VOITURIER.—RESPONSABILITE

Cour DU BANC DE LA REINE, EN APPEL, Montréal, décembre 1872.

Présents: DUuvar, J. en C., CARON, J,, DRUMMOND, J., Bapc- LEY, J., et MONK, J.

Tue GRAND TRUNK RaiLway Co. appelante, et Camp- BELL, intimé.

Jugé : Que, nonobstant l’avis de conditions spéciales, donné par le

voiturier et limitant sa responsabilité, il est comptable du did causé par sa faute ou celle de ceux dont il est responsable. (1)

Appeal from a judgment of the Circuit Court, at Montreal, of the 30th september 1871, TORRANCE, J. Plaintiffs action was brought to recover 150, as damages suffered by plointiff, and elaimed from defendants. Plaintiff bought in London, Ont., in june 1870, two vehicles, one called a a bugwy, " and the other “a carriage,” both with curtains and aprons complete: and, on the 14th june 1870, delivered these two vehicles to defendants, at London, to be conveyed to Montreal. These vehicles arrived in Montreal, about the 22nd day of the same month. They were injured and damaged on the way down, while in charge of defendants, and the curtains and aprons of both vehicles were not delivered to plaintitt in Montreal, but were missing. The receipt given by Thompson, the shipper at London, was in the following words : GRAND 'TRUNK RaAILWAY, London station, June Ldth 1 1870, Received ‘from W, J. Thompson, the undermentioned property, in ap- : pese wood order, addressed to S. C. Campbell, Montreal,

to be sent by The Grand Trunk Railway Company of

Canada, subject to the terms and conditions stated upon

QI Ve art. 1676 C, C.

‘ the other side, and agreed to by this shipping note deliver- “ed to the company, at the time of giving the receipt therefor,

L carriage with cover, 1 buggy with cover, 2 poles, 1 pair of “ shafts” On the other side was the following among other conditions: No. 19. Vehicles, except when tightly boxed, ‘taken entirely at the owners risk of damage from fire, the “the weather, and all other contingencies.” Upon this receipt and upon this condition, the G and Trunk based its defence to the action ; there was also an allegation that they were not guilty of negligence, as alleged. Respondent Campbell met this species of lnw issue by” citing art. 1676, which says: “ Notice by curriers, of special conditions limiting their liabi-

“lity, is binding only upon persons to whom it is made € known; and notwithstanding such notice and the knouwtedye thereof, carriers are liable whenever it is proved that the danage às caused by their fault or the foult of those for achom they are responsible” In this instance, the vehicles were not boxed, but placed on open platform, the usual place where carriages so conveyed were put. The covering was not very strong, but, on the contrary, rather slight for such à distance, It was furnished by Thompson, the consignor.

Notwithstandine the clause, in the receipt given by Thompson to the railway, and pl 1e condition, the court below was of opinion that there a presumption of negligence against the company, and that they were bound to rebut that presumption. The company was condemned accordingly. The Court of Appeals took the same view, and confirmed the judgment.

BADGLEY et MOxKk, JS, dissented, holding that proof of negliwence, under the cireumstances, rested with the owner of the vehicles, and that, in consec quence of the conditions to the bill of Jading, no presumption of negligence could exist against the company in this case, This was à special contract which the parties could legally enter into, in regard to their liability, and even then, that the company could be held liable only for gross negligence, that Campbell did not prove any neyligence for which nos could be held liable in this case. (3 R. L. 451: 1 R.C. 475: 3 KR. C. 49.)

Présent, et