the rule laid down in Hart v. Pennsylvania Rd. Co., supra, was followed, but in course of the opinion in the Cau Case, at page 431, 194 U. S., page 664 of 24 Sup. Ct. (48 L. Ed. 1053), it is said: "There can be no limitation of liability without the assent of the shipper. And there can be no stipulation for any exemption by a carrier which is not just and reasonable in the eye of the law." We do not think a single case can be found where the foregoing doctrine is not approved and enforced. The contract in question, therefore, cannot be enforced as against the respondent because he never assented to its provisions with respect to the value of the horses.

2

Moreover, the value inserted in the contract was wholly unreasonable. Under the circumstances, the value as fixed amounted to no more than an arbitrary statement of value by appellant's agent inserted in the contract for the sole purpose of limiting appellant's liability as a common carrier. Courts have so often held that in entering into contract of shipment the shipper and carrier seldom stand upon an equal footing that nothing more is necessary than to mention the fact. The carrier not only prepares the contract in advance and inserts in it all the stipulations he desires, but, when the shipper comes to enter into the contract, he usually is in a situation where he cannot exercise a free choice with respect to whether he will accept or reject certain provisions of the contract. No contract limiting liability when entered into under such circumstances will be enforced by the courts. (Hutchinson on Carriers (2d Ed.), section 427.) Ordinarily, in order to authorize the enforcement of a contract limiting the value of freight in case of loss or injury, the value agreed upon must be the reasonable value, unless the carrier is ignorant of the real value and the value is fixed by the shipper himself for the purpose of obtaining a lower rate, and in such event the shipper, in case of loss, may be estopped from claiming the true value. Again, the carrier's agent may not know the value of the freight, and in such event, if acting in good faith, may rely upon the statement of the owner or shipper. If the agent of the carrier

who received the freight, however, knew its value, or knew that the value inserted in the bill of lading was unreasonably low, such a value ordinarily will be held to be one that is arbitrary and unreasonable and will not be binding. In the case at bar the appellant's agent had knowledge of the actual value of the horses before he inserted the same in the contract. He was then informed that twenty dollars per head was only about ten per cent. of the actual value of the horses shipped. He thus, as a reasonable person, must have known that the value as he inserted it into the contract was wholly unreasonable and unfair, and he further knew that it was fixed by him for the sole purpose of arbitrarily limiting appellant's liability in case of loss or injury to the horses while in transit. We repeat that to enforce contracts which are conceived and executed under such circumstances would be. a travesty of justice and a reproach to the law.

3

Nor can the contention prevail that the court erred in permitting a recovery based upon the value of the horses at Los Angeles. The general rule with regard to the measure of damages for freight that is lost or damaged in transit is the value thereof at the place of delivery at the time it should have been delivered. It is true that the shipper and carrier may under ordinary circumstances stipulate that the value of the freight should be determined at some other place. Appellant contends that in the contract in question it was stipulated that in case of loss or injury the value of the horses at Salt Lake should govern. This stipulation was, however, a part or a provision of the contract with regard to the value of the horses, which provision we have already held to be void. It is impossible, even though it were permissible for the purpose of enforcing the contract, to segregate the stipulation referred to from the one fixing the value of the horses at twenty dollars per head, and, as the latter provision has fallen, the former one must fall with it.

The judgment is affirmed, with costs to respondent.

MCCARTY and STRAUP, J., concur.

ROWBOTTOM v. UNION PACIFIC COAL
COMPANY.

No. 2145. Decided September 11, 1911 (117 Pac. 871).

1. TRIAL-NONSUIT GROUNDS-SPECIFICATION. In an action for injuries to a slope cleaner in a coal mine by being caught by a wire attached to one of the coal cars, grounds of a motion for nonsuit that the evidence was insufficient to support the allega. tion of negligence or to show any negligence on the part of defendant, and that plaintiff was negligent in failing to enter manholes constructed along the track to enable employees to avoid passing cars, were sufficiently specific to present the objections sought to be raised thereby. (Page 410.)

2. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE. In an action for injuries to a slope cleaner in a coal mine by being caught by a wire attached to a passing car and thrown under the wheels, mere proof that the wire was attached to the latch of the car and was trailing along it, without any evidence as to how and for what purposes the wire was so attached, by whom it was attached, or how long it had been there, or that the latch or the car was defective or out of repair, was insufficient to show actionable negligence on the part of the master. (Page 410.)

3. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEG LIGENCE-SAFE PLACE. Where plaintiff, a slope cleaner in a coal mine, was injured by being caught by a wire trailing along a passing car as he was standing in a tunnel, and there was suf ficient space between the side of the tunnel and the cars at the point where plaintiff was standing so that under ordinary and usual conditions cars could pass with safety, plaintiff was not negligent as a matter of law in failing to enter a manhole constructed in the side of the tunnel for the convenience of employees to avoid passing cars. (Page 413.)

APPEAL form District Court, Third District; Hon. George G. Armstrong, Judge.

Action by Lorenzo Rowbottom against the Union Pacific Coal Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

J. H. De Vine and D. S. Cook, Jr., (S. A. Maginnis, of counsel) for appellant.

P. L. Williams, Geo. H. Smith and Frank K. Nebeker for respondent.

STRAUP, J.

The plaintiff, an employee of the defendant, brought this action to recover damages for alleged personal injuries. From a judgment of nonsuit he has prosecuted this appeal.

The principal assigned error relates to the ruling granting the nonsuit. The injury occurred in Wyoming, where the defendant was mining coal. The plaintiff was employed by it "as a slope cleaner to clean the switches" of underground tracks upon which the defendant ran and operated cars in hauling coal from its mine to the surface. The substance of the charged negligence in the complaint is that the defendant "negligently suffered one of its said coal cars to get and remain out of repair and to be temporarily repaired by means of a wire which hung down the side of said car a length of about two feet, making the same dangerous for the plaintiff and other employees in said mine; that said plaintiff had no notice or knowledge that said car was in the condition aforesaid"; and that "while the plaintiff was standing by the track to clean one of the switches in the mine" under the direction and orders of the "rope runner," the person under whose direction and control he was working, the defendant ran and operated the car with the wire attached thereto along the track and by the place where the plaintiff was standing, by reason of which the trailing wire caught the plaintiff and threw him against the cars and so broke and injured his leg that it was necessary to amputate it. The plaintiff was nonsuited on the alleged grounds of insufficiency of evidence (1) to "support the allegation of negligence or to show any negligence on the part of the defendant," and (2) that the plaintiff was guilty of contributory negligence, in the particular that "manholes" from forty to fifty feet apart along the track were maintained by the defendant to enable slope cleaners

and others about the slope to enter and avoid coming in contact with passing cars, and that the plaintiff failed to enter one of the manholes, "but took up a position in the main slope by the side of the cars."

1

The plaintiff first urges that the grounds for nonsuit were too general, especially the first. We do not think so. (Smalley v. Rio Grande R. Co., 34 Utah, 423, 98 Pac. 311.) There was but one allegation of negligence-but one act or commission of alleged negligence on the part of the defendant causing the injury-operating a car with a wire two or three feet long attached to, and trailing from, it. The motion being made on the ground that there was no evidence "to support the allegation of negligence," or any negligence on the part of the defendant, and there being but one act or commission of negligence alleged, neither the plaintiff nor the court was at a loss to understand to what point the motion, in such particular, was directed, or what defect in the evidence was pointed to. The ground in that particular was sufficiently specified to call attention to the defect and question of law on which the case was asked to be and was taken from the jury. There is no difficulty or uncertainty whatever to comprehend or understand that. With respect to the second ground, the particular act or commission of the plaintiff claimed to have been negligence was specified-his failure to enter the manholes and his standing in the slope near the track.

2

This brings us to the question of whether the motion on the alleged grounds was properly granted. There is evidence tending to support the following facts: The openings in the defendant's mine consisted of a main tunnel and entries leading from it, and a branch tunnel leading from the main tunnel to a dump. Tracks upon which coal cars were operated were maintained along these tunnels and entries; the main track being in the main tunnel. The other tracks connected with it by means of switches. Empty cars were let into the mine by gravity. Loaded cars were drawn out of it by rope or cable operated by an engine under the control of an engi