The common-law liability of common carriers cannot be limited by a notice, even though such notice be brought to the knowledge of the persons whose prоperty they carry.
(Dorr
v.
N. J. Steam Navigation Co.,
1 Kern., 485.) But such liability may be limited by express contract. (Id.;
Bissell
v.
N. Y. Central R. R. Co.,
442;
French
v.
Buffalo, N. Y. and Erie R. R. Co.,
The principal question in this case is, whether there was a contract made between thе parties limiting the liability of the defendants to a loss of $100 for the valise and its contents, which the plaintiff intrusted to their care. A fac simile of the card upon which the alleged сontract was printed has been furnished in the papers. It does not appear, on examination, like a contract, and would not, from its general apрearance, be taken for anything more than a token or check denoting the numbers of the checks received, to be used for identification upon thе delivery of the baggage. The larger portion of the printed matter is an advertisement, in large type. The alleged contract is printed in very small type, and is illеgible in the night by the ordinary lights in a railroad car, and is not at all attractive, while other parts of the paper are quite so.
Considerable stress is laid upon the fact that the words, “ Bead this receipt,” were printed on the card in legible type. The receipt reads: “ Beceived of M- articles or checks numbered аs below: 368—319.” “ For Dodd’s Express.” The blank is not filled, nor is the receipt signed by any one. The invitation is not to read the contract, but the receipt. In order to read it, the paper must be turned sideways; and no one, thus reading the receipt, would suspect that it had any connection with the alleged contract, which is printed in different аnd very small type across the bottom of the paper. It is no part of the receipt, is not connected with it, and is not referred to in any other part of thе paper. The defendants are dealing with all classes of community; and public policy, as well as established principles, demand that the utmost fairness should be observed.
*268
This paper is subject to the criticism made by Lord Ellenboeough, in
Butler
v.
Heane
(2 Camp., 415), in which he said, that
“
it called attention to everything that was attractive, and concealed what wаs calculated to repel customersand added: “ If a common carrier is to be allowed to limit his liability, he must take care that any one who deals with him is fully informed of the limits to which he confines it.” ETor did the nature of the business necessarily convey the idea of a contract to the traveler in such a manner as to raise the presumption that he knew it was a contract, expressive of the terms upon which the property was carried, or limiting the liability of the carrier. Baggagе is usually identified by means of checks or tokens. And such a card does not necessarily import anything else. At all events, to have the effect claimed, the limitation should be as conspicuous and legible as other portions of the paper. In
Brown
v.
E. R. R. Co.
(
As to bills of lading and other commercial instruments of like character, it has been held that persons receiving them are presumed to know, from their uniform chаracter and the nature of the business, that they contain the terms upon which the property is to be carried. / But checks for baggage are not of that character, nor is such a card as was delivered in this instance. It was, at least, equivocal in its character. In such a case a person is not presumed to know its contents, or to assent to them.
The circumstances under which the paper was received repel the idea of a contract. Bo such intimation was made to the plaintiff. He did not, and could not, if he had tried, read it in his seat. It is found that he might have read it at *270 the end of the car, or by the lights on the pier or in the ferryboаt ; and it is claimed that he should have done so, and, if dissatisfied, should have expressed his dissent. If he had done so, and, in the bustle and confusion incident to such occasions, could have found the messenger and demanded his baggage, the latter might have claimed, upon the theory of this defence, that the contract was comрleted at the delivery of the paper, and that he had a right to perform it and receive the compensation.
It is impossible to maintain this defence without violating established legal principles in relation to contracts. It was suggested on the argument, that the stipulation to charge according to the value of the property is just and proper. This may be true; but the traveler should have something to say about it. The contract cannot be made by one party. If the traveler is informed of the charges graduated by value, he can have a voice in the bargain; but, in this case, he had none. Whilst the carrier should be protected in his lеgal right to limit his responsibility, the public should also be protected against imposition and fraud. The carrier must deal with the public upon terms of equality; and, if he desires tо limit his liability, he must secure the assent of those with whom he transacts business.
My conclusion is, that no contract was proved.
1. Because it was obscurely printed.
2. Because the nature of the transaction was not such as necessarily charged- the plaintiff with knowledge that the paper contained the contract.
3. Because the circumstances attending the delivery of the card repel the idea that the plaintiff had such knowledge, or assented in fact to the terms of the alleged contract.
The order granting a new trial must be affirmed, and judgment absolute ordered for the plaintiff, with costs.
All the judges concurring, upon the ground that no contract limiting the liability of defendants was proved.
Order affirmed, and judgment absolute for the plaintiff ordered.