Great Western Railway Company v McCarthy

• Jurisdiction: Ireland
• Judgment Date: 20 November 1885
• Date: 20 November 1885
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., FITZ GIBBON, BARRY, and NAISH, L. JJ. VOL. XVIII.

M'CARTHY

and

THE GREAT WESTERN RAILWAY COMPANY

Peek v. North Staffordshire Railway Co. 10H. L. Cas. 473.

M'Nally v. Lancashire and Yorkshire Railway Co. 8 L. R Ir. 81.

Gallagher v. Great Western Railway Co.UNK Ir. R. 8 C. L. 326.

Manchester, Sheffield, and Lincolnshire Railway Co.ELR 8 App. Cas. 703.

Ruddy v. The Midland Great Western Railway Co.UNK 8 L. R. Ir. 224.

Foreman v. Great Western Railway Co.UNK 38 L. T. (N. S. )851.

Wallis v. London and South-Western Railway Co. L. R. 5 Exch. C2.

Garton v. Bristol and Exeter Railway co. 30 L. J. Q. B. (N. S. ) 273; 1 B. & Sm. 112.

Brown v. Great Western Railway Co.ELR 9 Q. B. Div. 744.

Hall & Co. London, Brighton and South Coast Railway Co.ELR 15 Q. B. Div. 505, 545.

Scottish North-Eastern Railway Co. v. Anderson 1 Court. Sess. Cas. (3rd series), 1056.

Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 473.

Ruddy v. Midland Great Western Railway Co.UNK 8 L. R. Ir. 224.

Dublin, Wicklow, and Wexford Railway Co. v. SlatteryELR 3 App. Cas. 1155.

Corrigan v. Great Northern Railway Co.UNK 6 L. R. Ir. 90.

Lloyd v. Waterford and Limerick Railway Co. 15 Ir. C. L. Rep. 37.

Manchester, Sheffield, and Lincolnshire Railway Co. v. BrownELR 8 App. Cas. 712,

Ruddy v. Midland Great Western Railway Co.UNK 8 L. R. Ir. 224.

Gallagher v. Great Western Railway Co.UNK Ir. R. 8 C. L. 326.

Gregson v. Potter 4 Ex Div. 142.

Pryce V. Monmouthshire Canal and Railway Co.ELR 4 App. Cas. 197.

Hart v. Baxendale 6 Ex. Rep. 769.

Wallis V. London and South-Western Railway Co.ELR L. R. 5 Ex. 62.

Watkins v. RymillELR 10 Q. B. Div. 178.

Lewis v. Great Western Railway Co.ELR 3 Q. B. Div. 195.

Peek's Case 10 H. L. Cas. 473.

Ruddy v. Midland Great Western Railway Co.UNK 8 L. R. Ir. 224.

M'Nally's CaseUNK 8 L. R. Ir. 81.

Manchester, Sheffield, and Lincolnshire Railway Co. v. BrownELR 8 App. Cas. 703.

Foremans's CaseUNK 38 L. T. (N. S. )851.

Sheridan's Case Court of Appeal, 22 June, 1880, unreported.

Ruddy's CaseUNK 8 L. R. Ir. 224.

Brown v. Great Western Railway Co.ELR 9 Q. B. Div. 744.

Sheridan v. Midland Great Western Railway Court of Appeal, 22nd June, 1880, unreported.

Ruddy v. Midland Grreat Western RailwayUNK 8 L. R. Ir. 224.

Lewis v. Great Western Railway Co.ELR 3 Q. B. Div. 195.

Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 473.

Foreman v. Great Western Railway Co.UNK 38 L. T. (N. S. ) 851.

Foreman v. Great Western Railway CompanyUNK 38 L. T. (N. S. ) 851.

Foreman's CaseUNK 38 L. T. (N. S. ) 851.

Garton V. Bristol and Exeter Railway Co.ENRUNK 1 B. & S. 112; 30 L. J. Q. B. 273.

The Scottish North-Eastern Railway Co. v. Anderson 1 Court Sess. Cas. ser. 3) 1056.

Pryce v. Monmouthshire Canal and Railway Co.ELR 4 App. Cas. 197.

Hall v. London, Brighton, and South-Western Railway Co.ELR 15 Q. B. Div. 505.

Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 473.

Manchester, Sheffield, and Lincolnshire Railway Co. v. BrownELR 8 App. Cas. 703.

Carriers Raliway Company Two rates mdash; Contract relieving Company from liability Unreasonable condition Onus of proof Tolls Posting.

LAW REPORTS (IRELAND). QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER DIVISIONS. M`CARTHY v. THE GREAT WESTERN RAILWAY COMPANY (1). Carriers-Railway Company-Two rates-Contract relieving Company from liability-Unreasonable condition-Onus of proof-Tolls-Posting. In an action for damages for injuries to the plaintiff's cattle, admittedly caused by the negligence of the defendants-a Railway Company-the defenÂÂdants relied upon the fact that the plaintiff had signed a consignment note, on the face of which the Company gave notice that they had two rates for the conÂÂveyance of cattle, &c. : one, the. ordinary rate, when they took the ordinary liability of the carrier; and the other, a reduced rate, adopted when the sender relieved them of all liability of loss, damage, or delay, except arising from wilÂÂful misconduct on the part of the Company's servants; and in the note the sender, in consideration of the Company carrying his cattle at the reduced rate, underÂÂtook to relieve the Company from all liability, except upon proof of the wilful misconduct of the Company's servants. The amount of the higher rate did not appear from the consignment note. It was proved by the defendants that in the booking-office there was a notice (which the plaintiff, however, denied ever having seen) to the effect that the Company had two through rates for the conveyance of live stock, viz. the owner's risk rate, at which the Company undertook no risk, except for loss proved to have arisen through wilful negligence or misconduct on the part of the Company, and the Company's risk rate, which was 10 per cent. over the (1) Before Loan ASHBOURNE, C., Firs GIBBON, BARRY, and NAIRN, L. JJ. VoL. XVIII. LAW REPORTS (IRELAND). [L. R. I. tination in such condition as to be able to walk from the truck. The booking-clerk proved that there was a higher rate mentioned in the notice, and that this higher rate was considerably under the parliamentary maximum. The plaintiff obtained a verdict at the trial, and the defendants having moved to enter the verdict for them, or for a new trial : Held, by the Court of Appeal, that the defendants had failed to give any evidence that they had offered the plaintiff to carry his cattle upon reasonable terms at the Company's risk as common carriers or otherwise, and that therefore the contract on the plaintiff's part to exonerate the Company from risk was void, and the plaintiff was entitled to recover. APPEAL by the defendants from an order of the Exchequer Division discharging a conditional order to have a verdict for the plaintiff set aside and entered for the defendants. The action was brought by the plaintiff against the defendants for damages for injuries sustained by his cattle (which he had booked in Cork to be carried thence to Colney Hatch) in that part of the journey from Bristol to Colney Hatch. Among other defences, the defendants pleaded " That the said cattle were received and carried under a special contract signed by the person delivering them, on terms which were just and reasonÂÂable, to the effect that the defendants would not be liable in reÂÂspect of any loss or detention of or injury to the said cattle, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from wilful misconduct on the part of the defendants or their servants, and the defendants deny that the injuries complained of were caused by any wilful misconduct on the part of the defendants or their servants." The case was tried before Lord Chief Justice Morris and •a special jury. The plaintiff proved that he forwarded eighty-nine cattle to be carried from Cork to Colney Hatch, and paid 16 15s. for fifty, VOL. XVI[I.] Q. B., C. P., & EX. DIVISIONS. 13 108. for thirteen, and. 14 7s. 6d. for twenty-six. James Appeal. Sheedy proved. that he used to ship cattle via Bristol, and sent 1885. these eighty-nine cattle by his son to be shipped on the 27th April, ii`CARTIfY 1883 ; that he was in the shipping trade for forty-five years, and GT.WEST] never saw any different scales of prices in the office-15s. 6d. was RAILWAY Co. rate for fat cattle, 11s. for lean, and 8s. 6d. for two year olds; that the freights on these cattle were paid at that rate ; that his son signed a contract note, and he had often done so ; that he had never heard of there being two rates. J. J. Sheedy, the son of the last witness, was examined, and gave the following evidence :-" I shipped the cattle, gave them up to City of Cork Company, and I signed. consignment notes.* We book the whole way to London with City of Cork Company. I paid the freight for entire way to Cork Company. I never saw any rate but one." Cross examined-" I sign almost every Friday consignment notes." Evidence was then given on behalf of the plaintiff that the cattle were injured and some of them killed by a collision, and it was admittedly caused by the negligence of the Company's servants, and loss to plaintiff of 483 lls. 8d. was proved. On behalf of the defendants, F. E. Staunton gave the following evidence :-" Am agent for defendants for nine years ; we have a separate office from Steam Company two hundred yards away. The owner's risk rate is I Is. a head-it is not published-8s. 6d. for yearlings ; 4d. a head is taken off for expense of driving through Bristol. The notice produced was in Sheffield's office ; he is the cattle superintendent at Cork Steam Company's office. It was posted up in 1880. There is a higher rate mentioned in the notice ; it is 10 per cent. over owner's risk rate. The maximum rate was 17s. a head. After two trials of it shippers ceased to go at higher rate. No list of rates was exhibited, but they are in the books. We did not insert the higher rate." Thomas George Sheffield proved :-" I was in employment of Cork Steam Company for fourteen years. I act for my Company, who are agents for the Great Western Company. I know Sheedy * The Form of the Consignment Note signed on behalf of the plaintiff by 4. J. Sheedy will be found at end of statement of the ens, pp. 5, 6. /3 2 4 LAW REPORTS (IRELAND). [L. R. I. Appeal. well. He paid for two descriptions of cattle-11s. for one, and 1885. 8s. 6d. for the other. The notice produced was in our outer office. M'CARTHY There was no notice up before 1881." v. GT. WEST ERN RAILWAY Co. "GREAT WESTERN RAILWAY (OF ENGLAND). " The Great Western Railway Company hereby give notice that they have two through rates for the conveyance of live stock from Cork to places in EngÂÂland, and forwarded over their line from New Milford or Bristol, namely : " The owner's risk rate, at which the Company undertake no risk in respect of rail transit, except for loss which can be proved to have arisen through wilful negligence or misconduct on the part...