thereby subrogated to consignors' rights in case of loss, and a condition
of the bill of lading given by the railway company on the shipment of
goods required the consignors to effect an insurance thereon, which, in
case of loss or damage, the company were to have the benefit of: Held,
that the contract being one for total exemption from liability where, as
here, the damage to the goods was occasioned by negligence, the defend-
ants were precluded, under the above section, from setting up the breach
of such condition as a ground of relief from liability. [Judgment of Mere-
dith, ,T., 5 O.L.R. 742, 2 Can. Ry. Cas. 122, affirmed; Vogel v. Grand Trunk
Ry. Co. (1885), 11 Can. S.C.R*. 612, followed; Robertson v. Grand Trunk
Ry. Co. (1895), 24 Can. S.C.R. 611, distinguished.]
St. Mary's Creamery Co. v. Grand Trunk Ry. Co., 3 Can. Ry. Cas. 447,
8 O.L.R. 1.
SHIPPING BILL CONTRACT FOR CARRIAGE BY WATER "OWNER'S RISK."
Plaintiff, a Syrian merchant imperfectly acquainted with English, exe-
cuted, without solicitation, a contract for the shipment of furniture from
Toronto to Fort William via Owen Sound, the goods being shipped at a
reduced rate by defendants' boat from Owen Sound. On the boat they
were damaged by water, the boat having run on a rock, but no evidence
shewing negligence in the management of the boat was given. The con-
tract provided that the goods should be shipped at "owner's risk," and
LIM1TATIOX OF LIABILITY. 513
that the defendants should not be liable for "damages occasioned by
. . . vet*: Held, (1) then? was no evidence that the goods had been
damaged by the defendants' negligence: the mere fact that their boat
had run upon a rock without evidence of the circumstances earning the
accident not being proof that there had beea any negligence in the man-
agement of the boat by defendants' officers. (2) Even if there had been
evidence of negligence, the plaintiff could not recover because he was
bound by bis contract relieving defendants from liability, and as the
goods were being carried by water and not upon a line of railway, the
operation of the contract was not limited by the Railway Act, 1888, s.
246 (3i. to cases where the damage was due to causes other than the
negligence of the defendants.
Abdou T. Can. Pae. By. Co. 4 Can. By. Cas. 56.
COXTBACT uannxG LIABILITY VALIDITY OBDEK OF BOABD FBACTIOJCS OF
On the 17th October, 1904. the plaintiff shipped three packages of boose-
hold goods on the defendants" railway, and signed a special contract by
which he undertook that no claim in respect of injury to or loss of the
goods should be made against the defendants exceeding the amount of
85 for any one of the packages. On the same day the Board, by order, ap-
proved of the form of special contract signed by the plaintiff, under s.
275 of the Railway Act, 1903. providing that no such contract shall be
valid unless 'such class of contract" shall have been first authorized or
approved by the Board. In an action to recover the value of the goods,
which were lost by the defendants: Held, that, under ss. 23. 24. 25. 275
of the Act, the Board had jurisdiction to make the order, the making of
it was a judicial proceeding, and the order must be regarded as in full
force during the whole of the 17th October. 1904: and. therefore, the con-
tract was valid, and the plaintiff entitled to recover only $15. Review
of cases bearing upon the rule that in judicial proceedings fractions of a
day are not regarded.
Buskey v. Can. Pae. By. Co, 5 Can. By. Cas. 3S4. 11 OJJB. 1_
[Followed in Underbill T. Can. Northern By. Co.. IS Can. By. Cas. 313.]
FBEEDOM FKOV LIABILITY '-PBOPEKTY." MEAXIXG or EJTSDEM GEVEXIS.
la consideration of the construction of a siding to their mill premises,
plaintiff company entered into an agreement with the railway company
freeing them from liability for damage to the 'siding or to buildings.
fences or other property whatsoever" of the plaintiff company "or of any
other person." Two horses of the plaintiff company, engaged in hauling
a car from one part of the siding to another, were killed by being run
down with, a ear sent on the siding by a flying switch: Held, reversing
the finding of Wilson, Co. J.. that the word -property" in the agreement
was not confined to fixtures, buildings and rolling stock, and that the
hones were properly included.
East Kootenay Lumber Co. T. Can. Pac. By. Co, 8 Can. By. Cas. 310.
13 B.CJK- 422.
LIABILITY ram, DAMAGE TO GOODS nr TBAXSET COXYBACT LI MTTIXG LIABIL-
In an action against a carrier for damage to goods in transit, it must
be proved that the goods were undamaged when delivered to the carrier.
When goods are shipped by rail under a contract liiitig liability and
providing for transport at owner's risk, the railway company i mat tirtitr
Can. By. L. Dig. 33.
511 LIMITATION OF LIABILITY.
for damage to such goods unless it be proved that such damage is the
result of negligence on the part of the company.
Mason & Risch Piano Co. v. Can. Pac. Ey. Co., 8 Can. Ry. Cas. 369, 1
STIPULATION STRICTLY CONSTRUED DESCRIPTION "BRITTLE AND FRAGILE
OBJECTS" NOT TO APPLY TO WOODEN CHEESE BOXES LIABILITY OF CAR-
Common carriers, as the insurers of the goods entrusted to them, are
liable for loss of, and damage to, them. Stipulations in contracts for the
carriage of goods and in bills of lading, exempting the carrier from lia-
bility in certain cases, are construed strictly. Wooden cheese boxes do not
come under the description, in such a stipulation, of "brittle and fragile
objects," especially when it appears at the end of a long enumeration of
objects wholly dissimilar. Supposing, however, the clause to apply, the
carrier would still be liable for damage proved to be caused by his fault,
and such fault is established, as to one shipment of cheese in wooden boxes,
by shewing that 11 per cent of the boxes were damaged, with the addi-
tional proof that the average number damaged, in ordinary shipments in
the cheese trade, is only 5 per cent.
Alexander v. Can. Pac. Ry. Co., 8 Can. Ry. Cas. 406, 33 Que. S.C. 438.
[Affirmed in 18 Que. K.B. 530; applied in Manufacturers' Paper Co.
v. Cairn Line SS. Co., 38 Que. S.C. 362.]
FAULT OF CONNECTING CARRIER TRANSPORT BY SLEIGH ROAD.
The plaintiff delivered to the defendants lumber to be forwarded to G.
station, subject to the conditions of the shipping bill, and paid the freight
to G. The lumber was conveyed to S., the station nearest to G. on the
defendants' line. The only transportation possible from S. to G. was over
a sleigh road by teams owned by a transport company, with whom the
defendants had a working arrangement. The car containing the lumber
was left on a siding at S., and the agent of the transport company was
notified, but that company did not forward the lumber to G., and the de-
fendants shipped it back to the plaintiff without delay, and returned the
freight. By clause 10 of the conditions on the back of the shipping bill
it was, inter alia, provided that the defendants did not contract for the
safety or delivery of any goods except on their own lines, and that where
a through rate was named to a point on other lines, the defendants were
to act only as agents of the owner of the goods as to that portion of the
rate required to meet the charges on such other lines, and that their re-
sponsibility in respect of any loss, misdelivery, or detention of goods
carried under the contract should cease as soon as the defendants should
either deliver them to the next connecting carrier for further conveyance
or notify such carrier that they were ready to do so: Held, in an action
for breach of the contract by nondelivery of the goods, that this clause
relieved the defendants; "the next connecting carrier" was not limited
to a railway company operating other lines, but meant any connecting
carrier. Clause 15 provided that the defendants should not be liable for
loss of market or for claims arising from delay or detention of any train
in the course of its journey, and any loss or damage for which the defend-
ants might be responsible should be computed upon the value or cost of
the goods at the place and time of shipment: Held, that this clause also
applied; the immunity from liability for loss of market was not limited
to claims arising from delay or detention of any train, but was general:
Held, also, that, there being a limitation under the contract itself, the
law applicable to common carriers did not apply: Held, also, that the
T.TMTTATTQX OF LIABILITY. 515
plaintiff was not entitled to succeed as in an action for tort, as the de-
fendants received the lumber for carriage under the provisions of a special
contract: Held, lastly, that the defendants had fulfilled their obligations
under the contract, and were not liable under s. 2$4 paras, (hi. (e|, td,
of the Railway Act. 1906. [Judgment of Maee. J-. affirmed.]
Laurie T. Can. Northern Ry. Co_ 10 Can. Ky. Cas, 431. 21 O.L.R. ITS.
LOSS WHILE ES POSSESSIOX OF IXTTJniEDIATE t^mmtvf LAKE AND RAIL
An action to recover damages for nondelivery of a carload of took lost
in transit by the wrecking, on Lake Superior, of a steamship of the
IvN. Co. The goods were shipped from Kakabeka Fall* in a C.PJL Cos
e*r via Canadian Northern By. Co. to Port Arthur, placed on board the
steamship for transportation to Point Edward, thence via Grank Trunk
Ry. for delivery to the plaintiffs at St. Catharines. The plaintiffs con-
tended that the terms of the contract were for transportation all rail
and not by lake and rail, and that the defendants were liable for breach
of a through contract to carry by a through route and at a through toll:
Held, reversing the trial Judge, who gave judgment in favour of the
plaintiffs, holding that the defendants not having contracted themselves
out of liability for the Ions that occurred became liable under their con-
tract to deliver to the plaintiffs at destination, and affirming the judg-
ment of the Court of Appeal that the defendants contracted only to de-
liver the goods at Port Arthur to the N.N. Co., which they did. and were
therefore not liable for nondelivery.
Jenckes Machine Co. T. Can. Northern Ry. Co, 11 Can. Ry. Cas. 440,
14 O.W.R. 307.
[Distinguished in Laurie r. Can. Northern Ry. Co.. 21 O.LJR. 178.]
LtannJTT FO* DfXAT DELAT CAUSED ox COXXECTIXG KAXLWAT NOTICE TO
A carrier by land, who receives goods to be forwarded by other carriers,
is not liable, in the absence of notice of special cause for delivery within
a given time, for damage arising from delay caused by congestion of traf-
fic in the hands of the next succeeding carrier. A stipulation in a bill
of lading, by a carrier of goods to be forwarded by him and other carriers,
limiting his liability to loss or injury caused by his own negligence, is
valid and binding, though the shipper's attention is not specially drawn
to it. [Clarke T. Holliday. 39 Qne. S.C. 499. followed.]
Ram T. Boston 4 Maine Ry. Co., 13 Can. Ry. Cas. 370, 41 Qne. S.C.
TEKMXSATIOX OF LJAMLTTT ARRIVAL or GOODS REASONABLE TIME FOB K-
The liability of carriers by railway- qua carriers terminates upon the
arrival of the goods carried at their destination and the expiration of a
reasonable time for delivery. From Saturday morning until Monday is
not a reasonable time in which to pay the freight and demand delivery of
a carload of potatoes in very cold weather.
Lockshin T. Can. Northern Ry. Co^ 24 Can. By. Cas. 363. 47 D.LR. 51*.
SHIPMENT OF GRAIN LIABIIJTT OF INTERMEDIATE CARRIERS.
When a shipment of grain is despatched in a sealed ear over several
lines of railway consecutively, the intermediate carriers are onrr answer-
516 LIMITATION OF LIABILITY.
able for damage arising from their own acts. In the absence of proof to
this effect, they are relieved of all liability.
Duchesneau v. Can. Northern Ry. Co., 23 Que. K.B. 19.
B. Live Stock; Persons in Charge.
NEGLIGENCE POWER OK COMPANY TO PROTECT ITSELF FROM LIVE STOCK AT
A dealer in horses hifed a ear from the G. T. R. Co. for the purpose
of transporting his stock over their road, and signed a shipping note by
which he agreed that "the owner of animals undertakes all risks of loss,
injury, damage and other contingencies, in loading, etc. When free passes
are given to persons in charge of animals, it is only on the express con-
dition that the railway company are not responsible for any negligence,
default, or misconduct of any kind, on the part of the company or their
servants, or of any other person or persons whomsoever, causing or tend-
ing to cause the death, injury or detention of any person or persons travel-
ing upon any such free passes, . . . the person using any such pass
takes all risks of every kind, no matter how caused.' 1 - The horses were
carried over the G. T. R. in charge of a person employed by the owner,
such person having a free pass for the trip. Through the negligence of
the company's servants a collision occurred by which the said horses were
injured. On appeal from the Court of Appeal for Ontario, 10 A.R. (Ont.),
162, affirming the judgment of the Divisional Court, 2 O.R. 197, in
favour of the defendants: Held, per Ritchie, C.J., and Fournier and
Henry, JJ., that under the General Railway Act, 1868, c. 68, s. 20,. subs.
4, as amended by 34 Viet. c. 43, s. 5, re-enacted by Consol. Railway Act,
1870, c. 9, s. 25, subss. 2, 3, 4, which prohibits railway companies from
protecting themselves against liability for negligence by notice, condition
or declaration, and which applies to the G. T. R. Co., the company could
not avail itself of the stipulation that it should not be responsible for
the negligence of itself or its servants. Per Strong and Taschereau, JJ.:
That the words "notice, condition or declaration," in the said statute, con-
template a public or general notice, and do not prevent a company from
entering into a special contract to protect itself from liability.
Grand Trunk Ry. Co. v. Vogel, Grand Trunk Ry. Co. v. Morton, 11 Can.
[Disapproved in The Queen v. Grenier, 30 Can. S.C.R. 42; applied in
Brasell v. Grand Trunk Ry. Co., 11 Que. S.C. 157; considered in Burdett
v. Can. Pac. Ry. Co., 10 Man. L.R. 11 ; Walters v. Can. Pac. Ry. Co., 1
N. W. Terr. R. 28, 38; discussed in St. Mary's Creamery v. Grand Trunk
Ry. Co., 5 O.L.R. 742; distinguished in Robertson v. Grand Trunk Ry.
Co., 24 Can. S.C.R. 615; followed in Cobban v. Can. Pac. Ry. Co., 26 O.R.
732, 23 A.R. (Ont.) 115; referred to in Canada Permanent v. Teeter, 19
O.R. 156; Glengoil S.S. Co. v. Pilkington, 6 Que. Q.B. 104; commented on
in Bate v. Can. Pac. Ry. Co., 14 O.R. 625. Cam. S. C. Cas. 10; considered
in Robertson v. Grand Trunk Ry. Co., 24 O.R. 75; distinguished in Bick-
nell v. Grand Trunk Ry. Co., 26 A.R. (Ont.) 431; Cobban v. Can. Pac.
Ry. Co., 26 O.R. 732: McCormack v. Grand Trunk Ry. Co., 6 O.L.R.
.177; McMillan v. Grand Trunk Ry. Co., 15 A.R. (Ont.) 14; Robertson v.
Grand Trunk Ry. .Co., 21 A.R. (Ont.) 204; Sutherland v. Grand Trunk
Ry. Co., 18 O.L.R. 139; followed in Cobban v. Can. Pac. Ry. Co., 23 A.R.
(Out.) 115; McMillan v. Grand Trunk Ry. Co., 12 O.R. 103; St. Mary's
Creamery Co. v. Grand Trunk Ry. Co., 8 O.L.R. 1; referred to in Bate v.
Can. Pac. Ry. Co., 15 A.R. (Ont.) 388; Ferris v. Can. Northern Ry. Co., l.>
Man. L. R. 144; Shaw v. Can. Pac. Ry. Co., 5 Man. L.R. 337.]
LDHTATIOX OF LIABILITY. 517
CABSIAGK or LIVE STOCK.
By s. 246 (3) of the Rail war Act, 1888. "every person aggrieved by any
neglect or refusal in the premises shall hare an action therefor against the
Himpani from which action the company shall not be. relieved by any
notice, condition or declaration, if the damage arise* front any negligence
or nmiimiinn of the company or of its servant*"': Held, affirming the de-
cision of the Court of Appeal, that this provision does not disable a rail-
way company from entering into a special contract for the carriage of
goods and limiting its liability as to amount of damages to be recovered
for loss or injury to sorb goods, arising from negligence- [ Vogel v. Grand
Trunk Ry. Co, il Can. S.CJL 612. and Bate v. Can. Pae. Ry. COL, 15 A-R.
Out. 388" distinguished.] The Grand Trunk Ry. Co. received from R. a
hone to be carried over its line, and the agent of the company and R.
signed a contract for such carriage which contained this provision: "The
umi|iiiij shall in no case be responsible for any amount exceeding one
bundled dollars for each and any horse." etc.: Held, affirming the de-
cision of the Court of Appeal, that the words -vhall in no case, he re-
sponsible*' were sufficiently general to cover all cases of Ions however
caused, and the horse having been killed by negligence of servants of the
company. R. could not recover more than #100. though the value of the
hone largely exceeded that amount. [21 A.R. lOnt.. 204. affirming 24
O-R. 75. affirmed.]
Robertson v. Grand Trunk Ry. Co.. 24 Can. S.C.R. 611.
[Applied in Grenier v. The *joeen. 6 Can. Ex. 3O2: discussed in Cobban
r. Can. Pae. Ry. Co- 26 O.K. 732: St. Mary's Creamery Co. v. Grand Trunk
Ry. Co- 5 QJLJL 742: distinguished in St. Mary's Creamery Co. v. G.T.
Ry. COL. 8 O.LR. 1 : followed in Mercer v. Can.* Pae. Ry. Co., 17 OULR.
m - Can. Ry. Cas. 372: Sutherland v. Grand Trunk Ry. COL. 18 O.LJL
139; referred "to in Cobban v. Can. Pac. Ry. Co., 23 AJL (Ont.i 115:
Lamont v. Can. Transfer COL. 19 O.I-R. 291*; Mowatt v. Provident Assn.
Co_ 27 A^.iOnt.i 675: McCormack v. Grand Trunk Ry. Co- 6 O.L.R.
* I Taylor v. Grand Trunk Ry. COL. 4 O J^R. 357 ; Wensky v. Can. De-
velopment Co- 8 B.C.R. 195: relied on in Central Vermont Ry. Co. v.
Francbere. 35 Can. S.C.R. 74: Wilson v. Can. Develop. COL, 9 B-C.R. 10$;
ee Grenier v. The Queen. 6 Can. Ex. 276.]
AMU AGE Or LITE STOCK DELAT OF SHiFMEXT ABAXDOXMEVT SALE BT
A shipper of goods is bound by the conditions to which he has sub-
scribed in the bill of hiding, and where one of such conditions was that
the carrier (a railway company < should not lie liable for the delay of :~
trains, and damage was caused to the shipper of live stock by a delay of
two hours, he could not recover. If the stork is abandoned to the com-
pany and sold, the latter Las the right, before remitting the proceeds of
the sale, to demand from the ship the return of the bill of hiding.
Lafontaine v. Grand Trunk Ry. Co.. 26 Que. S.C. 455.
LITE STOCK Co:*T*AYE\Tio3t or LOKD'S DAT ACT.
The provisions of a special contract of carriage limiting the liability
of the defendants, common carriers, in case of a collision to a stated sum.
do not apply where the common carrier is guilty of a corporate act in
contravention of a statute where that corporate act occasioned the colli-
sion. Where, therefore, a railway company received live stock for carriage
at a fewer rate than it was entitled to rnarge in consideration of the
shipper executing a. special contract limiting the company's liability in
518 LIMITATION OF LIABILITY.
the event of a collision of its trains to $100 per head of such live stock
killed, and a collision occurred between the train upon which the live
stock was carried and which was being run lawfully and another train
of the same company which was being run unlawfully in contravention
of the Lord's Day Act, and an action was brought by the owner of the
live stock in tort claiming the full value of the animal killed by such col-
lision: Held, that the special contract had not the effect of limiting the
company's liability or excusing the defendants from liability if such lia-
bility arose by reason of the breach of a prohibitive statute; that the un-
lawful running of the train in contravention of the Lord's Day Act was
a corporate act of the defendants, and that the principles of the law of
negligence were not applicable. The judgment of Sifton, C.J., upon a
stated case affirmed by the Court en bane.
Rise v. Can. Pac. Ry. Co., 3 Alta. L.R. 154, 14 W.L.R. 635.
LOSS OF HORSES SPECIAL CONTRACT LIMITING LIABILITY.
In an action for damages for the loss of two horses out of a carload of
fourteen shipped over defendants' railway, judgment was entered for the
plaintiff upon the answers of the jury finding the defendant company
guilty of negligence and that the plaintiff could not have avoided the acci-
dent by the exercise of reasonable care. Upon motion in term the County
Judge held, the defendant company exempt from liability under the terms
of a special contract permitting its liability, approved by the Board under
s. 275 (1) of the Railway Act, 1903, and dismissed the action: Held,
upon an appeal to the Divisional Court that upon the true construction of
the contract it did not cover negligence of the company or its servants and
that the Board has no power to limit the liability of the company for neg-
ligence contrary to the provisions of the Railway Act, 1903, s. 214 (3) :
Held, also, that the findings of the jury upon the evidence were so un-
satisfactory a new trial must be ordered.
Booth v. Can. Pac. Ry. Co., 5 Can. Ry. Cas. 389, 7 O.W.R. 593.
[Referred to in Sutherland v. Grand Trunk Ry. Co., 18 O.L.R. 139; re-
lied on in Mason & Risch Piano Co. v. Can. Pac. Ry. Co., 1 S.L.R. 215.]
ANIMALS SPECIAL CONTRACT LIMITING LIABILITY NOTICE OF LOSS.
By s. 284 (7) of the Railway Act, 1906. "Every person aggrieved by anv
neglect or refusal of the company to comply with the requirements of this
section shall, subject to this Act, have an action therefor against the
company, from which action the company shall not be relieved by any
notice, condition or declaration, if the damage arises from any negli-
gence or omission of the company or its servants." By s. 340: "No
contract, condition, by-law, regulation, declaration or notice made or
given by the company, impairing, restricting or limiting its liability in
respect of the carriage of any traffic, shall, except as hereinafter provided,
relieve the company from such liability, unless such class of contract, con-
dition, by-law, regulation, declaration or notice shall have been first
authorized or approved by order or regulation of the Board. (2) The
Board may, in any case, or by regulation, determine the extent to which
the liability of the company may be so impaired." The defendants received
from the plaintiff a mare, with other animals, to be carried from a station
on their line of railway in Ontario to a point in British Columbia, under
a special contract, which had been approved of by the Board (which the
plaintiff signed). Under this contract the animals were carried at a lower
rate than the company were entitled to charge. The contract contained a
provision that the defendants should in no case be responsible for any
amount exceeding $100 for the loss of any one horse, or a proportionate
LOnTATTOX OF LIABILITY. 519
*um in any one ease for injuries to ~ame. and that any low or damage
should be computed mmd paid for OB such basis. There was a further pro-
vision relieving the company from liability, ^unless a written notice, with
the full particulars of the loss or damage and of the dan to be made
in respect thereof, is delivered to tke station agent at the said point of
delivery within 24 boors after the said property, or some part of it, has
been delivered.'* Daring the carriage on the railway, the mare was.
through the defendants* negligence, seriously injured. Before the consign-
ment arrived at its destination the plaintiff, finding that the mare wa*
permanently injured, by the permission of the railway superintendent there,
removed the mare from the car at an intermediate station and sold her
at a loss, the remainder of the shipment being carried on to the place
of delivery. Xo notice of the loss was given there to the < nmninj % s umVisl
within the 24 hours: Held, that notwithstanding the loss was sustained
through the defendants" negligence, the special contract was binding on the
plaintiff, so that in no event could he recover more than the proportionate
part of $100; but that the omission to give the required notice relieved
the company from aO liability. [Judgment of the County Court of thr
county of Grey, affirmed. Robertson v. Grand Trunk Rj. Co. (UK), M
Can. 8UCJL 611. followed: St. Mary* Creamery Co. v. Grand Trunk Ey.
Co. (1904), 8 OJL.R. 1, 3 Can. Ry. Gas. 447, distinguished.]
Mercer v. Can. Par. Ry. COL, 8* Can. Ry. Gas. 3l 17 (XL.R, 585.
[Commented on in Xewmaa v. Grand Trunk Ry. Co_ 20 O.L.R. 285:
distinguished in Totmie T. Michigan Central Ry. Co, 19 O.L.R. 26. 9 Can.
Ry. Cas. 337: referred to in Sutherland v. Grand Trunk Ry. COL, 18 O-L.R.