can in no way be attributed to his own negligence or wrongdoing.

In another, this exemption covers all liabilities whatever, including not only the negligence, but the wilful tort or default of the carrier or his servants.

In the third, the contract exempts the carrier from liability for any damage not actually caused by his own negligence, but leaves him liable for that.

We think the decisions and the reasons for them would now permit the carrier to exempt himself by contract, or by notice equivalent to contract, from any liability for damage not caused by his negligence or default.

Then we think that he cannot protect himself from a liability for the consequences of wilful default or tort, as, for example, embezzlement or wanton destruction of the property by himself or his servants. Upon the question whether he may exempt himself from all liability for the consequences of the mere negligence of * himself or his servants, we are inclined to think that the present weight of authority would not permit him to do so. This is indeed expressly prohibited by the recent English Railroad Traffic Act. It cannot, however, be denied that the law does permit, in some cases, contracts of this kind. Thus, insurance against fire, has been repeatedly held, as we show in our chapter on that subject, to be intended and to operate as an insurance against damage caused by the negligence of the insured himself, his family or his servants.

In a late case in West Virginia it was held that a carrier might, by sufficiently definite terms, exonerate himself from liability for his own negligence, however gross, confining his liability to fraud or other wrong-doing. (ss) l At about the same time it was held in Kansas, in Mississippi, in Pennsylvania, Illinois, and Indiana, that the carrier could not so exempt himself from liability for loss caused by his negligence. (st) 2 The law of these last cases is in much better conformity with the weight of authority. Thus, it is held that "taken on owner's risk," (su) or "at owner's risk of fire," (sv) or with the stipulation,"valued under fifty dollars unless otherwise herein stated," did not exempt the company from liability for negligence. Indeed, the principle running through the cases seems to be, that any notice can affect the carrier only as insurer, leaving his liability for negligence wholly unaffected. On this ground, a notice that the goods would be carried in an uncovered car, would not discharge the carrier, if it was negligence so to carry them; (sy) and where horses were carried, with the strongest stipulation against the carrier's liability for negli(ss) Baltimore, etc. R. R. Co. v. Rath-bone, 1 West. Va. 87.

(st) Kallman v. United States Express Co. 3 Kan. 205; Southern Express Co. v. Moon, 39 Miss. 822. The same doctrine is implied in Rooth v. North Eastern R. R. Co. Law Rep. 2 Ex. 178; Lackawanna R. R. Co. v. Chenewith, 62 Penn. 882; Pennsylvania R. R. Co. v. Henderson, 51 Penn. 316; Illinois R. R. Co. v. Read, 37 Ill. 484. In this last case it was a free ticket on which the notice was written. See also American Express Co. v. Sands, 65 Penn. St. 140; Stedman v. Western gence, it was held that the company were still liable for not providing sufficient cars; (sz) where one having "a drover's pass," paying no fare, and the pass expressly stipulating against liability for negligence, was injured by negligence, it was held, that he was not a gratuitous passenger, and the company were liable. (sa) 1

Transportation Co. 48 Barb. 97; Farnham v. Camden R. R. Co. 55 Penn. St. 53; Evansville R. R. Co. v. Young, 28 Ind 516.

(su) Mobile, etc. R. R. Co. v. Jarboe, 41 Ala. 644; Penn. R. R. Co. v. Books, 67 Penn. St. 830.

(sv) Levering v. Union Transportation, etc. Co. 42 Mo. 88.

(sw) Orndorff v. Adams Ex. Co. 3 Bush. 194.

(sy) Montgomery, etc. R. R. Co. v. Edmonds, 41 Ala. 667.

1 So in the United States courts, Railroad Company v. Lockwood, 17 Wall. 857; in Maine, Little v. Boston, etc R. Co. 66 Me. 239; in Ohio, Union Ex Co. v. Graham, 26 Ohio St. 595; U. S. Ex. Co. v. Backman, 28 Ohio St. 144; and Michigan, etc. R. Co. v. Heaton, 37 Ind. 448; Ohio, etc. R. Co. v. Selby, 47 Ind. 471. In Illinois, railroads may, by contract, escape liability from their servants' negligence other than wilful or gross, Arnold v. Ill. Cent. R. Co. 83 Ill. 273; and in New York, a carrier may, by an express stipulation, exempt himself from liability for negligence, Mynard v. Syracuse, etc. R. Co. 71 N. Y. 180; Magnin v. Dinsmore, 56 N. Y. 168; but where the exemption was for "damage occasioned by delays from any cause or change of weather," the carrier was held liable for loss of goods through his negligent delay, Nicholas v. N. Y., etc R. Co. 89 N. Y. 370. See Holsapple v. Rome, etc. R. Co 86 N. Y. 275, that where general words, limiting a carrier's liability, may operate without including his negligence, such negligence will not be within the exemption.

2 Empire Trans. Co. v. Wamsutta Oil Co. 63 Penn. St. 14.

A condition that the carrier should be liable for no loss unless a claim were made within thirty days from the date of the receipt, was held unreasonable and void. (sb)

When an owner of live freight contracted with a railroad company to release them from all claims but those arising from gross negligence, it was held that proof of collisions, etc., was not enough to maintain the action, without direct proof of gross negligence. (sc)

Recently, in England, one whose goods were injured by the negligence of the servants of a common carrier (where notice had been given), brought his action therefor. The judge who tried the case at Nisi Prius decided against the liability of the carrier; then a majority of the Queen's Bench, in banco, decided against the carrier; then a majority of the judges in the Exchequer Chamber, reversed the decision of the Queen's Bench; then it went to the House of Lords, and a majority of the judges, all of whose opinions were asked by the House of Lords, confirmed the decision of the Exchequer Chamber. And then a majority of the House of Lords, reversed the decision of the Exchequer Chamber, and held the carrier liable. (t) We * give an * 251