1. A common carrier cannot lawfully stipulate for exemption from
responsibility 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 himself 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 traveling on a stock train
to look after his cattle, and having a free pass for that
purpose.
Page 84 U. S. 358
5.
Query: whether the same rules would apply to a
strictly free passenger.
6.
Held, arguendo, that a common carrier does not drop
his character as such merely by entering into a contract for
limiting his responsibility.
7. That carefulness and fidelity are
essential duties
of his 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 fulfill these duties is "negligence," the
distinction between "gross" and "ordinary" negligence being
unnecessary.
Lockwood, a drover, was injured whilst traveling 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
had cattle carried on those terms, but that all signed 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 negligence, 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,
Page 84 U. S. 359
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.
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
Page 84 U. S. 360
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 him 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 merchandise 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 circumstances.
In the case of seagoing vessels, Congress has, by the Act of
1851, relieved shipowners 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 unless
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 misconduct. Similar
enactments
Page 84 U. S. 361
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 shipowner, it still leaves him liable to the extent
of his ship and freight for the negligence and misconduct of his
employees, 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 limiting the liability of shipowners. This proviso,
however, neither enacts nor affirms 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
nonliability if the disclosure was not made. But such announcements
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.
[
Footnote 1]
But since the decision in the case of
New Jersey Steam
Navigation Company v. Merchants' Bank [
Footnote 2] 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 common law liability, although considerable diversity of
opinion has existed as to the extent to which such limitation is
admissible.
The case of
New Jersey Steam Navigation Company v.
Page 84 U. S. 362
Merchants' Bank, above adverted to, grew out of the
burning of the steamer
Lexington. Certain money belonging
to the bank had been entrusted to Harnden's Express to be carried
to Boston, and was on board the steamer when she was destroyed. By
agreement between the steamboat company and Harnden, the crate of
the latter and its contents were to be at his sole risk. The Court
held this agreement valid so far as to exonerate the steamboat
company from the responsibility imposed by law, but not to excuse
them for misconduct or negligence, which the Court said it would
not presume that the parties intended to include, although the
terms of the contract were broad enough for that purpose, and that
inasmuch as the company had undertaken to carry the goods from one
place to another, they were deemed to have incurred the same degree
of responsibility as that which attaches to a private person
engaged casually in the like occupation, and were therefore bound
to use ordinary care in the custody of the goods and in their
delivery and to provide proper vehicles and means of conveyance for
their transportation, and as the Court was of opinion that the
steamboat company had been guilty of negligence in these
particulars as well as in the management of the steamer during the
fire, they held them responsible for the loss.
As this has been regarded as a leading case, we may pause for a
moment to observe that the case before us seems almost precisely
within the category of that decision. In that case as in this, the
contract was general, exempting the carrier from every risk and
imposing it all upon the party; but the Court would not presume
that the parties intended to include the negligence of the carrier
or his agents in that exception.
It is strenuously insisted, however, that as negligence is the
only ground of liability in the carriage of passengers, and as the
contract is absolute in its terms, it must be construed to embrace
negligence as well as accident, the former in reference to
passengers and both in reference to the cattle carried in the
train. As this argument seems plausible and the exclusion of a
liability embraced in the terms of exemption on the ground that it
could not have been in the
Page 84 U. S. 363
mind of the parties is somewhat arbitrary, we will proceed to
examine the question before propounded -- namely whether common
carriers may excuse themselves from liability for negligence. In
doing so, we shall first briefly review the course of decisions in
New York, on which great stress has been laid and which are claimed
to be decisive of the question. Whilst we cannot concede this, it
is nevertheless due to the courts of that state to examine
carefully the grounds of their decision and to give them the weight
which they justly deserve. We think it will be found, however, that
the weight of opinion even in New York is not altogether on the
side that favors the right of the carrier to stipulate for
exemption from the consequences of his own or his servants'
negligence.
The first recorded case that arose in New York after the
before-mentioned decision in this Court involving the right of a
carrier to limit his liability was that of
Dorr v. New Jersey
Steam Navigation Company, decided in 1850. [
Footnote 3] This case also arose out of the
burning of the
Lexington, under a bill of lading which
excepted from the company's risk "danger of fire, water, breakage,
leakage, and other accidents." Judge Campbell, delivering the
opinion of the court, said:
"A common carrier has in truth two distinct liabilities -- the
one for losses by accident or mistake, where he is liable as an
insurer; the other for losses by default or negligence, where he is
answerable as an ordinary bailee. It would certainly seem
reasonable that he might, by express special contract, restrict his
liability as insurer; that he might protect himself against
misfortune, even though public policy should require that he should
not be permitted to stipulate for impunity where the loss occurs
from his own default or neglect of duty. Such we understand to be
the doctrine laid down in the case of
New Jersey Steam
Navigation Company v. Merchants' Bank in 6th Howard, and such
we consider to be the law in the present case."
And in
Stoddard v. Long Island Railroad Company,
[
Footnote 4] another
express
Page 84 U. S. 364
case, in which it was stipulated that the express company should
be alone responsible for all losses, Judge Duer for the court
says:
"Conforming our decision to that of the Supreme Court of the
United States, we must therefore hold: 1st. That the liability of
the defendants as common carriers was restricted by the terms of
the special agreement between them and Adams & Co., and that
this restriction was valid in law. 2d. That by the just
interpretation of this agreement, the defendants were not to be
exonerated from all losses, but remained liable for such as might
result from the wrongful acts or the want of due care and diligence
of themselves or their agents and servants. 3d. That the
plaintiffs, claiming through Adams & Co., are bound by the
special agreement."
The same view was taken in subsequent cases, [
Footnote 5] all of which show that no idea
was then entertained of sanctioning exemptions of liability for
negligence.
It was not till 1858, in the case of
Welles v. New York
Central Railroad Company, [
Footnote 6] that the supreme court was brought to assent
to the proposition that a common carrier may stipulate against
responsibility for the negligence of his servants. That was the
case of a gratuitous passenger traveling on a free ticket, which
exempted the company from liability. In 1862, the Court of Appeals,
by a majority, affirmed this judgment, [
Footnote 7] and in answer to the suggestion that public
policy required that railroad companies should not be exonerated
from the duty of carefulness in performing their important and
hazardous duties, the court held that the case of free passengers
could not seriously affect the incentives to carefulness, because
there were very few such compared with the great mass of the
traveling public.
Perkins v. New York Central Railroad
Company, [
Footnote 8] was
also the case of a free passenger, with a similar ticket, and the
court held that the endorsement exempted the company from all kinds
of negligence of its agents, gross as well as ordinary; that there
is, in truth, no practical distinction in the degrees of
negligence.
Page 84 U. S. 365
The next cases of importance that arose in the New York courts
were those of
drovers' passes, in which the passenger took
all responsibility of injury to himself and stock. The first was
that of
Smith v. New York Central Railroad Company,
[
Footnote 9] decided in March,
1859. The contract was precisely the same as that in the present
case. The damage arose from a flattened wheel in the car, which
caused it to jump the track. The supreme court, by Hogeboom, J.,
held that the railroad company was liable for any injury happening
to the passenger not only by the gross negligence of the company's
servants, but by ordinary negligence on their part. "For my part,"
said the judge,
"I think not only gross negligence is not protected by the terms
of the contract, but what is termed ordinary negligence, or the
withholding of ordinary care, is not so protected. I think,
notwithstanding the contract, the carrier is responsible for what,
independent of any peculiar responsibility attached to his calling
or employment, would be regarded as fault or misconduct on his
part."
The judge added that he thought the carrier might, by positive
stipulation, relieve himself to a limited degree from the
consequences of his own negligence or that of his servants. But to
accomplish that object, the contract must be clear and specific in
its terms and plainly covering such a case. Of course this remark
was extrajudicial. The judgment itself was affirmed by the Court of
Appeals in 1862 by a vote of five judges to three. [
Footnote 10] Judge Wright strenuously
contended that it is against public policy for a carrier of
passengers, where human life is at stake, to stipulate for immunity
for any want of care. "Contracts in restraint of trade are void,"
he said, "because they interfere with the welfare and convenience
of the state, yet the state has a deep interest in protecting the
lives of its citizens." He argued that it was a question affecting
the public, and not alone the party who is carried. Judge
Sutherland agreed in substance with Judge Wright. Two other judges
held that if the party injured had been a gratuitous passenger,
the
Page 84 U. S. 366
company would have been discharged, but in their view he was not
a gratuitous passenger. One judge was for affirmance on the ground
that the negligence was that of the company itself. The remaining
three judges held the contract valid to the utmost extent of
exonerating the company, notwithstanding the grossest neglect on
the part of its servants.
In that case, as in the one before us, the contract was general
in its terms, and did not specify negligence of agents as a risk
assumed by the passenger, though by its generality it included all
risks.
The next case,
Bissell v. New York Central Railroad
Company, [
Footnote 11]
first decided in September, 1859, differed from the preceding in
that the ticket expressly stipulated that the railroad company
should not be liable under any circumstances,
"whether of
negligence by their agents, or otherwise," for injury to the
person or stock of the passenger. The latter was killed by the
express train running into the stock train, and the jury found that
his death was caused by the gross negligence of the agents and
servants of the defendants. The supreme court held that gross
negligence (whether of servants or principals) cannot be excused by
contract in reference to the carriage of passengers for hire, and
that such a contract is against the policy of the law, and void. In
December, 1862, this judgment was reversed by the Court of Appeals,
[
Footnote 12] four judges
against three, Judge Smith, who concurred in the judgment below,
having in the meantime changed his views as to the materiality of
the fact that the negligence stipulated against was that of the
servants of the company, and not of the company itself. The
majority now held that the ticket was a free ticket, as it
purported to be, and therefore that the case was governed by
Welles v. Central Railroad Company, but whether so or not,
the contract was founded on a valid consideration and the passenger
was bound by it even to the assumption of the risk arising from the
gross negligence of the company's servants. Elaborate opinions were
read by Justice Selden in favor
Page 84 U. S. 367
and by Justice Denio against the conclusion reached by the
court. The former considered that no rule of public policy forbids
such contracts, because the public is amply protected by the right
of everyone to decline any special contract, on paying the regular
fare prescribed by law -- that is, the highest amount which the law
allows the company to charge. In other words, unless a man chooses
to pay the highest amount which the company by its charter is
authorized to charge, he must submit to their terms, however
onerous. Justice Denio with much force of argument combated this
view and insisted upon the impolicy and immorality of contracts
stipulating immunity for negligence either of servants or
principals where the lives and safety of passengers are concerned.
The late case of
Poucher v. New York Central Railroad
Company [
Footnote 13]
is in all essential respects a similar case to this, and a similar
result was reached.
These are the authorities which we are asked to follow. Cases
may also be found in some of the other state courts which, by
dicta or decision either favor or follow, more or less
closely, the decisions in New York. A reference to the principal of
them is all that is necessary here. [
Footnote 14]
A review of the cases decided by the courts of New York shows
that though they have carried the power of the common carrier to
make special contracts to the extent of enabling him to exonerate
himself from the effects of even gross negligence, yet that this
effect has never been given to a contract general in its terms. So
that if we only felt bound by those precedents, we could perhaps
find no authority for reversing the judgment in this case. But on
a
Page 84 U. S. 368
question of general commercial law, the federal courts
administering justice in New York have equal and coordinate
jurisdiction with the courts of that state. And in deciding a case
which involves a question of such importance to the whole country
-- a question on which the courts of New York have expressed such
diverse views, and have so recently and with such slight
preponderancy of judicial suffrage come to the conclusion that they
have -- we should not feel satisfied without being able to place
our decision upon grounds satisfactory to ourselves and resting
upon what we consider sound principles of law.
In passing, however, it is apposite to call attention to the
testimony of an authoritative witness as to the operation and
effect of the recent decisions referred to. "The fruits of this
rule," says Judge Davis,
"are already being gathered in increasing accidents, through the
decreasing care and vigilance on the part of these corporations,
and they will continue to be reaped until a just sense of public
policy shall lead to legislative restriction upon the power to make
this kind of contracts. [
Footnote 15]"
We now proceed to notice some cases decided in other states in
which a different view of the subject is taken.
In Pennsylvania it is settled by a long course of decisions that
a common carrier cannot, by notice or special contract, limit his
liability so as to exonerate him from responsibility for his own
negligence or misfeasance or that of his servants and agents.
[
Footnote 16] "The doctrine
is firmly settled," said Chief Justice Thompson in
Farnham v.
Camden & Amboy Railroad Company, [
Footnote 17] "that a common carrier cannot limit
his liability so as to cover his own or his servants' negligence."
This inability is affirmed both when the exemption stipulated
Page 84 U. S. 369
for is general, covering all risks, and where it specifically
includes damages arising from the negligence of the carrier or his
servants. In
Pennsylvania Railroad Company v. Henderson,
[
Footnote 18] a drover's
pass stipulated for immunity of the company in case of injury from
negligence of its agents or otherwise. The court, Judge Read
delivering the opinion, after a careful review of the Pennsylvania
decisions, said:
"This endorsement relieves the company from all liability for
any cause whatever, for any loss or injury to the person or
property, however it may have been occasioned, and our doctrine,
settled by the above decisions, made upon grave deliberation,
declares that such a release is no excuse for negligence."
The Ohio cases are very decided on this subject, and reject all
attempts of the carrier to excuse his own negligence or that of his
servants. [
Footnote 19] In
Davidson v. Graham, [
Footnote 20] the court, after conceding the right of the
carrier to make special contracts to a certain extent, says:
"He cannot, however, protect himself from losses occasioned by
his own fault. He exercises a public employment, and diligence and
good faith in the discharge of his duties are essential to the
public interests. . . . And public policy forbids that he should be
relieved by special agreement from that degree of diligence and
fidelity which the law has exacted in the discharge of his
duties."
In
Welsh v. Pittsburg, Fort Wayne & Chicago
Railroad, [
Footnote 21]
the court said:
"In this state, at least, railroad companies are rapidly
becoming almost the exclusive carriers both of passengers and
goods. In consequence of the public character and agency which they
have voluntarily assumed, the most important powers and privileges
have been granted to them by the state."
From these facts, the court reasoned that it is
Page 84 U. S. 370
specially important that railroad companies should be held to
the exercise of due diligence at least. And as to the distinction
taken by some that negligence of servants may be stipulated for,
the court pertinently says:
"This doctrine, when applied to a corporation which can only act
through its agents and servants, would secure complete immunity for
the neglect of every duty."
And in relation to a drover's pass substantially the same as
that in the present case, the same court, in
Cleveland Railroad
v. Curran, [
Footnote
22] held: 1st. That the holder was not a gratuitous passenger;
2dly. That the contract constituted no defense against the
negligence of the company's servants, being against the policy of
the law, and void. The court refers to the cases of
Bissell v.
New York Central Railroad, [
Footnote 23] and of
Pennsylvania Railroad v.
Henderson, [
Footnote
24] and expresses its concurrence in the Pennsylvania decision.
This was in December Term, 1869.
The Pennsylvania and Ohio decisions differ mainly in this, that
the former give to a special contract (when the same is admissible)
the effect of converting the common carrier into a special bailee
for hire, whose duties are governed by his contract, and against
whom, if negligence is charged, it must be proved by the party
injured, whilst the latter hold that the character of the carrier
is not changed by the contract, but that he is a common carrier
still, with enlarged exemptions from responsibility within which
the burden of proof is on him to show that an injury occurs. The
effect of this difference is to shift the burden of proof from one
party to the other. It is unnecessary to adjudicate that point in
this case, as the judge on the trial charged the jury, as requested
by the defendants, that the burden of proof was on the
plaintiff.
In Maine, whilst it is held that a common carrier may, by
special contract, be exempted from responsibility for loss
occasioned by natural causes such as the weather, fire, heat, frost
&c., [
Footnote 25] yet
in a case where it was stipulated that a railroad
Page 84 U. S. 371
company should be exonerated from all damages that might happen
to any horses or cattle that might be sent over the road, and that
the owners should take the risk of all such damages, the court held
that the company were not thereby excused from the consequences of
their negligence and that the distinction between negligence and
gross negligence in such a case is not tenable. "The very great
danger," said the court,
"to be anticipated by permitting them [common carriers] to enter
into contracts to be exempt from losses occasioned by misconduct or
negligence, can scarcely be overestimated. It would remove the
principal safeguard for the preservation of life and property in
such conveyances. [
Footnote
26]"
To the same purport, it was held in Massachusetts in the late
case of
School District v. Boston Railroad Company,
[
Footnote 27] where the
defendant set up a special contract that certain iron castings were
taken at the owner's risk of fracture or injury during the course
of transportation, loading, and unloading, and the court say:
"The special contract here set up is not alleged, and could not
by law be permitted, to exempt the defendants from liability for
injuries by their own negligence."
To the same purport likewise are many other decisions of the
state courts, some of which are argued with great force and are
worthy of attentive perusal, but, for want of room, can only be
referred to here. [
Footnote
28]
These views as to the impolicy of allowing stipulations against
liability for negligence and misconduct are in accordance
Page 84 U. S. 372
with the early English authorities. St. Germain, in The Doctor
and Student, [
Footnote 29]
pointedly says of the common carrier:
"If he would per case refuse to carry it [articles delivered for
carriage] unless promise were made unto him that he shall not be
charged for no misdemeanor that should be in him, the promise were
void, for it were against reason and against good manners, and so
it is in all other cases like."
A century later, this passage is quoted by Attorney General Noy
in his book of Maxims as unquestioned law. [
Footnote 30] And so the law undoubtedly stood in
England until comparatively a very recent period. Serjeant Steven,
in his Commentaries, [
Footnote
31] after stating that a common carrier's liability might at
common law be varied by contract, adds that the law still held him
responsible for negligence and misconduct.
The question arose in England principally upon public notices
given by common carriers that they would not be responsible for
valuable goods unless entered and paid for according to value. The
courts held that this was a reasonable condition, and, if brought
home to the owner, amounted to a special contract valid in law. But
it was also held that it could not exonerate the carrier if a loss
occurred by his actual misfeasance or gross negligence. Or, as
Starkie says, "proof of a direct misfeasance or gross negligence is
in effect an answer to proof of notice." [
Footnote 32] But the term "gross negligence" was so
vague and uncertain that it came to represent every instance of
actual negligence of the carrier or his servant -- or ordinary
negligence in the accustomed mode of speaking. [
Footnote 33] Justice Story, in his work on
bailments, [
Footnote 34]
originally published in 1832, says that it is now held that in
cases of such notices, the carrier is liable for losses and injury
occasioned not only by gross negligence, but by ordinary negligence
-- or in other words the carrier is bound to ordinary
diligence.
Page 84 U. S. 373
In estimating the effect of these decisions it must be
remembered that in the cases covered by the notices referred to,
the exemption claimed was entire, covering all cases of loss,
negligence as well as others. They are therefore directly in
point.
In 1863, in the great case of
Peek v. North Staffordshire
Railway Company, [
Footnote
35] Mr. Justice Blackburn, in the course of a very clear and
able review of the law on the subject, after quoting this passage
from Justice Story's work, proceeds to say:
"In my opinion, the weight of authority was, in 1832, in favor
of this view of the law, but the cases decided in our courts
between 1832 and 1854 established that this was not the law, and
that a carrier might, by a special notice, make a contract limiting
his responsibility even in the cases here mentioned of gross
negligence, misconduct, or fraud on the part of his servants, and,
as it seems to me, the reason why the legislature intervened in the
Railway and Canal Traffic Act, 1854, was because it thought that
the companies took advantage of those decisions (in Story's
language), 'to evade altogether the salutary policy of the common
law.'"
This quotation is sufficient to show the state of the law in
England at the time of the publication of Justice Story's work, and
it proves that, at that time, common carriers could not stipulate
for immunity for their own or their servants' negligence. But in
the case of
Carr v. Lancashire Railroad Company [
Footnote 36] and other cases decided
whilst the change of opinion alluded to by Justice Blackburn was
going on (several of which related to the carriage of horses and
cattle), it was held that carriers could stipulate for exemption
from liability for even their own gross negligence. Hence the Act
of 1854 was passed, called the Railway and Canal Traffic Act,
declaring that railway and canal companies should be liable for
negligence of themselves or their servants, notwithstanding any
notice or condition, unless the court or judge trying the cause
should adjudge the conditions just and reasonable. [
Footnote 37] Upon this statute ensued a
Page 84 U. S. 374
long list of cases deciding what conditions were or were not
just and reasonable. The truth is that this statute did little more
than bring back the law to the original position in which it stood
before the English courts took their departure from it. But as we
shall have occasion to advert to this subject again, we pass it for
the present.
It remains to see what has been held by this Court on the
subject now under consideration.
We have already referred to the leading case of
New Jersey
Steam Navigation Company v. Merchants' Bank. [
Footnote 38] On the precise point now under
consideration, Justice Nelson said,
"If it is competent at all for the carrier to stipulate for the
gross negligence of himself and his servants or agents in the
transportation of goods, it should be required to be done, at
least, in terms that would leave no doubt as to the meaning of the
parties."
As to carriers of passengers, Mr. Justice Grier, in the case of
Philadelphia & Reading Railroad v. Derby, [
Footnote 39] delivering the opinion
of the Court, said:
"When carriers undertake to convey persons by the powerful but
dangerous agency of steam, public policy and safety require that
they be held to the greatest possible care and diligence. And
whether the consideration for such transportation be pecuniary or
otherwise, the personal safety of the passengers should not be left
to the sport of chance or the negligence of careless agents. Any
negligence in such cases may well deserve the epithet of 'gross.'
That was the case of a free passenger, a stockholder of the
company, taken over the road by the president to examine its
condition, and it was contended in argument that, as to him,
nothing but 'gross negligence' would make the company liable. In
the subsequent case of
The Steamboat New World v. King,
[
Footnote 40] which was also
the case of a free passenger carried on a steamboat and injured by
the explosion of the boiler, Curtis Justice, delivering the
judgment, quoted the above proposition of Justice Grier and
said:"
"We desire to be understood to reaffirm that doctrine, as
Page 84 U. S. 375
resting not only on public policy, but on sound principles of
law."
In
York Company v. Central Railroad, [
Footnote 41] the Court, after conceding
that the responsibility imposed on the carrier of goods by the
common law may be restricted and qualified by express stipulation,
adds:
"When such stipulation is made and it does not cover losses from
negligence or misconduct, we can perceive no just reason for
refusing its recognition and enforcement."
In the case of
Walker v. Transportation Company,
decided at the same term, [
Footnote 42] it is true, the owner of a vessel destroyed
by fire on the lakes was held not to be responsible for the
negligence of the officers and agents having charge of the vessel,
but that was under the Act of 1851, which the Court held to apply
to our great lakes as well as to the sea. And in
Express
Company v. Kountze Brothers, [
Footnote 43] where the carriers were sued for the loss of
gold dust delivered to them on a bill of lading excluding liability
for any loss or damage by fire, act of God, enemies of the
government, or dangers incidental to a time of war, they were held
liable for a robbery by a predatory band of armed men (one of the
excepted risks) because they negligently and needlessly took a
route which was exposed to such incursions. The judge at the trial
charged the jury that although the contract was legally sufficient
to restrict the liability of the defendants as common carriers, yet
if they were guilty of actual negligence, they were responsible,
and that they were chargeable with negligence unless they exercised
the care and prudence of a prudent man in his own affairs. This was
held by this Court to be a correct statement of the law.
Some of the above citations are only expressions of opinion, it
is true, but they are the expressions of judges whose opinions are
entitled to much weight, and the last-cited case is a judgment upon
the precise point. Taken in connection with the concurring
decisions of state courts before cited, they seem to us decisive of
the question, and
Page 84 U. S. 376
leave but little to be added to the considerations which they
suggest.
It is argued that a common carrier, by entering into a special
contract with a party for carrying his goods or person on modified
terms, drops his character and becomes an ordinary bailee for hire,
and therefore may make any contract he pleases. That is, he may
make
any contract whatever because he is an ordinary
bailee, and he is an ordinary bailee because he has made the
contract.
We are unable to see the soundness of this reasoning. It seems
to us more accurate to say that common carriers are such by virtue
of their occupation, not by virtue of the responsibilities under
which they rest. Those responsibilities may vary in different
countries and at different times without changing the character of
the employment. The common law subjects the common carrier to
insurance of the goods carried except as against the Act of God or
public enemies. The civil law excepts also losses by means of any
superior force and any inevitable accident. Yet the employment is
the same in both cases. And if by special agreement the carrier is
exempted from still other responsibilities, it does not follow that
his employment is changed, but only that his responsibilities are
changed. The theory occasionally announced that a special contract
as to the terms and responsibilities of carriage changes the nature
of the employment is calculated to mislead. The responsibilities of
a common carrier may be reduced to those of an ordinary bailee for
hire, whilst the nature of his business renders him a common
carrier still. Is there any good sense in holding that a railroad
company, whose only business is to carry passengers and goods and
which was created and established for that purpose alone, is
changed to a private carrier for hire by a mere contract with a
customer whereby the latter assumes the risk of inevitable
accidents in the carriage of his goods. Suppose the contract
relates to a single crate of glass or crockery, whilst at the same
time the carrier receives from the same person twenty other parcels
respecting which no such contract is made. Is the company
Page 84 U. S. 377
a public carrier as to the twenty parcels and a private carrier
as to the one?
On this point there are several authorities which support our
view, some of which are noted in the margin. [
Footnote 44]
A common carrier may undoubtedly become a private carrier or a
bailee for hire when, as a matter of accommodation or special
engagement, he undertakes to carry something which it is not his
business to carry. For example, if a carrier of produce, running a
truck boat between New York City and Norfolk, should be requested
to carry a keg of specie or a load of expensive furniture which he
could justly refuse to take, such agreement might be made in
reference to his taking and carrying the same as the parties chose
to make, not involving any stipulation contrary to law or public
policy. But when a carrier has a regularly established business for
carrying all or certain articles, and especially if that carrier be
a corporation created for the purpose of the carrying trade and the
carriage of the articles is embraced within the scope of its
chartered powers, it is a common carrier, and a special contract
about its responsibility does not divest it of the character.
But it is contended that though a carrier may not stipulate for
his own negligence, there is no good reason why he should not be
permitted to stipulate for immunity for the negligence of his
servants, over whose actions, in his absence, he can exercise no
control. If we advert for a moment to the fundamental principles on
which the law of common carriers is founded, it will be seen that
this objection is inadmissible. In regulating the public
establishment of common carriers, the great object of the law was
to secure the utmost care and diligence in the performance of their
important duties -- an object essential to the welfare of every
civilized community. Hence the common law rule which charged the
common carrier as an insurer. Why charge him as such? Plainly for
the purpose of raising the most
Page 84 U. S. 378
stringent motive for the exercise of carefulness and fidelity in
his trust. In regard to passengers, the highest degree of
carefulness and diligence is expressly exacted. In the one case,
the securing of the most exact diligence and fidelity underlies the
law, and is the reason for it; in the other, it is directly and
absolutely prescribed by the law. It is obvious, therefore, that if
a carrier stipulate not to be bound to the exercise of care and
diligence, but to be at liberty to indulge in the contrary, he
seeks to put off the essential duties of his employment. And to
assert that he may do so seems almost a contradiction in terms.
Now to what avail does the law attach these essential duties to
the employment of the common carrier if they may be waived in
respect to his agents and servants, especially where the carrier is
an artificial being, incapable of acting except by agents and
servants? It is carefulness and diligence in performing the service
which the law demands, not an abstract carefulness and diligence in
proprietors and stockholders who take no active part in the
business. To admit such a distinction in the law of common
carriers, as the business is now carried on, would be subversive of
the very object of the law.
It is a favorite argument in the cases which favor the extension
of the carrier's right to contract for exemption from liability
that men must be permitted to make their own agreements and that it
is no concern of the public on what terms an individual chooses to
have his goods carried. Thus, in
Dorr v. New Jersey Steam
Navigation Company, [
Footnote 45] the court sums up its judgment thus:
"To say the parties have not a right to make their own contract,
and to limit the precise extent of their own respective risks and
liabilities in a matter no way affecting the public morals or
conflicting with the public interests would, in my judgment, be an
unwarrantable restriction upon trade and commerce and a most
palpable invasion of personal right."
Is it true that the public interest is not affected by
individual
Page 84 U. S. 379
contracts of the kind referred to? Is not the whole business
community affected by holding such contracts valid? If held valid,
the advantageous position of the companies exercising the business
of common carriers is such that it places it in their power to
change the law of common carriers in effect by introducing new
rules of obligation.
The carrier and his customer do not stand on a footing of
equality. The latter is only one individual of a million. He cannot
afford to higgle or stand out and seek redress in the courts. His
business will not admit such a course. He prefers, rather, to
accept any bill of lading, or sign any paper the carrier presents
-- often, indeed, without knowing what the one or the other
contains. In most cases, he has no alternative but to do this or
abandon his business. In the present case, for example, the freight
agent of the company testified that though they made forty or fifty
contracts every week like that under consideration, and had carried
on the business for years, no other arrangement than this was ever
made with any drover. And the reason is obvious enough -- if they
did not accept this, they must pay tariff rates. These rates were
70 cents a hundred pounds for carrying from Buffalo to Albany, and
each horned animal was rated at 2,000 pounds, making a charge of
$14 for every animal carried, instead of the usual charge of $70
for a carload, being a difference of three to one. Of course, no
drover could afford to pay such tariff rates. This fact is adverted
to for the purpose of illustrating how completely in the power of
the railroad companies parties are and how necessary it is to stand
firmly by those principles of law by which the public interests are
protected.
If the customer had any real freedom of choice, if he had a
reasonable and practicable alternative and if the employment of the
carrier were not a public one, charging him with the duty of
accommodating the public in the line of his employment, then if the
customer chose to assume the risk of negligence, it could with more
reason be said to be his private affair, and no concern of the
public. But the condition of things is entirely different, and
especially so
Page 84 U. S. 380
under the modified arrangements which the carrying trade has
assumed. The business is mostly concentrated in a few powerful
corporations, whose position in the body politic enables them to
control it. They do, in fact, control it, and impose such
conditions upon travel and transportation as they see fit, which
the public is compelled to accept. These circumstances furnish an
additional argument, if any were needed, to show that the
conditions imposed by common carriers ought not to be adverse (to
say the least) to the dictates of public policy and morality. The
status and relative position of the parties render any such
conditions void. Contracts of common carriers, like those of
persons occupying a fiduciary character, giving them a position in
which they can take undue advantage of the persons with whom they
contract, must rest upon their fairness and reasonableness. It was
for the reason that the limitations of liability first introduced
by common carriers into their notices and bills of lading were just
and reasonable that the courts sustained them. It was just and
reasonable that they should not be responsible for losses happening
by sheer accident, or dangers of navigation that no human skill or
vigilance could guard against; it was just and reasonable that they
should not be chargeable for money or other valuable articles
liable to be stolen or damaged unless apprised of their character
or value; it was just and reasonable that they should not be
responsible for articles liable to rapid decay, or for live animals
liable to get unruly from fright and to injure themselves in that
state, when such articles or live animals became injured without
their fault or negligence. And when any of these just and
reasonable excuses were incorporated into notices or special
contracts assented to by their customers, the law might well give
effect to them without the violation of any important principle,
although modifying the strict rules of responsibility imposed by
the common law. The improved state of society and the better
administration of the laws had diminished the opportunities of
collusion and bad faith on the part of the carrier and rendered
less imperative the application of the iron rule that he must be
responsible at
Page 84 U. S. 381
all events. Hence the exemptions referred to were deemed
reasonable and proper to be allowed. But the proposition to allow a
public carrier to abandon altogether his obligations to the public
and to stipulate for exemptions that are unreasonable and improper,
amounting to an abdication of the essential duties of his
employment, would never have been entertained by the sages of the
law.
Hence, as before remarked, we regard the English statute called
the Railway and Canal Traffic Act, passed in 1854, which declared
void all notices and conditions made by common carriers except such
as the judge at the trial or the courts should hold just and
reasonable as substantially a return to the rules of the common
law. It would have been more strictly so, perhaps, had the
reasonableness of the contract been referred to the law instead of
the individual judges. The decisions made for more than half a
century before the courts commenced the abnormal course which led
to the necessity of that statute, giving effect to certain classes
of exemptions stipulated for by the carrier, may be regarded as
authorities on the question as to what exemptions are just and
reasonable. So the decisions of our own courts are entitled to like
effect when not made under the fallacious notion that every special
contract imposed by the common carrier on his customers must be
carried into effect for the simple reason that it was entered into,
without regard to the character of the contract and the relative
situation of the parties.
Conceding, therefore, that special contracts made by common
carriers with their customers limiting their liability are good and
valid so far as they are just and reasonable -- to the extent, for
example, of excusing them for all losses happening by accident,
without any negligence or fraud on their part; when they ask to go
still further and to be excused for negligence -- an excuse so
repugnant to the law of their foundation and to the public good --
they have no longer any plea of justice or reason to support such a
stipulation, but the contrary. And then the inequality of the
parties, the compulsion under which the customer is placed, and
the
Page 84 U. S. 382
obligations of the carrier to the public operate with full force
to divest the transaction of validity.
On this subject the remarks of Chief Justice Redfield, in his
recent collection of American Railway Cases, seem to us eminently
just. "It being clearly established, then," says he,
"that common carriers have public duties which they are bound to
discharge with impartiality, we must conclude that they cannot,
either by notices or special contracts, release themselves from the
performance of these public duties, even by the consent of those
who employ them, for all extortion is done by the apparent consent
of the victim. A public officer or servant who has a monopoly in
his department has no just right to impose onerous and unreasonable
conditions upon those who are compelled to employ him."
And his conclusion is that notwithstanding some exceptional
decisions, the law of today stands substantially as follows:
"1. That the exemption claimed by carriers must be reasonable
and just, otherwise it will be regarded as extorted from the owners
of the goods by duress of circumstances, and therefore not
binding."
"2. That every attempt of carriers, by general notices or
special contract, to excuse themselves from responsibility for
losses or damages resulting in any degree from their own want of
care and faithfulness is against that good faith which the law
requires as the basis of all contracts or employments, and
therefore based upon principles and a policy which the law will not
uphold."
The defendants endeavor to make a distinction between gross and
ordinary negligence, and insist that the judge ought to have
charged that the contract was at least effective for excusing the
latter.
We have already adverted to the tendency of judicial opinion
adverse to the distinction between gross and ordinary negligence.
Strictly speaking, these expressions are indicative rather of the
degree of care and diligence which is due from a party and which he
fails to perform than of the amount of inattention, carelessness,
or stupidity which he exhibits. If very little care is due from him
and he fails to bestow that little, it is called gross negligence.
If very great
Page 84 U. S. 383
care is due and he fails to come up to the mark required, it is
called slight negligence. And if ordinary care is due, such as a
prudent man would exercise in his own affairs, failure to bestow
that amount of care is called ordinary negligence. In each case,
the negligence, whatever epithet we give it, is failure to bestow
the care and skill which the situation demands, and hence it is
more strictly accurate perhaps to call it simply "negligence." And
this seems to be the tendency of modern authorities. [
Footnote 46] If they mean more than
this and seek to abolish the distinction of degrees of care, skill,
and diligence required in the performance of various duties and the
fulfillment of various contracts, we think they go too far, since
the requirement of different degrees of care in different
situations is too firmly settled and fixed in the law to be ignored
or changed. The compilers of the French Civil Code undertook to
abolish these distinctions by enacting that "every act whatever of
man that causes damage to another obliges him by whose fault it
happened to repair it." [
Footnote 47] Toullier, in his commentary on the code,
regards this as a happy thought and a return to the law of nature.
[
Footnote 48] But such an
iron rule is too regardless of the foundation principles of human
duty, and must often operate with great severity and injustice.
In the case before us, the law, in the absence of special
contract, fixes the degree of care and diligence due from the
railroad company to the persons carried on its trains. A failure to
exercise such care and diligence is negligence. It needs no epithet
properly and legally to describe it. If it is against the policy of
the law to allow stipulations which will relieve the company from
the exercise of that care and diligence, or which, in other words,
will excuse them for negligence
Page 84 U. S. 384
in the performance of that duty, then the company remains liable
for such negligence. The question whether the company was guilty of
negligence in this case, which caused the injury sustained by the
plaintiff, was fairly left to the jury. It was unnecessary to tell
them whether, in the language of law writers, such negligence would
be called gross or ordinary.
The conclusions to which we have come are:
First. That a common carrier cannot lawfully stipulate
for exemption from responsibility when such exemption is not just
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 for hire, 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.
These conclusions decide the present case, and require a
judgment of affirmance. We purposely abstain from expressing any
opinion as to what would have been the result of our judgment had
we considered the plaintiff a free passenger instead of a passenger
for hire.
Judgment affirmed.
[
Footnote 1]
Cole v. Goodwin, 19 Wendell 257;
Gould v.
Hill, 2 Hill 623.
[
Footnote 2]
47 U. S. 6 How.
344.
[
Footnote 3]
4 Sandford 136.
[
Footnote 4]
5
id. 180.
[
Footnote 5]
Parsons v. Monteath, 13 Barb. 353;
Moore v.
Evans, 14
id. 524.
[
Footnote 6]
26
id. 641.
[
Footnote 7]
24 N.Y. 181.
[
Footnote 8]
Ib., 196.
[
Footnote 9]
29 Barb. 132.
[
Footnote 10]
24 N.Y. 222.
[
Footnote 11]
29 Barb. 602.
[
Footnote 12]
25 N.Y. 442.
[
Footnote 13]
49 N.Y. 263.
[
Footnote 14]
Ashmore v. Pennsylvania Steam Co., 4 Dutcher 180;
Kinney v. Central Railroad Co., 3 Vroom 407;
Hale v.
New Jersey Steam Navigation Co., 15 Conn. 539;
Peck v.
Weeks, 34
id. 145;
Lawrence v. New York Railroad
Co., 36
id. 63;
Kimball v. Rutland Railroad
Co., 26 Vt. 247;
Mann v. Birchard, 40
id.
326;
Adams Express Co. v. Haynes, 42 Ill. 89;
ib., 458;
Illinois Central Railroad Co. v. Adams
Express Co., ib., 474;
Hawkins v. Great Western Railroad
Co., 17 Mich. 57;
S.C., 18
id. 427;
Baltimore & Ohio Railroad Co. v. Brady, 32 Md. 333; 25
id. 128;
Levering v. Union Transportation Co., 42
Mo. 88.
[
Footnote 15]
Stinson v. New York Central Railroad Co., 32 N.Y.
337.
[
Footnote 16]
Laing v. Colder, 8 Pennsylvania state, 479; Camden and
Amboy Railroad Co. v. Baldauf, 16
id. 67; Goldey v.
Pennsylvania Railroad Co., 30
id. 242; Powell v. Same, 32
id. 414; Pennsylvania Railroad Co. v. Henderson, 51
id. 315; Farnham v. Camden and Amboy Railroad Co., 55
id. 53; Express Company v. Sands, Ib. 140; Empire
Transportation Co. v. Wamsutta Oil Co., 63
id. 14.
[
Footnote 17]
55 Pa.St. 62.
[
Footnote 18]
51 Pa.St. 315.
[
Footnote 19]
Jones v. Voorhees, 10 Ohio 145;
Davidson v.
Graham, 2 Ohio St. 131;
Graham v. Davis, 4
id. 362;
Wilson v. Hamilton, ib., 722;
Welsh
v. Pittsburg, Fort Wayne & Chicago Railroad, 10
id. 75;
Cleveland Railroad v. Curran, 19
id. 1;
Cincinnati Railroad v. Pontius, ib., 221;
Knowlton v. Erie Railway Co., ib., 260.
[
Footnote 20]
2 Ohio St. 131.
[
Footnote 21]
10
id. 75, 76.
[
Footnote 22]
19 Ohio St. 1, 12, 13.
[
Footnote 23]
25 N.Y. 442.
[
Footnote 24]
51 Pa.St. 315.
[
Footnote 25]
Fillebrown v. Grand Trunk Railway Co., 55 Me. 462.
[
Footnote 26]
Sager v. Portsmouth, 31 Me. 228, 238.
[
Footnote 27]
102 Mass. 552, 556.
[
Footnote 28]
Indianapolis Railroad v. Allen, 31 Ind. 394;
Michigan Southern Railroad v. Heaton, 31
id. 397,
note;
Flinn v. Philadelphia, Wilmington & Baltimore
Railroad, 1 Houston 472:
Orndorff v. Adams Express
Co., 3 Bush 194;
Swindler v. Hilliard & Brooks, 2
Richardson (So.Car.) 286;
Berry v. Cooper, 28 Ga. 543;
Steele v. Townsend, 37 Ala. 247;
Southern Express Co.
v. Crook, 44
id. 468;
Whitesides v.
Thurlkill, 12 Smedes & Marshall 599;
Southern Express
Co. v. Moon, 39 Miss. 822;
New Orleans Mutual Insurance
Co. v. Railroad Co., 20 La.Ann. 302.
[
Footnote 29]
Dialogue 2, c. 38.
[
Footnote 30]
Noy's Maxims 92.
[
Footnote 31]
Vol. 2, p. 135.
[
Footnote 32]
Evidence, vol. 2, p. 205, 6th American edition.
[
Footnote 33]
Hinton v. Dibbin, 2 Adolphus & Ellis' N.S. 649;
Wyld v. Pickford, 8 Meeson & Welsby 460.
[
Footnote 34]
Sec. 571.
[
Footnote 35]
10 House of Lords Cases 473.
[
Footnote 36]
7 Exchequer 707.
[
Footnote 37]
1 Fisher's Digest 1466.
[
Footnote 38]
47 U. S. 6 How.
383.
[
Footnote 39]
55 U. S. 14
How. 486.
[
Footnote 40]
57 U. S. 16 How.
469,
57 U. S.
474.
[
Footnote 41]
70 U. S. 3
Wall. 113.
[
Footnote 42]
Ib., 70 U. S. 150.
[
Footnote 43]
75 U. S. 8 Wall.
342,
75 U. S.
353.
[
Footnote 44]
Davidson v. Graham, 2 Ohio St. 131;
Graham v. Davis
& Co., 4
id. 362;
Swindler v. Hilliard,
2 Richardson 286;
Baker v. Brinson, 9
id. 201;
Steele v. Townsend, 37 Ala. 247.
[
Footnote 45]
1 Kernan 485.
[
Footnote 46]
1 Smith's Leading Cases 453, 7th American edition; Story on
Bailments ยง 571;
Wyld v. Pickford, 8 Meeson & Welsby
460;
Hinton v. Dibbin, 2 Queen's Bench 661;
Wilson v.
Brett, 11 Meeson & Welsby 115;
Beal v. South Devon
Railway Co., 3 Hurlstone & Coltman 337;
Grill v. Iron
Screw Collier Co., Law Reports 1 Common Pleas 600;
Philadelphia & Reading
Railroad Co. v. Derby, 14 How. 486;
Steamboat New World v.
King, 16 How. 474.
[
Footnote 47]
Art. 1382.
[
Footnote 48]
Vol. 6, p. 243.