Sec 488

It is against the policy of the law that common carriers should be relieved from all liability for negligence; and agreements so relieving them are void,3 though certain special duties may be transferred from the carrier to the other contracting party, and the carrier may be by such agreements relieved from his liability as insurer.4 When a valid agreement to this effect is made, the carrier, while he loses the character of an insurer, continues to be charged with liability for negligence.5 Proof of such exceptions and limitations, however, to be operative, must be brought home to the party to whom they are imputed,6 and this must be shown by the other party.7 For Agreements relieving from liability for negligence are void.

1 Rousillon v. Rousillon, L. R. 14 Ch. 351; 42 L. T. N. S. 679; cited at large supra, sec 430. In this case Fry, J., dissented from the rule laid down in Allsopp v. Wheatcroft, L. R. 15 Eq. 59, that agreements unlimited as to space would not be sustained. Rousillon v. Rousillon, however, as has been observed, was the case of a confidential agent, binding himself not to compete, not that of a sale of good-will.

2 Gravely v. Barnard, L. R. 18 Eq. 518; Benwell v. Inns, 24 Beav. 307.

3 Whart. on Neg. sec 589, and cases there cited; Lawson, Cont. of Car. 20, 22; Gill v. R. R., L. R. 8 Q. B. 186. The conflicting opinions in the American courts, with the authorities, are given in Wh. on Neg. sec 590-1-3. The subject can only be treated in outline in the text, its discussion belonging more properly to treatises on negligence.

4 Wh. on Neg. sec 586.

5 Ibid. sec 594.

6 Wh. on Neg. sec 587; see supra, sec 22, where this topic is incidentally discussed. That notice of condition is question of fact, see infra, sec 572. As to presumption of reading contract, see sec 185, 196, 205.

7 Brown v. R. R., 11 Cush. 97; Buckland v. Express Co., 97 Mass. 124; Gott v. Dinsmore, 111 Mass. 45; Gaines v. Trans. Co., 28 Oh. St. 418; Pittsburgh R. R. v. Barrett, 36 Oh. St. 449.

The following summary of the law is given by Bradley, J., R. R. v. Lock-wood, 17 Wall. 357. " Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness. It was for the reason that the limitations of liability first introduced by common carriers into their notices and bills of lading were just and reasonable, that the courts sustained them. It was just and reasonable that they should not be responsible for losses happening by sheer accident, or dangers of navigation that no human skill or vigilance could guard against; it was just and reasonable that they should not be chargeable for money or other valuable the same reason contracts have been held void when operating to relieve a combination of common carriers from the duty of using certain new improvements and facilities of travel.1 - It was held in 1881 by Judge Gresham, in the United States District Court of Indiana,2 that a contract between an employer and employee, by which the employee agrees to release the employer from liability for negligence of employer or fellow employees, is void.3 - A similar limitation is applicable to telegraph companies. "The rule in this state is well settled, that one exercising a public employment is liable for failing to brinor to the service he undertakes that degree of skill and care which a careful and prudent man would, under the circumstances, employ; and that any stipulation or regulation by which he undertakes to relieve himself from the duty to exercise such skill and care in performance of the service, is contrary to public policy, and consequently illegal and void. In our articles liable to be stolen or damaged, unless apprised of their character or value; it was just and reasonable that they should not be responsible for articles liable to rapid decay, or for live animals liable to get unruly from fright, and to injure themselves in that state, when such articles or live animals became injured without their fault or negligence. And when any of these just and reasonable excuses were incorporated into notices or special contracts assented to by their customers, the law might well give effect to them without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of society, and the better administration of the laws, had diminished the opportunities of collusion and bad faith on the part of the carrier, and rendered less imperative the application of the iron rule that he must be responsible at all events. Hence the exceptions referred to were deemed reasonable and proper to be allowed.

But the proposition to allow a public carrier to abandon altogether his obligations to the public, and stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages of the law."

A release of a railroad company from all claims for any damage " from whatsoever cause arising," made in consideration of reduction of rates, does not exempt the company from liability for negligence. Mynard v. R. R., 71 N. Y. 180. That unreasonable restrictions will not be upheld, see further Penn. Co. v. Wentz, 37 Oh. St. 333; Capehart v. R. R., 81 N. C. 438; Louisville R. R. v. Brownlee, 14 Bush, 590; Chicago etc. R. R. v. Hale, 2 111. App. 150.

1 Wiggins Ferry Co. v. R. R., 5 Mo. Ap. 347.

2 Roesner v. Hermann, 8 Fed. Rep. 782.

3 Western etc. R. R. Co. v. Bishop, 50 Ga. 465.

opinion, telegraph companies fall within the operation of this rule; and in failing to exercise such care and skill in the transmission of messages, they become liable for the resulting consequences, notwithstanding their stipulation to the contrary. The right to make rules and regulations to govern the management of their business, is expressly conferred by statute. But such rules must be reasonable; and if they fail to accord with the demands of a sound public policy, they are void."1