Judson v. Western Railroad
88 Mass. 486
Mass.
1863
Check Treatment
Bigelow, C. J.

It would not be profitable to enter upon a citation and discussion of the numerous and conflicting cases bearing on the question of the rights of a common carrier, by a general notice, to absolve himself entirely from his common law liability for property intrusted to his care, or to modify and limit his responsibility by a mere constructive notice to those who may have occasion to place goods, wares and merchandise in his keeping for the purpose of transportation. A careful examination of the authorities would not lead to any very satisfactory result, or throw much light on the real principles on which the respective rights and duties of carriers and the public mainly depend. A very full and clear statement of the results arrived at in the leading cases on the subject can be found in the elementary writers, especially in Redfield on Railways, 264; Angelí on Carriers, §§ 232-245; 1 Parsons on Con. 707.

There is, however, one conclusion which is fully supported by the weight of authority in the American courts, concerning which no serious doubt can be entertained; that is, that a public carrier may enter into a special contract with his employer by which he may stipulate for a partial or entire exoneration from his liability at common law as an insurer of property committed to his *490custody, and that such contract is not contrary to public policy, or invalid as transcending the just limits of the right of parties to regulate their dealings by special stipulations. As a necessary corollary of this conclusion, it is also held in the best considered cases and by the most approved text writers, that a notice by a carrier that he will not assume the ordinary responsibility imposed on him by law, if brought home to the owner of goods delivered for transportation, and assented to clearly and unequivocally by him, will be binding and obligatory upon him, because it is tantamount to an express contract that the goods shall be carried on the terms specified in such notice. To this extent, the doctrine that a carrier may limit or modify his liability seems to be most just and reasonable. Inasmuch as the rule of law which holds a carrier to the responsibility of an insurer, except in certain special cases, is founded in a policy which is designed solely for the security and benefit of the owner of goods, there can be no sufficient reason for regarding the rule as absolutely inflexible or irrepealable, when the party, in whose favor it wall operate, directly or by necessary implication consents to waive it, or agrees to an -essential modification of his own rights under it.

But it is a very different proposition to assert that a common carrier may escape his legal liability or materially change it by a general notice to all persons that he will not be responsible for the loss or injury of property intrusted to his custody, or only liable therefor under such conditions and limitations as he may think proper to impose. A common carrier is in a certain sense a public servant, exercising an employment not merely for his own emolument and advantage, but for the convenience and accommodation of the community in which he pursues his calling. The law imposes on him certain duties and responsibilities different from and greater than those which attach to an occupation of a purely private nature, in regard to the conduct of which the public have no interest, and which can be carried on at the option or according to the pleasure of the person who is engaged in it. A common carrier cannot legally refuse to transport property of a kind wrhich *491comes within the class which he usually carries in the course of his employment, if it is tendered to him at a suitable time and place, with an offer of a reasonable compensation. Like an inn keeper, he is obliged to exercise his calling upon due request under proper circumstances, and is liable to an action for damages if he wrongfully refuses to do so. A legal obligation rests upon him to assume the duty which he holds himself out as ready to perform, and a correlative right belongs to the owner of goods to ask for and require their reception and transportation upon the terms of liability fixed and defined by the established rules of law. The carrier has not the option to accept or refuse the carriage of the goods at his pleasure; but the person seeking to have them transported can choose whether they shall be earned without any restriction of the carrier’s duty as prescribed by law, or whether he will waive a portion of his rights, and consent to a modification of the legal liability which attaches to the carrier Such being the legal relation which subsists between a common carrier and his employer, it certainly would be inconsistent with it to hold that a carrier, by a mere notice brought home to the owner of goods intrusted to his care that he did not intend to assume all the liabilities of his calling, could escape or materially change the responsibility which the law annexes to the contract of the parties. It would in effect put it in the power of the carrier to abrogate the rules of law by which the exercise of his employment is regulated and governed. Certainly such a notice, even if shown to have been within the knowledge of the owner of goods, would, in the absence of evidence of his direct assent to its terms, afford no sufficient ground for the inference that he had voluntarily agreed without any consideration to relinquish and give up the valuable right of having hia goods carried at the risk of the carrier. On the contrary, it would be quite as reasonable to infer under such circumstances that the carrier did not intend to rely upon a notice upon which he could not legally insist, as that the owner of goods meant to surrender a right to which he was entitled by law. In such case, mere silence cannot be said to amount to acquiescence. The leading cases in the American courts in which these *492doctrines have been recognized and established are New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. (U. S.) 344 Farmers’ & Mechanics’ Bank v. Champlain Transportation Co. 23 Verm. 186, 205; Kimball v. Rutland & Burlington Railroad, 26 Verm. 247; Moses v. Boston & Maine Railroad, 4 Fost. (N. H.) 71. See also the recent English case of Garton v. Bristol & Exeter Railway, 1 Best & Smith, 112, 161.

The application of these principles to the present case is decisive against the right of the defendants to insist on the instructions for which they asked at the trial. It is not contended that the plaintiff had any actual knowledge of the notice issued by the defendants, containing a limitation of their common law liability as carriers. If he had any knowledge at all, it was at most only constructive, through the New York Central Railroad Company, who received the goods for transmission ever their own road, to be delivered to the defendants to be forwarded over a portion of their route. There is no fact in the case from which any assent by the plaintiff to the terms of the notice can be inferred. One portion of the notice on which the defendants rely goes to the extent of repudiating all liability for the loss or injury of goods delivered to the defendants and in process of transportation, except such as might be caused by fire from the locomotive engines or by the negligence of the agents of the corporation. This certainly was not binding on the plaintiff. Equally invalid was that portion of the notice which announced that the defendants would not be liable for a greater amount than two hundred dollars on any one package, except by special agreement. This was equivalent to a notice that they would not be liable for a greater amount than two hundred dollars on a single package, unless they chose to assume a further liability. It was optional with them, under this notice, whether they would make any such agreement or not. If they refused or omitted to do so, the owner of goods had no power to compel them to enter into any agreement. Nor, if the notice of itself is binding on him, had he any means of obtaining the safe transportation of his goods by the defendants above the value of two hundred dollars, under the liabilities imposed by law upon common carriers.

*493We do not mean to say that a general notice brought home to an owner of goods may not be available to qualify and limit the responsibility of common carriers to a certain extent and within certain limits. Doubtless they may by such a notice require that information shall be given to them of the nature and value of property which they are required to carry, in order that they may exercise a needful degree of care in its transportation, and may ascertain and demand a reasonable sum for" its carriage. So they may give notice that property above a certain amount in value will not be transported for ordinary rates of freight, but that the price for its carriage will be regulated by the nature of the articles and the aggregate value of each package. In like manner they may by a general notice protect themselves against liability for loss or injury of merchandise, unless it is properly packed or arranged for transportation, so that it may with reasonable diligence and care be safely and securely carried. These and other similar notices would be reasonable and perfectly consistent with the nature of the employment of a common carrier, and the rules of law by which it is regulated, and they would be valid and binding on all to whom they were brought home, without any express assent. All that we mean to decide is, that a common carrier cannot by a general notice exonerate himself entirely from his legal liability, nor limit it absolutely to a certain amount beyond which he will not be held responsible in case of injury or loss. This was the legal effect of the notice on which the defendants rely in the present case, as is admitted by their counsel, who puts his defence to this action on the ground that they are not liable at all, or only for the sum of two hundred dollars on each package. Such a notice, being invalid, was not binding on the plaintiff, ayd he is therefore entitled to Judgment on the verdict