Richardson v. North Eastern Railway Co. 1872 4. The defendants are not common carriers of dogs; but it was proved that on one previous occasion they had for hire carried the same dog for the plaintiffs, when no ticket was given; and there was no evidence that the plaintiffs had on that occasion any knowledge of the above notices. 5. It was contended for the plaintiffs, that the defendants having undertaken, for valuable consideration, to carry the dog safely from Temple Sowerby station to Morpeth, on the complete delivery of the dog to them they became responsible for the security of the dog, and the dog then remained at the risk of the defendants, who were bound to lock the dog up or take other proper means to secure it; that the defendants were guilty of negligence, in the first place, in not making the strap secure, and, in the second, in tying the dog to an iron spout in the open station of Kirkby Stephen and leaving it alone in a strange place, amongst strangers, instead of keeping it either in hand or in the van of the Temple Sowerby train or in a building until the Tebay train arrived, and then transferring the dog direct from the Temple Sowerby train to the Tebay train; that there was no notice to the plaintiffs of any special conditions by which the company limited their liability; *and that, having [78 been guilty of negligence, the defendants could not take advantage of their own wrong or avail themselves of any notice to the purport or effect of the notices above referred to. 6. It was contended for the defendants that the loss arose through no negligence on their part, but from the insecurity of the collar placed on the greyhound by the plaintiffs; and that, the defendants not being common carriers of dogs, but only professing to carry dogs on the terms stated on the bills marked A. and B., they were not liable at all under the circumstances, and in any event could not be liable in damages beyond 21. 7. The judge gave a verdict for the plaintiffs for the full amount claimed, viz. 50l., on the several grounds following:The defendants were guilty of negligence in not seeing that the strap was properly secured when the dog was in their charge, and also in leaving the dog alone amongst strangers in a strange place in the station at Kirkby Stephen tied to a spout from which it almost immediately escaped, instead of securing it in the van or in some other safe place, they being responsible for 1872 Richardson v. North Eastern Railway Co. its security. The collar might be sufficiently fastened for ordinary circumstances; but the dog, being left alone, fought itself loose, which in all probability would not have happened if it had been conducted by one of the company's servants from one van to the other. The printed paper A. suggested as a notice, is not a notice within the meaning of the statute (17 & 18 Vict. c. 31, s. 7) for several reasons, viz: It does not purport to be a public notice, but merely a time-table showing the times of arrival and dispatch of trains; it is not signed by any authority of the company: the paragraph applying to dogs is a mere marginal note, and is in no way a leading feature in the document: the notice B. does not apply to dogs unless specifically named, and is not in conformity with the Railway and Canal Traffic Act, but is in small print, and is directly at variance with the requirement of the statute that such a notice shall be in legible characters. There should have been a special contract signed by the parties. In Peck v. North Staffordshire Ry Co. (1), the House of Lords held that "all the parts of s. 7 of 17 & 18 Vict. c. 31 must be read together; and, not only must the terms limiting liability be reasonable, but they must be embodied in 79] a special *contract in writing signed by the owner or sender of the goods." It is no defence in this case for the company to say that the dog was delivered to them so near to the time of the departure of the train as not to afford time for giving a ticket, as they might well have refused to take it until the next train. The question for the opinion of the Court was, whether or not the verdict should stand. Shield, for the defendants. The 7th section of the Railway and Canal Traffic Act (17 & 18 Vict. c. 31) has no application to this case. The company not being common carriers of dogs, they can only be liable as bailees on the terms of the notices A. and B., upon which terms alone the collector had authority to contract on their behalf; and, if he exceeded his authority in this respect, the company are not responsible. Belfast and Ballymena Ry. Co. and Londonderry and Coleraine Ry. Co v. Keys (). Assuming there was a contract here, there was no evidence of negligence on the part of the company or their servants; and if there was, the negligence of the plaintiffs themselves in delivering the (1) 10 H. L., 473. (2) 9 H. L., 556. Richardson v. North Eastern Railway Co. 1872 greyhound to the company with a collar so insecurely fastened as to enable her to escape, materially contributed to the loss. Slim v. Great Northern Ry. Co. (1), was also referred to. Kemp, for the plaintiffs. Contributory negligence is for the jury; and the judge must be taken to have negatived it. The case finds that the company are not common carriers of dogs; but they are still liable, as common bailees, for negligence. Neither of the notices having been brought home to the knowledge of the plaintiffs, and the person to whom the greyhound was delivered being in the apparent position of one having authority to contract for the company, and it having been proved that the greyhound had on a former occasion been conveyed by the company for the plaintiffs upon the same terms, it is not competent to them now to set up a contract different from that which would ordinarily be implied from the circumstances. A dog, although not specifically mentioned in the proviso as to the limitation of liability, is within s. 7 of 17 & 18 Vict. c. 31: Harrison v. London and Brighton Ry. Co. (2). *Shield, in reply. The 7th section of 17 & 18 Vict. c. 31, [80 is applicable only to common carriers in respect of things as to which they hold themselves out as common carriers. Van Toll v. South Eastern Ry. Co. (3), Cahill v. London and North Western Ry. Co. (4), Zunz v. South Eastern Ry. Co. (5), were referred to. WILLES, J. This case involves a question of considerable importance with reference to the duty of railway companies to give notice where goods are to be carried only upon special terms, and with reference also to the ostensible authority of their collectors to make contracts which shall be binding upon them. We will therefore take time to consider it. Cur. adv. vult. WILLES, J., delivered the judgment of the Court This case was argued before my Brother Montague Smith and myself at the sittings in banc after last Trinity Term; and (1) 14 C. B. 647; 23 L. J. (C. P.) 166. (*) 2 B. & S. 122; 29 I. J. (Q.B.), 209. () 12 C. B. (N. S.), 75; 31 L. J. (C.P.), 241. (*) 10 C. B. (N.S.), 154; 30 L. J. (C.P.), 289. (5)Law Rep. 4 Q. B., 539. 1872 Richardson v. North Eastern Railway Co. it has stood over longer than we intended, in consequence of the difficulty of communicating with him arising from the recent changes in the constitution of the Court. It was an appeal against a judgment given by a county-court judge in favor of the plaintiffs for the sum of 50l., being the extreme amount to which his jurisdiction in such a case extends, in respect of the loss through the alleged negligence of the servants of a railway company of a valuable greyhound bitch which had been delivered to them by the plaintiffs to be carried by their railway. The facts were these:- The greyhound was taken by one of the plaintiffs to the defendants' station at Temple Sowerby, for the purpose of being conveyed thence to Morpeth, and there delivered to the guard of the train by which she was to travel, the fare demanded by the collector having been duly paid. No declaration of the value of the greyhound was made, or any extra sum paid for insurance; nor was any ticket given to the plaintiffs. At the time she was delivered to the guard, the greyhound had a leather collar round her neck, to which was fastened a strap. The company only professed to carry dogs upon the terms of 81] certain *notices; and it was insisted before the judge of the county-court, as it was again insisted before us upon the argument of the appeal, that the guard had no right to receive the dog upon any other terms than those contained in the notices. In the view we take of the case, it becomes unnecessary to discuss that, because it is expressly found in the case that the company are not common carriers of dogs, and therefore they stand in the position of ordinary bailees, and are only liable in respect of some negligence established against them by evidence, and are not liable if the loss was occasioned or contributed to by the negligence of the person who delivered the dog to them to be carried. It was contended on the part of the company in the court below that there had been no negligence on their part, or that at all events there was contributory negligence on the part of the plaintiffs; and, with a view to see whether that is so or not, it is necessary to state the facts further. When the train was on its way, and had arrived at Kirkby Stephen station, it was necessary for passengers and goods intended for Morpeth to be removed to another train on the other side of the station. The train by which the rest of the journey was to be performed not being ready, the guard by Richardson v. North Eastern Railway Co. 1872 means of the strap which was attached to her collar fastened the greyhound to an iron spout on the platform, to wait until the train came up. The fact of her having been fastened to an iron spout has nothing to do with the decision of the case: it is not stated whether the spout was sufficient for the purpose or not. She was fastened by means of a strap which one of the plaintiffs had himself attached to the collar for the purpose of securing her. Being so fastened, she slipped her head through the collar and ran on to the line and was killed by a passing train. The county-court judge decided that the defendants were responsible for the escape and consequent destruction of the dog, on the ground that they by their servants were guilty of negligence and that there was no contributory negligence on the part of the plaintiffs. We are clearly of a different opinion. The county-court judge in deciding as he did appears to have proceeded upon a supposition that the case fell within the ruling of Lord Ellenborough in Stuart v. Crawley. () That case, however, in our judgment *differs in some essential particulars [82 from the present. It was an action against a carrier of goods by the Grand Junction Canal for negligence in losing a valuable greyhound which had been delivered to him to be carried from London to Harefield Lock. It appeared that the servant of the plaintiff took the dog to the defendant's warehouse with a string about his neck, and the defendant's bookkeeper gave a receipt acknowledging the delivery; that the dog was afterwards tied by the cord to a watch-box, but within half an hour afterwards slipped his head through the noose, and was lost. It was sought to charge the plaintiff with negligence in not delivering the dog to the defendant's bookkeeper in a state of security, he having no collar, but merely a cord round his neck, which was insufficient; and the case was sought to be assimilated to that of a delivery of goods imperfectly packed. But Lord Ellenborough held that the defendant was responsible. "The case," he said, "was not like that of a delivery of goods imperfectly packed, since there the defect was not visible; but in this case the defendant had the means of seeing that the dog was insufficiently secured. After a complete delivery to the defendant, he became responsible for the security of the dog: (1) 2 Stark., 323. |