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but afterwards, for the security of persons engaged in commerce, it was laid down and maintained as a principle that a common carrier should be held liable for goods delivered to him to carry in all cases except where the losses occurred from the act of God or the King's enemies, by which latter is meant the public foreign enemies of the King, for carriers are liable in case of the destruction of the goods by the irresistible violence of rebels and rioters."

There is a third exception to the carrier's general liability, namely, where the damage to the article carried arises from some defect or vice inherent in the thing itself. The authority for this third exception is Nugent v. Smith (b), dccided in 1865, and therefore long after Sir John Robinson's decision. With these three limitations, carriers are at common law insurers of the goods they profess to carry for hire.

It is stated by that learned Judge that the rule he enunciates is as old as Queen Elizabeth; and Lord Holt, in Coggs v. Bernard (c), refers to and relies upon Mors v. Slue, decided in 26 Car. II., reported in Raymond at p. 220 and 1 Vent. 190 and 238.

In support of the proposition under discussion Lord Holt quotes the civil law, and therefore the rule lying at its root has all the respectability of a very hoary antiquity. The reasons given are those referred to by Powell, J., and Lord Holt, the latter saying: “That it was contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity for undoing all persons that had any dealings with them by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered—” a line of argument which does not pay a high compliment to the carriers of Lord Holt's time, and recalls thrilling tales of those days when the stage-coach driver and the highwayman were in league to beset the adventurous traveller and despoil him of his goods.

(b) 1 C. P. D. 423.
(c) 1 Sm. L. C., 9th ed., p. 354.

Powell, J., in the same case, says that, while not liable for damages arising from the act of God or the King's enemies, a carrier is liable for other accidents, because he has his remedy over against the person causing them, as in the case of goods stolen from him, where“ an appeal of robbery will lie, wherein he may recover the goods, which cannot be had against enemies."

but afterwards, for the security of persons engaged in commerce, it was laid down and maintained as a principle that a common carrier should be held liable for goods delivered to him to carry in all cases except where the losses occurred from the act of God or the King's enemies, by which latter is meant the public foreign enemies of the King, for carriers are liable in case of the destruction of the goods by the irresistible violence of rebels and rioters."

There is a third exception to the carrier's general liability, namely, where the damage to the article carried arises from some defect or vice inherent in the thing itself. The authority for this third exception is Nugent v. Smith (3), decided in 1865, and therefore long after Sir John Robinson's decision. With these three limitations, carriers are at common law insurers of the goods they profess to carry for hire.

It is stated by that learned Judge that the rule he enunciates is as old as Queen Elizabeth; and Lord Holt, in Corgs v. Bernard (c), refers to and relies upon Mors v. Slue, decided in 26 Car. II., reported in Raymond at p. 220 and 1 l'ent.

But, however strong the necessity for such a rule might be, the desire to promote the public welfare, and to protect their patrons against their nefarious connivances with thieves was not felt by people who, as common carriers, were bound to accept all goods which they professed to convey upon a tender thereof, and the price of carriage, to such an unusual extent that they did not attempt to escape from its results either by notice given to all consignors with more or less publicity, or by entering into a special contract when receiving the consignment. Provided that the carrier could show that the notice or contract came to the knowledge of the consignor, he would then be absolved from liability to pay damages arising from any of the excepted risks, and this extended to his own negligent acts, and those of his servants, if the contract was sufficiently explicit (d).

If the owner could show that he received no consideration for the exemption he granted other than the promise to convey the goods, it has been suggested, but apparently not authoritatively decided, that, as the carrier was bound by law to carry them anyway, the exemption granted would fail for want of consideration (e), and it has also been held that a carrier may be sued in tort for damages where he refuses to convey goods which he professes to carry, unless a special coutract is signed, if the owner can prove tender of the goods and of a reasonable compensation (f); but at common law in other cases the owner had no option but to sign the agreement presented to him, or keep his goods at home. Except in the

190 and 238.

In support of the proposition under discussion Lord Holt quotes the civil law, and therefore the rule lying at its root has all the respectability of a very hoary antiquity. The reasons given are those referred to by Powell, J., and Lord Holt

, the latter saying: That it was contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sort of persons, that they may be safe in their ways of dealing; for else these carriers might here an opportunity for undoing all persons that had any dealings with them by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered~" a line of argument which does not pay a high

(d) Hinton v. Dibbin, 2 Q. B. 646 ; Hamilton v. Grand Trunk R. W. Co., 23 U. C. R. 600'; Bates v. Great Western R. W. Co., 24 U. C. R. 544; and Spettigue v. Great Western R. W. Co., 15 C. P. 315.

(e) Richards, J., in Sutherland v. Great Western R. W. Co., 7 C.

P. 409.

compliment to the carriers of Lord Holt's time, and recalls thrilling tales of those days when the stage-coach driver and the highwayman were in league to beset the adventurous traveller and despoil him of his goods.

(1) Leonard v. American Express Co., 26 U. C. R. 633.

(0) 1 C. P. D. 423.
(c) 1 Sm. L. C., 9th ed., p. 354.

case of railway companies, this is practically the law now, and a carrier may, by a special contract, escape liability for damages arising even from his own negligence (g).

The liability at common law of carriers of passengers must next be considered to enable us to grasp the

scope

of our own and the English legislation.

Presumably because carriers could never connive with highwaymen or footmen to expose their human freight to risks which attended the transportation of goods, the former were not liable in cases of injury at all events; but before his “fare”: could recover it was necessary to prove that the carrier had been negligent. Curiously enough, this rule has none of the antiquity of that relating to goods, for, though it had been pretty well assumed, a "leading case” was not fort:coming until 1867, when Redhead v. Midland R. W. Co. (h), decided the point; and the decision received further sanction in the Court of Appeal (i). The law as there decided is that “a carrier of passengers for hire is bound to use the utmost care and skill in everything that concerns the safety of the passengers, but he is not bound at his peril to provide a carriage road-worthy at the commencement of the journey, and if the carriage turns out to be defective, he is not liable to a passenger for the consequences, if the defect was of such a nature that it could neither be guarded against in the process of construction, nor discovered by subsequent examination.”

The rule deduced from the cases is, that the passengers must prove some negligence on the part of the carriers, and this rule received the judicial sanction of our own Supreme Court in Chalifoux v. Canadian Pacific R. W. Co. (j), in which the Radhead case and some American decisions are relied upon. The necessity for caution is, however, so strongly insisted upon, that, for all practical purposes, a railway company at least must find it difficult to devise a scheme by which it can injure passengers with greater impunity than their possessions. At common law, however, carriers could also

(g) Dixon v. Richelieu and Ontario Navigation Co., 15 A, R. 647, 18 S. C. R. 704.

(h) L. R. 2 Q. B. 412. (i) L. R. 4 Q. B. 379. (i) 22 S. C. R. 721.

case of railway companies, this is practically the law now, and

carrier may, by a special contract, escape liability for damages arising even from his own negligence (9).

The liability at common law of carriers of passengers must next be considered to enable us to

grasp

the
scope

of our own
and the English legislation.

Presumably because carriers could never connive with nighwaymen or footmen to expose their human freight to risks which attended the transportation of goods, the former rere not liable in cases of injury at all events; but before his * fare” could recover it was necessary to prove that the arrier had been negligent. Curiously enough, this rule has none of the antiquity of that relating to goods, for, though it nad been pretty well assumed, a “leading case” was not forthcoming until 1867, when Redhead v. Midland R. W. Co. (), lecided the point; and the decision received further sanction n the Court of Appeal (i). The law as there decided is that “a carrier of passengers for hire is bound to use the utmost sue and skill in everything that concerns the safety of thepassengers, but he is not bound at his peril to provide a carriage

make a special contract relieving themselves from negligence
towards passengers, provided they could show some considera-
tion moving from themselves to him, and induce him to waive
his common law right of being carried carefully (k).

The above is in outline the position of the law affecting
common carriers, until it was altered by statute.

It was found in England that carriers were, by all kinds of more or less public notices and special contracts, limiting their liability while taking the usual hire for carriage, and one or two attempts to regulate what was regarded as a hardship upon the public, were made, first by 1 Will. IV. cap. 68, prohibiting the use of public notices as a means of limiting liability, and afterwards by the Railway and Canal Traffic Act, 17 & 18 Vict. cap. 31, which by sec. ì provided that every company within its scope should be liable for any loss or injury to goods intrusted to its care occasioned by the neglect or default of the company or its servant; notwithstanding any notice, condition, or declaration limiting its liability; and any such provision is to be null and void, provided that the company is not to be prohibited from making such conditions as may be adjudged by the Court to be just and reasonable.

These provisions were never enacted in Ontario, nor were they the subject of Dominion legislation, and for many years after they existed in England the rights of carriers and consignors in Canada were subject only to the provisions of the common law. As authority for this statement, see the Sutherland case, already referred to. Indeed, ordinary carriers, such as those by water or stage-coach, are not yet the subject of legislative regulation, except so far as the former are within the scope of R. S. C. cap. 82, but, as the legal position of these carriers is not within the limits of the present discussion, the effect of the last named statute is not further considered.

Railway companies, when they came into existence, adopted the practice of those whose business they usurped, and protected themselves by all sorts of conditions from every

road-worthy at the commencement of the journey, and if the carriage turns out to be defective, he is not liable to a passenger for the consequences, if the defect was of such a nature that it could neither be guarded against in the process of construction, nor discovered by subsequent examination.

The rule deduced from the cases is, that the passengers must prove sone negligence on the part of the carriers

, and this rule received the judicial sanction of our own Supreme Court in Chalifoux v. Canadian Pacific R. W. Co. (1), in which the Radhead case and some American decisions are

relied upon. The necessity for caution is, however, so strongly insisted upon, that, for all practical purposes, a railway company at least must find it difficult to devise a scheme by which it can injure passengers with greater impunity than their possessions. At common law, however

, carriers could also (g) Dixon v. Richelieu and Ontario Navigation Co., 15 A. R. 647, 18

(k) Sutherland v. Great Western R. W. Co., 7 C. P. 409.

(h) L. R. 2 Q. B. 412. (i) L. R. 4 Q. B. 379.

S. C. R. 704.

22 S. C. R, 721.

1

kind of accident or misfortune that was likely to befall property intrusted to their care, and, as they gradually monopolized the land-carrying trade, the need of parliamentary regulations of conditions limiting liability was more and more insisted upon. Yielding to popular demand and judicial suggestion (?), the Dominion Parliament finally followed ihe Imperial example, and in 1871 passed the provision which has already been in substance quoted, namely, that “every person aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, froin which action the company shall not be relieved by any notice, condition, or declaration, if the damage arises from any neglect or omision of the company or its servant.” The bi! as introduced into the House was almost a reprint of the English Act, but it was referred to a committee, and there underwent a complete metamorphosis. The difference between it and the English statute is dealt with by Mr. Justice Osler in Vogel v. Grand Trunk R. W. Co. (m), and Cobban v. Canadian Pacific R. W. Co. (n), and by Sir William Meredith in the Cobban case (0). In addition to what is there stated, it may be remarked that the English Act applies only to the carriage of goods, while ours is general in its terms. This clause is now found in sec. 246, sub-sec. 3, of 51 Vict. cap. 29 (D.), and in sec. 41, sub-sec. , of R. S. 0. cap. 207.

The foregoing remarks furnish an outline of the law affecting carriers down to the time when the statute imposing a restriction upon the contracts of railway companies was passed. But there is one collateral matter, the liability of carriers as warehousemen, which has been somewhat affected Hoy the same statute, and it will be necessary briefly to refer to it before passing on to a consideration of the cases which have arisen out of the Act.

Carriers are paid for the transportation of goods, but not for their safekeeping at either end of the journey, unless their

(1) See Hamilton v. Grar Trunk W. CE 23 U. C. R. 600, and Bates v. Great Western R. W. Co., 24 U. C. R. 544.

(m) 10 A. R. 162, at pp. 184 and 189.
(n) 23 A. R. 115, at p. 119.
(0) 26 O. R. 732, at p. 745,

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