French v. Merchants & Miners Transportation Co.

85 N.E. 424, 199 Mass. 433, 1908 Mass. LEXIS 849

Opinion

Loring, J.

It is stated in the bill of exceptions that the plaintiff did not “ contend that this fire was due to any negligence whatsoever on the part of the defendant, nor that the defendant was lacking in diligence in trying to control and extinguish said fire.” This ended the plaintiff’s case unless it was taken out of the usual rule by the fact that the jury were warranted in finding from the testimony of the plaintiff that she “ could see large objects, but could not read print and had not been able to read for over a year previous to this trip.”

We do not think that the plaintiff’s case would have been taken out of the usual rule if the jury had believed the plaintiff and found that her eyesight was what she testified it to be.

The usual rule is that a passenger who accepts a ticket on which the contract of transportation is stated is bound by its terms whether he reads it or not. Grace v. Adams, 100 Mass. . Quimby v. Boston & Maine Railroad, 150 Mass. 365. Fonseca v. Cunard Steamship Co. 153 Mass. 553. Cox v. Central Vermont Railroad, 170 Mass. 129. Graves v. Adams Express Co. 176 Mass. 280. John Hood Co. v. American Pneumatic Service Co. 191 Mass. 27.

The ticket here in question must be taken on this bill of exceptions to contain on its face nearly two quarto pages of printed provisions.

Footnotes

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* It must have been apparent, even to a person who can see only “ large objects,” that the ticket contained a contract, and the plaintiff was bound to have it read to her if she could not read it herself.

By the terms of the contract between the plaintiff and the defendant, the defendant is nob to be liable for injury to baggage arising from fire. The legal result of such a contract is that it is not liable for fire unless negligent. Grace v. Adams, 100 Mass. 505. School District v. Boston, Hartford & Erie Railroad, 102 Mass. 552. Pemberton Co. v. New York Central Railroad, 104 Mass. 144, 151. Hoadley v. Northern Transportation Co. 115 Mass. 304, 305. What was said by this court in Fonseca v. Cunard Steamship Co. 153 Mass. 553, 557, and in Cox v. Central Vermont Railroad, 170 Mass. 129, 137, means that such a contract is invalid, if it is construed to be a contract exempting the carrier when he is negligent. It was not meant that where the contract exempts the carrier generally without referring in terms to the subject of negligence, it is invalid altogether. Such a contract is construed to be a contract exempting the carrier unless the passenger proves that he was negligent.

The plaintiff therefore is thrown back on her contention that the jury were warranted in finding that the defendant agreed to carry her trunk from Savannah to Boston and was negligent in holding her trunk in Baltimore from June 4 until June 13, when it was destroyed by fire. For the natural and probable consequences of that delay the defendant would be liable if such a finding was warranted on the evidence. But the destruction of the trunk by fire was not the natural and probable consequence of not forwarding it promptly, and, since the only liability of the defendant is for delay, it is not liable for its loss. Denny v. New York Central Railroad, 13 Gray, 481. Hoadley v. Northern Transportation Co. 115 Mass. 304. See also in this connection Whitcomb v. Bacon, 170 Mass. 479, 482; Hurley v. Packard, 182 Mass. 216.

Exceptions overruled.

The copy of the ticket printed in the bill of exceptions contained a statement that it was issued “ subject to the following contract between the purchaser and all lines over which it reads,” followed by eleven provisions stated in five hundred and forty-two words. There was no explicit statement in the bill of exceptions as to the size of the ticket, or whether the printed matter was on its face or its back, but there was a statement, “ The ticket was stamped on its back as follows,” (giving the name of the steamer, the company, and the date) which would seem to indicate that the above provisions were on the face of the ticket.