The opinion of the court was delivered by
Lowrie, C. J.— We are under no necessity of deciding whether or not a railroad company, in the exclusive enjoyment of a public franchise of highway, can make any contract limiting its common law liability as.common carriers; for this cause is governed by other principles, which, without any repetition of the facts, we may state in a few propositions.
1. A contract limiting their liability as carriers, does not relieve them from ordinary care in the performance of their duty; and the most that it can do is to relieve them from those conclusive presumptions of negligence which arise when the accident is not inevitable, even by the highest care, and to require that, negligence be actually proved against them.
2. They cannot excuse themselves, as for an inevitable accident, by showing that the cars were thrown off the track by accidentally running over a man; if it also appear that the man was a drover, attending to cattle on the train, and fell off because no proper place was provided for such attendants, and he was compelled to stand on the bumpers. Even if he fell by his own carelessness, this does not excuse them for putting him in a position where his carelessness produces such serious consequences to others.
3. It follows, from these principles, that the parol evidence admitted in explanation of the written contract, did no harm to the defendants, because it proved only the legal effect of the contract ; and for the same reason the agent’s authority to make the explanations was immaterial.
We do not discover that there was any error in the trial of which the defendants can complain.
Judgment affirmed.