LLOYD v. AND LIMERICK RAILWAY. for the likelihood is, that cattle during the transit will receive some E. T. 1862. Queen's Bench injury to their health, which cannot be discovered and pointed out at the time of delivery. An internal hurt could not be so quickly discovered; and, even though every injury could be so found out, WATERFORD how could a consignee make a claim at once on the Company's agent, when he does not know whether the claim is to be made against the consignor or against the Company? Must the consignee in every case make two claims, one of which must be unjust ?-[O'BRIEN, J., referred to Garton v. The Bristol and Exeter Railway Company (a)]. Lastly, there is, on the whole of the pleadings, taken together, a good cause of action wholly unanswered; for the stipulation that the Company would not be liable for non-delivery at any particular time, does not exempt them from liability on their contract to carry the horses to Dublin in a reasonable time. One of those contracts does not negative or qualify the other. Serjeant Sullivan, in reply. The decision of the Court of Exchequer Chamber, in M'Manus's case, does not touch the present case at all; for the question respecting the insurance rate and the non-insurance rate was not discussed there. Condition A would have been unreasonable if the defendants had not given the plaintiff the option of sending the horses at their risk. But if a man who had the option of sending his goods or cattle at the defendant's risk, upon payment of a slightly increased rate of charge, much lower than that allowed by the Company's Act, chose, with his eyes open, to sign a contract containing these conditions, and pay the low rate of charge, the conditions are reasonable, and he cannot complain; and the Court will not listen to the argument that the customer had not sufficient time to consider the terms of the contract before he signed it. The Court of Exchequer Chamber, in Peek v. The North Staffordshire Railway Company (b), held it a reasonable condition "that the Company shall (a) 1 Best & Smith, 112; S. C., 7 Jur., N. S., 1234. LLOYD บ. LIMERICK E. T. 1862. "not be responsible for the loss of or injury to, any marbles. Queen's Bench “... unless declared and insured according to their value." The chances of imposition upon the defendants in the carriage of horses WATERFORD exposes them to more risks than they run in carrying marbles; and AND it would be absurd to say that a contract made with respect to horses is unreasonable, though less stringent than that made with respect to marbles, unless there be different principles applicable to the two subject-matters. The case of Harrison v. The London, Brighton and South Coast Railway Company (a) recognised the doctrine "that a condition is reasonable and proper which meets "the evil of the monopoly of Railway Companies, and which gives "the party the alternative of paying the extra rate of charge, or doing something which is reasonable "-[per Blackburn, J.]; but the Court there held that the extra charge was excessive, and that the condition was upon that account unreasonable. The same principle has been recognised in M'Cance v. The London and North Western Railway Company (b). Condition B is reasonable per se; for, although it requires the owner, at the time of unloading, to point out any injury for which he claims compensation, yet it only means patent injuries. That condition is necessary to protect the Company against claims made for injuries sustained when leaving the station, or afterwards. If the defendants pleaded this condition in bar, and the plaintiff replied that the injury was a latent one, that replication could not be demurred to. In the present case, three men got free passes to travel with the horses; and they should have been able to point out any injury sustained during the transit, for they travelled in the trucks along with the horses. As to the form of pleading, it is no doubt anomalous for a (a) 6 Jur., N. S., 954; S. C., 2 B. & Sm. 122. (c) 8 Ir. Com. Law Rep., App. 76. LEFROY, C. J. E. T. 1862. LLOYD V. AND LIMERICK RAILWAY. May 7. In this case, we cannot go beyond a mere decision upon the particular point which has arisen in the case. To attempt to express any opinion, or to announce anything with respect to the WATERFORD general law of the liability or responsibility of Railway Companies, would really be more than hazardous. It would be presumptuous to affect to announce the law as to its general effect, considering the state of uncertainty in which it appears to be in England. What the law is, or what it might be found to be by the time that this case arrives at its ultimate destination, it would be more than hazardous to conjecture. Upon this general question therefore we shall not affect to give any opinion. It is enough to say that, in the last decision upon the subject, there is sufficient to be found to enable us to decide this case. The question in it comes to this, whether this contract comes within the principle that, if a fair and just contract be made, it is open to the parties to act upon the alternative condition in it announcing the terms upon which the Company are willing to undertake more or less responsibility. In this case it comes to the question, was that a fair contract which gave an alternative condition, such as has been here given that the party might choose to take upon himself the responsibility of the Company to a certain extent, or might leave it to the Company to be, as it were, the insurers? In this case, the plaintiff had an alternative; and, if the alternative was both fair and reasonable, we think that the contract would be in itself just and fair. But, in order to make a contract of that species just and fair, both the terms of the alternative condition must be just and fair. We conceive that one of the terms of the alternative condition in the present case is not just and reasonable— that the term imposed on the owner of pointing out, at the time of unloading, to the Company's agent any injury which the cattle. might have received in the transit, is not reasonable or fair. Looking at the circumstances under which goods of any sortand particularly goods of this kind-are delivered to Railway Companies to be carried-remembering the small opportunity there is for a deliberate examination of the cattle on their arrival-and VOL. 15. 7 L LLOYD AND LIMERICK RAILWAY. E. T. 1862. regarding the length of time which in other cases has been conQueen's Bench sidered the fair limit to give the parties within which to examine the cattle, and apprise the Company of the injuries which they WATERFORD might have received in the transit, and to complain of defects in respect to the performance of the contract, we do not think that this term of the alternative condition is fair or just; and if both the terms of the alternative condition be not just, fair and reasonable, it is not a fair proposal. Without expressing any opinion of my own-and, least of all, on behalf of the Court-it would appear to myself that the very least opportunity that should be given to the party for examining into and reporting to the Company's agent any defects that might be discovered, should be until the cattle leave the Company's premises. That should be the very least period of time allowed for discovering and reporting the injuries. However, I apprehend that the Court do not take upon themselves to give any opinion, whether even that period of time would be sufficient or not. But when one considers the case of the arrival of cattle at night in the dusk, or the very circumstance of the hurried manner in which they are delivered to the owner, it would be most unjust and unreasonable to preclude him from obtaining compensation for any injury arising in the transit, and bind him by such a condition as that. Under these circumstances, we say that the contract or condition in this case was not a just or fair one; and that therefore the Company must be liable. The demurrer must therefore be overruled. O'BRIEN, J. I am also of opinion that the demurrer taken by defendants to plaintiff's replication should be overruled. The first question is, whether the provisions of the 7th section of the Railway and Canal Traffic Act (17 & 18 Vic., c. 31), which make null and void all notices, conditions, and declarations limiting the liability of a Company for loss or injury to any horses, cattle, goods, &c., except such conditions as the Court or Judge should consider just and reasonable, extend to cases in which such conditions, &c., are embodied in Queen's Bench LLOYD υ. AND LIMERICK RAILWAY. a special contract, signed, in conformity with the subsequent pro- E. T. 1862. viso of that section, by the owner of the cattle, &c., or by the person delivering them to the Company. Upon this question, I think we are bound by the decision of the Court of Error in England, in the WATERFORD case of M'Manus v. The Lancashire and Yorkshire Railway Company (a). In that case, the condition limiting the liability of the Company was contained in a document signed by the owner, and the Court of Exchequer had decided that the Company were thereby exonerated from liability; but the Court of Error (Erle, J., dissenting) reversed that decision; being of opinion that the condition was unreasonable, and was accordingly void, under the provisions of the 7th section. The Court of Error decided that case upon the ground that those provisions extended to all cases where the Company sought to relieve themselves from liability for such loss or injury by relying on any special conditions, whether those conditions were contained in notices acquiesced in by the owner, or in a special contract, signed under the subsequent proviso in said 7th section. The effect of this decision is, that where any cattle, goods, &c., are delivered to a Company, for the purpose of being carried, no contract, however special, and though signed by the owner or person delivering such cattle, goods, &c., can relieve the Company from liability for the neglect or default of themselves or their servants in respect of such cattle, goods, &c., except the terms of such contract are considered by the Court to be just and reasonable. It has been urged by defendants' Counsel, that, in the subsequent case of Beale v. The South Devon Railway Company (b), some of the Barons of the Court of Exchequer in England expressed, in strong terms, their disapprobation of this decision. But in that case, Mr. Baron Martin, who had delivered the original judgment of the Court of Exchequer in M'Manus's case, stated that he considered himself bound by the authority of the Court of Error. That decision has not been appealed from; it has, on the contrary, been recognised and followed by other Judges, in some of the cases cited in the argument: and we should accordingly be bound by its authority, even though we disapproved of it. For my own part, (b) 5 H. & N. 875. (a) 4 H. & N. 327. |