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The CHIEF JUSTICE delivered the opinion of the court.*

As to the first of the grounds, on which a dismissal of this appeal is asked, on looking into the acts of Congress relating to the connection of the district judge with the Circuit Court, we are of opinion that, though upon appeals from the District Court the district judge has no vote in the Circuit Court, he has in all other respects the powers of a member of the court, and may consequently allow appeals from its decisions.

Secondly, it is apparent that, though no one of the claims allowed exceeded $2000, yet the claim of the appellants, which was disallowed, exceeded that sum.

Thirdly, we are of opinion that the decree may be considered as of either the 30 day of June or the 6th day of June, 1872, and that the appeal was in time to operate as a supersedeas under the act of 1789. That act, however, does not prescribe the existing rule. The act of June 1st, 1872, · which must govern the case, allows sixty days for the filing of the bond by which the appeal is made to operate as a supersedeas.



1. A common carrier cannot lawfully stipulate for exemption from respon

sibility 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 for a common carrier

to stipulate for exemption from responsibility for the negligence of him

self or his servants. 3. These rules apply both to common carriers of goods and common carriers

of passengers, and with especial force to the latter. 4. They apply to the case of a drover travelling on a stock train to look

after his cattle, and having a free pass for that purpose.

* This was the last opinion ever delivered by Chief Justice Chase, and the last also given in the December Term, 1872. It was given on the 1st day of May, 1873. The Chief Justice died on the following 7th.

† 17 Stat. at Largo, 198.

Statement of the case.

6. Query: Whether the same rules would apply to a strictly free passenger. 6. Held, arguendo : That a common carrier does not drop his character us

such merely by entering into a contract for limiting his responsibility. 7. That carefulness and fidelity are essential duties of bis employment which

cannot be abdicated. 8. That these duties are as essential to the public security in his servants as

in himself. 9. That a failure to fulfil these duties is “negligence," the distinction be

tween “gross” and “ordinary” negligence being unnecessary.

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

Lockwood, a drover, was injured whilst travelling on a stock train of the New York Central Railroad Company, proceeding from Buffalo to Albany, and brought this suit to recover damages for the injury. He had cattle in the train, and had been required, at Buffalo, to sign an agreement to attend to the loading, transporting, and unloading of them, and to take all risk of injury to them and of personal injury to himself, or to whomsoever went with the cattle; and he received what is called a drover's pass; that is to say, a pass certifying that he had shipped sufficient stock to pass free to Albany, but declaring that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. The agreement stated its consideration to be the carrying of the plaintiff's cattle at less than tariff rates. It was shown on the trial, that these rates were about three times the ordinary rates charged, and that no drover bad cattle carried on those terms; but that all sigued similar agreements to that which was signed by the plaintiff, and received similar passes. Evidence was given on the trial tending to show that the injury complained of was sustained in consequence of negligence on the part of the defendants or their servants, but they insisted that they were exempted by the terms of the contract from responsibility for all accidents, including those occurring from vegligence, at least the ordinary negligence of their servants; and requested the judge so to charge. This he refused, and charged that if the jury were satisfied that the injury occurred without any negligence on the part of the plaintiff,

Opinion of the court.

and that the negligence of the defendants caused the injury, they must find for the plaintiff, which they did. Judgment being entered accordingly, the railroad company took this writ of error.

It is unnecessary to notice some subordinate points made, as this court was of opinion that all the questions of fact were fairly left to the jury, and that the whole controversy depended on the main question of law stated.

The case was elaborately argued by Mr. T. R. Strong, for the company, plaintiff in error, and by Messrs. Truman Smith and Cephas Brainerd, contra, early in the last term, with a full citation of authorities; the counsel for the plaintiff in error relying especially on the New York cases of Welles v. The New York Central Railroad Company,* Perkins v. Same,t Smith v. Same, I Bissell v. Same, Poucher v. Same,ll by which he argued that the case was to be determined; those being decisions of the highest court of the State of New York, within whose jurisdiction the contract was made and to be executed, and where the alleged cause of action occurred. Being held under advisement till this term

Mr. Justice BRADLEY delivered the opinion of the court.

It may be assumed in limine, that the case was one of carriage for hire; for though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle. The question is, therefore, distinctly raised, whether a railroad company carrying passengers for hire, can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to such carriage.

As the duties and responsibilities of public carriers were prescribed by public policy, it has been seriously doubted whether the courts did wisely in allowing that policy to be departed from without legislative interference, by which

† 24 New York, 196.

* 24 New York, 181; S. C. 26 Barbour, 641.
$ Ib. 222; S. C. 29 Barbour, 132.
& 25 New York, 442; S. C. 29 Barbour, 602.

|| 49 New York, 268.

Opinion of the court.

needed modifications could have been introduced into the law. But the great hardship on the carrier in certain special cases, where goods of great value or subject to extra risk were delivered to bim without notice of their character, and where losses happened by sheer accident without any possibility of fraud or collusion on his part, such as by collisions at sea, accidental fire, &c., led to a relaxation of the rule to the extent of authorizing certain exemptions from liability in such cases to be provided for, either by public notice brought home to the owners of the goods, or by inserting exemptions from liability in the bill of lading, or other contract of carriage. A modification of the strict rule of responsibility, exempting the carrier from liability for accidental losses, where it can be safely done, enables the carrying interest to reduce its rates of compensation; thus proportionally relieving the transportation of produce and merchaudise from some of the burden with which it is loaded.

The question is, whether such modification of responsibility by notice or special contract may not be carried beyond legitimate bounds, and introduce evils against which it was the direct policy of the law to guard; whether, for example, a modification which gives license and immunity to negligence and carelessness on the part of a public carrier or his servants, is not so evidently repugnant to that policy as to be altogether null and void; or, at least null and void under certain circunstances.

In the case of sea-going vessels, Congress has, by the act of 1851, relieved ship-owners from all responsibility for loss by fire unless caused by their own design or neglect; and from responsibility for loss of money and other valuables named, uuless notified of their character and value; and has limited their liability to the value of ship and freight, where losses happen by the embezzlement or other act of the master, crew, or passengers; or by collision, or any cause occurring without their privity or knowledge; but the master and crew themselves are held responsible to the parties injured by their negligence or miscouduct. Similar enact

Opinion of the court.

ments have been made by State legislatures. This seems to be the only important modification of previously existing law on the subject, which in this country has been effected by legislative interference. And by this, it is seen, that though intended for the relief of the ship-owner, it still leaves him liable to the extent of his ship and freight for the negligence and misconduct of his employés, and liable without limit for his own negligence.

It is true that the first section of the above act relating to loss by fire has a proviso, that nothing in the act contained shall prevent the parties from making such contract as they please, extending or liiniting the liability of ship-owners. This proviso, however, neither enacts nor affirmis anything. It simply expresses the intent of Congress to leave the right of contracting as it stood before the act.

The courts of New York, where this case arose, for a long time resisted the attempts of common carriers to limit their common-law liability, except for the purpose of procuring a disclosure of the character and value of articles liable to extra hazard and risk. This, they were allowed to enforce by means of a notice of non-liability, if the disclosure was not made. But such amouncements as “all baggage at the risk of the owner,” and such exceptions in bills of lading as “ this company will not be responsible for injuries by fire, nor for goods lost, stolen, or damaged,” were held to be unavailing and void, as being against the policy of the law.*

But since the decision in the case of The New Jersey Steam Navigation Company v. MerchantsBank,† by this court, in January Term, 1848, it has been uniformly held, as well in the courts of New York as in the Federal courts, that a common carrier may, by special contract, limit his commonlaw liability; although considerable diversity of opinion has existed as to the extent to which such limitation is admissible,

The case of The New Jersey Steam Navigation Company v.

* Cole v. Goodwin, 19 Wendell, 257; Gould v. Hill, 2 Hill, 623.
† 6 Howard, 344.

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