1850. AUSTIN V. The MANCHESTER, &c. RAILWAY CO. the only passage applicable to the risks to be borne by the owners, it might have been contended, on their behalf, that it did not extend beyond injuries sustained by reason of a journey by railway simply, or by means of some accident; and that it would not protect the carriers from the consequences of negligence on the part of themselves or their servants. But the ticket further states that "the company will not be responsible for any damages, however caused, to horses, cattle, or live stock of any description, travelling upon their railway, or in their vehicles." The framer of the: declaration appears to have felt that this latter part of the ticket or contract (for, such it was,) protected the company from liability, if injury was sustained by the want of what is usually called due care; and therefore, after alleging that the defendants did not take due and proper care to provide against friction of the wheels! and axles, &c., charged them with grossly and culpably, neglecting to do so, by reason whereof, and of the gross and culpable negligence of the defendants, the wheel of the carriage, in which the horses were, took fire, and the injury complained of was sustained. And, if the terms of the contract are not sufficient to: exonerate the company from responsibility for damages resulting from such negligence as is imputed, the judgment cannot be arrested. -- The term gross negligence is found in many of the. reported cases on this subject; and it is manifest that no uniform meaning has been ascribed to those words, which are more correctly used in describing the sort of negligence for which a gratuitous bailee is responsible, and have been somewhat loosely used with reference to carriers for hire: and in Hinton v. Dibber (a), depending on the carriers' act, 11 G. 4. & 1, W. 4. c. 68., (a) 2 Q. B. 646., 2 Gale & D, 36. - a case 1850. AUSTIN V. RAILWAY Co, -Lord Denman, in giving judgment, observed, with much truth: "It may well be doubted whether between gross negligence, and negligence merely, any intelligible. distinction exists." In Owen v. Burnett (a), Bayley, B., The MANsays: "As for the cases of what is called gross negli- CHESTER, &c. gence, which throws upon the carrier the responsibility from which but for that he would have been exempt, I believe, that, in the greater number of them, it will be. found that the carrier was guilty of misfeasance." Such, certainly, were the cases of delivery to a wrong person, sending by a wrong coach, or carrying beyond the place to which the goods were consigned. But this observa-tion will not explain all the decisions on the subject. There are others in which the carrier has been held liable for such negligence as warranted the court in holding that he had put off that character. But there is nothing in this declaration amounting to a charge of misfeasance, or renunciation of the character in which the defendants received the goods. The charge is, that they ought to have taken precautions to guard against the consequences of friction of wheels and axles; and that they did not do so; and were guilty of gross negligence, in not doing it. The terms gross negligence, and culpable negligence, cannot alter the nature of the thing omitted: nor can they exaggerate such omission into an act of misfeasance, or renunciation of the character in which the defendants received the horses to be carried. The question, therefore, still turns upon the contract, which, in express terms, exempts the company from responsibility for damages, however caused, to horses, &c. In the largest sense, those words might exonerate the company from responsibility even for damage done wilfully, a sense in which it was not contended that (a) 2 C. & M. 353. 1850. AUSTIN บ. The MANCHESTER, &c. RAILWAY Co. they were used in this contract. But, giving them the most limited meaning, they must apply to all risks, of whatever kind, and however arising, to be encountered in the course of the journey: one of which undoubtedly is, the risk of a wheel taking fire, owing to a neglect to grease it. Whether that is called negligence merely, or gross negligence, or culpable negligence, or whatever other epithet may be applied to it, we think it is within the exemption from responsibility provided by the contract; and that such exemption appearing on the face of the declaration, no cause of action is disclosed; and that judgment must be arrested. Rule absolute accordingly. (a) (a) This case is inserted out of its course on account of the importance of the subject. END OF MICHAELMAS TERM. IN THE EXCHEQUER CHAMBER, IN Michaelmas Vacation, IN THE FOURTEENTH YEAR OF THE REIGN OF VICTORIA. 1850. WATTS v. SALTER. THIS Nov. 29. An allottee registered, - the prospectus of which stated that its capital was to consist of 700,000l., in 35,000 shares of 201. each, - paid a deposit of 21. 28. per share, and signed the subscription-contract, which stated that a capital not exceeding 700,000%. should be raised, and gave the provisional directors authority to carry on the undertaking, and to apply to parliament for the necessary powers, and out of the moneys which should come to their hands by way of deposit or payment of calls or otherwise, to pay all costs, &c., and generally to apply such moneys towards the fulfilment of any engagements which they might enter into, and in or towards the soliciting, &c., a bill or bills in parliament, and in obtaining the necessary acts for furthering the scheme. The total number of shares taken up by the allottees, and upon which the required deposit had been paid, was 18,969 only, representing a capital of 379,380. This number not being sufficient to comply with the standing orders of parliament, the provisional directors, in order to make the up requisite amount, procured a number of persons (of whom the defendant was one) to execute the subscription-contract, purporting, contrary to the fact, to become subscribers for shares to the number of 5230, representing a capital of 104,600l., and to have paid the deposit thereon. Of this fact, the plaintiff was ignorant. The directors, after incurring considerable expense, failed to comply with the standing orders of parliament, and consequently no bill was brought in, and the scheme was ultimately abandoned. At the trial, the lord chief justice told the jury, that, the plaintiff having subscribed for shares, and executed a subscription-contract, in an association 1850. WATTS V. SALTER. The defendant pleaded non assumpsit. The cause was tried before Wilde, C. J., at the summer assises at Exeter in 1847. The facts were as follows: Previously to the 30th of May, 1845, certain persons projected the construction of a railway, principally designed to establish or complete a railway communication between Dartmouth and Exeter; and proposed to form a joint-stock company which should obtain from parliament certain necessary powers to construct the proposed railway. On the 30th of May, 1845, the promoters of the proposed company duly made the returns required by the statute (a), and duly obtained a certificate of provisional registration. Before the 16th of September, 1845, the defendant and certain other persons formed themselves into a provisional committee for the promotion of the above mentioned scheme, and undertook and had the management of it; and the defendant concurred in authorising all the acts hereinafter stated. Before the said 16th of September, 1845, the committee published a printed prospectus of the scheme, commencing thus: (a) 7 & 8 Vict. c. 110. which was represented to have a capital of 700,000l., in 35,000 shares, upon which a deposit of 21. 28. each was to be paid, and 18,969 shares only having been bonâ fide taken up, - the project to which the plaintiff subscribed must be considered as determined, and consequently that the committee were not authorised to go to parliament at the plaintiff's expense; and that, under the circumstances, the execution of the subscription-contract by the plaintiff had no material effect upon the plaintiff's right to recover: Held, upon a bill of exceptions, that this direction was erroneous; for, that the subscription-contract, — which must be read by itself, and without reference to the previous parol contract arising upon the letters of application and allotment, - authorised the directors to raise a capital not exceeding 700,000l., but did not require them absolutely to raise that sum before they could take any steps to carry the undertaking into effect; and that, by executing the deed, the plaintiff [authorised the directors to do all that was consistent with its provisions, and, amongst other things, to apply the deposits in furtherance of the scheme. |