{dissenting).
In the leading case of Railroad Co., v. Lockwood, 17 Wall. 357, Justice Bradley, in delivering the opinion of the court, said : “In regulating the public establishment of common carriers the great object of the law was to secure the utmost care and dilligence in the performañee of their important duties — an object essential to the welfare of every civilized community. Hence the common-law rule which charged the common carrier as an insurer. Why charge him as such ? Plainly, for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of diligence is'expressly exacted. In the one case the securing of the most, exact diligence and fidelity underlies the law, and is the reason for it; in the other, it is directly and absolutely prescribed by the law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of *539care and diligence, but to be at liberty to indulge in tlie contrary, be seeks to put oft'the essential duties of bis employment; and to assert that he may do so seems almosts a contradiction in terms.
“Now to what avail does the law attach these essential duties to the employment of the common carrier, if they may be waived in respect, to his agents and servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants? It is carefulness and diligence in performing the service which the law demands, not an abstract carefulness and diligence in proprietors and stockholders who take no active part in the business. To admit such a distinction in the law of common carriers, as the business is now carried on, would be subversive to the very object of the law.
“It is a favorite argument in the cases which favor the extension of the carrier’s right to contract for exemption from liability that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to have his goods carried. Thus, in Dorr v. Navigation Co., 4 Sandf. 136, the court sums up its judgment thus: ‘To say the parties have nota right to make their own contract, and to limit the precise extent of their own respective risks and liabilities, in a matter no way affecting the public morals or conflicting with the public interests, would in my judgment be an unwarrantable restriction upon trade and commerce, and a most palpable invasiou of personal right./
“Is it true that the public interest is not affected by individual contracts of the kind referred to? Is not the whole business community affected by holding such contracts valid ? If held valid the advantageous position of the companies exercising the business of common carriers is such that it places it in their power to change the law of common carriers, in effect, by introducing new rules of obligation. The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. lie can not afford to higgle of stand out and seek redress in the courts. Ilis business will not admit such a course. He prefers rather to accept any bill of lading, or *540sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but todo this or abandon his business. * * * If the customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, thou, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public.
“But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public are compelled to accept. These circumstances furnish an additional argument, if any were needed, to show that the conditions imposed by common carrier ought not to be adverse, to say the least, to the dictates of public policy and morality. The status and relative position of the parties render any such condition void.
“Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness. It was for the reason that the limitations of liability first introduced by common carriers into their notices and bills of lading were just and reasonable that the court sustained them. It was just and reasonable that they should not be responsible for losses happening by sheer accident or dangers of navigation that no human skill or vigilance could guard against. It was just and reasonable that they should not be chargeable for money or other valuable articles liable to be stolen or damaged unless apprised of their character or value. It was just and reasonable that they should not bo responsible for articles liable to rapid decay, or for live animals liable to get unruly from fright, and to *541injare themselves in that state, wlien such articles or live animals became injured without their fault or uegligence.
“And when any of these just and reasonable excuses were incorporated into notices or special contracts assented to by their customers the law might well give effect to them, without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of society and the better administration of the laws had diminished the opportunities of bollusion and bad faith on the part of the carrier, and rendered less imperative the application of the iron rule that he must be responsible at all events. Hence the exemptions referred to were deemed reasonable and proper to be allowed.
'“But the proposition to allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the esseutail duties of his employment, would have never been entertained by the sages of the law. * * * Conceding, therefore, that special contracts made by common carriers with their customers, limiting their liability, are good and valid so far as they ai’ejust and reasonable (to the extent, for example, of excusing for all losses happening by accident without any negligence or fraud on their part) when they ask to go still further, and to he excused for negligence — an excuse so repugnant to the law of their foundation and to the public good — they have no longer any plea of justice or reason to support such a stipulation, but the contrary; andt-hen the inequality of the parties, the compulsion under which the customer is placed, and the obligaiiou of the carrier to the public, operate with full force to divest the transaction of validity.”
In the syllabus of that case it is said : “A common carrier can not lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. It is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.” It is further held in the same case, arguendo : “That a common carrier does not drop his character as such *542merely by entering into a contract for limiting Ms responsibility. That carefulness and fidelity are essential duties of his employment, which can not .be abdicated. That these duties are as essential to the public security in his servants as in himself.” In the same opinion, there is 'quoted with approval the following conclusion reached by Chief Justice Redfield in his American Railway Cases'-“(1) That the exemption claimed by carriers must be reasonable and just; otherwise, it will be regarded as extorted from the owners of the goods by duress of circumstances, and therefore not binding. (2) That every attempt of carriers, by geueral notices or special contract, to excuse themselves from responsibility for losses or damages', resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and therefore based upon principles and a policy which the law will not uphold.”
I hare quoted at large from this opinion, because, up to a very recent period, it settled the law upon this subject in the Supreme Court of the United States, and was relied upon as a leading authority by many of the State courts, and particularly by this, the highest tribunal of our own State.
In the case of Maslin v. Railroad Co., 14 W. Va., 180, a similar doctrine is laid down. In the second point of its syllabus, it is there said : “A common carrier for hire, by special contract, based on a valuable consideration, may exempt itself from loss or damage resulting from inevitable accident, though such accident was not the result of the act of God or of the public enemy, provided the common carrier or its servants in no manner contributed to such accident; but it can not exempt itself from loss or damage which has in any degree been caused by the negligence or misfeasance of itself or its servants.” In that case the contract was almost identical with the one we are now considering, and was in like manner embraced in the printed bill of lading. The case of Railroad Co. v. Lockwood was cited approvingly and largely relied on by Judge GREEN in delivering the opinion.
*543In the case of Brown v. Express Co., 15 W. Va. 812, the same principles were reaffirmed after an exhaustive examination of the various authorities by the same eminent jurist (Judge G-REEN) who delivered the opinion.
Now these two eases, it was to be hoped, had definitely settled the law upon this subject in West Virginia. But unfortunately the supreme court of the- United States has in a more recent case undertaken to vitalize these printed bills of lading into contracts between .parties on an equal footing, and to draw a distinction between limiting the liability of the common carriers and exempting them from such liability.
In the case of Hart v. Railroad Co., 112 U. S. 331 (5 Sup. Ct. Rep. 151) this distinction, entirely too refined for common sense to appreciate, was insisted upon. The facts and circumstances of that case are found in the opinion in the present case, concurred in by a majority of the Court. The least that can be said about it is that, while it disclaims to overrule the case of Lockwood v. Railroad Co., yet it is, both in reasoning and principle, in direct conflict with the older decision. For example, by referring to the quotation which we have already made from the opinion of Justice Bradley, it will be seen that he expressly repudiates the idea that the parties are standing “upon a footing of equality,” and that the contract can be construed as if made between private individuals. His language is (our italics):
“If the, customer had, any real, freedom of choice, if he had a reasonable and practical alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade had assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do in fact control it, and impose such conditions upon travel and transportation as they see fit, which the public are compelled to acceptCom-*544pare this language with the following from Justice Blatchford in Hart v. Railroad Co., supra: “The agreement as to value in this case stands as if the carrier had asked the value of the horses, and had been told the plaintiff the sum inserted in the contract. * * * The shipper is es-topped from saying that the value is greater; The articles had no greater value, for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and whore there is no deceit practiced on the shipper, should he upheld. There is no violation, of public policy.”
Why this reasoning as to a^compulsory contract! contained in a printed bill of lading, should be applicable to a limitation, and not applicable to an exemption, from liability, it would puzzle the most ingenious mind to conjecture. If the carrier and the shipper stand upon equal terms, and can make a contract to restrict the liability of the former to the lowest limit of value, without any regard whatever to actual valuation, why can not the same contracting parties make a contract for absolute exemption? In point of fact, to limit is to exempt pro tanto. When a ¡minted valuation, as in this case, is set upon all horses shipped, without any regard for actual value, and the horse is killed by the negligence of the carrier, does not the carrier, by reason of this so-called contract, exempt himself from liability so far as the true value of the horse may prove to be above the artificial printed valuation of the bill of lading, which is fixed by the company, and to which the shipper must submit or not shipat all ?
But, so far as the law of this State is concerned, we are not left to inference or conjecture as to what our conclusion should be. In the case of Brown v. Express Co., supra, the question was not one of exemption alone, but of limitation, also; and this Court expressly held that the common carrier could not by such a contract limit its liability, just as it had previously held, in the case of Maslin v. Railroad Co., that it could not exempt itself.
The syllabus of the former case is as follows: “(2) A common carrier does not, by limiting his common-law lia*545bilities by special contract, thereby become a private carrier ; and if loss is sustained tlie burden of proof is on him to show, not only that such loss arose from a cause from which he was exempted from responsibility by the terms of his special contract, but also that it arose from no negligence-or misfeasance of himself or his servants. “(3) A common carrier can not limit his common-law responsibilities by any general notice, though knowledge of such general notice be brought home to the consignor before or at the time he applied to have his goods transported.”
In that case Judge Gee Ear especially repudiates much of the authority relied on to support the view of the supreme Court in Hart v. Railroad Co., and disposes of the Pennsylvania cases relied upon by simply saying that they “are not good law.” 15 W. Va. 817, 818.
In the present case, Brown v. Express Co., is not even referred to in the opinion of the learued judge, concurred in by the majority, and must"have been overlooked. Upon examining it, it will be found that it thoroughly disposes of the ingenious effort of the more modern jurists to distinguish between limitation of liability on the part of the common carrier and entire exemption.
Upon looking at the bill of lading in the case of Hart v. Railroad Co., it will be found that it limits the value of horses to two hundred dollars, and the limitation of time within which suit shall be brought by the shipper to sixty days; and this contract was upheld by the Supreme Court because its terms were held to be “reasonable.”
In the bill of lading before us the value of horses is. fixed at half that amount, or one hundred dollars, and the shipper is limited in his right of action to ten days, or one sixth of the time specified in the former bill of lading. .By the decision from which I dissent, we have expressed the opinion that a horse reasonably worth two hundred dollars, when offered at any point for transportation on the Pennsylvania Railroad, is reasonably worth only one hundred dollars if offered for transportation on the line of the Chesapeake & Ohio Railroad Co., and that sixty days being a reasonable limitation of time in the State of Massachusetts it logically follows that ten days is a reasonable limitation of the right of action in West Virginia.
*546IJpoii the whole, I think it prefei’able to adhere to onr own landmarks as established by our predecessors, rather than to subvert them by following the decisions of other co-ordinate tribunals, however eminent or respectable. And, as for recent decisions quoted from the State of Virginia, I much prefer to follow the case of Railroad Co. v. Sayers, 26 Gratt. 328, which holds: “(2) But a railroad company can not by express contract, though upon the consideration of a reduced charge upon the freight, relieve itself from its liability, as carrier of the freight, for injury to or loss of the freight resulting in any degree from the want of care or faithfulness of themselves or their agents.” In Maslin v. Railroad Co., this Virginia case was cited and relied upon; and I prefer to adhere to it rather than to adopt the somewhat erratic course of decision upon these subjects which characterizes the Court of Appeals of Virginia as now constituted.
Reversed. Remanded.