livered upon the company's premises by Messrs. Smith & Co., who appeared to be "general railway agents," who kept a receiving-house and collected goods for carriage on the railway, by carts on which were painted the words "Great Western Railway Carriers."

For the defendants it was submitted, that, according to the conditions upon which they received the packages, they were not liable for any loss or detention which occurred off their own line; that they were mere gratuitous bailees, and therefore all that was incumbent on them, was, to carry the goods on their line, and deliver them with reasonable care to the next line; and, further, that the plaintiff should have given some affirmative proof of negligence on the part of the company's servants, of which there was none whatever beyond the mere fact of the detention of the packages for three weeks.

For the plaintiff it was insisted that she was not bound by the conditions, Smith & Co., who signed them, not being her agents, but the agents of the company. And it was further insisted that the conditions were not just and reasonable, and therefore not binding on the plaintiff.

A verdict was found for the plaintiff, damages 207.; leave being reserved to the defendants to move to enter the verdict for them, if the court should think that under the circumstances they were not liable.

M. Smith, Q. C., in Michaelmas Term, 1862, accordingly [*588 *obtained a rule nisi to enter a verdict for the defendants, "on the ground that the declaration was not proved; that, according to the terms on which the goods were received, the defendants were not liable for the delay and damage; that they were not liable, on the terms of the consignment-note; that, if the consignment-note was not binding on the plaintiffs, the defendants were still not liable, as gratuitous bailees, for the detention and damage, and that they performed the duty they undertook; and that there was no proof of such negligence as made them liable." The court were to draw inferences of fact, and the power of amendment was reserved.

Sykes, in Hilary Term last, showed cause. It is a fallacy to say that these empties are carried gratuitously. The price charged for the conveyance of the packages when full includes the charge for carrying them back empty. Besides, even a gratuitous bailee is liable for gross negligence: Coggs v. Bernard, 2 Ld. Raym. 909, Com. 133, 1 Salk. 26, 3 Salk. 11, Holt 13; Hutton v. Osborne, 1 Selw. N. P. 445 (12th edit.): though there seems from the cases to be some difficulty as to what gross negligence means,-see the judgments of Bayley, B., in Owen v. Burnett, 2 C. & M. 353, 4 Tyrwh. 133, of Parke B., in Wyld v. Pickford, 8 M. & W. 443, of Lord Denman in Hinton v. Dibbin, 2 Q. B. 646 (E. C. L. R. vol. 42), 2 Gale & D. 36, and of Rolfe, B., in Wilson v. Brett, 11 M. & W. 113,-at all events, there was such negligence here as the defendants are clearly responsible for. If the company were gratuitous bailees, they are not within the Railway Traffic Act at all; for, that act only applies to common carriers for hire. [BYLES, J.-Strike out of the third plea all about the Railway Traffic Act, and see if what is left of the plea discloses an answer. The defendants say they received the goods subject [*589 to certain special terms, one of which is that they are not to

be liable for loss, detention, or damage to wrappers or packages charged as "empties," and another that they are not to be responsible for goods destined for places beyond their railway, when such goods have been delivered over to another carrier in the usual course for further conveyance. WILLIAMS, J.-The act imposes fetters upon the company, not on the customer.] One object of the act was, to protect the owners of the goods against improper bargains. Assuming the contract to be within the act, the consignment-note was not shown to have been signed by the plaintiff or by any agent on her behalf. Smith & Co. were the agents or collectors of the company. The company, when they undertake to carry goods from A. to B., are responsible though part of the journey be performed on other than their own line. By s. 7 of the Railway Traffic Act, the conditions must be such as the court or judge shall adjudge to be just and reasonable and "if any part of such contract should be thought by the judge unreasonable, the whole may be held void:" per Erle, J., in Peek v. The North Staffordshire Railway Company, E. E. & B. 980 (E. C. L. R. vol. 96). [M. Smith, Q. C.-That has been overruled.] In Muschamp v. The Lancaster and Preston Junction Railway Company, 8 M. & W. 421, a parcel was delivered, at Lancaster, to the Lancaster and Preston Junction Railway Company, directed to a person at a place in Derbyshire. The person who brought it to the station offered to pay the carriage, but the book-keeper said it had better be paid by the person to whom it was directed, on the receipt of it. The Lancaster and Preston Junction Railway Company were known to be proprietors of the line only as far as Preston, where the railway unites with the North Union line, and that afterwards with another, and so on into Derbyshire. The parcel having been lost

after it was forwarded from Preston,-it was held that the *590] Lancaster and Preston Railway Company were liable for its loss. In M'Manns v. The Lancashire and Yorkshire Railway Company, 4 Hurlst. & N. 327, 349, Williams, J., says, "The company may make special contracts with their customers, provided they are just and reasonable, and signed; and whereas the monopoly created by railways compels the public to employ them in the conveyance of their goods, the legislature have thought fit to impose the further security that the courts shall see that the condition or special contract is just and reasonable." Is it just or reasonable that a company shall receive goods to be forwarded to a place beyond their own line, and then seek to limit their responsibility in the way attempted here? In Mytton v. The Midland Railway Company, 4 Hurlst. & N. 615, the plaintiff took at the Newport station of the South Wales Railway Company a ticket from Newport to Birmingham, for which he paid the entire fare. The South Wales Railway extends from Newport to within twelve miles of Gloucester, which latter distance is traversed on the Great Western Railway; and the Midland Railway Company have a line from Gloucester to Birmingham. By arrangement between the three companies, tickets are issued for the entire distance, and the fares are divided between them according to the mileage travelled on each line. "At Gloucester the plaintiff took his portmanteau from the South Wales railway carriage and delivered it to a guard of the Midland Railway Company. On the arrival of the train at Birmingham,

the portmanteau was missing. The court held that the contract was an entire contract with the South Wales Railway Company to convey the whole distance from Newport to Birmingham, and consequently that the Midland Railway Company were not liable.(a)

*Montague Smith, Q. C., and T. J. Clark, in support of the [*591 rule.-There was nothing to show that the defendants were any other than gratuitous bailees. [WILLIAMS, J.-I should pause before I held this to be a gratuitous bailment.] It was so put at the trial, and has been so put on this argument. [WILLIAMS, J.-I protest against being supposed to hold, that giving the privilege of sending empties free constitutes the company gratuitous bailees.] It is diffi cult to say that an article which is carried "free" is carried “for reward." As to the written contract, two questions arise,-onewhether it binds the plaintiff at all,-the other, whether it is within the restrictions of the Railway Traffic Act. As to the first, the evidence showed that Messrs. Smith & Co. were the mutual agents between the company and the sender of the goods. [BYLES, J.-Smith & Co. were clearly agents for the railway company: and, if so, was not a delivery to them a delivery to the company ?] At all events the defendants' liability is excluded by the terms of the special contract. Whatever may have been formerly thought by some judges, it is clearly settled now, that, if any one of the conditions negativing the company's liability is just and reasonable, it affords an answer to the action. Here, no just exception can by possibility be made to the first or the second condition. The sixth and the ninth are also, it is submitted, good. The duty of the defendants was performed when they carried these packages to Gloucester and there delivered them to the servants of the Midland Railway Company. In Blake v. The Great Western Railway Company, 7 Hurlst. & N. 987, Cockburn, C. J., says: "It has been settled, that, where a railway company enters into a contract for the conveyance of goods to a distance extending not merely over their own line, but over the whole or some portion of any other line of railway with which it is connected, the com[*592 pany so contracting is liable, not only for the loss of the goods upon their own line, but also in respect of the loss of the goods upon the line not their own. I think that position obtains in the case of passengers. If a railway company chooses to contract to carry passengers not only over their own line but also over the line of another company, either in whole or in part, the company so contracting incurs all the liability which would attach to them if they had contracted solely to carry over their own line." But there the defendants took the price of the whole journey. Here, nothing being paid, the defendants' contract is simply to carry to the end of their own line. Upon the face of these conditions, it is impossible to infer a contract to carry over the three sets of lines. In Lewis v. The Great Western Railway Company, 5 Hurlst. & N. 867, the following conditions were held to be just and reasonable,-"No claim for deficiency, damage, or detention will be allowed, unless made within three days after the delivery of the goods; nor for loss, unless made within seven days. of the time they should have been delivered:" and "the company (a) See The Midland Railway Company, app., Bromley, resp., 17 C. B. 372 (E. C. L. R.. vol. 84).

C. B. N. S., VOL. XV.-23

will not be answerable for the loss or detention of any goods which may be untruly or incorrectly described in the receiving note." In Harrison v. The London, Brighton, and South Coast Railway Company, 2 Best & Smith 122 (E. C. L. R. vol. 110), a passenger by railway from London to Worthing took with him two horses and a retriever, the horses were put into a horse-box, and a servant of the defendants proposed that the dog should be placed in the horse-box, to which the plaintiff assented. The dog was fastened in the horse-box by means of a leather collar round its neck, and a strap thereto, which passed through a ring fixed to the side of the horse-box: the collar and strap were furnished by the plaintiff, and were his property. The plaintiff's *593] "agent signed a ticket, subject to the following conditions,66 'The company will not be liable in any case for loss or damage to any horse or other animal above the value of 401., or any dog above the value of 57., unless a declaration of its value, signed by the owner or his agent at the time of booking the same, has been given to them, and by such declaration the owner shall be bound, the company not being in any event liable to any greater amount than the value so declared. The company will in no case be liable for injury to any horse or other animal or dog, of whatever value, when such injury arises wholly or partially from fear or restiveness. If the declared value of any horse or other animal exceed 40%., or any dog 5l., the price of conveyance will, in addition to the regular fare, be after the rate of 23 per cent., or 6d. in the pound, upon the declared value above 401. [or 51.], whatever may be the amount of such value, and for whatever distance the horse or other animal is to be carried." It was held by the Exchequer Chamber (a) that these conditions were just and reasonable.(b) [WILLIAMS, J.-I cannot think it reasonable that the company should stipulate for freedom from liability for loss or damage occurring on other lines, where they contract for the carriage the whole way. If they undertake to carry the whole distance, they make the other railways their agents for the carriage on their own lines; and it cannot be reasonable for them to contract that they shall not be responsible for the negligence of their agents.] The mere fact of the packages not having reached their destination, is not proof of negligence: Gilbart v. *Dale, 5 Ad. & E. 543 (E. C. *594] L. R. vol. 27); Bird v. The Great Northern Railway Company, 28 Law J. Exch. 3. Here, the only evidence was, that the packages did not arrive until three weeks after they should have arrived, and that they were then in a damaged state: there was no evidence to show how or where the damage was occasioned. Where the evidence is quite as consistent with one view as the other, the party on whom the onus lies fails to make out his case: per Crowder, J., in The Midland Railway Company, app., Bromley, resp., 17 C. B. 382; Cctton v. Wood, 8 Č. B. N. S. 568 (E. C. L. R. vol. 98); Hammack v. White, 11 C. B. N. S. 588 (E. C. L. R. vol. 103).

It being intimated to the court that the principal question was now

(a) Contrary to the opinions of Cockburn, C. J., and Blackburn, J., in the court below, and of Wilde, B., in the court of error. And see Simons . The Great Western Railway Company, 18 C. B. 805 (E. C. L. R. vol. 86); The London and North Western Railway Company, app., Dunham, resp, 18 C. B. 826.

(b) Vide, post, 597, 598.

awaiting the judgment of the House of Lords in Peek v. The North Staffordshire Railway Company, they suspended their judgment herein. Cur, adv. vult.

WILLIAMS, J., now delivered the judgment of the court:(a)— This was an action against the defendants as carriers. The declaration stated that the defendants as common carriers received certain tubs, packages, and baskets of the plaintiff, to be safely carried for reward from Hereford to Tiverton Junction and there delivered to the plaintiff; and charged that the defendants did not duly deliver them. or take due care of them.

The defendants pleaded, first, the general issue,-secondly, that the goods were not delivered to them to be carried on the terms in the declaration mentioned,-thirdly, as to the loss and detention, a special contract in writing under the Railway Traffic Act, 1854 (17 & 18 Vict. c. 31), signed by the person delivering the [*595 goods, and containing what the defendants alleged to be a reasonable and just condition, viz., that the defendants should not be liable for any loss or detention of or damage to goods destined for any place beyond the limits of the defendants' railway, after they should have been delivered by the defendants to another railway; that the goods in question were destined for a place beyond the limits of the defendants' railway; and that the loss and detention occurred after they had been delivered over to another carrier. Issue was joined on these pleas.

On the trial, it appeared that the plaintiff was a fruit-dealer, and had sent the tubs and baskets which were the subject of the action, full of fruit, to Hereford. It was the understanding and the practice between the plaintiff and defendants that the baskets or tubs which had been delivered to the defendants full should when empty be returned or despatched by the defendants as "empties," without further charge. Accordingly, from Hereford the tubs, packages, and baskets were sent by the plaintiff as "empties," and directed to the Tiverton Junction. They were delivered to the railway, and booked at Hereford for Bristol only, by a person of the name of Smith, a general carrier, who appears to have acted for both parties, and who was alleged to be the common agent of the plaintiff and defendants. He signed in the plaintiff's name a printed contract containing amongst other conditions the following:

"1. The company will not be answerable for the loss or detention of, or damage to, wrappers or packages of any description charged by the company as 'empties.'

[*596

"2. Nor in respect of goods destined for places *beyond the limits of the company's railway; and, as respects the company, their responsibility will cease when such goods shall have been delivered over to another carrier in the usual course for further conveyance. Any money which may be received by the company as payment for the conveyance of goods beyond their own limits, will be so received only for the convenience of the consignors, and for the purpose of being paid to the other carrier.

"3. The company will not be liable for any loss of, or injury to

(a) The case was argued before Erle, C. J., Williams, J., Willes, J., and Keating, J.