1 2 Greenleaf on Evidence, § 215; 1 Bell, Comm. 382; Orange County Bank v. Brown, 9 Wend. 115; Fish v. Chapman, 2 Kelly, 349; Story on Bailm. § 557; Clarke v. Gray, 6 East, 564.
2 Orange County Bank v. Brown, 9 "Wend. 115.
3 Austin v. Manchester, Sheffield, etc. Railway Co., 10 C. B. 454; 11 Eng. Law & Eq. 506, and Bennett's note. See, also, Morville v. Great Northern Railway Co., 16 Jur. 528; 10 Eng. Law & Eq. 366; Owen v. Burnett, 2 Cromp. & Mees. 353; 4 Tyrwh. R. 133; Hinton v. Dibbin, 2 Q. B. 616; McCawley v. Furness Railway Co., L. R. 8 Q. B. 57 (1872). In the last case, the plaintiff was a free passenger on a railway, one of the terms of his pass being that he should travel at his own risk; and it was held that he could not recover for an injury caused by the negligence of the railway. See, also, Carr v. Lancashire & Y. Railway Co., 7 Exch. 707; Phillips v. Clark, 2 C. B. (n. s.) 156; Gill v. Manchester, S. & L. Railway Co., L. R. 8 Q. B. 186 (1873).
1 Carr v. Lancashire & Yorkshire Railway Co., 7 Exch. 707; 14 Eng. Law & Eq. 340; Walker v. York & North Midland Railway Co., 2 El. & B. 750; McManus v. Lancashire & Yorkshire Railway Co., 2 H. & N. 693, 4 Id. 327. But these decisions may proceed upon the ground that the same rules do not apply to the transportation of live animals as to other property. See Betts v. Farmers' Loan & Trust Co., 21 Wis. 80(1866); §926.
2 See Sager v. Portsmouth, etc. Railroad Co., 31 Maine, 228; Reno v. Hogan, 12 B. Mon. 63; Dorr v. N. J. Steam Nav. Co., 4 Sandf. 136; Stoddard v. Long Island Railroad Co., 5 Sandf. ISO; Parsons v. Monteath, 13 Barb. 353; Camden & Amboy Railroad Co. v. Baldauf, 16 Penn. St. 67; Wells v. Steam Nav. Co., 4 Selden, 375; Laing v. Colder, 8 Barr, 479; Swindler v. Hilliard, 2 Rich. 286; Slocum v. Fairchild, 7 Hill, 292; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Davidson v. Graham, 2.Ohio St. 131; Goldey v. Penn. Railroad Co., 6 Casey, 242; Powell v. The same, 8 Id. 414; Welsh v. Pittsburg,etc. Railroad Co., 10 Ohio St. 64; Squire v. N. Y. Central Railroad Co., 98 Mass. 246. But see Poucher v. New York Cent. R. Co., 49 N. Y. 263; Cragin v. New York Cent. R. Co., 51 N. Y. 61 (1872).
3 Wyld v. Pickford, 8 M. & W. 443; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Owen v. Burnett, 2 Cromp. & M. 353; Boden-ham v. Bennett, 4 Price, 34; Story on Bailm. § 349, 549; Massiter v.
And even if carriers could stipulate for an exemption from the consequences of their own negligence, such an exemption would not screen them from an injury resulting from a deliberate and intentional refusal to forward their freight, such as cattle, in a proper time, by which they are injured on the way.1 So, also, the carrier cannot, by demanding an exorbitant price, compel the owner to submit to oppressive limitations of his right.
§ 955. The English cases formerly carried the rule so far as to hold that if it be proved that a notice exempting the carrier from all loss had been actually served on the consignor, previous to sending the goods he would be bound by its terms, even if at the time of forwarding the goods he protested against the terms of the notice;2 but the more usual mode of making such contracts was, to require the consignor to sign a ticket or memorandum containing some such stipulations.8 These decisions produced so much dissatisfaction as to lead to the passage in 1854 of the Railway and Canal Traffic Acts,4 because railroad companies were by such contracts enabled altogether to evade the "salutary policy of the common law." This act, among other things, made the carrier liable for the neglect or default of the company or its servants "notwithstanding any notice or declaration to the contrary;" but allowed the carrier to make such conditions, as to carrying and delivering, as the court should judge to be just and reasonable." 1
Cooper, 4 Esp. 260; Jones on Bailm. 48; Duff v. Budd, 3 Brod. & Bing. 177; Lyon v. Mells, 5 East, 428; Harris v. Packwood, 3 Taunt. 264; Batson v. Donovan, 4 B. & Aid. 21, 32; Stephenson v. Hart, 4 Bing. 476; Farmers & Mechanics' Bank v. Champlain Trans. Co., 23 Vt. 187; Guillaurae v. Hamburgh & Am. Packet Co., 42 N. Y. 212. See Bowlin v. Nye, 10 Cush. 416, and cases cited.
1 Keeney v. Grand Trunk Railway Co., 59 Barb. 104 (1870).
2 Walker v. York & North Midland Railway Co., 2 El. & B. 750.
3 See Shaw v. York & North Midland Railway Co., 13 Q. B. 347; Austin v. Manchester, Sheffield, etc, Railway Co., 16 Q. B. 600; Chippendale v. Lancashire & Yorkshire Railway Co., 21 Law J. Q. B. 22; Great Northern Railway Co. v. Morville, Id. 319; Hughes v. Great Western Railway Co., 14 C. B. 637; Lloyd v. Waterford & Limerick Railway Co., 15 Irish Com. Law, 37; Alexander v. Malcolmson, Irish Rep. 2 C. L. 621; Simons v. Great Western Railway Co., 18 C. B. 805; Rooth v. North Eastern Railway Co., Law Rep. 2 Exch. 173; Gregory v. West Midland Railway Co., 2 H. & C. 944.
4 17 & 18 Vict. ch. 31.
§ 956. Wherever such notices are valid, they must be brought home to the knowledge of the bailor, or the carrier will still be responsible.2 The mere fact that such a notice is exposed to view, in the office of the carrier, or is published in a newspaper, or circulated in printed handbills, is not sufficient in itself; unless there be other circumstances connected therewith which bring the notice to the actual knowledge of the bailor.3 Thus, although the notices be posted up at the booking office, this will not be sufficient, if the consignor cannot read,4 or if, although he saw that there were notices, he did not read them, supposing them not to be material;5 a fortiori, if there be any artifice in such case, as if the limitation of liability be printed in very small letters, so as not to attract attention, while the advantages of carriage are conspicuously set forth, this rule would apply.6 So, also, if there be two different notices at the same time, the carrier is bound by that which least limits his responsibility. And if at the time of the carriage he deliver a written notice, without any limitation of liability, his prior notice containing a limitation is thereby nullified.1 So, also, if the notice be ambiguous, it will be construed against the carriers, on the ground that, if either party be to suffer, the one occasioning the mistake should.2 Indeed, it has been said, that, "if coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individual who applies at their office, and, at the same time, place in his hands a printed paper specifying the precise extent of their engagement. If they omit to do this, they attract customers, under the confidence inspired by the extensive liability which the common law imposes upon carriers, and then endeavor to elude that liability by some limitation which they have not been at the pains to make known to the individual who has trusted them." 3 Neither can a carrier limit his liability by a mere by-law, which contravenes the general law; as a by-law that the carrier will not be responsible for the care of a passenger's luggage, unless the same be booked and the carriage paid for; the charter of the company allowing every passenger to take his luggage to a certain amount, free of charge.4