#### The Detroit & Milwaukee Railroad Company vs. The Farmers' & Millers' Bank of Milwaukee.

*Common carrier*— Railroad, *company*— Limitation *of liability by express*contract.

1. A railroad company may limit its liability as a common carrier to tbe line of its own road, by express contract.

2. Where a receipt for goods given by the D. & M. R. R. Co. stated that the goods were *“*addressed to H. & S., Agent, New York, to be sent by the D. *&*if. R. R. Co., subject to their tariff, and *unde)' the conditions stated on the othei' side*— care *123Swift Sure Line, Albany. [Goods described] through to New York, at $1.95 per barrel;” and on the other side was a notice, among others, “that all goods addressed to consignees resident beyond the places at which the company have stations * * * will be forwarded to their destination by public carriers or otherwise, as opportunity may offer * '* * ; but that the delivery of the goods by the company will be considered as complete, and its responsibility will be considered to have ceased, when such carriers shall have received the goods for further conveyance. And the company hereby further give notice that they will not be responsible for any loss, damage or detention that may happen to goods so sent by them, if such loss, damage or detention occur beyond their said *limits*— Held, that these conditions were a part of the receipt; and that it did not import a contract to carry the goods to New York; but constituted a valid limitation of the liability of the company,

*Falveyv. The Northern Transportation Company,*15 Wis., 129, explained.

ERROR to the Count y Court of *Milwaukee*County.

Tbe action below was brought by the bank against the railroad company, to recover damages for losses upon flour shipped by the company’s road, addressed to consignees in the city of New York, in consequence of delay in the transportation of the same, and also in consequence of careless handling. The receipt and bill of lading is set forth in the complaint as follows : “Detroit and Milwaukee Railroad, Milwaukee, January 3, 1862. Received from account of H. H. Camp, Cashier, the undermentioned property, addressed to Hoffman & Stevens, Agent, New York, to be sent by the Detroit & Milwaukee Railroad Company, subject to their tariff, and under the conditions stated on the other side. Care Swift Sure Line, Albany. [Description of property] through to New York, at $1.95 per barrel. Insured across Lake Michigan. (Signed) William Graham, Agent.” One of the defenses was, that the alleged delay and negligence did not occur on the line of said company’s road, nor while the flour was in its possession; the company claiming that its Lability was limited to losses so occurring, by the conditions printed on the back of the bill of lading, and referred to on the face thereof, and which are set forth in the answer. They are sufficiently stated in the opinion of this court. The cashier of the bank, as a witness for it, testified that his attention was not called by the railroad company to the *124conditions on tbe back of tbe receipt, and tbat be never knew of tbem until be bad made a claim for damages. On cross examination be said tbat be did not personally deliver tbe flour to tbe railroad company or receive from it tbe bill of lading ; tbat tbe business was done by and tbxougli one Culver, wbo purchased tbe flour as agent for and on account of tbe bank; tbat Culver was at tbat time largely indebted to tbe bank, and tbe bank furnished tbe money to purchase tbe flour, and whatever it should bring above its cost and the expenses of transportation was to be credited to him on bis indebtedness to tbe bank. Tbe shipping clerk of tbe railroad company testified tbat Mr. Culver received tbe bill of lading. Tbe court below instructed tbe jury tbat said receipt or bill of lading *“*amounted to a contract on tbe part of tbe railroad company to transport tbe flour therein mentioned through to New York within a reasonable time, at and for tbe price thereing specified per barreltbat unless tbe jury should find from tbe evidence tbat plaintiff knew of and assented to tbe printed conditions on tbe back of tbe bill of lading at tbe time said flour was delivered or said bill of lading accepted, they did not enter into or form part of tbe bill of lading, so as to amount to an express contract limiting tbe liability of tbe company as a common carrier ; and tbat “if tbe flour was delivered to tbe defendant in good condition, and was received by tbe consignee in New York in bad condition, tbe defendant was liable for the damages in consequence thereof.” Tbe court also refused to instruct tbe jury, as requested by the railroad company, tbat *“*from tbe fact of tbe plaintiff’s producing tbe contract and having declared upon it in this action, tbe legal presumption would be, in tbe absence of other proof, tbat tbe plaintiff knew its contents when be took it,” and tbat “ tbe knowledge of tbe agent Culver would be equivalent to tbat of the principal”

Other questions were presented by tbe record, which, not being passed upon by tbe court, are here omitted.

*125Yerclict and judgment for tire plaintiff below; to reverse which this suit was brought.

*Mnmons & Van Dylce,*for plaintiff in error,

to the point that the stipulation in the bill of lading for a rate of freight through to New York did not create or imply a contract to carry through, or to assume the liabilities of carriers beyond their own road, cited *Nutting v. Conn. B. B.*Co., 1 Gray, 504 ; *Hood v. N V. & N. H. B. B. Co.,*22 Conn., 1; *PUmore v. Naugatuch B. B. Co.,*23 id., 457; Pierce’s Am. E. E. Law, 454; Eedfield on Eailways, 281-2; *Pa. Central B. B. Co. v. Schwarzenberger,*45 Pa. St., 208. To the point that a carrier may by contract *exempt*himself and restrict his liability, they cited *Dorr v.N.J. Steam Nav. Co.,*1 Kern., 492 ; *Parsons v. Monteath,*13 Barb., 353 ; *Moore v. Phans,*14 id., 524; *N. J. St. Nav. Co. v. Banh,*6 How. (U. S.), 382; *F. & M. Banh v. Transp. Co.,*23 Yt, 205 ; 45 Pa. St., 208; Eedfield on Eailways, 267 and notes; 1 Parsons on Con., 703 et seq.; Angelí on Carriers, sec. 232 et seq.; and sec. 220 etseq.; Pierce on Am. E. E. Law, 418-19. That Culver’s knowledge would bind the bank there can be no doubt. Story on Agency, secs. 127, 132, 135, 139. And that the presumption would be that he knew the contents of the bill of lading, there can be as little doubt. *King v. Woodbridge,*34 Yt., 565; *Wells v. B. B. Co.,*24 N. Y., 183 ; 27 Barb., 140 ; 5 Hill, 258.

*H. F. Prentiss, contra,*

cited *Peet v. The Chi. & N. W. B. B. Co.,*19 Wis., 118; *Angle & Co. v. M. M. B. B. Co.,*9 Iowa, 487 ; Eedfield on Eailways (2d ed.), sec. 12, p. 282 ; 27 Yt., 110 ; 3 Sandf, S. C., 610 ; 47 Me., 573 ; 45 Pa. St., 208; *Moore v. Fvans,*14 Barb., 524; *Burtis v. B. B. Co.,*Am. Law Eeg. for Jan., 1863, p. 184; *Weed v. S. & S. B. B. Co.,*19 Wend., 534. To make these “ general notices and conditions of carriage” binding upon the consignor and parts of the contract, it must be shown that the consignor had actual knowledge of their existence in the bill of lading, and assented to their limitations of the responsibility of the carrier. *King v. Woodbridge,**12634 Vt., 565; *Falvey v. Northern Transportation Co.,*15 Wis., 129 ; *Western Transportation Co. v. Newhall,*24 Ill., 466; Eed-field on. Eailways, sees. 9, 10, pp. 264-280; *Mich. Cent. R. R. Co. v. Sale,*6 Mick, 244; *Farmers' & Mechanics' Barde, v. Champlain Transp. Co.,*23 "Vt, 205 ; *Camden & Amboy R. R. Go. v. Baldauf,*16 Pa. St, 67; Angelí on Carriers, *p. 251,*§247. Under tbe English statute now in force, a general notice is void, but *the*carrier may make a special contract, if it is just and reasonable, and is signed by tbe party sending tbe goods; and it is left to tbe courts to determine whether tbe contract is just and reasonable. *Simons v. The Great Western Railway Co.,*37 Eng. Law& Eq. E., 286, cited in note to Eedfield on Railways (2d ed.), 300; *Dorr v. N. Y. Steam Nav. Co.,*1 Kern., 485. And it is pretty broadly intimated in *Falvey v. Transp. Co., supra,*that even with this knowledge and assent on tbe part of tbe consignor, tbe carrier could not, on tbe ground of public pokey, limit or evade bis common law liability. *West. Transp. Co. v. Newhall,*and *Mich. Cent. R. R. Co. v. Hale, supra*; An-gelí on Carriers, secs. 234-246, pp. 239-51; *Hollister v. Nowlen,*19 Wend., 234; *Cole v. Goodwin,*id., 251; *Goulcl v. Hill,*2 Hill, 623; Eedfield on Eailways, 280 ; Green! Ev., 215. In any event, to bind tbe consignor by these “ general notices and conditions of carriage,’ ’ tbe *onus*is on tbe carrier to prove tbe knowledge of tbe consignor and bis assent to them. Angelí, sec. 247; Eedfield, p. 266, sec. 4; 24 Ill., 466; 6 Mich., 244.

Cole, J.

It appears from tbe bills of lading offered in evidence, that tbe railroad company limited its liability as common carrier to tbe kne of its own road. Tbe receipts expressly stated that tbe property was received by tbe company to be ■sent “ *subject to their tariff, and under the conditions stated on the other side.”*Among tbe conditions on tbe back of tbe receipt, was one to tbe effect that all goods addressed to consignees resident beyond tbe places at which tbe company have stations, and respecting which no directions to tbe contrary shall have *127been received previous to arrival at the station, will be forwarded to their destination by public carriers, or otherwise, as opportunity may offer, “ but that the delivery of the goods by the company will be complete, and the responsibility of the company will be considered to have ceased, when such carriers shall have received the goods for further conveyance. And the company hereby further give notice, that they will not be responsible for any loss, damage or detention that may happen to goods so sent by them, if such loss, damage or detention occur beyond their said limits.” Thus it will be seen that the company, by this condition, expressly restricted its liability as carrier to the line of its road, and did not become responsible as carrier for the whole route. This circumstance distinguishes the case from that of *Peet v. The Chicago & Northwestern R. R. Co.,*19 Wis., 118. Eor the contract in that case showed an undertaking to transport the flour to New York, to its destination, and beyond the terminus of the defendant’s road; and consequently it was held liable as carrier for the whole line. But not so here. In this case the defendant undertook to carry the flour to Detroit, the terminus of its road, and there deliver it to the proper carriers, to be forwarded to its destination. And it expressly stipulated that it would not be responsible for any loss, damage or detention that might happen to goods sent by it, if such loss, damage or detention should occur on any road besides its own. The receipt, therefore, did not import an undertaking or contract to carry to New York; for we suppose the conditions on the back of the receipt were parts of the contract, and must goto qualify and limit the liability of the company. It will be noticed that this condition is not an effort to limit the liability of the carrier over its own road, but to exonerate it from responsibility for the default or negligence of other carriers on other lines of the route. Whether the company could qualify its common law liability over its own road by a condition printed on the back of a receipt or bill of lading in this manner, is a question not now before us. Here the ob*128ligation was to transport the flour safely and seasonably to the end of its road at Detroit, and there deliver it to be forwarded by the proper carriers; and when this was done its full legal duty had been performed. And the company merely stipulated that it should not be held liable for a loss that might happen on a road besides its own, and not that it should escape a liability which the law imposed upon it in discharging its duty as common carrier.

On the argument, *Falvey v. The Northern Transportation Co.,*15 Wis., 129, was referred to, as favoring the position that a common carrier could not limit his responsibility by a condition in a bill of lading or receipt given for the goods. But really no such question was in the case, and of course none such was decided. The bill of lading in that ease was offered in evidence by the defendant, and there was nothing to show that it had ever come to the hands or knowledge of the plaintiff or his agent. And hence it was said, in substance, that the evidence did not show that there was a special contract entered into between the parties, by which the owner agreed to take the risk of loss of his goods in a case where the law would otherwise impose it ujson the earner.

"We have not noticed all the points made upon the argument, and do not deem it necessary to do so. The views already expressed are decisive of the case.

*By the Court.*— The judgment of the county court is reversed, and a new trial awarded.