White v The Great Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 1857 |
| Date | 20 February 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 312
IN THE COURT OF COMMON PLEAS, AND IN THE EXCHEQUER CHAMBER.
S. C. 26 L. J. C. P. 158; 5 W. R. 488.
white v. the great western railway company. Feb. 20, 1857. [S. C. 26 L. J. C. P. 158; 5 W. R. 488.] In an action against a railway company for negligence in forwarding goods, whereby they lost a market, the declaration alleged that the defendants were common carriers, and received the goods in question to be carried by them as such common carriers for hire and reward. Plea, traversing the averment that the defendants received the goods as common carriers. It appeared in evidence that the defendants did not receive any goods to be carried by them, unless the consignor signed a paper containing various conditions, subject to which they were to be carried. The judge, holding that the conditions were reasonable, and the contract a special contract within the 17 & 18 Viet. c. 31, s. 7, and that consequently the defendants did not 2 C. B. (N. S.) 8. "WHITE V. THE GREAT WESTERN ELY. CO. 313 receive the goods to be carried by them as common carriers, directed as a nonsuit: -Held, that the nonsuit was right. This was an action against the Great Western Railway Company charging them, as common carriers, with negligence in the conveyance of goods, whereby they arrived at their destination too late for the market. The declaration stated that, the defendants being common carriers by railway for hire, the plaintiff, on the 12th of November, 1855, caused to be delivered to them, at their request, and they accordingly then received from the plaintiff, a quantity of cheese, to be by them, as such common carriers, carried and conveyed on a certain railway, from Bath, to wit, to Basingstoke, for hire and reward -then paid by the plaintiff to them in that behalf: yet the defendants, by the negligence and default of themselves and their servants, wrongfully, and contrary to their duty in that behalf, neglected and omitted to [8] carry or convey the said cheese as aforesaid for a long and unreasonable time in that behalf; and, by means thereof, the plaintiff lost a market for the sale of the said cheese, and was obliged to sell the same at a subsequent market, for a less sum of money than he could and would have done had the defendants carried and conveyed the said cheese as aforesaid within a reasonable time in that behalf and the plaintiff was also necessarily put to great expense in and about the endeavouring to procure and in procuring the defendants to carry and convey the said cheese from Bath to Basingstoke aforesaid, and in and about necessary travelling to and from the said market by reason of the premises, and which became and were thereby wholly useless : Averment that all conditions precedent and all matters and things necessary to entitle the plaintiff to maintain the action, had happened and existed before suit: And the plaintiff claimed 501. The defendants pleaded,-first, that the plaintiff did not cause to be delivered to the defendants, nor did they receive from the plaintiff, the said cheese, to be by them carried and conveyed as alleged,-secondly, not guilty,-thirdly, that the said cheese in the declaration mentioned was delivered by the plaintiff to, and accepted and received by, the defendants, to be carried and conveyed under and subject to a certain contract and condition, which rendered them not liable for the loss, damages, or expenses in the declaration mentioned, to wit, that the company would not under any circumstances be liable for loss of market or other claim arising from delay or detention of any train, whether at starting, or at any of the stations, or in the course of the journey, and that the company did not undertake to send goods by any particular train, if there were an insufficient number of trucks at the station, or the trucks could not be conveniently used for the purpose, [9] notwithstanding the goods might have been taken to the station before the time appointed by the company; and that the plaintiffs claim was a loss within the true intent and meaning of the said condition, and not otherwise,-fourthly, that, at the time of the delivery of the said cheese to the defendants as aforesaid, the plaintiff agreed to bear the risk of all loss or damage relating to the carriage or conveyance of the said cheese, in consideration of the defendants charging him at a reduced rate for the carriage thereof; and that the plaintiff was accordingly charged at such reduced rate, and the said cheese was carried and conveyed by the defendants under and subject to that agreement, and not otherwise; and that the loss or damage in the declaration mentioned was and is part of the loss or damage agreed to be borne by the plaintiff as aforesaid, and not any other loss or damage. The plaintiff joined issue upon each of the above pleas: And, for a further replication to the third plea, the plaintiff said that the contract in the declaration mentioned was made and entered into after the passing and coming into operation of the Eailway and Canal Traffic Act, 1854 (17 & 18 Viet. c. 31), and that the said contract and condition in that plea mentioned was and is unjust and unreasonable within the true intent and meaning of that statute : And, for a further replication to the fourth plea, the plaintiff said that the agreement in that plea mentioned was made after the passing and coming into operation of the same act of parliament, and was and is a special contract within the true intent and meaning of the 7th section of the said act; and that such agreement was not signed by the defendants or by the person delivering the said cheese for carriage, as by the said act of parliament is required in that behalf. The plaintiff also new-assigned, to the third plea,-that he sued the defendants in this action not only for [10] the loss...
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