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 forthcoming 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 Redhead 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.
(j) 22 S. C. R. 721.

make a special contract relieving themselves from negligence towards passengers, provided they could show some consideration 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. 7 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

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

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 (1), the Dominion Parliament finally followed the 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, from 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 bill 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 (o). 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. i, of R. S. O. 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 by 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. Grand Trunk R. W. Co.. 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.

contract so provides, or the carrier is himself guilty of some act whereby the goods remain in his possession during a period which was not occupied in their transportation. Consequently the law has never fixed the carrier with the liability of an insurer when the goods have reached their journey's end, and all legal steps have been taken to enable the consignee to get them. Having done all that he was paid for, he would then become a gratuitous bailee (depositary) and liable only for gross negligence under Coggs v. Bernard, but in the case of railway companies and other forwarders the contract of carriage generally provides for payment of storage charges where there is delay in taking delivery, so that usually they become bailees for hire, and liable for loss occasioned by their negligence, except where there is an express provision to the contrary, but not liable at all events. There are numerous cases decided on this point, but a reference to the very valuable judgment of Sir John Beverley Robinson in Ham v. McPherson (p), already cited, and to Milloy v. Grand Trunk R. W. Co. (q), will suffice for present purposes. The same right of limiting liability by means of a contract existed and still exists in favour of most warehousemen, and, as it will be afterwards submitted, the wording of the Railway Acts is not sufficiently wide to invalidate a condition relieving railway companies from their negligence, where the negligent act occurred whilst they filled the position of warehousemen only.

The situation then has been since 1871 that railway companies may receive goods for carriage upon any terms they like, and may contract themselves out of liability as much as they please; but once a shipper or consignee proves that they have been negligent he may recover all damages he has sustained thereby in spite of the most cast-iron, small print condition that ever threatened the eye-sight of those condemned to read it. This sweeping effect is the more surprising, since, in most directions, the law has extended the liberty of contract to an extent unheard of in the days of specialty debt and actions of assumpsit, and one is tempted (p) 6 O. S. 360.

(g) 23 O. R. 454 and 21 A. R. 404.

even now to engage in what would be a purely academic discussion as to the advisability of substituting machinery for properly informing shippers of the nature of the contracts they are signing, instead of taking away from them their power of defining their rights and liabilities as they see fit.

But we are now concerned with the law as it is, and this calls for a review of certain principles enunciated since our own and the English statute were passed. The first necessity is to define as far as possible the lines within which this statutory limitation operates.

It is to be observed:—

(a) That it does not prevent the carrier from throwing the onus of proving negligence upon the shipper.

(b) Nor deprive him of his common law defences that the loss was caused by the act of God, the Queen's enemies, or some inherent defect in the article carried.

(c) Nor oblige a carrier to assume responsibility for connecting lines.

(d) Nor take away the defence of contributory negligence. (e) Nor prevent him from limiting beforehand the

measure of damages that may be recovered, even if negligence is shown.

(f) Nor from prescribing certain conditions precedent to the issue of a writ.

(g) If it can be shown that the negligence relied upon by the plaintiff is not within the scope of the section, a condition aptly worded may be a defence even against such negligence.

There is also the further question whether the section under discussion is not modified by other clauses in the same Act, and whether the railway company cannot, for instance, by granting another and lower rate, stipulate for exemptions which it could not exact if it carried goods for the ordinary fare. It is assumed in discussing all these points that a contract has been made, limiting liability as far as the law allows, for if there is no contract, the liability is at common law.

It must here be noticed that where a railway company sets up as a defence a contract limiting its liability, it must be