subject to contractual waiver is so difficult of statement that its reasonableness is from that fact seriously impugned. Something more evidently is meant than the gross negligence which consists in failure to exercise slight care where slight care only is required of the bailee under the classification which Lord Holt attempted so unsuccessfully, save for purposes of confusion, to import into the law of England from the civil law, and which Baron Rolfe was driven to describe as nothing but negligence "with the addition of a vituperative epithet." 14 It would no doubt be safe to limit the gross negligence on the part of a servant, against which, according to the Illinois cases, the carrier cannot contract, to misfeasance or wilfulness, excluding mere inadvertence or inattention however great, save as wilfulness may be inferred therefrom as a matter of fact.15

Another illustration drawn from carriers-of-goods cases of the difficulty arising in attempting to answer the question as to the validity of contractual limitations of liability is furnished by the conflict of authorities as to whether an agreed valuation is effectual to limit recovery for a loss by negligence. Leaving out of view the cases of fraudulent misrepresentation on the one hand in which the carrier has been misled into accepting for transportation articles of exceptional value which would not have been accepted as within the nature and scope of his business, or would have been accepted only with extra precautions for safety for which a higher charge would have been made if the nature of the contract had been understood; 16 and also cases where the shipper has been given no real opportunity to have his goods transported otherwise than under a condition limiting his recovery in case of loss to a stipulated sum,17 — there is a really perplexing question as to the validity of a contract in

14 Wilson v. Brett, 11 M. & W. 113, 115 (1843).

15 No doubt the Illinois court assumed that it was stating the English rule, but a reference to the English cases indicates that in prohibiting limitation by notice of liability for gross negligence the English courts meant merely to announce what is the almost universally recognized rule in this country, that as against gross negligence no notice of limitation of liability is effectual. Wyld v. Pickford, 8 M. & W. 443, 461 (1841). This interpretation is put on the English cases by Judge Story in Tracy v. Wood, 3 Mas. (U. S.) 132 (1822).

16 The typical case is that of a shipment of money concealed in a nail bag filled with hay. Gibbon v. Paynton, 4 Burr. 2298 (1769).

17 McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689 (1887).

which the rate of carriage is fixed in accordance with the risk assumed by the carrier; that is, a contract in which for the consideration of a lower rate the shipper agrees that the value for which the carrier shall be held liable is in fact less than the real value of the goods. If the loss is due to negligence, this contract is in effect a limitation of liability for negligence and considered from that point of view it ought to be invalid, and many courts have so held.18 But the view approved by what is no doubt the greater weight of authority is that following the analogy of the fraud cases, the shipper is estopped, after putting a valuation on his goods which must necessarily affect the care which the carrier will exercise in their transportation, from claiming that they are of greater value than represented.19 On the theory of these cases the agreed valuation is not a contract against liability for negligence, although its effect is to exempt the carrier from liability for that cause beyond the agreed valuation; therefore a state statute forbidding contractual limitation of carrier's liability does not render invalid such an agreement.20 But under the language of many state statutes prohibiting any contract affecting the carrier's liability, it is plain that the agreed valuation stipulation is invalid; 21 hence the recent decisions of the Supreme Court of the United States giving to the Carmack Amendment the effect of nullifying all state statutes which restrict contractual limitations on the carrier's liability so far as interstate commerce is concerned are of vital importance; 22 for as to interstate commerce these cases sustain uniformly throughout the states, regardless of statutes, the validity of stipulations as to agreed valuation even as to negligence.

18 United States Express Co. v. Backman, 28 Oh. St. 144 (1875); Black v. Goodrich Transp. Co., 55 Wis. 319, 13 N. W. 244 (1882); Moulton v. St. Paul, M. & M. Ry. Co., 31 Minn. 85, 16 N. W. 497 (1883); Railway Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311 (1890); Georgia R. & B. Co. v. Keener, 93 Ga. 808, 21 S. E. 287 (1894); Everett v. Railroad, 138 N. C. 68, 50 S. E. 557 (1905).

19 Graves v. Lake Shore & M. S. R. Co., 137 Mass. 33 (1884); Hart v. Pennsylvania R. Co., 112 U. S. 331 (1884); Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113 (1891); Coupland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. 870 (1892); Donlon v. Southern Pacific Co., 151 Cal. 763, 91 Pac. 603 (1907).

20 Donlon v. Southern Pacific Co., 151 Cal. 763, 91 Pac. 603 (1907).

21 Lucas v. Burlington, C. R. & N. Ry. Co., 112 Ia. 594, 84 N. W. 673 (1900); St. Louis & S. F. Ry. Co. v. Sherlock, 59 Kan. 23, 51 Pac. 899 (1898).

22 Adams Express Co. v. Croninger, 226 U. S. 491 (1913); Missouri, Kan. & Tex. R. Co. v. Harriman, 227 U. S. 657 (1913); Boston & Maine R. Co. v. Hooker, 233 U. S. 97 (1914); Atchison, T. & S. F. R. Co. v. Robinson, 233 U. S. 173 (1914).

In the attempt to ascertain the considerations of public policy relied upon in reaching a conclusion one way or the other in carriersof-goods cases as to whether negligence not amounting to wilfulness or misconduct as a basis of liability may be waived by contract, it is easy to see that substantially two views have been entertained which are inconsistent. In accordance with one view, the common carrier may by contract reduce his liability to that of ordinary bailee, but even as ordinary bailee such limitation of liability does not relieve him as against negligence; while the other view finds it to be contrary to public policy to allow the common carrier who is in a situation of advantage with reference to his individual customer to avail himself of that advantage by making any contract for a relief from his common-law obligations. Considering this diversity of view only from the standpoint of carrier law, it must be admitted that the weight of authority is with the first, with the consequent result as bearing on the abstract question of limitation of liability for negligence in any bailment relation that such contract is against public policy. On the other hand, coming at the question from the viewpoint of general bailment obligation, the second solution would seem more reasonable, for the considerations of public policy in regard to the carrier only forbid his taking advantage of the situation to impose on his customer a limitation to the latter's disadvantage. This solution would not only be more satisfactory in simplifying the law of carrier's liability which otherwise is in a state of inexplicable confusion, but also in suggesting a more consistent result in regard to bailee liability in general where no question of public service is involved; for as negligence is after all only the failure to exercise the care required under the circumstances of the transaction and nothing more, it ought in reason to be open to the parties entering into an ordinary bailment relation to determine for themselves what care is to be expected of the bailee, and there can be no plausible reason suggested why, if the bailee does not fall short of the care to be expected of him, he should be subjected to liability on the ground of negligence.

Perhaps after all the question is one of definition rather than of substance. If the bailee is not negligent he is not liable, and what is usually spoken of as a contractual limitation of liability becomes only a question of contractual definition of duty. According to

this view, the question whether a bailee may by contract limit his liability for negligence would never arise.

In cases relating to passenger-carrier's liability, the validity of contracts exempting the carrier has been approached from a somewhat different angle than in the cases relating to common carriers. of goods, for although such carrier is engaged in a public calling he nevertheless is not subjected to any extraordinary liability on that account. It is said that he must exercise the highest degree of care and diligence which human foresight can suggest for the safety of the passenger; but this is said because he employs the dangerous agencies of vehicles propelled by steam or other motive power involving extraordinary danger. It is doubtful whether any well considered case is to be found in which the degree of care required is held to be greater on account of the business in which the carrier is engaged being public rather than private.

As the liability of the carrier of passengers depends therefore solely on his negligence, the general question of the validity of contracts limiting liability for negligence seems to be squarely in issue in the passenger-carrier cases; but unfortunately there is here the same conflict in the decisions of the courts as has already appeared in cases relating to carriers of goods. The inclination seems to have been very strong to declare as a matter of public policy that no such contractual limitation is valid; and by the great preponderance of authority contractual limitation is repudiated wherever the carriage is in pursuance of an agreement or obligation assumed for any consideration of mutual benefit, even though the carriage of the person may be only incidental to some other purpose. Thus in the drover's-pass cases involving contracts by which live stock is transported with the privilege to the shipper of sending someone on the train to accompany the stock, it is generally held that notwithstanding stipulations in the contract to the contrary the carrier is liable for any injuries resulting to such person through the carrier's negligence, the leading case being that of Railroad Co. v. Lockwood,23 in the Supreme Court of the United States. On analogous reasoning it has often been held that contracts exempting the carrier from liability in the case of mail agents,

23 17 Wall. (U.S.) 357 (1873.) Strong cases to the contrary are, however, numerous. For example, see Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315 (1865), and Gallin v. London & N. W. R. Co., L. R. 10 Q. B. 212 (1875).

express messengers, and newsboys are invalid.24 But a fuller discussion of cases of this character has resulted in a marked departure from the broad generalization in the Lockwood Case on the theory that as the passenger carrier is under no obligation in pursuance of his public calling to carry persons who pursue some business or occupation on the train, to whom transportation is merely incidental, a contract relieving the carrier from liability for injury to such persons, even through its own negligence or that of its servants, is valid; 25 and when the courts came finally to consider cases of absolutely gratuitous passage, that is, cases in which there was no consideration whatever to furnish an inducement to the carrier for transportation of a person who was allowed to ride as a mere privilege and not in consequence of any public-service obligation on the carrier's part, the conclusion was reached by a great weight of authority that a stipulation relieving the carrier from any liability whatever (unless it might be for gross negligence amounting practically to wilful injury) was valid.26 The Supreme Court of the United States approves this rule, qualifying its own assertion in the Lockwood Case against any contractual limitation of liability for negligence.27

If, then, there is any general rule to be deduced from the passenger cases it is that the public-service consideration alone prevents contractual limitation of liability for negligence.

24 Jones v. St. Louis S. W. Ry. Co., 125 Mo. 666, 28 S. W. 883 (1894); Shannon's Adm'r v. Chesapeake & O. R. Co., 104 Va. 645, 52 S. E. 376 (1905); Davis v. Chesapeake & O. R. Co., 29 Ky. L. R. 53, 92 S. W. 339 (1906).

25 Griswold v. New York & N. E. R. Co., 53 Conn. 371 (1885); Bates v. Old Colony R. Co., 147 Mass. 255, 17 N. E. 633 (1888); Hosmer v. Old Colony R. Co., 156 Mass. 506, 31 N. E. 652 (1892); Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069 (1894); Blank v. Illinois Cent. R. Co., 182 Ill. 332, 55 N. E. 332 (1899); Russell v. Pittsburg, etc. Ry. Co., 157 Ind. 305, 61 N. E. 678 (1901). The Supreme Court of the United States has approved this rule in Baltimore, etc. R. Co. v. Voigt, 176 U. S. 498 (1900). The Supreme Court of Illinois seems to have regarded the reasoning in these cases as so persuasive that it has abandoned its exception of gross negligence from contractual limitation of liability. Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, 74 N. E. 705 (1905). But there are unqualified denials on the other hand of any validity of a limitation of liability for negligence even in the case of a purely gratuitous passenger. See Jacobus v. St. Paul & C. Ry. Co., 20 Minn. 125 (1873).

26 Quimby v. Boston & Maine R. Co., 150 Mass. 365, 23 N. E. 205 (1890); Annas v. Milwaukee & N. R. Co., 67 Wis. 46, 30 N. W. 282 (1886); Muldoon v. Seattle City Ry. Co., 7 Wash. 528, 35 Pac. 422 (1893); Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539 (1900).

27 Northern Pacific R. Co. v. Adams, 192 U. S. 440 (1904).