| Mass. | Mar 1, 1919
The defendant concedes, and the record conclusively shows, that as an interstate carrier it accepted and undertook to transport the plaintiff’s harp in the baggage car of the train on which she was a passenger, under a contract in accordance with its local and joint passenger tariff of excess and miscellaneous baggage service charges. It is settled that, this tariff or schedule having been filed with the proper State and federal authorities, and duly posted in the company’s stations and offices, it could not be waived or modified by the defendant, while the plaintiff, also being charged with notice, was bound by its terms. Metz Co. v. Boston & Maine Railroad, 227 Mass. 307" court="Mass." date_filed="1917-05-29" href="https://app.midpage.ai/document/metz-co-v-boston--maine-railroad-6434043?utm_source=webapp" opinion_id="6434043">227 Mass. 307. While the jury could find that when shipped in good order the case containing the harp had painted on each side in very large conspicuous letters the words
The plaintiff testified and the jury could find, that after the requisite charges had been paid and the case containing the harp had been checked, and the check delivered, she “ saw the baggage man in the rear of the baggage room take my harp on a small truck and throw it, deliberately throw it off like he would a trunk.” It would follow from this evidence as the jury could say, that the injury to the harp was caused by the way the case had been handled by the defendant’s employee, and whether what he did was the ordinary way in which receptacles marked fragile were to be handled was also a question of fact under suitable instructions. The defendant’s first request, that the action could not be maintained, the fourth request, that there was no evidence of gross negligence, the twelfth request, that there was no sufficient evidence that the plaintiff had complied with the provisions of the tariff, and the fifteenth request, that under the tariff the defendant is not liable for negligence, were denied rightly.
But the refusal to give the eighth request, that the defendant had a right to prescribe the condition under which it would check the harp, the tenth request, that the plaintiff was bound by the tariff, the giving of the second request, that the action could not be maintained under the first count which charged ordinary negligence, and the ruling, that all of the requests not given became immaterial if gross negligence was found by the jury as alleged in the second count, were erroneous. The defendant could limit its common law liability by just and reasonable conditions, and the plaintiff, as we have said, was bound by the tariff or terms of the contract, which did not purport, and could not lawfully have done so, to exonerate it from all liability if the harp
The plaintiff nevertheless was entitled to go to the jury on the issue of the defendant’s negligence, the degree of which they could find on the evidence to be gross. Spooner v. Old Colony Street Railway, 190 Mass. 132" court="Mass." date_filed="1906-01-04" href="https://app.midpage.ai/document/spooner-v-old-colony-street-railway-co-6429191?utm_source=webapp" opinion_id="6429191">190 Mass. 132, 135, and cases cited. Altman v. Aronson, 231 Mass. 588" court="Mass." date_filed="1919-01-04" href="https://app.midpage.ai/document/altman-v-aronson-6434624?utm_source=webapp" opinion_id="6434624">231 Mass. 588. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275" court="Mass." date_filed="1911-11-29" href="https://app.midpage.ai/document/p-garvan-inc-v-new-york-central--hudson-river-railroad-6431593?utm_source=webapp" opinion_id="6431593">210 Mass. 275, 278. See Yancey v. Boston Elevated Railway, 205 Mass. 162" court="Mass." date_filed="1910-02-24" href="https://app.midpage.ai/document/yancey-v-boston-elevated-railway-co-6430978?utm_source=webapp" opinion_id="6430978">205 Mass. 162, 171, 172; Freeman v. United Fruit Co. 223 Mass. 300" court="Mass." date_filed="1916-03-03" href="https://app.midpage.ai/document/freeman-v-united-fruit-co-6433481?utm_source=webapp" opinion_id="6433481">223 Mass. 300, 302.
The instructions were sufficiently favorable to the defendant on the question of liability, although wrong on the measure of damages, which, although the jury assessed a much larger sum, was limited under the affirmation of valuation or “release” the plaintiff had executed waiving her right to any greater amount, to $25, as pointed out in the defendant’s sixteenth request which the judge also refused to give for the reasons previously stated. But in accordance with the terms of the report “if there was error in the rulings made, the refusals to rule as the defendant requested, or any of them, so far as material, then judgment is to be entered for the plaintiff on the first count in the sum of $25.”
So ordered.