sponsibility for all accidents, including those occurring from negligence, at least from the ordinary negligence of their servants, and requested the judge at the trial to so charge. Their request being refused, and the verdict having gone against them, they appealed to the supreme court, which, after a most careful examination of the principal authorities, both English and American, reached the conclusions, as announced in its opinion: First, that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. Secondly, that 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 himself or his servants. Thirdly, that these rules apply both to carriers of goods and carriers of passengers, and with special force to the latter. Fourthly, that a drover traveling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire. The rule laid down in the Lockwood Case has been reviewed and fully approved in later cases in the same court.27

27. Speaking of the Lockwood case in the case of Liverpool, etc. Steamship Co. v. Phenix Ins. Co., 129 U. S. 397, in which the rule of the Lockwood case was emphatically approved, Mr. Justice Gray says: "The course of reasoning, supported by elaborate argument and illustration, and by copious references to authorities, by which those conclusions were reached, may be summed up as follows:

"By the common law of England and America before the declaration of independence, recognized by the weight of English authority for half a century afterwards, and upheld by decisions of the highest courts of many states of the Union, common carriers could not stipulate for immunity for their

own or their servants' negligence. The English Railway and Canal Traffic Act of 1854, declaring void all notices and conditions made by those classes of common carriers, except such as should be held by the court or judge before whom the case should be tried to be just and reasonable, was substantially a return to the rule of the common law. The only important modification by the congress of the United States of the previously existing law on this subject is the act of 1851, to limit the liability of ship owners (Act March 3, 1851, ch. 43, 9 St. 635; Rev. St. §§ 4282-4289), and that act leaves them liable without limit for their own negligence, and liable to the extent of the ship and freight for the negligence or

Sec. 453. (§ 263.) Same subject-This rule the prevailing one. These conclusions, after so thorough an examination of the subject, may be said to have most decidedly turned the scale in favor of the exclusion of all contracts between carriers and their employers, exempting the former from the consequences

of the negligence, of every grade, of themselves or their em-
ployees or servants. And, except in those states in which a
contrary rule has been too firmly established to be now de-
parted from, considerations of advantage from uniformity upon

a question of so much importance, and of public policy, to-
gether with the weight of authority in its favor as a mere
question if law, will perhaps induce its universal adoption as
a rule of law in this country.

Sec. 454. (§ 264.) Same subject-Contrary rule prevails in
New York. The court of appeals of New York have, how-
ever, come to a different conclusion from that arrived at in the
above case by the supreme court of the United States, and in
a series of cases, all against the same defendant and resting
upon the validity and effect of similar drovers' passes, as they
are called, have held that the company had the power to stip-
ulate for exemption from responsibility for injury to such
passengers caused even by the gross negligence of its agents.1
These cases are commented on and disapproved in the case of
Lockwood; but since the decision of the supreme court in the
latter case, the appellate court of New York has adhered in
the most unqualified terms to its former ruling, that the car-
rier may by contract relieve himself from responsibility for
the negligence of every degree of its agents and servants; and
this is now the settled law of that state;2 and in this it ac-
cords with the long established English law. The highest court
of that state has expressly refused to follow the rulings of
the United States supreme court upon this question as not bind-
ing upon the state courts. But in all these cases it is held
that the language of the contract, to protect the carrier from
the consequences of his negligence, must have clear, direct and
unmistakable reference to the subject of negligence; and where
its language was that the carrier "should not be liable for the
loss or damage of any box, package or thing for over fifty dol-
lars unless the true value be stated," it was held that there was

1. Smith v. N. Y. Cent. R. R.,
24 N. Y. 222; Bissell v. N. Y. Cent.
R. R., 25 id. 442; Poucher v. N. Y.
Cent. R. R., 49 id. 263.

2. Magnin v. Dinsmore, 56 N. Y.
168; Westcott v. Fargo, 61 id. 542;
Zimmer v. Railroad Co., 62 Hun,

619, 16 N. Y. Supp. 631, affirmed.
137 N. Y. 460, 33 N. E. Rep. 642;
Campe v. Weir, 58 N. Y. Supp.
1082, 28 Misc. Rep. 213.

3. Mynard . Railroad, 7 Hun,
399; 71 N. Y. 180.

not in its phraseology any such clear and distinct expression of
exemption from loss by negligence as the law required.*

Sec. 455. Same subject-Rule in Illinois.-According to the
decisions of the courts of Illinois the carrier is permitted to
contract against liability for the acts or omissions of himself or
his servants, providing they are not of such a character as to
amount to gross negligence. But since it is held that gross
negligence is a failure to exercise ordinary care in view of the
circumstances of the particular case, contracts which operate
to exempt the carrier from liability where he has failed to ex-
ercise ordinary care in the transaction of his business as a
common carrier are considered unreasonable; and where there
is some evidence of negligence adduced, the question whether it
was gross in character is held to be one of fact for the jury.6

-

Sec. 456. Same subject-Stipulation as to amount of proof
required. A stipulation in the contract of shipment which
provides that the carrier will not be liable for losses resulting
from certain causes, unless it shall affirmatively appear and
without presumption be proven that the loss was caused by neg-
ligence, being, in effect, an attempt by the carrier to relieve
himself from liability for losses occasioned by his negligence

4. Magnin v. Dinsmore, 56 N. Y.
168; Westcott v. Fargo, 61 id. 542.
See also, Canfield v. Railroad Co.,
93 N. Y. 532; Holsapple v. Rail-
road Co., 86 N. Y. 275; Galloway v.
Railroad Co., 95 N. Y. Supp. 17, 107
App. Div. 210.

5. Western T. Co. v. Newhall, 24
Ill. 466; Adams Ex. Co. v. Haynes,
42 Ill. 89; Ill. Cent. R. R. v. Read,
37 Ill. 484; Adams Ex. Co. v. Stet-
taners, 61 Ill. 184; Arnold v. The
Railroad, 9 Chicago Legal News,
211; Railroad Co. v. Grimes, 71 Ill.
App. 397; Railroad Co. v. Miller,
79 Ill. App. 473; Express Co. v.
Council, 84 Ill. App. 491; Express
Co. v. Burke, 94 Ill. App. 29; s. c.
87 Ill. App. 505; Railroad Co. v.

Ross, 105 Ill. App. 54; Wabash,
etc. R. Co. v. Brown, 152 Ill. 484,
39 N. E. Rep. 273, affirming 51 Ill.
App. 656. In the Railroad Co. v.
Fox, 113 Ill. App. 180, it was said
by the court that a more compre-
hensive statement of the rule laid
down in the Arnold case, supra,
namely, that the carrier could ex-
empt himself from liability for
negligence when it was not gross
or willful, would be that the car-
rier could not contract for exemp
tion from responsibility for a fail-
ure on his part, or that of his
servants, to exercise ordinary care
in the transaction of his business.

6. Wabash, etc. R. Co. v. Brown,
152 Ill. 484, 39 N. E. Rep. 273.