Thomas Lloyd The Waterford and Limerick Railway Company v

• Jurisdiction: Ireland
• Judgment Date: 07 May 1862
• Date: 07 May 1862
• Court: Queen's Bench Division (Ireland)

Queen's Bench

Before LEFROY, C. J., O'BRIEN and FITZGERALD, JJ.

THOMAS LLOYD THE WATERFORD AND LIMERICK RAILWAY CO.

and

Armstrong v. TurquandIR 9 Ir. Com. Law Rep. 32.

Pardington v. The South Wales Railway CompanyENR 1 H. & N. 392.

M'Manus v. The Lancashire and Yorkshire Railway CompanyENR 2 H. & N. 693.

Beal v. The South Devon Railway CompanyENR 5 H. & N. 875.

Harrison v. The London, Brighton and South Coast Railway Company 6 Jur., N. S., 954; S. C., 2 B. & Sm. 122.

Phillips v. EdwardsENR 3 H. & N. 813.

Lewis v. The Great Western Railway CompanyENR 5 H. & N. 867.

Phillips v. ClarkENR 2 C. B., N. S., 156.

Lyon v. MellsENR 5 East, 428.

White v. The Great Western Railway CompanyENR 2 C. B., N. S., 7.

Simons v. The Great Western Railway CompanyENR 18 C. B. 805.

Peek v. The North Staffordshire Railway CompanyENR 9 El. & Bl. 958.

Ransome v. The Eastern Counties Railway CompanyENR 8 C. B., N. S., 709.

M'Cance v. The London and North-Western Railway CompanyENR 7 Jur., N. S., 1304; S. C., 7 H. & N., 477.

Bennet v. Filkins 1 Saund. Rep., by Wms., 23, note 5.

The Times Fire Insurance Company v. Hawke 28 L. J., N. S., Exch., 317.

M'Manus v. The Lancashire and Yorkshire Railway CompanyENR 4 H. & N. 327.

Pardington v. The South Wales Railway CompanyENR 1 H. & N. 392.

Wise v. The Great Western Railway CompanyENR 1 H. & N. 63.

Garton v. The Bristol and Exeter Railway CompanyENR 1 Best & Smith, 112; S. C., 7 Jur., N. S., 1234.

Peek v. The North Staffordshire Railway Company 9 Ell. & Bl. 986.

Harrison v. The London, Brighton and South Coast Railway Company 6 Jur., N. S., 954; S. C., & Sm. 122.

Kenyon v. Tayleur 8 Ir. Com. Law Rep., App. 76.

M'Manus's caseENR 4 H. & N. 327.

COMMON LAW REPORTS. 37 E. T. 1862. Queen's Bench THOMAS LLOYD THE WATERFORD AND LIMERICK RAILWAY CO.* " defendants, and the defendants received as such carriers, seven- tion r otheexempt-m lsev themselves fromall lia " teen horses, the property of the plaintiff, to be taken care of, and bspileiotyt ofin" there e "safely and securely carried by the defendants from Limerick to the horses, "whe ther in the "Limerick Junction station as aforesaid, and there, within a reason- loading, un- loading, or in " able time in that behalf, to be safely and securely delivered by the the transit and of "defendants to the plaintiff; yet the defendants neglected for a long conveyance same, or whilst "and unreasonable time in that behalf to carry and deliver the -said in " om- the C pany's " vehi- "horses as aforesaid, and unreasonably detained the said horses at Iles, or on their premi "Limerick aforesaid for several hours, and did not take due care ses."-dleld, that the condi " thereof; but on the contrary allowed or caused the said horses tion was in itself unjust " to be greatly frightened by divers noises while so detained; by and unreason able. 38 COMMON LAW REPORTS. "Junction station, and there delivered by the defendants for the "plaintiff within a reasonable time, for reward to the defendants; "the defendants promised the plaintiff to carry the said horses from "Limerick to the Limerick Junction station aforesaid, and there to " deliver said horses within a reasonable time ; and the plaintiff "delivered the said horses to the defendants ; and the defendants "received the same for the purpose and on the terms aforesaid "- " [general averment of the performance of all conditions precedent] -" yet the defendants did not carry and deliver the said horses "as aforesaid within a reasonable time, whereby several of said "horses fell sick, and were injured and greatly deteriorated in " value ; and the plaintiff has been obliged to expend, &c." Third paragraph :-" That, in consideration that the plaintiff " would deliver to the defendants, as and being carriers of goods "for hire, certain goods, to wit, seventeen horses of great value, "to be by the defendants carried from the city of Limerick to the " Limerick Junction station, and there delivered by the defendÂ" ants for the plaintiff, for reward to the defendants; the said "defendants promised to the plaintiff to carry said horses from "the said city of Limerick to the said Limerick Junction station, "and there to deliver said horses at such an early hour on the "day of their departure from Limerick, that said horses might be "carried from said Limerick Junction station to Dublin, and might "reach the place last mentioned before the close of the same day; and " the plaintiff hereupon delivered said horses to the defendants, and " the defendants received the same for the purpose and on the terms "aforesaid"-[general averment of the performance of all conditions precedent]-" yet the defendants did not carry and deliver said "horses within such a time and at such an hour as they proÂ" mised in that behalf; and, by reason of such their default, the "said horses did not arrive at Dublin until long after the close "of the said day; and several of the said horses, in consequence, "fell sick," &c.-[Same conclusion as in the second paragraph]. Fifth defence to the first, second, and third paragraphs of the summons and plaint, and to each of them respectively-" That the " horses were received, to be carried and conveyed by the defendants, COMMON LAW REPORTS. 39 " from," &c., to, &c., " at a certain special reduced rate of charge, and E. T. 1862. en's Bench " under and subject to a certain contract, made between the plaintiff Que Bh " and the defendants, and signed by the plaintiff, whereby it was LLOYD v. "agreed that the said horses, being so received as in this plea men- WATERFORD AND " tinned, the defendants should in no case be responsible for the LIMERICK " delivery of the said horses at any particular time, and should be RAILWAY. " free from all liability in respect of them, whether in the loading " or unloading, or in the transit or conveyance of the same, or whilst " in their vehicles or on their premises ; and defendants say that the "said alleged injury, damage, or deterioration, in the summons and " plaint mentioned, occurred and was caused while the said horses " were being loaded or unloaded, or in the transit or conveyance of " the same, or whilst in their vehicles or on their premises." Replication :-" That the contract in the fifth defence mentioned " was in the words and figures following :- " Local Dealer 59 "WATERFORD AND LIMERICK RAILWAY. " Ticket for Horses and Carriages. " Date-2 I 11 I '61. " From Limerick to Junction. " Via RATE. Amount paid. A.-Low rate B.-20 per cent. extra. I. s. d. 3s. Od. 2 11 0 Total . . . £2 11 0 " Owner's name-Lloyd. " Groom's name-3 men. "A. The Waterford and Limerick Railway Company undertake " the conveyance of horses at the low rates of charges above stated, "solely on the condition that they shall be free from all liability in " respect of them ; whether in the loading, unloading, or in the 40 COMMON LAW REPORTS. "transit and conveyance of same, or whilst in their vehicles or on " their premises." . " B. The Waterford and Limerick Company will undertake the " risk of conveyance only in consideration of an additional payment " of £20 per cent. on the low rate of charge ; but no claim for " damage sustained by any animal conveyed at such additional rate " will be entertained by the Company, unless the injury is stated " and pointed out to the Company's agent at the time of unloading." " The Company will in no case be responsible for the delivery of " horses at any particular time, or for any particular market or " race-meeting." "And they will, in no case, be responsible for any greater value "of any horse than the sum mentioned in the Railway and Canal " Traffic Act of 1854 ; unless, at the time of delivery to the ComÂ" pang, the person sending or delivering the same shall declare it of "higher value; in which case the Company will charge, in addition, " £5 per cent. on the excess of value declared." " The ticket must be given up on arrival." " The above consignment has been delivered to the Company, to " be carried by them at owner's risk, on the foregoing terms and " conditions." " D. O'DwYED, Booking Clerk." " And plaintiff says that said contract is not a just or reasonable "contract." Demurrer thereto.* * The following were the points noted for argument on the demurrer:- First. That the question, whether said contract is just and reasonable, can only be material under the provisions of the Railway and Canal Traffic Act 1854; and it does not appear whether the plaintiff has relied on said Act in the pleadings. Second. That, even if the plaintiff does rely on said Act, the gist of the action is not for any loss or injury within said Act. Third. That, even if the gist of the action were for such loss or injury, it is immaterial whether said contract be just and reasonable or not. COMMON LAW REPORTS. 41 Walter Boyd (with whom were Serjeant Sullivan and S. FerÂguson), in support of the demurrer. The construction which the decision in Armstrong v. TurÂquand (a) put upon the Common Law Procedure Amendment Act (Ir.} 1853, ss. 63 and 64, enables the Court, upon the argument of a demurrer, to read the whole of a document relied on in the pleadings, though it has not been set out verbatim. This replicaÂtion therefore has been filed, not for the purpose of stating the contract in full, but of referring to the jury, as an issuable fact, the justness and reasonableness of the conditions. But the 17 & 18 Vic., e. 31, s. 7, has left that question entirely to the decision of the Court or Judge ; so that the replication is bad on that account. It is also bad because, as the conditions were contained in a special contract, signed by the sender of the horses, pursuant to the 17 & 18 Vic., c. 31, s. 7, it was not necessary that they should be just and reasonable. The first proviso in that section deals with conditions delivered to, but not signed by, the sender ; and limits the ComÂpany's power to impose such conditions, by enacting...