since it has been admitted that he might contract for a limited liability, various opinions have been entertained by the different courts upon the question whether, conceding this general right, an exception ought not, upon grounds of public policy as well as upon legal precedent, to be made, of the power to enter into contracts to screen himself from the consequences of negligence in the performance of his duties. Our state courts are divided upon this subject, as we have seen them to be upon sev. eral other questions relating to the rights and duties of carriers; and this difference exists not only in the unqualified concession of the power by some of them and its unqualified denial by others, but amongst those which concede the power, some attempt to put a limit upon it by distinguishing between the different degrees of negligence, allowing it only as to slight or ordinary negligence, but not as to that of a grosser character. But the great weight of authority in this country is in favor of excluding it altogether as an element of contract between the carrier and his employer, and of holding the former to a rigid responsibility for every degree of negligence, without the power by contract or in any other mode to divest himself of it.24

24. Alabama: Mobile, etc. R. R. v. Hopkins, 41 Ala. 486; Montgomery, etc. R. R. v. Edmonds, 41 Ala. 667; Steele v. Townsend, 37 Ala. 247; Southern Express Co. v. Crook, 44 Ala. 468; South., etc., R. R. v. Henlein, 52 Ala. 606; Railroad Co. v. Grant, 99 Ala. 325, 13 So. Rep. 599; Railroad Co. v. Cowherd, 120 Ala. 51, 23 So. Rep. 793; Railway Co. v. Jones, 132 Ala. 437, 31 So. Rep. 501; Railroad Co. v. Sanders, 135 Ala. 504, 33 So. Rep. 482; Louisville, etc. R. R. Co. v. Oden, 80 Ala. 38.

California: Pierce v. The Rail road, 120 Cal. 156, 47 Pac. Rep. 874, 52 Pac. Rep. 302, 40 L. R. A. 350, citing Hutchinson on Carr. Camp v. Steam

Connecticut:

boat Co., 43 Conn. 333.

Delaware: Finn v. The Railroad, 1 Hous. 469.

Georgia: Berry v. Cooper, 28 Ga. 543; but see Cooper v. The Railroad, 110 Ga. 659, 36 S. E. Rep. 240, where a contract exempting the carrier from liability for loss unless occasioned by fraud or gross negligence was held to excuse the carrier if he could show that he had exercised slight diligence. In the carriage of live stock the carrier, under the law as construed by the supreme court of Georgia, may limit his liability to gross negligence. Central, etc. Ry. Co. v. Hall, Ga. 52 S. E. Rep. 679.

Indiana: Michigan, etc. R. R. Co.

Sec. 451. (§ 261.) Same subject-The contrary view.-The other view of the question is, however, taken by some of the courts of the highest authority. In some of them the unlimited power is allowed to carriers to contract for exemption from all

liability arising from or caused by negligence of every degree. In others they are permitted to contract for exemption from liability arising from negligence of every degree excepting that which is characterized as gross or willful. But all of the courts

agree that the contract for such an exemption, to be effective, must contain clear and distinct expressions for that purpose, and mere general terms of exemption, such as that the carrier "shall not be held liable for loss or damage," will not be construed as extending to loss or damage by negligence. In other words, the exemption from liability for negligence must be ex press by the use of the word itself or of something equivalent; and in construing the terms of such contracts, where the claim. is that such an exemption has been agreed to, the words will be taken most strongly against the carrier whose language they are and who is in an advantageous position for dictating the contract.25

Sec. 452. (§ 262.) Same subject-The rule of the United States supreme court. This subject was before the supreme

agents to exercise an intelligent supervision over the system of carriage which he employs. He is, therefore, to all intents and purposes, an insurer against such perils of transportation as it is his duty to provide against, and these include all the perils of the jour ney except such as arise from the act of God or the king's enemies. Cur forefathers brought this definition of the duties of a common carrier with them when they came to this continent, and its outlines remain substantially the same to this day. Some limitations upon this common law liability have been sustained to protect the carrier against unjust and fraudulent claims on the part of customers, but the measure of care due from him to those whom he serves has not been abated in the slightest degree. He must not be negligent. It is against public pol icy that he should be. A stipulation, therefore, intended to protect him in the violation of his

contract as a carrier, and in disregarding a settled principle of public policy, will not be sustained. In contracts attempting to limit the liability of the carrier, the carrier and the shipper are the ostensible parties, but the public, as represented by the courts of law, is the third party and may refuse its consent to stipulations on which carrier and shipper have agreed. When such a contract comes before the courts, the question is not what terms the parties have incorporated into their agreement, but are the terms sc incorporated just and reasonable so that they ought on grounds of public policy to be enforced. In determining this question, the courts have been constrained to apply common-law principles and hold that to be just or unjust which was so at common law."

25. Belger v. Dinsmore, 51 N. Y. 166; Magnin v. Dinsmore, 56 id. 168; Steers v. The Steamship Co., 57 id. 1; Westcott v. Fargo, 61 id.

court of the United States in the case of Railroad Company v. Lockwood.26 The facts of the case were that the plaintiff, a drover, had signed an agreement to take all risk of injury to his cattle and of personal injury to himself, and had thereupon received what was denominated a pass, one of the conditions printed upon which was, that it was to be considered a waiver of all claims for injuries or damages received on the train. He was injured whilst traveling upon the road under this agreement, and brought suit against the railroad company to recover for the injury received. Evidence being given to show that the injury complained of was sustained in consequence of negligence on the part of the defendants or their servants, they contended that they were exempt by the terms of their contract from re

542; Blair v. The Railroad, 66 id. 313; Western T. Co. v. Newhall, 24 Ill. 466; Adams Ex. Co. v. Haynes, 42 id. 89; Ill. Cent. R. R. v. Read, 37 id. 484; Adams Ex. Co. v. Stettaners, 61 id. 184; Bal. & O. R. R. v. Brady, 32 Md. 333; Hale v. N. J. etc. Co., 15 Conn. 539; Peck v. Weeks, 34 id. 145; Lawrence v. Railroad, 36 id. 63; Kimball v. Railroad, 26 Vt. 247; Mann v. Birchard, 40 id. 326; Higgins v. The Railroad, 28 La. Ann. 133; Hawkins v. Railroad, 17 Mich. 57; R. R. v. Hawkins, 18 id. 427; Kinney v. Railroad, 3 Vroom, 407; French v. Railroad, 4 Keyes, 108; Zimmer v. The Railroad, 137 N. Y. 460, 33 N. E. Rep. 642, affirming 16 N. Y. Supp. 631, 62 Hun, 619; Giles v. Fargo, 17 N. Y. Supp. 476; Morris v. Wier, 46 N. Y. Supp. 413, 20 Misc. 586; Security Trust Co. v. Express Co., 80 N. Y. Supp. 830, 81 App. Div. 426; affirmed without opinion in 178 N. Y. 620, 7C N. E. Rep. 1109; Steamship Co. v. Pilkington, (Canada) 28 S. C. R. 146; Isham v. Erie R. Co., 98 N. Y. Supp. 609.

General words of exemption from liability for damage will not operate to relieve the carrier from the consequences of negligence. Rieser v. Metropolitan Express Co., 91 N. Y. Supp. 170, 45 Misc. 632. A contract for the shipment of live stock exempted the carrier from liability excepting for fraud or gross negligence. It was held that such a contract was neither unreasonable nor illegal. Cooper v. The Railroad, 110 Ga. 659, 36 S. E. Rep. 240.

A limitation in a contract based upon a reduced rate that baggage must be at owner's risk against all casualties is valid and will be enforced. Dixon v. Navigation Co., (Canada), 18 S. C. R. 704. But a clause in a bill of lading exempt. ing the carrier from liability for his own negligence will not extend to or include cases of either unjustifiable destruction or conversion of the goods. Wilson r. Canadian Development Co., (Canada), 33 S. C. R. 432. 26. 17 Wall. 357.