#### M. W. Galt, Bro., & Co., *vs.*The Adams Express Company.

Law. *No. 14,451.*

Decided September 24, 1879.

1. An express company upon receiving three packages for transportation gave the shipper a receipt in which it was stated that the company were “ forwarders only : ” *Held,*that these words were ineffectual to restrict its liability. The law determines the character of the occupation of expressmen ; it assigns to them the liabilities of common carriers, and this *status*is not affected by an agreement between the, parties that they are not carriers but u forwarders.”

2. The contract of a common carrier which stipulates for exemption from responsibility for the results of his negligence is void as against public policy.

3. The provision in a receipt given by an express company that the latter will not be liable beyond a certain sum if the just and true value of tlie property be not declared at, tile time of the shipment, is valid to limit the liability of the carrier as an insurer.

*4.*But a condition of this character which seeks to cover the negligence of the carrier is void.

5. The omission of one dealing with a common carrier to advise him as to the value of the article presented for carriage, and that its actual is greater than its apparant value, will not affect his rights, unless it justified the carrier in adopting the course of conduct through which the loss occurred.

The Case is stated in the opinion of the court.

L. G. Hiñe and Beginald Eendall for plaintiffs :

This case presents but one question for t.he consideration of the court, which is : Can a common carrier by special contract limit his liability for damages resulting from his own gross negligence or misfeasance ?

It is admitted that a common carrier can make a contract with a shipper limiting the carrier’s liability “ within the bounds of reason, justice, public policy, and morality.” It is, however, submitted that when, in the fulfillment of such an undertaking, gross negligence supervenes ou the part of the carrier he is remitted to his common-law liability which makes him an insurer of the goods carried, “ except as against the act of God or public enemies.”

The motion for a new trial should, therefore, be overruled and the judgment entered. Because—

1st. The carrier was guilty of gross negligence.

*1252d. The carrier was not only guilty of gross negligence but of *misfeasance.*

The doctrine that a common carrier can provide by special contract against responsibility for his gross negligence has found an asylum in the courts of New York, but nowhere else, and even there its foothold is precarious.

A review of the cases involving this question exhibits the odd vote as overthrowing the soundest judicial reasoning, and the evils resulting from the establishment of the principle have furnished enough argument, *ab inconvenierdia,*to invite its unqualified condemnation.

The New York Code Commission (David Dudley Field and Alexander Bradford) comment on the cases upon which this doctrine depends, as follows :

“ But these decisions were made by a bare majority of the Court of Appeals, and the commissioners think that the dissenting opinions are entitled to the most weight. It is notorious that the carelessness of railroad companies cannot be stopped by criminal prosecutions, and if they are enabled by a reduction of a few cents in the fare to escape civil actions they will be practically irresponsible for the acts of their servants.” Chap. *V*on Carriers, art. 1, § 1,141, p. 340.

Judge Davis, in the case of Stensin *vs.*Railroad Co., 32 N. Y., 337, addressing himself to the same question, says :

“ The fruits of this rule are already being gathered in increasing accidents, through the decreasing care and vigilance on the part of these corporations, and they will continue to be reaped until a just sense of public policy shall lead to legislative restriction upon the power to make this kind of contract.”

For dissenting opinions, where the highest talent of the New York bench repudiates this doctrine, established only by “ the preponderance of judicial suffrage,” the court is referred to the opinions of Chief Justice Denio, and Judges Wright and Sutherland.

The dissenting opinion in the case of Wells *vs.*R. R., 24 N. Y., 181, was delivered by Judge Sutherland, Judge Wright concurring, and, says the Supreme Court of Penn*126sylvania, “ it is certainly better reason than the opinion of the majority.”

Keferring to the dissent in the case of Smith, Adm’r, *vs.*R. R., 24 N. Y., 222, the same authority says: “ The opinion of Judge Wright is valuable for its sound reasoning against the validity of such restrictions imposed by passenger carriers.”

In Bissell *vs.*R. R., 25 N. Y., 442, Chief Justice Denio and Judges Wright and Sutherland dissented.

This subject has received exhaustive consideration at the hands of the supreme courts of the leading States of the Union, and they are unanimous in antagonizing the doctrine of the New York courts. See the following authorities: Davidson *vs.*Graham, 2 Ohio State, 131; Roll *vs.*Roquet, 10 Ohio St., 145; Graham *vs.*Davidson, 4 Ohio St., 362; Welsh *vs.*R. R., 10 Ohio St., 65; R. R. *vs.*Curran, 19 Ohio St., 1; R. R. *vs.*Poretius, 19 Ohio St., 221; Knowlton *vs.*R. R., 19 Ohio St., 260; Union Ex. Co. *vs.*Graham, 26 Ohio St., 595; U. S. Ex. Co. *vs.*Bockman, 28 Ohio St., 144; Pa. R. R. Co. *vs.*Henderson, 51 Pa. S. 315; where the New York cases and the rule laid down by them are reviewed and repudiated. Willis *vs.*R. R. Co., 62 Me., 488; Soger *vs.*R. R. Co., 31 Me., 228; Ex. Co. *vs.*Armstead, 50 Ala., 350; Steele & Burgess *vs.*Townsend, 37 Ala., 247; R. R. *vs.*Jarboe, 41 Ala., 644; R. R. *vs.*Hopkins, 41 Ala., 486; R. R. *vs.*Edmonds, 41 Ala., 667; Ex. Co. *vs.*Caperton, 44 Ala., 101; Rore *vs.*R. R., 39 Iowa, 246; R. R. Co. *vs.*Selby, 47 Ind., 471; Ex. Co. *vs.*Hunnicutt, 54 Miss., 566. And see also the following text writers: Angel on Carriers, 5th ed., secs. 275, 267, 268, 269; Wharton on Negligence (2d ed), secs. 585, 589; 2 Kent Com., 607; Story on Bailm. (4th ed.), sec. 576.

The rulings of the Supreme Court of the United States furnish the most exhaustive examination into the proposition, and supply the most satisfactory reasons for affirming the decision of the court below. See New Jersey Steam Navigation Co. *vs.*Merchants’ Bank, 6 How., 382; New York Co. *vs.*Central R. R., 3 Wall., 113; R. R. Co. *vs.**127Manufacturing Co., 16 Wall., 318; R. R. Co. *vs.*Lockwood, 17 Wall., 357.

Several propositions which invite the acquiescence of reflecting minds are derived from a perusal of the last-named case :

1st. That a common carrier is such by virtue of his occupation, not by virtue of the responsibility under which he rests ; that he may modify his responsibilities by special contract, but inasmuch as he still retains his character of common carrier, he cannot stipulate against liabilities for the results arising from his own negligence, because such stipulation would be against public policy and good morals, for “ it is obvious,” says Judge Bradley, “ therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the *essential duties*of his employment, and to assert that he may do so seems almost a contradiction in terms.”

In the case before the court there is not in the contract a stipulation against negligence, but the defendant is endeavoring to avail himself of an unconscionable doctrine which is not even included in his printed network of exceptions and savings, designed to catch'the unwary and impose upon the defenceless.

2d. That any negligence by the agent of the common carrier, such agent being a railroad company transporting both passengers and goods, is gross negligence. Quoting the Supreme Court in case of R. R. *vs.*Darby, 14 Howard, 486, supplemental to which the finding of the jury in the present case, representing the defendant as standing in court face to face with negligence, both in law and fact.

Following in the path of this leading case we find the Supreme Court using the followiug broad and comprehensive language : “A common carrier is always responsible for his negligence, no matter what his stipulations may be.” Express Co. *vs.*Caldwell, 21 Wall., 266. And see R. R. Co. *vs.*Pratt, 22 Wall., 134; Bk. of Ky. vs. Adams Ex. Co., 93 U. S., 174.

*128W. B. Webb for defendants :

1. This is the question for the court : If a carrier undertakes to carry a package to any given destination upon a special agreement with the shipper that the value of that' package is to be fifty dollars, unless some greater value is given at the time of shipment, and the package is lost by reason of the gross negligence of the carrier, is such carrrier responsible to the shipper beyond the limit fixed upon as his liability, no value beyond such limit having been placed upon the package at the time of shipment, though the value was asked by the carrier?

As preliminary to the discussion of this question, it may as well be stated that the difference between negligence and gross negligence seems to be no longer recognized by the courts. As long ago as 1843, Baron Rolfe, in the case of Wilson *vs.*Brett, 11 Meeson and Welsby, 113, said that he saw “ no difference between negligence and gross negligence, that it was the same thing with the addition of a vituperative epithet.” And very recently the Supreme Court of the United States has held the same doctrine. Railroad Co. *vs.*Lockwood, 17 Wall., 382, and cases there cited. Milwaukee R. R. Co. *vs.*Arms, 91 U. S. Rep., 493-5, and cases cited.

The real distinction in this class of cases seems to be between negligence and misfeasance. At the trial below, his honor, the Chief Justice, uses the term “gross negligence,” but does not intend to distinguish between that term and ordinary negligence, and does not mean to charge the defendants with misfeasance. The term “ gross negligence,” then, 'in this connection, has no special significance, and means nothing more when applied to the conduct of a common carrier than the simple term negligence.

2. A special contract creates and defines by its own terms, the rights and duties of the contracting parties between themselves ; parties being as free to contract as they are to use their property in any way that the law does not forbid. McManus *vs.*Lancashire and Yorkshire R. R. Co., 4 Hurlston and Norman, Exch. R., 343. And see Faulkenau *vs.**129Fargo, 35 N. Y., 332—affirmed by the Court of Appeals, 55 N. Y., 645; Wallis *vs.*Mathews, 39 Geo., 610 *et seq.;*Bank of Kentucky *vs.*Adams Ex. Co., 93 U. S., 174, 188; Steers vs. Liverpool, N. Y. and Phil’a S. S. Co., 57 N. Y., 1.

3. In Berry *vs.*Dinsmore, Justice Wallace, United States Circuit Court for the Southern District of New York, (pamphlet report), says: “lam disposed to hold that a carrier cannot, by a special contract, exonerate himself from gross negligences. The question in this case (which seems to be a very serious one) is, whether in any case the plaintiff can recover more than fifty dollars. Upon the case as it now stands, that is to say, in view of the plaintiffs’ evidence and the want of explanation by the defendant, there is certainly sufficient for the jury-to find that the package in question was lost by the defendant’s negligence *;*and" under the decision in Railroad Co. *vs.*Lockwood, 17 Wall. 357, the distinction between ordinary and gross negligence (which has heretofore been so long and so often made), is now an immaterial and useless one. In that case, the doctrine seems to have been explicitly held that a common carrier cannot exempt himself from the consequences of his own negligence, except by contract. The case at bar, however, is distinguishable from one where the question arises under a notice. For here there is a special contract by which the plaintiff agreed that the package, in the absence of express stipulation to the contrary, should be valued at the sum of fifty dollars. Now the fact that the company knew or could have known that the package was of greater value, seems to me immaterial. It would be material, of course, in the absence of any contract. In this case, by the terms of the express contract, it is agreed that the package forwarded shall be deemed to be of the value of fifty dollars, unless a larger sum is specified. And I think the contract is so expressed that the limitations of the liability to the amount of fifty dollars, applies, in case of gross negligence or fraud, at any rate, to a case of negligence equally with where it is lost without any fault of the company and under *130circumstances under which, because they insure, they could be held liable.” And see Earnest *vs.*The Express Co., I Wood, 673, 578, 599.

4. The court below, in its further rulings, established these other propositions : First, that if, at the time of the delivery of the package, the defendant asked for its value, and the plaintiffs refused to give such value, said plaintiffs, if entitled to recover at all, can only recover the amount limited as such value in the receipt. Second, that it was the *duty*of the plaintiffs to state the value of the package at the time of its delivery, if they would recover more than the amount so limited ; and, third, that the fact that the package contained articles of great value, such as silverware, &c., made it incumbent upon the plaintiffs to disclose the value of its contents, subject to the same proviso as to the loss of the package by the gross negligence of the carrier.

In Angell & Ames on the Law of Carriers, section 264, the doctrine is thus stated : “ Where there is no notice, if there are no improper means or artifices adopted by the person who sends the goods, to conceal the nature of the contents of the box, parcel or package, to mislead or deceive the carriel’, the person sending the goods is not bound to-make the disclosure, unless inquiry is made of him on the *subject;*although the carrier has the right to make the-inquiry, and to have a true answer, and if a false answer is-given, he will not be responsible.” Sewall *vs.*Allen, 6 Wend., 349; Philips *vs.*Earle, 8 Pick., 182; 2d Kent Comm., 603-4; Brooke *vs.*Pickwick, 4 Bing., 218; Sleat *vs.*Flagg, 5 B. and Ald., 342; Batson *vs.*Donovan, 4 B. and Ald., 21; 2 Greenleaf on Ev., section 215.

The principles of the foregoing cases have been repeatedly recognized and affirmed by the American courts. The Orange County Bank *vs.*Brown, 9 Wend., 88-115; Pardee *vs.*Drew, 25 Wend, 459, 460, 461; Richards *vs.*Westcott, 2 Bosw., 589, 595, S. C. 7, Bosw., 6; Warner *vs.*The Western Transportation Co., 5 Robertson, 490; Stoneman vs. Erie R. R. Co., 52 N. Y., 429, 433.

Mr. Justice Field, delivering the opinion of the court, in *131York Company *vs.*Central Railroad, 3 Wallace, 112, 113, says:

“Nor do we perceive any good reason, in principle, why parties should not be permitted to contract for a limited responsibility. The transaction concerns them only; it involves simply rights of property, and the public can have no interest in requiring the responsibility of insurance to .accompany the service of transportation in face of a special agreement for its relinquishment. By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailor and private carrier for hire.

The law prescribes the duties and responsibilities of the common carrier. He exercises in one sense a public employment, and has duties to the public to perform. Though he may limit his services to the carriage of particular kinds of goods, and may prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he has to encounter, he can make no discrimination between persons or vary his charges from their condition or character. He is bound to accept all goods offered within the course of his employment, and is liable to an action, in case of refusal. He is chargeable for all losses except such as may be occasioned by act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neglect on his part; and he cannot, by any mere act of his own, avoid the responsibility which the law thus imposes. He cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsibility by making exorbitant charges when such assent is refused.

The owner of the goods may rely upon this responsibility imposed by the common law, which can only be restricted and qualified when he expressly stipulates for the restriction .and qualification. But when such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enfoi’cement.”

*132This doctrine is not adverse to the ruling of the Supreme Court of the United States in Bank of Kentucky *vs.*The Adams’ Express Co., 93 U. S., 174.

In that case, the bill of lading did not contain the clause relied upon in this case limiting the liability of the company as to value, and the exemption of the defendants was claimed by reason of the clause exempting the carrier from losses arising from the dangers of railroad and fire. It did not contain the clause embraced in the receipt given in the case at bar, exempting the company from any loss whatever unless “ proved to have occurred from the fraud or gross negligence of said company or their servants.” Had such clause been contained in that receipt, it can fairly be inferred from the language used by the court, on pages 185 and 186, that the judgment would have been otherwise.

Mr. Justice James

delivered the opinion of the court.

This cause comes here on exceptions to the instructions given to the jury at the trial.

The bill of exceptions shows that plaintiffs produced evidence, that in January, 1875, the defendant received from them three packages, two for delivery in New York and one for delivery in Philadelphia ; that on receiving them.) the agent of the Express Company gave for each package a bill of lading, which contained, with a difference only as to the consignees, this clause: “ Received from M. W. Galt, Bro. & Co., one box, *value asked, not given;*for which this company charges ——; marked ——, &c.; which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. It is part of the consideration of this contract, and it is agreed that the said Express Company are *forwarders*only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said Express Company intrusted, or arising from the dangers of railroads, ocean or river navigation, steam, fire in stores, depots or in transit, leakage, breakage, or from any cause *133whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said Express Company or their servants ; nor in any event shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in this receipt ; which insurance shall constitute the limit of the liability of the Adams Express Company.”

That the three receipts thus signed by the agent of the company were contained in a book furnished by the company to the plaintiffs ; that, excepting the charge for freight, the blanks therein were filled up by plaintiffs’ bookkeeper before they were signed ; that no question was asked, and nothing was said by either party as to the contents or value of the packages; that the Express Company placed the three packages in a car set apart for its use, attached to the train of the Baltimore & Potomac Railroad Company, for transportation to the consignees at New York and Philadelphia : that, while on its way to Baltimore, this train collided at Benning’s Station with another train, whereupon the Express Company’s car, with others, caught fire from the locomotive and was burned, together with the packages in question and a considerable quantity of valuable goods and a large amount of money ; that this collision was caused by the negligence of the switch tenders in the employ of the Baltimore & Potomac Railroad Company at Benning’s, who had opened the switch for another train to pass on to the siding, and there remain until the night express from Washington should pass, and had failed to change it back ; that when the engineer caught sight of the switch-target at Benning’s, then only thirty yards distant, the train was running about thirty-five miles an hour, and, notwithstanding his best efforts to check its speed, passed on to the siding with such momentum that it telescoped half the train there standing, killing the postal clerk and injuring several other persons ; that within five minutes the train was on fire from end to end, and a large amount of goods in the Express Company’s car were in consequence destroyed. «

*134The plaintiffs further introduced evidence tending to show that, of the packages shipped by them, one’contained silver-plate, coin, &c., amounting in value to $699.38, another an amethyst ring worth $12, and a third a silver spoon worth -$8 ; that a day or two after the collision a barrel was exhibited to one of the plaintiffs by the agent of the company, as containing the debris of all the packages carried in the company’s car ; that no part of thi3 debris was delivered to the plaintiffs, the agent stating that he was instructed to send it to the central office in New York.

On cross-examination of plaintiffs’^ witnesses, some question was raised whether the tender of the switch at' Ben-ning’s was in the employ of the Baltimore & Potomac railroad or of the Washington City'“and Point Lookout railroad ; but it was stated that he had previously served at that switch, and that the switch itself belonged to the Baltimore & Potomac railroad.

On the part of the defendant, evidence was introduced to show that the company’s agent sent the whole of the debris to the central office in New York, forwarding also the detailed statement of plaintiffs’ goods, aud that the general agent in New York took charge of the debris and delivered the silver found in it to one Hart, of New Orleans, who claimed to have shipped it. The defendant further offered •evidence to show that there was nothing to indicate that plaintiffs’ packages were of any special value.

It thus appears by evidence offered¡by the defendant, and therefore by admission, either that the plaintiffs’ packages were utterly destroyed at the time of the collision, and failed by that reason to reach their destination, or that the whole or such part of them as were saved and forwarded was delivered to some other party.

Upon this evidence the defendant asked the court to instruct the jury as follows :

“ 1st. That the execution of the express receipt or bill of lading of the Adams Express Company and its acceptance by the plaintiffs concurrently with the delivery and receipt of the property, constitute a special contract between the *135parties for the carriage of the goods; and the rights and liabilities of the respective parties are to be governed thereby, and the conditions and exemptions therein set forth are to be binding on each.” This instruction was granted with the following proviso : “ *Provided,*That the jury do not find that the loss of the packages was occasioned by the gross negligence of the defendant.”

“ 2d. If the jury believe from the evidence that at the time when the packages in question were delivered by plaintiffs to defendant for carriage, the said defendant or its servants or agents asked of said plaintiffs the value of said packages, and that the said plaintiffs refused to give such value and concealed the same, so that the said defendants, as carriers, were ignorant of the value thereof; that the said plaintiffs, if entitled to recover at all, can only recover in this action the sum of fifty dollars, with interest from the time of the said loss.” This instruction was given with the qualification attached to the first.

*“*3d. That it was the duty of the plaintiffs, at the time of the delivery of the packages in question to the Adams Express Company under the terms of the contract, to state the value of said packages, if they desired, in case of loss, to recover a sum exceeding fifty dollars.” This instruction was given with the qualification already stated.

“ 4th. That, irrespective of the terms of the contract, requiring the shipper to state the value, or, in default of such statement, limiting the liabilities of the company to the sum of fifty dollars, it was incumbent upon the plaintiffs to disclose the value in view of the fact that the package contained articles of great value, such as silver,” &c. This instruction also was given with the same qualification.

By their verdict for an amount largely exceeding the limit proposed in the bill of lading, the jury necessarily found that the loss was occasioned by the gross negligence of the defendant.

We do not propose to adopt the mechanical method of considering these instructions and exceptions *seriatim,*since the issues raised by them can be better disposed of by a *136statement of the general principles on which this court has agreed.

Undoubtedly, a written instrument signed only by one party, but accepted and acted upon by the other, may furnish the terms of a mutual contract. Although the accepting party does not become technically a party to the writing, he assents to its terms as the terms of his unwritten agreement, and thus the same terms are agreed upon by both. In this way the plaintiffs and the defendant actually entered into a special contract upon the terms of the bill of lading given by the latter. But it does not follow that all of the terms thus actually agreed upon are lawful. If any of them constitute an agreement which such parties are not permitted by the law to make, they are simply void, and do not govern the rights or obligations of those parties.

In applying this principle, we observe,-in the first place, that the receipt before us stipulates that Adams Express Company are *forwarders*only. But it is to be gathered from the evidence set out in the bill of exceptions and from the verdict, that they were found to be actually carriers? using, as their instrumentality of transportation, the roads and servants and trains of the Baltimore & Potomac Bail-road Company. The law determines the character of this business and occupation, and it assigns to Adams Express Company the status of common carriers, and we hold that this status is not affected by an agreement of parties that they are not carriers but only forwarders.

In the next place, the bill of lading provides that the Express Company “ are not to be held liable or responsible for any loss or damages ” to the property received by them, *“*from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said Express Company or their servants ; ” and it then undertakes to limit the responsibilty' of the company by a further condition that, even in case of loss or damage by the fraud or gross negligence of the company, the holder of the receipt shall not “ demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless other-' *137wise herein expressed, or unless specially insured by them, and so specified in this receipt.” It was insisted in the argument on behalf of the defendant, that the legal effect and intendment of this clause is simply to provide, in the absence of a special declaration of value, for a rule of valuation ; and that it is competent for parties, even where the liability arises from gross negligence, to agree upon the fact of value. Authorities were cited which have given this interpretation to the clause in question, and have recognized the validity of the agreement as thus interpreted. The first question, then, relates to the proper interpretation of the clause; and we hold, that, inasmuch as this condition undertakes to provide against liability for loss or damage arising from gross negligence, the legal effect of that part of it which speaks of value is, not to ascertain and adjust the value of property, but to limit the damages, the penalty to which the law would have subjected the carrier on account of his fault. By tendering such a condition the carrier substantially says to the shipper: “ I am aware that the law would hold me reponsible for the actual value of this article, although not disclosed to me, in case it should be lost or destroyed by means of my gross negligence ; but I propose to exempt myself from so much of that liability as may exceed fifty dollars, by assuming that *the actual damage to you,*occasioned by my fault, is only fifty dollars; and this I propose to do by assuming *that the article is worth*only fift y dollars.5 This is not in good faith a valuation of property. Its legal effect, and, therefore, its legal intent, is to restrict the measure of damages recoverable in case of negligence, and thus to exempt the wrong-doer from a part of his responsibility ; and, as matter of interpretation, the meaning of a clause which operates only in this way is not to be changed by giving to it an arbitrary name. It may be added that by its terms, the clause in question is to be applied as well in cases of losses by the fraud of the company, as in cases of losses by its gross negligence ; and that the rule of interpretation must, therefore, be uniform in both cases. It would certainly be a very remarkable interpretation which *138■should hold that this clause only meant in good faith to provide an ascertainment of the value of the property, in case it should be made way with by the fraud of the carrier.

We hold, then, that the intent and operation of this condition is merely to exempt the Express Company from a part of its obligations as a common carrier, in case the damage done to the shipper by its fault shall exceed the amount of fifty dollars. If we are right in this conclusion, we have next to consider whether a common carrier can lawfully stipulate for a partial exemption from his full liability in cases of .gross negligence.

We are aware that in some of the States, notably in some which possess, or perhaps are possessed by vast railroad corporations, the doctrine of exemption by special contracts has been carried to extremes; but if this court were disposed to follow such a lead it is prohibited to do so by the ruling of its superior, the Supreme Court of the United States. In Lockwood’s case, 17 Wallace, 357, that court, after the most exhaustive examination of American and English authorities, has laid down the principle by which we must be guided; namely, that a common carrier, whether of goods or passengers, cannot stipulate for exemption from responsibility for the negligence of himself or his servants. Id., 384. It is true the question immediately before the court related to the carriage of passengers ; but it inevitably involved the discussion and determination of principles of public policy and of law which apply completely to the business of common carriers of goods, especially of common carriers by railway. We would have held and enforced that doctrine without such superior authority. We now feel disposed as well as bound to apply the principle on which that case turned in all the fullness of its spirit. We hold, then, that the principle of law which, for considerations of public welfare, forbids a common carrier to bargain in particular cases for complete exemption from responsibility for a violation of his duties, forbids him to impair his obligations to the community by bargaining in particular cases for an exemption from a considerable part of that responsibility. The ground on which *139the rule is based, that even the shipper’s perfect consent cannot wholly relieve the carrier, is, that the subject which he undertakes to regulate by contract is not his own, but a *public*right.

Practically, every kind of common carrier becomes an agency which the rest of the community are compelled to employ, and with little inquiry as to his peculiar fitness. In other words, he acquires in some degree the position of a monopoly. And if this be a sufficient reason for imposing peculiar duties and exactions upon ordinary common carriers, it applies with incomparably greater force to railroads and to carriers, who, by employing those roads as instrumentalities of their transportation, make those instrumentalities their own. They are universally authorized to appropriate private property on the very ground that sucti1' appropriation is for the *public*use *;*and if they are understood, in contemplation of law, to be occupied in using and managing property for public welfare, their business of transportation, which is the only use to which they apply the property so appropriated, must be understood to be carried on for the public welfare. Their obligation to exercise, not only a reasonable but a very high degree of care in that business, becomes therefore a *duty to the public,*and can neither be put aside nor impaired by the consent of individual members of the community. No single person is allowed to agree that such a carrier, or that any carrier who owes a public duty, may with impunity be negligent in his case, for the reason that the carrier is thereby invited to omit his duty in other cases, and thus to injure the whole community. Can it be possible that these considerations, on which the rule against total exemption is based, lose their force when the carrier is invited to violate his public duty by an agreement that he may violate it at half price ? The principle of the rule is, that any agreement which operates to interfere with the public right touching the care and good faith of common carriers, is an agreement against public policy and welfare, and is therefore void ; and as an agreement that his negligence shall be cheap must operate in this way, it necessarily falls within that principle.

*140We are of opinion, therefore, that the court instructed the jury correctly, in allowing them to find for the full value of plaintiff'’s property, notwithstanding the conditions of the bill of lading, if they should find that the loss was occasioned by the gross negligence of the defendant.

As to the duty of a shipper to advise the carrier that the actual was greater than the apparent value of the article shipped, we hold that his omission to give such information does not affect his rights, unless it justifies the carrier in adopting the course of conduct by which the loss occurred. A carrier who is allowed to suppose that an article may be handled in a particular manner is not responsible for so handling it, and the shipper has to submit to the natural effect of his own omissions to give proper information. But that case is not before us. It can hardly be imagined that the omissions of the plaintiffs to disclose the exceptional value of their shipment tempted the defendant to wreck and burn its train.