, 1863-12-02

the part Of thc carrier ID not governed BY Til
question whether or not the pcrFon conveyed was
e &c e9oan y e5ass +, g s Bss
tract my sufficient legal consideration It may be
doubtful whether such question can b. an.
swered IN the affirmative.
:. But passing ills point, can human life and
Limbs be regarded as Of less value than property,
md i the common carrier Of goods ID not u.
e ss ssr e Raeo ssIgee gesT ssa
rom bis groes negligence, wilt public policy permit
ageater exemption on the part Off the carrier who
s a 5 s s
tween the carrier Of passengers and the carrier o
merchandise, that the 1attei Is an insurer, whllt
The difference between them, however, Ia not 81
wide as the Of the language might IT 1rst seen
to import. The common carrier OF mcIchandize Il
tune than hs aujt, aplng Language IL It's ordinai,
slgnifcation; but 20 also is tie common carrier o
passengers. The latter is Liable for the emailcs
ne1ss o sfa ad s b
es: and Thousand casualties hich cannot be eait
to BE the result Of gross negligence. Il the coatrae
TO sppy q that class ii which his isbity Il ssaim
Hated 70 that ofthe common carrier ofgoods IN th
~ s e. ~ ss q" q es.ss = wssf
his negligence Is eneS thst Il woaii
s;hargc :, ,aPEy gratgitsous bailee' Ought To
cnec to gratuitous bai1ments, to be NOW changed
solely for the purpose Of afording exemption II
the common carriers Of pasaenserss n,.
The present suit is an action upon the cosc. Tht
duty on the part Of the defendant, which has nc
reference TO contract. The plaintiff bad bis ease
contract or in case for the tort committed by tht
breach Of the duty which TIC nv has imposei
aqy 81 9s
bis calling and only from considerations Of pnhlis
policy. The breach Of the duty to the public
on q IL b. ss e Il Ms III ss G5 s
IN sssumpsitS H. H. ii: FrinE et d y Potter .D'
fendant aa 4 negligent baifee, but the deelaratiou
alleges that the Of the bailoe
e. 1aeie, snd fit is restricted at sn the law mus
no nsa o t. Il t s
,n s. pssson Shie 9sng the II tisIRst I On dsienssn's
nS s Of
eyen mnlfeasance. It Includes not only the acts
ofthe eatante Of the defendant, but the acts Of
policy Of the law to enforce an:h contract. Il
would bo Hgninst good morals. It would be offer
ing premium for and misfcasanee: Il
s1 q fhsaaRS sie hqsn Il IS Ct Rfea
Salue than ever before.
But II was said IL argument that public policy
made with the few, while the maDs arc Monsoon
however, that The Law only !euarda and protects
neess over the rehts Of Inc II lew Rad that tic
tzaet Invalid r t6s easa u the 1nltitade would
make Il invalid In the case OF tho individual.
But am referred TO several recent New York
cases, which it is said establish contrary doc
trine- ought to- aud do distruat ay own opinion
but an relieved In part by the different opinions
entertained. md the different reasons advanced BY
the New York Judges. ..,,
similar to tho one DOW before me. Although the
court held that it included gross Negligence, pet
,e bed hs shat sreh osf f, negeRsSs ne, ae %
covered y the contract, and that the contract ex-
tended oal5,, to the negligence Of the SERVANTS
Ct hS railroad i%p7ay eTsH ;fsaf
HeTe certainly Inc court placed restriction upon
the contract and while asserting the right Of tho
eSoss iz e ia @ Il pae
lars. The contract in that case as IN the case at
bar, embraced in ite term other negligence than
negligence whish implies fraud and bad faith as
though Judge Smith in delivering the opinion Of
ei Re e
gcnce tco nice and artificial FOR any clear definition
orpracaica application, he yet recognizes tho ex-
1sS % Of se 9o sEsn Gss nss aea af
gross negligence which does and that which does
Sot Imply Hnnd and bad faith. Lord Holt held,
and many Other turists hsrs uEIeed with him IN
lion more nice Or artiicial than that Or Judge
Fritz IL @ ss w6 se
The esse of walls va n. 7. Central Z. n, decided
b. % i de &C Court cut of Appeals In 81 New Yore, Rspp.
ISL. But here Judge Gould. In delivering the opin-
lon Of the court holds that tho gross negligence
Of corporation though 1t might Of An Individual,
for - faud md winfu1 lniefeasance lnclndc will
motive: and a corporation as such can haye no mo-
tive or will !" course OF reasoning which would
Of itself show the 'mproprisiy Of attempting to
exempt q common carrier from any negligence,
sasneF than from wl netsensse rs5s pO
fion to corporation In such case than to an In
dtvidun1, But understand the decision Of q ma-
joity Of tho court In this case to rest upon the
ettlon that under such q contract the carrier will
be exempted nom the negligence OF bis servants,
and this 70 be the reason why the contract Is eus
S,e and ns
Cured in the opinion and two diEesntod.
In the case of Perkins, misunderstanding, vs, the
EsE r. Esi7 nsE S.1 s4 ess t. H.; TSe RSs 's
listed In the case Of Walls vs.. the sa!ne company
was involved. The court faJs, .aesnming that
nnd expressly agreed that the defendants should
not be liable under any circumstance, whether -of
negligence by their sgeuts otherwise for any e-
aY 70 fea What ts eatens
e,a.1iy, I suasics1s eemprcasnslye to embrace cve
f. lsIoad t1s1e ~ Bat mus; 10 SUB
Jet 10 some Limitation Ind qualification. It ought
be fh to snsn saa a
plation Of the paEtes and cannot apply to such as
are not within the legitimate compass Of contracts
upon psine'pase Of pneIs peie} The decision In in
the G1ound that hc contract related to the acts o.
third persons. acting as agents Of the defendants,
tract, agreed % takc. The decision goes the fall
length Of dis,Aarging the Railroad comp1ny from
liability to damages which are the rcsult Of 1cFoss
Of the Company. The Judges dld not fully ssrcc
1 In the reasons upon which their Judgment vas
based, though sig Of them eame to the same con.
Jnstjoe Smith nnde ! distinction between the
liability Of corporation for the nctsof its s1pc.
r1or officers and its ordinary emrloyees-1 dis'inc;
Judge seems to Be too nice and artificial for ANY
dear definition or practical application, y for 4!ho
cTer heard q the superior officers Of corporatca
saas1s a End
These arc al the csses Those IN 18th and 29lh
Rar9.. anl e4th New York Rep, which hayc b:sn
question in favor Of the validity Of such contracts
Is the one now before The Court, in eases where
actions hare been brought by an Individual against
|
ries sustained through the CARRIERS negligence.
With all dne Difference to the opinion Of the
| New York 5urists who have pronounced this to b.
opiLions do 60 for the following reasons:
Fifst.-These dccdsious arc opposed to what
eeems to nc to be the general consent OF American
authority IRON the frat commencement Of our tu'
risptndence up to The present time, rand sustain
principles At variaree with the anaioSics Of the
law, and seldom II ever announced In their appl
cation to passenger carriers before tho year 1853
Ecr0nd They are based In fact uDon disregard
Of tho distinction as to degrees q negligence, 7nto
slight, ordinary and gEpss, which, though some;
times cavlllcd ut, have been generally followed
by the elementary writers and the courts, and Which
Third. They are sustained b. opinions Of Jus,
hccs who differ among themselves, anu supported
by reasons which cannot but deem contradictory
1e Foa1S @riSaHS While asserting the right Of the
ger to mai lie snch contract he p1cases they In
The same breath deny the right. bJ limiting and 70
s!rcting the contract in essential particulars and
make determinations more nice and artificial than
those which they seek to avoid.
the e deiendant @ shaii not be liable aaisr % eircam
u # no 1tss e s4fas saa q p Bas @ % RsE
Fii,&. Il ioewed Sas il Il otheT Stiles thex woud
encourage, rathe1 than diminish, the motives for
care On the ptrt of common carriers Of passengers,
motives which 1t ia not the policy Of the Law to
| decrease.
Deseryedy high as authority as are the decisions
I cannot make the law. they merely announce what
in the opinion Of the Judges the law is. cauuot
but think that in these recent cascs the law bo
courts In other States, has been departed from
| and l. must adhere to what regard as tho well
established principle Of the Inv, which makes q
gers, e.empting himself from gross negligence
| void, as against public policy.
The demnr7ers to the special pleas will therefore