ing circumstances: A bright, healthy, active girl, nine and a half years old, the question being whether she is entitled to unusual attention and to special instructions. (153 N. Y. 265.) A strong, healthy boy, eight years and seven months old, bright and intelligent for his age. (Cleveland, Etc., R. Co. v. Tartt, 64 Fed. Rep. 830.) A child five and a half years old, injured by darting from the sidewalk and running against a slowly trotting horse, before he had gone six feet. (Hayes v. Norcross, 162 Mass. 546.) But where a boy eight years of age was struck by a backing engine and killed, it was held a question for the jury whether he exercised that degree of circumspection which a child of his years and maturity of judgment would be expected to exercise. And where a boy of seven years of age was run over by a street car, it was held that he was not to be presumed sui juris so as to be chargeable with negligence as matter of law, but that it was a question of fact for the jury.10

Sec. 401-76. SAME SUBJECT-UPON WHOM IS THE BURDEN OF SHOWING THE PRESENCE OR ABSENCE OF CONTRIBUTORY NEGLIGENCE.-In an action for damages on the ground of negligence, the plaintiff must show that the injury was caused by the fault of the defendant, "and for this purpose he must show the circumstances under which it occurred. If from these circumstances it ap

9 Thompson on Neg., Sec. 312, note.

10 McGovern v. N. Y. etc. Co., 67 N. Y. 417; Stone v. Drydock R. Co., 115 N. Y. 104; Brown v. Sherer, 155 Mass. 83; 155 Mass. 125.

pears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, he has by showing them disproved his right to recover. But going no further, it may be said that there is a legal presumption against negligence upon which he is at liberty to rely, thus casting the burden of showing contributory negligence upon the defendant. Many cases so hold. But in other cases it is said that negligence in one party presupposes the duty of care imposed upon him for protection of the other; and that the plaintiff does not show the existence of this duty until he has first shown his own relative position, and that he was himself in the exercise of proper care. In this view the absence of contributory negligence becomes a part of the plaintiff's case, and should appear, prima facie at least, before the defendant can be called upon to answer the negligence imputed to himself. Nor is this calling upon him to prove a negative; it is requiring of him merely that he show the duty he counts upon and its breach."2

1 Citing: Railroad Co. v. Gladmon, 15 Wall. 401; McQuilken v. Cent. Pac. R. Co., 50 Cal. 7; Thompson v. R. Co., 51 Mo. 190; Rogenschutz v. Smith, 84 Ky. 330; Nelson v. Helena, 16 Mont. 21; Bradwell v. Ry. Co., 139 Pa. St. 404, and many others.

2 Cooley on Torts, 809. Citing: Lane v. Crombie, 12 Pick. 177; Teipel v. Hilsendegen, 44 Mich. 461; Park v. O'Brien, 23 Conn. 339; Murphy v. R. Co., 45 Ia. 661, and others. Where the circumstances alleged by the plaintiff disclose contributory negligence on his part, the defendant may take advantage of it without pleading it. Nord v. Mining Co., 30 Mont. 48; Clark v. R. Co., 20 Utah, 401; and it is held in some cases that contributory negligence may be shown under the general issue, without specially pleading it. Can. Pac. Ry. Co. v. Clark, 73 Fed. 76.

Sec. 401-77. OF THE RIGHT OF COMMON CARRIERS AND OTHERS TO MAKE CONTRACTS LIMITING THEIR COMMON LAW LIABILITY FOR NEGLIGENCE.-While common carriers may limit to some extent their common law liability by special contract with the shipper, when they attempt by such contracts to exempt themselves from all or partial liability for their failure to exercise ordinary care, the contracts are held void as against public policy. The rule is stated by the Supreme Court of the United States, as follows: "By the law of this country as declared by this court, in the absence of any statute controlling the subject, any contract by which a common carrier of goods or passengers undertakes to exempt himself from all responsibility for loss or damage arising from the negligence of himself or his servants is void as against public policy, as attempting to put off the essential duties resting upon every public carrier by virtue of his employment, and as tending to defeat the fundamental principles on which the law of common carriers was established-the securing of the utmost care and diligence in the performance of their important duties to the public. Hence, it is said that all contracts limiting the carrier's responsibility as connected with the carriage of goods or passengers, is subject to the implied exception. That for lack of ordinary care on the part of the carrier or his servants or agents the liability exists notwithstanding the contract.2 But where the carrier graduates his compen

1 Chicago, etc., R. Co. v. Solan, 169 U. S. 133, 135.

2 Moulton v. St. Paul, etc., R. Co., 31 Minn. 85; Cal. Powder

sation according to the value of the property and a contract is fairly made agreeing upon such value and the rate for transportation is based upon the valuation, the contract is binding and only the stipulated amount can be recovered, though it is less than the true value and the loss was due to negligence." But there is some conflict in the authorities in the application of this principle.*

It is also held, in most states, to be against public policy, for a carrier to exempt himself from liability by reason of his negligence, though the persons are carried free, as on "drover's passes" to look after cattle or other live stock being shipped.5

Wks. v. Atlantic & Pac. R. Co., 113 Cal. 329; Powell v. Pa. R. Co., 32 Pa. St. 414; School Dist. v. Boston, etc., R. Co., 102 Mass. 552.

3 Cooley on Torts, 826. Citing: Louisville, etc., R. Co. v. Sherrod, 84 Ala. 178; Pac. Exp. Co. v. Foley, 46 Kan. 457; Graves v. Lake Shore, etc., R. Co., 137 Mass. 33; Alair v. N. Pac. R. Co., 53 Minn. 160; Balt., etc., R. Co. v. Hubbard, 72 Ohio St. 302, and others.

* In these cases the stipulations were held valid: Western Ry. of Ala. v. Harwell, 91 Ala. 340; Oppenheimer v. U. S. Exp. Co., 69 Ill. 62; Harvey v. R. Co., 74 Mo. 538; Durgin v. Am. Ex. Co., 66 N. H. 277. For examples of stipulations held invalid, see: Pittsburgh, etc., R. Co. v. Sheppard, 56 Ohio St. 68; Willcock v. Pa. R. Co. 166 Pa. St. 184; So. Ry. Co. v. Jones, 132 Ala. 437; Fort Worth, etc., R. Co. v. Greathouse, 82 Tex. 104; Rosenfield v. Peoria, etc., R. Co., 103 Ind. 121.

5 Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Stevens, 95 U. S. 655; Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1; Ill. Cent. R. Co. v. Beebe, 174 Ill. 13; Louisville, etc., R. Co. v. Faylor, 126 Ind. 126; McNeill v. Durham, etc., R. Co., 135 N. C. 682. In New York and New Jersey the carrier may contract against any liability except the personal negligence of

Telegraph companies have been held to be able to validly contract that unless the message is repeated at the sender's cost, they shall not be responsible for errors or delays, when this provision has been brought to the attention of the party sending the message. In several states a condition in sending a night message providing that the company shall be liable for errors or delays only to the extent of what is received for the message is void, as being contrary to public policy." Likewise a provision limiting the damage to ten times the price paid.

In some states it is held that telegraph companies cannot limit their liability for negligence, or gross negli

9

gence, and in others their contractual ability in this respect is denied entirely.10

himself. Bissell v. N. Y. Cent. R. Co., 25 N. Y. 442; 108 N. Y. 80; Kinney v. Cent. R. Co., 32 N. J. 407. The matter is erned by statute in many states.

La Grange v. So. Wes. Tel. Co., 25 La. 'Ann. 383; 35 Pa. St. 298; Reed v. W. U. Tel. Co., 135 Mo. 661; Sherill v. W. U. Tel. Co., 116 N. C. 665; Pepper v. Tel. Co., 87 Tenn, 554; Grinnell v. W. U. Tel. Co., 113 Mass. 299; Kirby v. Western U. Tel. Co., 4 S. Dak. 105; Breese v. U. S. Tel. Co., 45 Barb. 274.

7 Bartlett v. West. U. Tel. Co., 62 Me. 209; Hibbard v. W. U. Tel. Co., 33 Wis. 559. Stipulations requiring claims for damages to be presented within a limited time are held good. 79 Tex. 65; 7 S. Dak. 623.

8 Marr v. W. U. Tel. Co., 85 Tenn. 529; W. U. Tel. Co. v., Shotter, 71 Ga. 760.

9 Hart v. West. U. Tel. Co., 66 Cal. 579; Kiley v. W. U. Tel. Co., 109 N. Y. 231; Am. U. Tel. Co. v. Dougherty, 89 Ala. 191. 10 Wann v. W. U. Tel. Co., 37 Mo. 472; Tyler v. W. U. Tel. Co., 60 Ill. 421.