Mary Brown vs. The Eastern Railroad Company, 11 Cush. 97

Dewey, J. We have not found it necessary in the decision of this case, to enter upon the consideration of the vexed question of the right of common carriers to limit their common law liabilities, by notices to the public to the effect that they will not be responsible for the baggage of passengers, or for merchandise transported by them as public carriers.

It has been seriously questioned by .some judicial tribunals, whether such notices could be made available at all, inasmuch as they were supposed to be in contravention of public policy, having a tendency indirectly to encourage negligence, if not actually to favor frauds and embezzlement by the servants of the carrier. Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Ib. 251; 2 Greenl. Ev. § 215.

The doctrine is nevertheless gradually being incorporated into the jurisprudence of the times, that such limitations may under proper qualifications and safeguards, for securing due notice to the traveller, or the party for whom goods are to be transported, be held operative and binding upon the parties. It is so in England; also in some of the states of this Union by direct adjudications. Bingham v. Rogers, 6 Watts & Serg. 495; Laing v. Colder, 8 Barr, 484; Swindler v. Hilliard, 2 Richardson, 286.

Without questioning the right of common carriers to make reasonable limitations as to the extent of their liabilities for baggage or merchandise to be transported by them, and conceding the decisions to that effect to be sound, we are of opinion, nevertheless, that they furnish no ground for denying the plaintiff’s right to maintain this action.

The cases that yield this point of the right of the carrier to limit his responsibilities, yet hold that it is necessary for him to show clearly that the person with whom he deals is fully informed of the terms of such limitations, and the conditions upon which he receives baggage and merchandise for transportation. Such notice is to be specific and certain. This rule was applied in the case of Camden and Amboy Railroad v.

Baldauf, 4 Harris, 67, where a notice in the English language to a German, ignorant of the English language, was held of no effect as a notice of a limitation of the common law liability, the court saying that it was incumbent on the carrier in such case to prove the knowledge by the passenger of the limitation imposed. In Butler v. Heane, 2 Campb. 415, where the limitation was printed in small type, the bill generally being in large type, the notice was held not to be valid. It was also applied in Davis v. Wiliam, 2 Stark. R. 279; in Kerr v. Willan, Ib. 53; and in Macklin v. Waterhouse, 5 Bing. 212.

Confining the decision to the precise case, we are of opinion that the instruction to the jury was correct, and that receiving this ticket in the manner stated, raised no legal presumption that the plaintiff had the requisite notice, and that it was a question of fact whether she knew the limitation before she started on her journey. The limitation and notice thereof were, in the present instance, attempted to be established under these circumstances. The traveller, a female, had delivered her trunks to the baggage master of the defendants, to be carried to Freeport.

They were received by him, without any notice of any limitation of liabilities for safe transportation, and marked for their proper destination. Subsequently the owner applied for her passage-ticket to Freeport, and was informed that they did not sell tickets to Freeport, but that she could buy one for Brunswick, a place more remote, with the privilege of stopping at Freeport, and having one dollar refunded; and that thereupon she paid three dollars, and received a ticket to Brunswick.

This ticket had on its face the route, and various railroads to be passed over, and the notice that one dollar would be refunded to those stopping at Freeport. There was no notice on the face of the ticket of any conditions or limitations as to transporting the baggage of passengers. The only notice as to that was on the back side of the ticket. No direct notice was given by the ticket-vendor, nor was any request made to her to read the limitations and conditions stated on the back of the ticket.

It was admitted that there was no actual or constructive notice of the limitation of the earner’s liability, unless the same was derived from the ticket received by the plaintiff. This being so, the case was in our opinion properly put to the jury, and their verdict for the plaintiff may well be sustained. A mere passenger ticket in the form in general use would not naturally induce to the minute reading of its contents. The party receiving it might well suppose that it was a mere check, signifying that the party had paid his passage to the place indicated on his ticket.

But if it be correct to hold that if this limitation had been stated on the face of the ticket, and in connection with the name of the place to which the party was to be carried, and so might be presumed to have been read, and therefore binding upon the person receiving the ticket; yet nevertheless a statement or notice to this effect, placed on the back of the ticket and detached from what ordinarily contains all that is material to the passenger, would not raise a legal presumption that the party at the time of receiving the ticket, and before the train had left the station, had knowledge of the limitation or conditions which the carrier had attached to the transportation of the baggage of the passengers.

The manner adopted by the defendants to give notice of such limitation and conditions, fails to furnish that certain information or knowledge which must be brought home to the passenger to exonerate the carrier from the full common-law liability as to such baggage, and therefore leaves the passenger the right to recur to the carrier for the damages he may sustain in the loss of his baggage, irrespective of the limitation.

I am aware that in reference to ordinary merchandise transported by common carriers, it has been held in some cases in the English courts, that a ticket given to the owner of merchandise, containing on the face of it a condition or limitation of the liability of the carrier, was held to furnish evidence of the special contract of transportation, sufficient to affect the owner of the merchandise, and to limit the liability of the carrier. Austin v. Manchester, Sheffield, &c. Railway Co 10 Common Bench Rep. 454; Shaw v. York and North Midland Railway Co. 6 Railway Cases, 87; 13 Ad. & El. N. R. 347.

These cases obviously differ from the present, and. fail to satisfy us of the sufficiency of the notice in the case before us. Exceptions overruled, amd judgment for the plaintiff.