8 & 9 VICT. o. 20. goods, or things respectively for carriage: Provided also, that nothing herein contained shall alter or affect the rights, privileges, or Saving of Carriers Act, 11 Geo. liabilities of any such company under the said act of the eleventh IV. & 1 Will, IV. George Fourth and first William Fourth, chapter sixty-eight, with respect to articles of the descriptions mentioned in the said act."

c. 68.

Under this section, although the injuries complained of be caused by the negligence of the company's servants, during the delivery of the animal, and before the terms of the contract have been agreed upon, the company are only liable to the extent of £50, unless the value has been declared: (Hodgman v. West Midland Railway Co., 5 B. & S. 173; 33 L. J. (Q. B.) 233; and in Cam. Scacc., 35 L. J. (Q. B.) 85.) Injury to cattle from want of food or water is an injury within of food or water. the act: (Allday v. Great Western Railway Co., 34 L. J. (Q. B.) 5.) Dogs are included in the words, "other animals :" (Harrison v. London, Brighton, and South-Coast Railway Co.)

Injury from want

Dogs.

Great difficulty and uncertainty for a long time existed as to the correct interpretation of the section. In the case of Pardington v. South Wales Railway Co., 1 H. & N. 392, it was held by Martin and Bramwell B.B., that the section did not invalidate special contracts, signed by the parties, although they might not appear reasonable to the judge. However, the Court of Exchequer Chamber, in the case of M'Manus v. Lancashire and Yorkshire Railway Co., 4 H. & N. 327, on appeal from the Court of Exchequer, 2 H. & N. 693 held, dissentiente Erle J., that the clause making void all notices, conditions, and declarations made and given by the company, limiting their liability unless such as the court or judge, trying any cause, may adjudge to be just and reasonable, extends to cases where a special contract has been signed in conformity with the subsequent proviso in the section. Erle, J., gave a separate judgment, urging the injustice which the above construction would inflict upon the companies. The condition in that case was, that the company "would not be responsible for any injury or damage howsoever caused;" this was held by the Exchequer Chamber, Erle, J. dissentiente, to be unjust and therefore void; as it would protect the company from all responsibility for loss, though occasioned by their own negligence or misconduct. Per Erle, J., the condition does not extend to wilful neglect or misfeazance, and is reasonable.

In Harrison v. London, Brighton, and South-Coast Railway Co., 2 B. & S. 123, Erle, C. J., and Keating, J., held that the section only applied to cases where the loss occurred through the neglect or default of the company, but that it did not prohibit them from making conditions against liability for accident. The judgment of the Court of Exchequer Chamber was, however, given for the defendant on the ground that the conditions of the contract were reasonable. These conditions on the face of them exempted the company from any injury however caused; but it was held by the majority of the Court, (whose judgment was delivered by Erle, C. J.,) that they were never intended to exempt from wilful injury, and could not so exempt. In Beal v. South Devon Railway Co., 5 H. & N. 875, the company had given public notice that they would only convey fish by special agreement, and by particular trains, and that the sender should sign the following conditions:-"That the company should not be responsible, under any circumstances, for loss of market, or

Liability as Carriers-Reasonableness of Conditions. 423

for other loss or injury arising from delay or detention of trains, 8 & 9 VICT. C. 20. exposure to weather, stowage, or from any cause whatever, other than gross neglect or fraud." These conditions were signed by the plaintiff, and were held by the Court, and on appeal by the Exchequer Chamber, (3 H. & C. 337,) just, and were binding upon the party who had signed them. Crompton, J., in delivering the judgment of the Exchequer Chamber said, that in the case of a carrier, gross negligence includes the want of that reasonable care, skill, and expedition which may properly be expected from persons so holding themselves out, and their servants.

mean

Staffordshire
Railway Co.

The House of Lords, in the case of Peek v. North Staffordshire Peek v. North Railway Co., (10 H. L. C. 474-588,) have finally settled the ing of this 7th section of the Railway and Canal Act of 1854. It was held, "That all the parts of the section must be read together, and therefore the conditions there spoken of as capable of being imposed by railway companies in limitation of their liability as common carriers, must not only be in the opinion of a court or judge just and reasonable, but must also be embodied in a special contract in writing, signed by the owner or sender of the goods." The condition sought to be enforced by the company was, that the company would not be responsible for damage to goods sent by the railway, unless their value was declared and insurance premium of ten per cent. on the declared value paid. This condition was declared void by the Lords; dissentiente Lord Chelmsford, on the grounds, first, that it was not reasonable, and, secondly, that a note from the sender telling the company to forward the marbles uninsured could not be incorporated with the other documents so as to constitute a contract, and that the words "not insured" could not be explained by parole evidence. The whole law and policy of the enactment will be found amply discussed in the judgment of their lordships, and by the judges who were called in to assist them.

Two more cases may be mentioned having reference to the reasonableness of the conditions made by railway companies. In Allday Allday e. Gt.-W. v. Great Western Railway Co., 5 B. & S. 903, the condition was, that R. Co. "the company are not to be amenable for any consequences arising from detention or delay in or in relation to the conveying or delivery of the said animals, however caused," and the Court held it

to be unreasonable. In Rooth v. North-Eastern Railway Co., L. R. Rooth v. N.-E. R 2)Exch. 173, the company had stipulated for the following condi- Co. tions, which were signed by the plaintiff :-"The owner undertakes all risk of loading, unloading, and carriage, whether arising from the negligence or default of the company or their servants, or from defect or imperfection in the station, platform, or other places of loading or unloading, or of the carriage in which the cattle may be loaded or conveyed, or from any other cause whatever.” "The com

pany will grant free passes to persons having the care of live stock, as an inducement to owners to send proper persons with and to take care of them." The Court held that the first condition was unreasonable, although the company had granted a free pass to a servant of the owner's to take charge of the cattle.

thod of carriage.

Where there is an alternative method of carriage, a condition that Alternative mehorses carried at the lower rate are to be at owner's risk is reasonable, and not contrary to the decision of the House of Lords, in

8 & 9 VICT. C. 20. Peck v. North Staffordshire Railway Co.; but the condition does not exonerate the company from the duty of delivering within reasonable time: (Robinson v. Great Western Railway Co., 35 L. J. C. P. 123.)

Declaration of value.

Fa'se declaration of value. Estoppel.

Contract to carry beyond

company's own line.

Carrier must keep goods a reasonable time

Proper person to

sue.

Place of delivery.

Measure of damages.

The declaration of value required by the 7th section of the Railway and Canal Act, 1854, must be such as to convey a distinct intimation to the company that the sender intends to hold them responsible for the higher sum. A company was therefore held liable for refusing to carry a mare without payment of the higher charge, because their servant casually learned that the mare was worth £135: (Robinson v. London and South-Western Railway Co., 19 C. B. N. S. 51.)

A condition that the company should not be held liable for damage beyond their own line, was held reasonable in Aldridge v. Great Western Railway Co., 15 C. B. N. S. 582.

A declaration signed by the sender of horses that their value did not exceed £10 each, was held not to be part of the contract with the company, but a statement which estopped him claiming more at the trial: MCance v. London and North-Western Railway Co., 7 H. & N. 481; 3 H. & C. 343.)

If a railway company contract to carry beyond their own line, they are liable for any loss or damage occurring on another line, (Muschamp v. Lancashire and Preston Railway Co., 8 M. & W. 421; Webber v. Great Western Railway Co., 4 H. & Č. 582;) and they alone are liable to the sender: (Bristol and Exeter Railway Co. v. Collins, 7 H. L. Cas. 194.)

If the goods are refused by the consignee, it is the duty of the carrier to keep them a reasonable time to await instructions from the consignor (Crouch v. Great Western Railway, 2 H. & N. 491, and in Cam. Scacc. 3 H. & N. 183 ;) but there is no rule of law that he must give notice to the consignor: (Hudson v. Baxendale, 2 H. & N. 575.) The proper person to sue for breach of contract to carry and deliver safely is the person at whose risk the goods are during the transit: (1 Lush's practice, p. 93, 3d edition.)

Although a carrier has contracted with the consignor to deliver at a particular place, he may deliver at any place at which the consignee orders him. (So London and North-Western Railway, app., and Bartlett, resp., 7 H. & N. 400.)

The measure of damages in an action for non-delivery of goods is the price at which the goods can be obtained at the market, if there be one, at the place and time at which they ought to have been delivered; but if there be no market, the damage must be ascertained by adding to the cost price the expense of transit and the reasonable profit of the importer: (O'Hanlan v. Great Western Railway, 6 B. & S. 484.)

Where a parcel of samples was delivered to the Great Western Railway Company at Oxford, without notice of contents, to be carried to Liverpool, and by the negligence of the company the parcel was delayed, and the plaintiff spent three days at an hotel waiting for it, it was held that the hotel expenses were too remote, but that the plaintiff might perhaps have recovered cab-hire if he had had frequently to call at the station to inquire about the parcel : (Woodger v. Great Western Railway, L. R. 2 C. P. 320; see also Great Western Railway, app., and Redmayne, resp., L. R. 1 C. P. 329; and as to damages generally, Hadley v. Baxendale, 9 Ex. 341; Wilson v.

Lancashire and Yorkshire Railway Co., 9 C. B. N. S. 632; 30 L. J., 8 & 9 VICT. c. 20, C. P. 232; Gee v. Lancashire and Yorkshire Railway Co., 6 H. & N. 211; 30 L. J., Ex., 11.)

As to sending dangerous goods by the railway, see post, s. 105, Sending dangerand the notes thereto.

ous goods.

tolls.

XC. And whereas it is expedient that the company Power to vary should be enabled to vary the tolls upon the railway so as to accommodate them to the circumstances of the traffic, but that such power of varying should not be used for the purpose of prejudicing or favouring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the company or of particular parties: It shall be lawful, therefore, for the company, subject to the provisions and limitations herein and in the special act contained, from time to time to alter or vary the tolls by the special act authorised to be taken, either upon the whole or upon any particular portions of the railway, as they shall think fit; provided that all such tolls be Tolls to be at all times charged equally to all persons and after the equally same rate, whether per ton per mile or otherwise, in re- cumstances. spect of all passengers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine, passing only over the same portion of the line of railway under the same circumstances; and no reduction or advance in any such tolls shall be made either directly or indirectly in favour of or against any particular company or person travelling upon or using the railway.

A summary of the law with respect to the liability of railway companies as carriers of goods, luggage, and passengers, will be found under s. 89, ante.

Where a railway company charged more to persons travelling a short distance than to other persons travelling the same distance, but proceeding on their journey, it was held that the clause for equality of charge was only meant to prevent a monopoly to the prejudice of one passenger or carrier in favour of another, and that, as it was not shown that the public were really injured by the inequality of charge, and that the higher charge did not exceed the authorised rate, the Court of Chancery would not grant an injunction: (Atorney-General v. Birmingham, &c., Railway Co., 2 R. C. 124.)

charged

under like cir

railways amalga

XCI. And whereas authority has been given by various How tolls to be acts of Parliament to railway companies to demand tolls calculated where for the conveyance of passengers and goods and for other mated. services over the fraction of a mile equal to the toll which they are authorised to demand for one mile; therefore, in

Tolls, &c., due to or from dissolved company to be

amalgamated

8 & 9 VICT. c. 20. cases in which any railway shall be amalgamated (a) with any other adjoining railway or railways, such tolls shall be calculated and imposed at such rates as if such amalgamated railways had originally formed one line of railway. (a) By s. 40 of the Railways Clauses Act, 1863, (26 & 27 Vict. c. 92, post,) it is enacted that, except as may be otherwise provided paid to or by the in the special act, all debts and money due from or to the dissolved company, or any persons on their behalf, shall be payable and paid by or to the amalgamated company, and all tolls, rates, duties, and money due or payable by virtue of any act relating to the dissolved company from or to that company, shall be due and payable from or to the amalgamated company, and shall be recoverable from or by the amalgamated company by the same ways and means, and subject to the same conditions, as would or might have been recoverable from or by the dissolved company if the amalgamating act had not been passed.

company.

Railway to be

of tolls.

XCII. It shall not be lawful for the company at any free on payment time to demand or take a greater amount of toll, or make any greater charge for the carriage of passengers or goods, than they are by this and the special act authorised to demand; and upon payment of the tolls from time to time demandable, all companies and persons shall be entitled to use the railway, with engines and carriages properly constructed (a) as by this and the special act directed, subject (b) nevertheless to the provisions and restrictions of the said act of the sixth year of her present 5 & 6 Vict. c. 55. Majesty, intituled, "An Act for the Better Regulation of Railways, and for the Conveyance of Troops" (c), and to the regulations to be from time to time made by the company by virtue of the powers in that behalf hereby and by the special act conferred upon them.

Right to use stations.

(a) This section is not to be construed so as to give validity to traffic agreements whereby a delegation of powers is effected; for such agreements are to be construed upon their provisions, and cannot have a wider effect by virtue of the provisions of the act: (Great Northern Railway Co. v. Eastern Counties Railway Co., 9 Hare, 306; 21 L. J. (Ch.) 837.)

Although it has been held that the term "railway" includes stations, (see Cother v. Midland Railway Co., 2 Ph. 469; 5 R. C. 189,) still it is very doubtful whether it extends so far as that parties who have a right by the payment of mileage tolls to use the railway under this section may also have the free use of the stations: (Midland Railway Co. v. Ambergate Railway Co., 10 Hare, 359.)

It seems more reasonable that persons having the right to run trains over the line should have to buy land near the station, and exercise their power under s. 76 of the Railways Clauses Act (ante) of making a communication with the line: (Ibid.)