30 Pac. 261; Atchison, etc., R. Co. v. Morrow, 4 Kan. App. 199, 45 Pac. 956; Kyne v. Wilmington, etc., R. Co., 8 Houst. (Del.) 922, 14 Atl. 922; Myers v. Richmond, etc., R. Co., 87 N. C. 345. An examination of the cited cases shows that it is negligence for a railroad company to leave standing in a public highway, unnecessarily and for an unreasonable time, an object naturally calculated to frighten horses of ordinary gentleness. We have pointed out that in the present case the evidence tended to show that the engine and tender were left standing on the public highway for a half an hour unnecessarily.

Under these circumstances, the question of the character of the object, as well as the urgency of the occasion and the reasonableness of the use, was for the jury, and hence the negligence of the defendants should have been submitted to them. McCann v. Consolidated Traction Co., 59 N. J. Law, 481, 36 Atl. 888, 38 L. R. A. 236; Ayars v. Camden & Suburban Ry. Co., 63 N. J. Law, 416, 43 Atl. 678; Tompkins v. North Hudson Ry. Co., 63 N. J. Law, 322, 43 Atl. 885; Johnston v. N. Y. & L. B. R. R. Co., 65 N. J. Law, 421, 47 Atl. 586; Esler v. Camden & Suburban Ry. Co., 71 N. J. Law, 180, 58 Atl. 113; Mumma v. Easton & Amboy R. R. Co., 73 N. J. Law, 653, 65 Atl. 208. The alleged contributory negligence of the plaintiff was also a question for the jury. The fact that the plaintiff might have taken another and more inconvenient road is immaterial. He was entitled to travel the public highway in question. To hold otherwise would permit a railroad company to exclude such travelers from the highways. We have pointed out that the jury was justified in finding that the plaintiff was driving an ordinarily gentle horse; that he waited at a reasonable distance for a reasonable time to see if the locomotive would move on or if his horse would take fright. When it appeared that the locomotive was not going to move, and that his horse was not frightened, the plaintiff drove on. Under these circumstances, it cannot be said as a matter of law that the danger was so imminent and threatening that a reasonably prudent man would not assume the hazard of encountering it. It will not do to say that, if he did not anticipate the fright of the horse, neither could the defendants. They were the original wrongdoers, and were bound to anticipate any result that might reasonably be anticipated. We have already Isaid that the evidence tended to show that the engineer in charge of the locomotive was in the employ of the Lehigh Valley Company, and that the railroad was operated by the Easton & Amboy Company. It was therefore for the jury to say whether either or both defendants were liable.

The nonsuit not being justified, the judgment under review should be reversed, and a venire de novo awarded.

(76 N. J. L. 608) ATKINSON v. NEW YORK TRANSFER CO. (Court of Errors and Appeals of New Jersey. Nov. 18, 1908.)

1. APPEAL AND ERROR (8 1033*)-HABMLESS ERROR-PREJUDICIAL EFFECT.

An erroneous instruction, prejudicial only to plaintiff, is not ground for reversal on defendant's appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*] 2. CARRIERS (§ 150*)-CARRIAGE OF GOODSLIMITATION OF LIABILITY-NEGLIGENCE.

A common carrier cannot by contract exempt itself from liability for losses caused by its own or its servants' negligence; such contract being contrary to public policy, as tending to induce want of care by the carrier in the performance of its duties.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 8 654; Dec. Dig. § 150.*] 3. CARRIERS (§ 158*)-CARRIAGE OF GOODSLIMITATION OF LIABILITY · LIMITATION AS

TO AMOUNT-FIXING Of Value. Since a carrier is entitled to compensation in proportion to the value of the goods shipped and the consequent risk assumed, it may stipulate with the shipper as to the value of the goods, and contract to limit its liability to the amount fixed; such contract not being opposed to public policy.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 8 663; Dec. Dig. § 158.*]

4. APPEAL AND ERROR (§ 852*) — REVIEW QUESTIONS CONSIDERED.

In an action against a carrier for the value of goods shipped, defendant claiming that plaintiff could only recover the amount fixed in the bill of lading, whether the shipper, after accepting the bill of lading without dissent, could afterwards assert ignorance of its contents need not be determined, where the case was tried below on the theory that the shipper was not bound, even if she knew of the limitation in the bill of lading, unless she assented thereto.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3402; Dec. Dig. § 852.*] 5. CARRIERS (§ 137*)-CARRIAGE OF GOODSLIMITATIONS ON LIABILITY AS GROUND OF DEFENSE-INSTRUCTIONS.

In an action against a carrier for the value of goods lost in transit, where the bill of lading recited that the charge was based upon a valuation not exceeding $100, and provided that the carrier should not be liable for loss by negligence or otherwise in excess of that amount, an instruction that, even if the shipper knew of the limitation in the bill of lading, the carrier would still be liable for the full value of the goods, unless the shipper assented to the provision in the bill of lading, in effect instructed that a shipper knowing that the transportation charge is based upon a value below the actual value of the goods, and that the shipping receipt limited the carrier's liability to that value, may accept the receipt in silence, and afterwards deny his assent thereto, and recover the full value of the goods, and was er

to such value, since the carrier may infer from the shipper's silence that the value fixed is proper, for the purpose of determining the carrier's liability.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 708; Dec. Dig. § 158.*]

Error to Supreme Court.

Action by Harriet Atkinson against the New York Transfer Company. Judgment for plaintiff, and defendant brings error. Reversed.

George Holmes and William D. Edwards, for plaintiff in error. Francis V. Dobbins, for defendant in error.

GUMMERE, C. J. This action was brought by Mrs. Atkinson to recover damages from the defendant company for the loss, through its negligence, of a trunk and contents, intrusted by her to it for shipment from Ocean Grove in this state, to her home in Brooklyn, N. Y. At the trial the defendant company admitted liability, but contended that the amount of the recovery against it should be limited to $100, notwithstanding the fact that the value of the property lost considerably exceeded that sum. This contention was rested upon the fact that, at the time it received the trunk, the company delivered to the plaintiff a bill of lading, which recited, among other things, that its charge for the transportation thereof was based upon a gross valuation not exceeding $100, and contained an express agreement between the shipper and the carrier that the latter should not be liable, in case of loss or damage by reason of negligence, or otherwise, for an amount exceeding that sum, and the further fact that the plaintiff received the bill of lading without expressing any dissent from its provisions. The trial court, in its instruction to the jury as to the effect of the delivery of this bill of lading to the plaintiff, stated that if "it was presented to the plaintiff, and received by her as a contract, she would not be entitled to recover more than $100, but that, if she did not know that it was offered to her as a contract, and received it without knowing its contents, supposing that it was simply given to her as a receipt in order to enable her to trace her property, then the limitation in it would not apply, and that, even if she knew that the rate charged for the trunk was based upon a valuation of $100, still the limitation would not obtain, and the company would still be liable for the full value of the goods, in the absence of any assent by her to a restriction of that character." The court then proceeded as follows: "The question would therefore seem to be whether Mrs. Atkinson, when this receipt was handed to her, and she took it, assented to it as an agreement between her and the company, or whether she took it as a mere receipt. In order to constitute assent there must be knowledge, and if she did

not know of these words, did not know what the company claimed it was, then there could be no valid assent. If she did know, still it would remain a question as to whether she assented to it as a contract." The jury returned a verdict in favor of the plaintiff for $300, the full amount of the property lost, and the defendant now assigns error upon this excerpt from the charge.

The first question which the case presents for consideration is whether a contract, which fixes the value of goods shipped at a price less than their real worth, and limits the liability of the carrier for a loss resulting from its own negligence to the value thus fixed, is valid; for, if it is not, then the instruction complained of, so far as it was erroneous, was harmful to the plaintiff, not to the defendant, and affords no ground for reversing the judgment. We fully concur in the soundness of the generally recognized rule that a common carrier cannot contract for exemption from liability for losses resulting from his own negligence, or that of his servants. But this rule does not, we think, prevent the carrier from stipulating with the shipper as to the value of the property intrusted to it, and contracting that its liability shall be limited to the amount so stipulated. The carrier is entitled to be compensated for his services in proportion to the value of the article consigned and the consequent risk assumed by him. The shipper is entitled to take the benefit of a lower rate, if he desires to do so, by placing a value upon his goods, for the purpose of their shipment, below their actual worth. Such a stipulation stands as if the carrier had asked the value of the goods shipped, and had been told by the consignor that it was the sum named in the contract. The reason why contracts exempting the carrier from liability for loss resulting from his own negligence are held to be invalid is that they are against public policy, because their natural effect is to induce want of care on the part of the carrier in the performance of his duties. But a stipulation as to the value of the goods to be shipped has no such tendency. It exacts from the carrier the measure of care due to the value agreed on, and is, we think, a proper and lawful mode of securing a due proportion between the amount for which the carrier can be held responsible and the charges received by it as a consideration for the safe transportation of the goods shipped. This is the view expressed by the Supreme Court of the United States in Hart v. Pennsylvania R. R. Co., 112 U. S. 340, 5 Sup. Ct. 151, 28 L. Ed. 717, and is that adopted in many of our sister states. 5 Am. & Eng. Ency. 328, and cases cited; 6 Cyc. pp. 402, 403, and notes.

Having determined that a contract between a carrier and shipper which fixes the value of the goods shipped at a sum less than their

real worth, and limits the liability of the carrier, in case of their loss, to the amount so fixed, is binding upon the shipper, we take up the consideration of the court's instruction to the jury in this case. It is insisted, on behalf of the plaintiff in error, that Mrs. Atkinson, by receiving the bill of lading, became bound by its provisions; that the mere acceptance of this paper without any indication of dissent from its terms bound her as fully as if she had expressly assented to them, and that she could not afterward deprive the plaintiff in error of the protection of its provisions by asserting that she was ignorant of its contents. We are not required to pass upon the soundness of this proposition advanced on behalf of the plaintiff in error, for the trial court in its instruction to the jury did not make the plaintiff's ignorance of the contents of the paper which was delivered to her the test of her liability under it. The jury were told that, even if she knew that the rate charged for the transportation of her trunk was based upon a value of $100 the company would still be liable for the full value of the goods, in the absence of any assent by her to the restriction of liability. And, further, that even if she knew of the words (that is, the words contained in the paper limiting the carrier's liability), still it would remain a question as to whether she assented to the bill of lading as a contract. The purport of this instruction, as it seems to us, is that a shipper, who knows that the charge made by the carrier for the transporting of his goods is based upon a value placed upon them which is below their actual worth, that this value is stated in the receipt which is given to him by the carrier, and that the receipt contains a stipulation limiting the carrier's liability to the amount thus stated, may accept the receipt in silence, and afterwards, in case the goods are lost, may deny that he assented to the valuation which was made the basis of the carrier's charge, may repudiate the limitation of liability, and recover the full amount of his loss.

It is held by the best-considered authorities that, if the shipper is guilty of fraud or imposition, by misrepresenting to the carrier the value of the goods consigned to him, he destroys his claim to full indemnity, and the reason of it is that by his act he has deprived the carrier of his right to be compensated in proportion to the value of the goods and the consequent risk assumed by him; that what he has done has tended to lessen the vigilance which the carrier would otherwise have exercised for the safety of the goods. 2 Kent's Com. 603, and cases cited. The soundness of this principle seems to us to be beyond controversy, and we are unable to see any distinction in law between an express misrepresentation of value made by the shipper to the carrier and a statement

made by the carrier to the shipper as to the rate charged and the liability assumed by him, based upon the value of the goods, being a sum named by him, and the reception of that statement by the shipper in silence, so far as the determination of the rights of the respective parties is concerned. The carrier has a right to infer from the silence of the shipper that his valuation is accepted by the latter as accurate, not only for the purpose of fixing transportation charges, but also for the purpose of determining the amount of liability in case of loss. Having taken advantage of the lower rate, based upon the value fixed by the carrier, the shipper is estopped from afterwards asserting that the value is greater. To permit him to reap the benefit of a lower rate in case there is no loss, and to repudiate the valuation upon which that rate was based if there be a loss, would be repugnant to every principle of fair play.

We are of opinion that the instruction complained of was erroneous, and that, for this reason, the judgment under review must be reversed.

(77 N. J. L. 584)

JORDAN V. REED. (Court of Errors and Appeals of New Jersey. Nov. 18, 1908.)

1. TRIAL (§ 109*) — OPENING — STATEMENT – SCOPE AND EFFECT.

A motion for a nonsuit on the opening of a case to the court and jury is not usual, but is permissible if the statement of counsel, by its omissions or admissions, renders it clearly evident either that no case can be made out, or that a recovery is precluded. The rule applied.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 109.*]

2. PLEADING (§ 387*)-CONTRACTS (8 346*)APPEAL AND ERROR (§ 888*)-ISSUES, PROOF, AND VARIANCE.

(a) Under the Practice Act (P. L. 1903, p. 571) 125, there can be permitted no substantial variance between the case declared upon and the case proven, but a recovery must be secundum allegato et probata.

(b) When a declaration sets up a contract growing out of commercial paper and entered into by the defendant alone, proof of a contract of a different nature entered into by the defendant and others will not sustain the declaration unamended, for thereby the defendant would be denied an opportunity to plead the nonjoinder in abatement. Neither can the declaration be amended on error to conform to the proofs, because thereby the defendant would be bound by a verdict upon a matter which he had not expected or intended to try.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. 1300; Dec. Dig. 387;* Contracts, Cent. Dig. 1740; Dec. Dig. § 346;* Appeal and Error, Cent. Dig. § 3619; Dec. Dig. § 888.*]

3. BILLS AND NOTES ( 422*)-PRESENTMENT AND NOTICE OF DISHONOR-WAIVER.

Evidence to the effect (a) that a defendant and others have received property of the maker of a note on an agreement to take care of the note at maturity, or (b) that, after maturity,

defendant has admitted responsibility upon a note, which is shared by others with himself, will not support an action against such defendant as indorser alone, on the theory that, by the receiving of such property or the making of such admissions, he has waived presentment and notice of dishonor of the note, or the holder stands excused therefrom.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1203; Dec. Dig. § 422.*] 4. TRIAL ( 170*)-DIRECTION OF VERDICT.

When the plaintiff in an action might lawfully have been nonsuited at the trial, if such motion had been made, the direction of a verdict in his favor, on the same evidence, is er roneous, and cannot be upheld.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 390; Dec. Dig. § 170.*] (Syllabus by the Court.)

Error to Supreme Court.

Action by Albert M. Jordan against H. Phelps Reed, executor of the will of I. Whilden Moore, deceased. Judgment for plaintiff, and defendant brings error. and a venire de novo awarded.

Reversed,

Originally this was an action upon contract brought in the Supreme Court by Albert M. Jordan, now defendant in error, against I. Whilden Moore, the testator of the present plaintiff in error.

The declaration filed is unusual in form and in substance, but may be said to set up a cause of action of the nature following: Whereas the Northside Land Company had made its promissory note, in writing, bearing date on June 11, A. D. 1903, and thereby promised to pay to the order of the La Charge Dredging Company the sum of $6,000, one year after date, at the Second National Bank of Atlantic City, value received, thereupon, in consideration of a credit of $6,000 then and there made by the payee in said note named to the maker thereof, and of a like credit then and there made by the plaintiff, Albert M. Jordan, to the said payee, he, the said I. Whilden Moore, then and there being the business manager of the said corporation maker, promised and undertook "absolutely to pay him the said note at its maturity, by indorsing and delivering the same to the plaintiff, and waive and forego" presentment for payment and notice of dishonor of the said note. Nevertheless the said I. Whilden Moore did not, neither did any other person, pay to the plaintiff the sum of money in said note specified or any part thereof, to his damage, etc. The said I. Whilden Moore interposed a plea of the general issue, and similiter was added.

After issue joined, the said I. Whilden Moore died testate, and his death was duly suggested upon the record, and the cause was continued against H. Phelps Reed as sole executor of his last will and testament. The issue was brought down for trial at the Atlantic circuit before one of the circuit judges duly assigned and a jury.

The evidence offered by the plaintiff was to

the effect following: The note in suit was made by the Northside Land Company, and was indorsed by I. Whilden Moore, the original defendant. It had also been indorsed by William I. Garrison, but the name of the latter was erased. The note had come into the possession of Albert M. Jordan, the plaintiff, after the indorsement by Moore, but when, why, or how was not made clear. The Northside Land Company was the owner of lands in Atlantic county, and intended to improve the same for sale in building lots. The La Charge Dredging Company was employed to fill in these lots in order to fit them for building. 1. Whilden Moore was interested in the land company's project both as a shareholder and manager, and had charge of the contract with the dredging company. After the making of the note in suit, and while it was outstanding, the land company having liabilities (inter alia, to the dredging company) which it was unable to meet, Moore proposed to the land company and the holders of shares therein that the himself and some other gentlemen, if a conland company should turn over its lands to sideration therefor could be agreed upon. The sum of $51,400 was at length agreed upon, including the value of the outstanding capital stock, and all of the indebtedness of the land company, and, as part of such indebtedness, the particular note in suit. In these negotiations Moore was the active spirit on behalf of himself and his three associates, and he promised that the debts and the value of the stock should be paid. These negotiations resulted in a sale of the company's lands, and the making of a deed, dated February 17, 1904, between the Northside Land Company, and John Myers, I. Whilden Moore, Charles R. Myers, and Robert Moore, whereby, for the consideration above mentioned, all of the company's lands were assured to them. After the making of this conveyance and before the bringing of the action, Moore acknowledged his indorsement of the note to one of the witnesses, but at the same time declared that he did not wish to pay the note until he could get Charles and John Myers and Robert Moore to join him in the payment, and the statement of Moore was couched in words which at least tended to warrant an inference that in his view their common interest and concern in the property, rights, and obligations of the land company bound them to take care of the note. No evidence was offered on the part of the defendant. There was a motion for a nonsuit on the plaintiff's opening, which was refused, and an exception was taken. There were sundry exceptions to rulings of the trial judge in admitting evidence against the defendant's objection. There was also a motion to direct a verdict for the defendant, which was refused; and no exception ap

pears to have been sealed thereon. At the close of the case the trial judge directed a verdict for the plaintiff for the amount of the note, with interest; and an exception was sealed upon such direction.

A verdict having been found agreeably to the direction, judgment was entered thereon in the Supreme Court, and such judgment has been removed into this court on writ of error. Error is specially assigned in that the trial judge refused a nonsuit on the plaintiff's opening, in that the trial judge admitted, over objection, evidence which was at variance with the declaration, in that the trial judge admitted, over objection, evidence which was incompetent and illegal, and in that the trial judge directed a verdict for the plaintiff contrary to law.

Clarence L. Cole (E. A. Armstrong, on the brief), for plaintiff in error.

(1) The declaration not showing a cause of action, there should have been a nonsuit or the plaintiff's opening.

(2) If it be assumed that a legal cause of action is set up in the declaration, there was no proof sufficient to support it. The proofs offered by the plaintiff below were at variance with the declaration.

(3) So far as the evidence made out any case against the defendant below. it placed Moore, the defendant's testator, in the position of undertaking orally to pay the debt of another, the land company.

(4) Irrelevant evidence was admitted, to the injury of the defendant below.

(5) So far as the proofs established any contract, it was one made by four jointly, and not by Moore alone.

(6) There should have been no directior of a verdict for the plaintiff below. Most favorably to the plaintiff, it should have been held that there was a jury question.

John J. Crandall, for defendant in error. Under the declaration and proofs a primary undertaking by Moore to pay the note was established. If not, the facts establish the liability of Moore, as an indorser, who, by getting property of the maker into his hands, had waived presentment and notice.

GREEN, J. (after stating the facts as above). The first contention of the plaintiff in error appears to be that the plaintiff below should have been nonsuited upon the opening of his counsel, either because the facts stated by counsel, if proved, would not have sufficed to sustain a verdict, or because, if proved, they would have established, not the cause of action alleged in the declaration, but a cause of action different therefrom. A motion for a nonsuit on the opening of a case to the court and jury is not usual, but it is permitted in some jurisdictions. In order to its allowance, it is in gen

statement of counsel, by its omissions or admissions, must render it clearly evident either that no case can be made out, or that a recovery is precluded. Emerson v. Weeks (1881) 58 Cal. 382, 385; Oscanyan v. Arms Co. (1880) 103 U. S. 261, 263, 264, 26 L. Ed. 539; Hoffman House v. Foote (1902) 172 N. Y. 348, 350, 65 N. E. 169. In this court the matter was lately considered in Kelly, Adm'r, v. Bergen County Gas Co. (1906) 74 N. J. Law, 604-607, 67 Atl. 21; and it was then declared that, by analogy to the motion for a nonsuit at the close of the plaintiff's evidence, the question is whether the facts stated as to be proved and the reasonable inferences which may be drawn from them disclose that the plaintiff is not entitled to submit his case to the jury because a verdict in his favor could not be sustained. Among cases which dealt with the motion at the close of the plaintiff's evidence, it is sufficient to note Case v. Cent. R. R. Co. (1896) 59 N. J. Law, 471, 473, 37 Atl. 65, 59 Am. St. Rep. 617, and Polhemus v. Prud. Real. Corp. (1906) 74 N. J. Law, 570, 580, 67 Atl. 303. If now we turn to the plaintiff's declaration, we find the pleader's averments to be, in brief, that the original defendant, Moore, for valuable consideration, indorsed and delivered to the plaintiff the note made by the Northside Land Company to the La Charge Dredging Company for the payment of $6,000, and promised and undertook to pay the said note absolutely, and to waive presentment and notice. Whether the original defendant, by this irregular indorsement, became liable to the dredging company or not liable, may be unimportant. The averments would under sections 64, 82, and 109 of the negotiable instrument act (P. L. 1902, pp. 594, 595, 598, 601, 602) show a liability to the plaintiff, the immediate indorsee, if the averments were sustained by legal evidence. If we turn to the opening of counsel, we find the gist of his statement to be that the original defendant, who was the promoter and manager of the land company, for a valuable consideration, indorsed and delivered to the plaintiff, who was the backer of the dredging company, the note for $6,000, made by the former company to the latter company; and that, before the maturity of the note, the original defendant, by an executed bargain with the land company, agreed, in consideration of a conveyance of all of its lands to himself, to take care of this note, among other debts of the company. This may have been a somewhat loose and meager statement. Nevertheless we incline to the notion that, if the statement were followed by legal proof of the facts stated, a case would have been presented for the consideration of a jury. See Kelly, Adm'r, v. Bergen County Gas Co. (1906) 74 N. J. Law, 604, 605, 67 Atl. 21; Story on Bills, §§ 316, 374; Story on Prom. Notes, § 282. The motion for a nonsuit on the open