contract with the consignor. Nothing in the Act protects any carrier from liability for any loss to goods arising from the felonious acts of any servant in his employ, nor protects any such servant from liability for any loss or injury occasioned by his personal neglect or misconduct."

4

The Act compels the consignor of goods of a particular kind to give the carrier information of their nature and value." If he omits to do so, he will not be able to sue the carrier for loss of the goods, even though such loss be occasioned by gross negligence on the part of the carrier. He will, however, be able to recover their value, if the loss arose through the felonious act of any servant of the carrier. The owner of the goods can still recover damages if the carrier wrongfully refuses to receive them or unduly delays their delivery, whether the goods be of the description mentioned in the Act or not.

6

5

The Railway and Canal Traffic Act, 1854, only applies to railway and canal companies. It expressly provides that nothing therein contained shall alter or affect the rights, privileges or liabilities of any such company under the Carriers Act with respect to articles of the descriptions mentioned in that Act. It includes in its scope property not brought within the provisions of the Carriers Act, such as cattle and other animals. It enacts that every company to which it applies shall be liable for negligence or default in the carriage of horses, cattle or other animals, or goods, notwithstanding any notice, condition or declaration being made and given by such company contrary thereto or in

1 D'Arc v. L. & N. W. Ry. Co. (1874), L. R. 9 C. P. 325.

9

2 S. 8; and see Stephens v. L. & S. W. Ry. Co. (1886), 18 Q. B. D. 121; Marriott v. Yeoward Bros., [1909] 2 K. B. 987.

3 Hart v. Baxendale (1851), 6 Exch. 769.

66

4 The precise meaning of the term gross negligence " is explained in Austin v. Manchester, Sheffield, &c., Ry. Co. (1850), 10 C. B. 474, 475.

5 Vaughton v. L. & N. W. Ry. Co. (1874), L. R. 9 Ex. 93; M'Queen v. G. W. Ry. Co. (1875), L. R. 10 Q. B. 569.

6 Hearn v. L. & S. W. Ry. Co. (1855), 10 Exch. 793; Pianciani v. L. § 8. W. Ry. Co. (1856), 18 C. B. 226.

7 17 & 18 Vict. c. 31.

8 See s. 1, ante, p. 647. Where section 7 does not apply, the liability of the company may have to be determined by reference to the ordinary law of bailment: see Richardson v. N. E. Ry. Co. (1872), L. R. 7 C. P. 75, 81.

A dog is within these words: Harrison v. L. B. & S. C. Ry. Co. (1860), 2 B. & S. 122, 152. See Ashenden v. L. B. & S. C. Ry. Co. (1880), 5 Ex. D. 190; Dickson v. G. W. Ry. Co. (1886), 18 Q. B. D. 176.

anywise limiting such liability.' Every such notice, condition or declaration is declared to be null and void. But the Act, as we have already seen, does not prevent companies from entering into a special contract with respect to the carriage of any animals or goods which shall be adjudged by the Court to be just and reasonable, provided it is reduced into writing and signed by the consignor.

No greater damages can be recovered for the loss of, or for any injury done to, any animal beyond the sum specified in the Act-that is to say, for any horse, £50; for any neat cattle, per head, £15; for any sheep or pig, per head, £2-unless the consignor at the time he delivers any such animal to the company declares it to be of higher value than that mentioned in the Act. If he so declares it, the company can demand from him, as compensation for the increased risk, a reasonable percentage upon the excess of the value so declared upon the sums just named; and this must be paid in addition to the ordinary rate of charge. The amount of such percentage or increased rate of charge must be notified in the manner prescribed in the Carriers Act. It lies upon the person claiming compensation to prove the value of such animals or goods, and the amount. of injury done to them.

Questions of difficulty often arise as to whether the lost or injured goods were at the time of such loss or injury in the custody of a railway company as carriers; whether the goods were delivered by the consignor in accordance with the known course of business of the company; whether the goods were accepted or dealt with on behalf of the company by its servant or agent duly authorised and acting within the scope of his powers. When once a railway company has held itself out to be a common carrier, it is under a common law liability to carry to all places to which it professes to carry,* even if one of those places should be beyond the confines of the realm,5 and to accept all goods which are reasonably offered to it for conveyance to and from the places to which it professes to

1 A passenger's luggage is within the above words: Cohen v. S. E. Ry. Co. (1877), 2 Ex. D. 253.

2 See Giles v. Taff Vale Ry. Co. (1853), 2 E. & B. 822. As to wheu common carriers cease to be such and become warehousemen, see Chapman v. G. W. Ry. Co. (1880), 5 Q. B. D. 278.

3 Slim v. G. N. Ry. Co. (1854), 14 C. B. 647.

Denton v. G. N. Ry. Co. (1856), 5 E. & B. 8; and see Smith & Sons v. L. & N. W. Ry. Co. (1918), 35 Times L. R. 99.

Crouch v. L. & N. W. Ry. Co. (1854), 14 C. B. 255, 290.

carry, whether one of those places be without the realm or not. But neither by common law nor under the Railway and Canal Traffic Act is a railway company under any liability to carry goods otherwise than according to its profession.'

2

When a railway company undertakes to deliver goods to a consignee beyond the limits of its own line, a special contract declaring that it will not be responsible for any loss of or damage done to such goods beyond those limits will relieve the company from liability. But in the absence of any such special contract, the rule is that the company, to whom the goods are handed and with whom the contract of carriage was made, is liable for their non-delivery in an action brought on the contract. The forwarding company cannot be sued in an action of contract, and it will only be liable to an action of tort if it can be shown that the goods were lost on its line and through its negligence. Where a company, by through booking, contracts to carry any animals or goods from place to place, partly by railway or canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage by sea from "the act of God, the King's enemies, fire, accidents from machinery, boilers and steam, and all and every other dangers and accidents of the seas, rivers and navigation of what nature and kind soever" will, if published conspicuously in the office where such through booking is effected, and if legibly printed on the receipt or freight note given by the company for the animals, luggage or goods, be valid as part of the contract between the consignor and the company, in like manner as if the company had signed and delivered to the consignor a bill of lading containing such condition.* And where a railway company works steam vessels in connection with its land traffic, the provisions of the Railway and

1 In re Oxlade and N. E. Ry. Co. (1864), 15 C. B. N. S. 680.

2 Fowles v. G. W. Ry. Co. (1852), 7 Exch. 699; and see Foulkes v. Metropolitan Ry. Co. (1880), 5 C. P. D. 157, overruling, on this point, Mytton v. Midland Ry. Co. (1859), 4 H. & N. 615,

3 See ante, pp. 429, 430.

4 31 & 32 Vict. c. 119, s. 14. And see Carriage of Goods by Sea, post, p. 910.

Canal Traffic Act, so far as applicable, have been extended to such steamers and the traffic carried on thereby.1

When goods have arrived at their destination, the practice of railway companies is to send an "advice note" to the consignee as an intimation that the goods have arrived. This advice note is sent as soon as possible, for it informs the consignee that, if the goods are not fetched away, the company will only keep them as warehousemen and not as carriers, the difference being that in the former case their liability depends on negligence and is not, as it would be in the latter case, an absolute liability. The railway company's contract is to carry the goods and also to keep them a reasonable time after they have arrived at their destination; but if they are not fetched away within such reasonable time, the company can make an extra charge.

RAILWAY PASSENGERS.

A railway company is not a common carrier of its passengers; it is not an insurer of human beings. Hence any one who is injured in a railway accident cannot recover damages from the company without proving negligence.

2

There is very little statute law dealing with passengers. The Railway and Canal Traffic Act, 1854, enacts that every railway company, so far as its own line is concerned, must afford "reasonable facilities for the conveyance of traffic."3 Proceedings are often taken before the Railway and Canal Commissioners to enforce this duty. The word "traffic" includes passengers, and it has been held that the term "reasonable facilities" includes a cloak-room, a waitingroom and a platform of sufficient length.*

When a passenger takes a ticket from A. to B., the company contract to carry him, and also a certain amount of

1 26 & 27 Vict. c. 92, s. 31. Where the vessel is not owned by or worked by the company, see 31 & 32 Vict. c. 119, s. 12; 51 & 52 Vict. c. 25, s. 28; and 57 & 58 Vict. c. 60, ss. 502, 503.

2 Zunz v. S. E. Ry. Co. (1869), L. R. 4 Q. B. 539.

3 17 & 18 Vict. c. 31, s. 2.

4 See Singer Manufacturing Co. v. L. & S. W. Ry. Co., [1894] 1 Q. B. 833, 836 ; S. E. Ry. Co. v. Railway Commissioners (1881), 6 Q. B. D. 586.

his personal luggage, safely and securely from A. to B. This contract is almost invariably made subject to certain conditions, and the passenger is often unaware of the terms which are thus incorporated into his contract. He is not bound by any conditions, unless he has been given a reasonable opportunity of learning that there are conditions.' If the ticket is on the face of it a complete contract in itself with nothing to show that there is anything more-as, for instance, where the only words on the face of the ticket were "Dublin to Whitehaven "-then the fact that there are conditions on the back limiting the company's liability will not affect the contract.2 And where the conditions were printed in small type with other matter stamped in red ink across them, it was held that a steerage passenger was not bound by them. In all such cases the proper questions to be left to the jury are:

3

(i.) Did the passenger know that there was writing or printing on the ticket?

(ii.) Did he know that the writing or printing contained conditions?

(iii.) Did the company do what was reasonably sufficient to give him notice as to what these conditions were ? 3

Again, a railway company may make conditions limiting its liability for unpunctuality; but it must exercise reasonable care and diligence to ensure that its trains arrive at the times stated in its time tables. It is not possible to reckon in minutes the exact extent to which unpunctuality is reasonable: there is no such thing as "reasonable time" in the abstract. The question must be answered by reference to the circumstances of each particular case.* The mere fact that a train started or arrived late does not prove that the company did not take reasonable care; nor does it give a passenger the right to take a special train,

1 Watkins v. Rymill (1883), 10 Q. B. D. 178.

2 Henderson v. Stevenson (1875), L. R. 2 H. L. Sc. 470.

8 See Richardson v. Rowntree, [1894] A. C. at pp. 219, 221; Hood v. Anchor Line. Ltd., [1918] A. C. 837.

4 As to delay caused by a strike, see Hick v. Raymond & Reid, [1893] A. C. 22: Hulthen v. Stewart & Co., [1903] A. C. 389; Sims & Co. v. Midland Ry. Co., [1913]

1 K. B. 103.