GREGORY V. THE WEST-MID- } Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, s. 7—Conditions made by Railway Company exempting themselves from Liability for Negligence. The plaintiff having sent a cow for conveyance by the defendants' railway, signed a ticket containing the following conditions [inter alia] - That the defendants were to be free from responsibility for any damage arising in the loading or unloading, from suffocation, or from the animal's being trampled upon or bruised, or otherwise injured in the transit from fire or any other cause, it being thereby agreed that the animal should be carried at the owner's risk. Also, that the owner, or his representative, should see to the efficiency of the waggon before allowing his stock to be placed in it, and should make complaint in writing to the inspector or clerk in charge before the waggon left the station. Owing to the sides of the truck in which the plaintiff's cow was placed being too low, the animal got out during the journey and was killed : Held, that the conditions were not reasonable and just within 17 & 18 Vict. c. 31, s. 7, and that the defendants were liable, notwithstanding their contract with the plaintiff. DECLARATION.-That the defendants were owners and proprietors of the West-Midland Railway, and of certain trucks and carriages used by them to carry cattle on the said railway for hire and reward, and the plaintiff thereupon delivered to the defendants, at their request, a cow to be by them safely and securely carried in the said trucks, &c., on the said railway, to wit, from Abergavenny to Newport, for reasonable reward to them in that behalf, and it became the duty of the defendants to use due and proper care and skill in and about the carriage of the said cow on the said journey, and in and about the management of the said trucks, &c. Yet the defendants so negligently and carelessly conducted themselves in and about the carriage of the said cow, and in and about the management of the said trucks, &c., that by reason thereof the said cow was greatly injured and deteriorated in value during the said journey. 2nd Count. That the defendants were owners and proprietors of the said railway, and of the said trucks, &c., used by them to carry cattle on the said railway for hire and reward, and the plaintiff thereupon employed the defendants at their request, and for hire and reward to them, to provide for the plaintiff a certain truck or carriage as aforesaid to be used upon the said railway for the conveyance of a cow of the plaintiff's from Abergavenny to Newport by the defendants, and safely and securely to carry the said cow from Abergavenny to Newport aforesaid, and the defendants provided the said truck, &c., and all things were done, and all things happened, &c. Yet that the said truck, &c., so provided by the defendants, and in which the said cow was carried on the said railway, under the aforesaid contract, was not at the time of the defendants' providing the same reasonably fit and proper for the conveyance and carriage of the said cow on the said railway, and the defendants did not safely or securely carry the said cow in the said truck, &c., from Abergavenny to Newport, whereby, &c. The only pleas material to the case were the 3rd and 7th. The 3rd plea to the first count stated that the cow was so delivered to and was received by the defendants to be carried from Abergavenny to Newport, as in that count alleged, under a special contract; to wit, between the plaintiff and the defendants, for carriage as aforesaid, whereby the said receipt and carriage and reasonable condition referred to by and embodied thereof were made, and were subject to a certain just dants should be free from all risk and responsibility in the said contract; that is to say, that the defenwith respect to any loss or damage to the said cow which should arise in the loading or unloading, from suffocation, or from its being trampled on, bruised, or otherwise injured in the transit from fire or from any other cause whatever. And that, as the charge for conveyance was for the use of the waggon and locomotive power, the owner of the said cow, or his representative, was required to see to the efficiency of such waggon before he allowed his stock to be placed therein, and that complaint in writing must be made to the station-master as to all alleged defects, either at the time of booking or before the waggon left the station, and that the owner or his drover should ride free in the waggon in which his stock was loaded, and should have the care thereof; but as no fare was charged, it was agreed that such owner or his drover should so ride entirely at his own risk; and all conditions were performed and fulfilled, and everything happened to entitle the defendants to the benefit and protection of the said special agreement and condi tions. And the defendants say that the injury to and deterioration in the value of the said cow, and the supposed causes of action in the first count mentioned, were not occasioned nor did the same happen or arise by the neglect or default of the defendants or their servants. The 7th plea was similar to the 3rd, and was pleaded to the second count. The case was tried before Byles, J., at the Monmouth Summer Assizes, 1863, when it appeared that the plaintiff had booked a cow for conveyance from Abergavenny to Newport by the defendants' railway, and had signed a ticket, which the clerk presented to him, and which contained the following conditions: The Newport, Abergavenny, and Hereford Railway Company give public notice that they undertake the conveyance of horses in waggons, oxen, cows, sheep, calves, or pigs, upon the terms and conditions hereafter stated, and by such only they will be bound. 1st. They are to be free from all risk or responsibility with respect to any loss or damage arising in the loading or unloading, from suffocation or from being trampled upon, bruised, or otherwise injured in the transit from fire or from any other cause whatsoever, it being hereby agreed that the same is to be carried at the owner's risk. 2nd. They are not to be responsible for carriage or delivery within any certain or definite time, or in time for any particular market. 3rd. That as the charge of conveyance is for the use of the waggon and locomotive power, the owner or his representative is required to see to the efficiency of such waggon before he allows his stock to be placed therein, and complaint in writing must be made to the station inspector or clerk in charge as to all alleged defects, either at the time of booking or before the waggon leaves the station. 4th. The owner or his drover shall ride free in the waggon in which his stock is loaded, and shall have the care thereof; but as no fare is charged, it is agreed that such owner or drover shall ride entirely at his own risk. The plaintiff did not himself see the truck in which the cow was, as the animal had been placed there before his arrival at the station, he having sent it on before with a drover. During the journey the cow got out of the truck and was killed, a heifer which was in the same truck arriving safely. The plaintiff stated in evidence that the two animals had been placed in what is called a sheep truck, the sides of which were not sufficiently high to prevent a cow from getting out. A verdict was entered for the plaintiff with 307. damages, leave being reserved to move to enter the verdict for the defendants, if the Court should be of opinion that the special contract was binding on the plaintiff. On the 2nd of November (Michaelmas Term, 1863), H. James obtained a rule nisi to set aside the verdict for the plaintiffs, and to enter it for the defendants, on the ground that the plaintiff was bound by the special contract entered into with the defendants. 14, 22 JAN. 1864. A. S. Hill and H. Matthews showed cause It may be taken for granted that no conditions of this kind made by a railway company are valid under the 17 & 18 Vict. c. 31, s. 7, unless they are just and reasonable; and the question, whether they are reasonable or not must be decided by a Judge or the Court. The view taken of that statute by Erle, C.J., and Keating, J., in the case of Harrison v. The London, Brighton, and South Coast Railway Company, 2 B. & S. 152; 31 which was, that the operation of the 7th section is confined to injuries occasioned by the misconduct of the company, and not to those occurring through pure accident, cannot now be maintained. The present case must be governed by McManus v. The Lancashire and Yorkshire Railway Company, as decided in Error, 4 H. & N. 327; 28 L. J. Ex. 353; and by Peek v. The North Staffordshire Railway Comapany, 32 L. J. Q. B. 241. According to the former of those cases such a condition as the present is unreasonable; and the company, therefore, are not protected by their contract. [MARTIN, B.-Can a condition be always, and under all circumstances, reasonable, or the reverse, as to the same kind of cattle?] In McManus's Case, Williams, J., in delivering the judgment of the Court, appears to be of opinion that a condition must be reasonable, or the reverse, on the face of it; and this view is adopted by Blackburn, J., in Peek's Case. [MARTIN, B.-Suppose a condition which, on the face of it appears to be perfectly reasonable, turns out, from some peculiar circumstances, to be unreasonable?] It is submitted that the Court must take all the circumstances into consideration, in order to decide whether the condition is reasonable. But it is unne cessary to consider that point, inasmuch as these conditions are plainly unreasonable. The first exempts the company from all responsibility of any kind, according to the construction put on a similar condition by the Court in McManus's Case. [BRAMWELL, B.-Can any case ever decide, as a matter of law, that a particular condition is unreasonable? Must not everything depend upon varying facts which may render the same condition reasonable in one case and unreasonable in another?] McManus's Case was cited as a matter of construction to show what the Court held a railway company to mean by such a condition as the present; namely, absolute exemption from responsibility, however caused. It has been suggested that such conditions are subject to an implied proviso, that the company shall be liable for gross negligence or misconduct, but this is erroneous, as shown by Carr v. The Lancashire and Yorkshire Railway the case which led to the passing of the 17 & 18 Vict. [His Lordship read the first condition.] c. 31. [BRAMWELL, B.-It is to be regretted that we should have to administer a law which appears to me impossible. I do not see how a Judge can determine whether a contract between A and B is reasonable.] As to the third condition, that was probably inserted in consequence of the decision in, It appears to me impossible for the company to say more plainly that they will not be liable for any kind of injury to the cattle than they do by this condition. It seems to have been thought, however, that, notwithstanding this, the company might still be responsible for injuries occasioned by placing the cattle in a truck or carriage, not fit to convey them, and, therefore, the third con Shaw v. The York and North-Midland Railway dition was added to supplement what was wanting in the Company, 13 Q. B. 347. Is it reasonable that the railway company should throw upon the owner the duty of seeing to the efficiency of the truck? It is submitted that these conditions were both unreasonable, and that the contract is therefore void. H. James, in support of the rule. Even if the first condition were held to be intended to exempt the company from responsibility for all injury however caused, and to be, therefore, unreasonable, they would still not be liable, as here they are protected, not by the first, but by the third condition. In the present case the cow was taken to the station by the owner's drover and placed in the truck under his superintendence, after which the owner signed the contract. It is now said that the truck was unfit to carry a cow, being intended for the conveyance of sheep; but the owner's drover should have seen to this. There is nothing unreasonable in the company's requiring the sender to see to the efficiency of the truck with regard to such a matter as this, which he can perfectly well do if he thinks fit, while it may be very difficult for the company to find porters who can judge of the fitness of a truck for the conveyance of various kinds of cattle; the proper construction of this condition would be, that the company would be liable for a latent defect in the truck, but not for a patent one. The owner is bound by the assent which his agent has given to the animal's being placed in the truck in the same way as a declaration of value has been held to bind senders by railway in the cases of McCann v. The London and North-Western Railway Company, 31 L. J. Ex. 65; Pardington v. The London and South-Western Railway Company, 1 H. & N. 393. POLLOCK, C.B.-If the judgment given by this Court in McManus's Case were undisputed, the defendants might possibly succeed, but that decision was overruled in the Exchequer Chamber, and we are bound by the law as laid down by the superior Court. Our judgment must, therefore, be for the plaintiff. MARTIN, B.-I am of the same opinion. I still think the view I originally took of the statute when McManus's Case was in this Court was the correct one, but we are bound by the judgment of the Court of Exchequer Chamber, and must therefore give judgment for the plaintiff. first, and to oblige the owner to see to the efficiency of the truck. Taking the two conditions together, it is plain that the company do not intend to be liable for any loss or injury, however caused; the reason is stated; namely, that the charge made is merely for the use of the waggons and for the locomotive power, and I do not see how words can more plainly express the intention of the company not to be responsible under any circumstances for injury done to the cattle. Such being the meaning of the conditions, it appears to me that the language used by Williams, J., in delivering the judgment of the majority of the Court in McManus's Case, applies here. That learned Judge says (4 H. & N. 349; 28 L. J. 359), "It remains to consider whether the condition or special contract in the case before us is just and reasonable, and we are of opinion that it is not. In order to bring the defendant within its protection, it is necessary to construe it as excluding responsibility for loss occasioned, not only by all risks of whatever kind directly incident to the transit, but also for that caused by the insufficiency of the carriages provided by the defendants, though occasioned by their own negligence or misconduct. The sufficiency or insufficiency of vehicles by which the companies are to carry on their business, is a matter, generally speaking, which they, and they alone, have, or ought to have, the means of fully ascertaining. And it would, we think, be not only unreasonable, but mischievous, if they were to be allowed to absolve themselves from the consequences of neglecting to perform properly that which seems naturally to belong to them as a duty. It is unreasonable that the company should stipulate for exemption from liability from the consequences of their own negligence, however gross, or misconduct, however flagrant, and that is what the condition under consideration professes to do." I do not see how the present conditions can be distinguished from those before the Court in McManus's Case, for I do not think that the fact of the owners being specially required to see to the efficiency of the truck in any way assists the defendants. Whether this law is satisfactory, I do not pretend to say. I confess that it appears to me very difficult to answer the question put by my Brother Bramwell during the argument; but we are bound by the law as its stands, and our judgment must, therefore, be for the plaintiff. BRAMWELL, B.-I am of the same opinion. The What is the real meaning of these conditions? House of Lords has decided that a particular contract may be reviewed by the Court or a Judge. I do not exactly understand how in some cases that doctrine is to be applied, for I cannot see how the Court is to determine whether a contract is reasonable or not; but such is the law, and we are bound by it. I abide, however, by what I said at the trial, that no authority can show as a matter of absolute law that a particular contract is under all circumstances reasonable or the reverse; that must depend on the facts, which may vary. With regard to our decision in the present case, I have, however, little doubt, as it appears to me clear that McManus's Case should govern the present one. The first condition is clearly unreasonable, and indeed Mr. James had to give it up, while it is not very easy to make sense of the third condition. On the whole, I agree with the construction put on this condition by Mr. Baron Martin, that it was intended to supplement the first by extending to an injury arising from the state of the truck, for which the company might possibly be held responsible, in spite of the first condi- | tion. This goes even further than the condition which the Court of Exchequer Chamber held to be unreasonable in McManus's Case, and the contract must therefore be held void, and the plaintiff entitled to The testator, by his will, made in 1840, gave, devised, and bequeathed as follows:-I give and devise to my dear wife E all my part, share, estate, or interest of and in the dwelling-house or tenement, and likewise the several closes or parcels of land hereinafter mentioned," (describing them,) "and I also give and bequeath all my goods and chattels, freeholds, dwelling-house, or tenement heretofore mentioned unto my said wife E, for her use and interest during the term of her natural life; and after her decease I give and devise all my property, real and personal, unto my heir or heirs, to be equally divided among them, and as joint heirs of this my abovementioned property." Subsequently to the date of his will the testator acquired land by devise: Held, that the after-acquired property passed by the will, and that the testator's widow took a life estate in it. SPECIAL CASE stated by consent, and under a Judge's order for the opinion of this Court. This was an action of ejectment brought for the recovery of the Long Close and Short Close and two cottages in Heage, in the county of Derby. Joseph Jepson, being seised in fee simple of the lands and cottages next hereinafter mentioned, made his will, dated the 10th of March, 1840, of which the following is a copy : "This is the last will and testament of me, Joseph Jepson, of the City of London. In the first place, I will and direct that all my just debts, funeral, and testamentary expenses be paid, and I give and devise to my dear wife Elizabeth all my part, share, estate, or interest of and in the dwelling-house or tenement, and likewise the several closes or parcels of land hereinafter mentioned, and now in the occupation of Charles Stoppard: that is to say, the Pear-tree Close, the Middle Close, the Roe Close, and the clover piece, situate at Heage, in the county of Derby devolved to me at the death of my father, John Jepson the younger; and I also give and bequeath all my goods and chattels, freeholds, dwelling-house, or tenement heretofore mentioned unto my said wife Elizabeth, for her use and interest, during the term of her natural life; and after her decease I give and devise all my property, real ani personal, unto my heir or heirs, to be equally divided among them, and as joint heirs of this my abovementioned property. Lastly, I nominate, constitute, and appoint my two brothers-in-law, my said wife's brothers, William Booth, grocer, &c., of Green Hil Lane, in the parish of Alfreton, and in the county of Derby, and Job Booth, junior, of Pentrich, in the county of Derby, as joint executors or trustees of this my will, 'and, revoking hereby all former and other wills by me at any time heretofore made, I do hereby declare this only to be my last will and testament." Several years subsequent to the date of his will, and prior to the 9th of June, 1850, an aunt of the testator devised to him the above-mentioned property, calle the Long Close, Short Close, and two cottages, the subject-matter of this action. will was proved on the 24th of March, 1851. The testator died on the 9th of June, 1850, and his The plaintiff is the eldest son of the testator. The defendant's wife, Elizabeth Key, is his widow. The question is, whether the Long Close, Short Close, and the cottages passed by the will of the testator to his widow for her life, or descended to the plaintiff as his eldest son ? If they descended to the plaintiff, judgment shall be entered up for him. If they passed by the will to the testator's widow, judgment shall be entered for the defendant. Fitzjames Stephen, for the plaintiff. The first clause of the will gave the wife a fee in the property specified; the second clause cuts down that fee to an estate for life. Is the second clause more extensive than the first? I contend that it is not. It is obvious enough that the whole object of the second clause is to reduce to a life estate what was given in the first. At the date of the will the testator had no other property than that mentioned therein. Now, although since the Wills Act (1 Vict. c. 26), a will speaks from the death, still you must look to the state of things at the date of the will. The devise contained in the third clause, to his heirs jointly, does not pass the property in question. In putting a construction upon that clause, the words "above-mentioned" must be taken into account. Those words refer back to the first clause, which is the key to the whole. But even if it be a general devise, it gives the wife no estate for life by implication. It must be a necessary implication to exclude the heir. [MARTIN, B.-The 24th section of the Wills Act provides, "That every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." You must make sense of it consistent with the Act of Parliament.] I say that, considering he had mentioned the property before, which he intended to pass, the devise in the third clause is to be limited to what was so mentioned. He cited, Simpson v. Hornsby, Prec. in Ch. 439, 452; embodied in judgment in Rex v. Inhabitants of Ringstead, 9 B. & C. 228; Webb v. Byng, 1 Kay & J. 580; 1 Jarman on Wills, c. 10, 299-307 (3rd ed.). Field, for the defendant. The subsequently-acquired property passes under the will, "unless a contrary intention appear by the will." Where is the contrary intention? The intention is the other way. [MARTIN, B.-I should guess with you that he did mean his wife to be benefited.] Then he goes on :-"Thus, if a testator devises Whiteacre to his heir-apparent or heir-presumptive after the death of his wife, and in the same will devises the residue of his real estate to A (a stranger), since the estate for life not included in the devise to the heir would, if no implied gift were raised, pass to A as real estate not otherwise disposed of, which might possibly be intended, the residuary devisee, and not the wife, would, it is conceived, take the estate during her life.” The only question is-Do the words "all my property real and personal" include after-acquired property? I am of opinion that they do. MARTIN, B.-I am of the same opinion. We must construe the will in obedience to section 24 of the Wills Act. It is incumbent on the plaintiff to establish that an intention appears on the face of the will that the testator's wife should not take. If there were room for speculation, I should guess that he meant her to take a life estate in all his property. But it is plain that the testator meant all his goods and all his freeholds. In my judgment, Mr. Stephen has failed to show us that an intention to the contrary appears; and I am therefore of opinion that the after-acquired property passed. CHANNELL, B.-I am of the same opinion. It is not disputed that section 24 of the Wills Act applies. The foundation of the plaintiff's claim is, that he is heir-at-law. It is said that the three devises in the first, second, and third clauses all relate to the same subject matter, and that there is such a specific description in the first clause that the property subsequently acquired by the testator did not pass by his devises land in Berkshire, and afterwards acquires I agree that if a testator land in Cornwall, you cannot say that the afteracquired property passes. In the first clause the testator devises [reads first clause]. In the second clause he introduces personal property, and uses the will. I do not think so. The point as to the estate for life by implication words "heretofore mentioned." I think, however, comes to the same question. Fitzjames Stephen, in reply. POLLOCK, C. B.-It appears to me that the defendant is entitled to judgment. The will speaks from the death of the testator; he gave and devised “all my property, real and personal." He uses language which would include any quantity of real and personal estate. An ordinary unlearned person would have no doubt whatever as to the intention of the testator. In 1 Jarman on Wills (452, 2nd ed.; 505, 3rd. ed.), there is this passage :-"The position that a devise to the heir after the death of A creates in A an implied estate for life, supposes that the will does not contain a residuary devise; for a devise of this nature would, by disposing of such intermediate estate, and thereby intercepting the descent to the heir, clearly exclude all ground for the implication." It is assumed there that there would otherwise be an estate for life implied. that the devise is not limited as contended by Mr. Stephen. It appears to me that section 24 governs this case, and that we are bound to apply the rule. PIGOTT, B.-I am of the same opinion. I think that the testator intended his widow to enjoy all his estate, real and personal, for her life. We have been pressed with the words "heretofore mentioned." But I do not think that the devise is limited, as was contended. |