delivered the opinion of the court:
The defendant in error purchased a barrel of whiskey from Burton, Titus & Co. at Sardis, Miss., and instructed them to ship it to Canton, Miss., by express. This they did, taking from the company a receipt in the following words:
“ Southern Express Company, Successor to Adams’ Express Co. Sardis, May 31si, 1862.
“Received of Burton, Titus & Co., one barrel whiskey, valued under fifty dollars, unless otherwise herein stated, marked R. A. Moon, care of W. E. Daucey, Canton, Miss., which is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. It is further agreed, and is part of the consideration of this contract, that the Southern Express Company is not to be held liable or responsible for the property herein mentioned for any loss or damage arising from the dangers of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, unless specially insured by it and so specified in this receipt. Which insurance shall consti-. tute the limit of the liability of the Southern Express Company in any event. And, if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the Southern Express Company a sum exceeding fifty dollars for the loss or detention of, or damage to, the property aforesaid. Nor shall claim be made for damage to goods not properly packed and secured for transportation. All articles of gláss will be taken at shipper’s risk only; and the shipper agrees that the Company shall not be held responsible for any injury by breakage or otherwise.
•“Freight paid, $6.00.
“Insurance- “For the Company,
“R. S. Anderson.”
*830This receipt was sent to the plaintiff in error by the consignors, and not received by him until after the lapse of several days. The record shows that he knew nothing of the receipt or its contents until it reached him at Canton, Miss. That he gave no other instructions to Burton, Titus & Co., and did not authorize or sanction the limitation of the responsibility of the express company contained in the receipt. That the whiskey was received by the «agent of the express company at Grenada, about the 1st June, 1862, on. the train from Sardis, about eleven o’clock at night. That the barrel was left on the platform of the Mississippi and Tennessee railroad depot, about seventy-five yards from the express office, where the agent of the company stayed. That there was, at the time, a great accumulation of government and other t freights at Grenada, and it was impossible to send the whiskey and other freights off as rapidly as required ; and that this was the reason why it was not sent forward. 'That the whiskey remained that night in the charge of one Brown, an Irishman, in the employment of the railroad as watchman, who was employed by the agent of said company to guard it that night. That it remained the next day in the same place, and was watched by said agent of the express company. That the said agent “ got the same man to watch it the next night, and during that night it was destroyedand " he heard nothing of the loss of the whiskey until the morning after the second night.” That he slept about seventy-five yards from where the barrel of whiskey lay; that he employed Brown, to watch it because there were large numbers of soldiers at that time about the railroad depot, who were constantly committing trespasses on the goods deposited there, and breaking open barrels of liquor. The record further shows that, “ on the second night, a band of soldiers drove Brown off from his charge forcibly, and drank and carried off the whiskey.”
Defendant in error applied to the company for payment; they refused to pay more than fifty dollars. That the value of the whiskey in Canton was from seven to ten dollars per gallon; and that there were forty-two and a half gallons in the barrel. That plaintiff in error paid six dollars for the transportation of the barrel. That the express company were com*831moa carriers for reward, and usually charged about double rates for freight.
Upon this state of facts appearing on the trial below, the court was asked on the part of the plaintiff in error to instruct the-jury—
1. “ That the defendants, as common carriers, are only liable for loss by gross negligence or fraud on the part of themselves or their agents. And if the plaintiff in this case does not prove such negligence or fraud, by which the whiskey was lost to the plaintiff, the verdict should be'for defendants.”
2. “That if there is evidence of.the fact that the plaintiff agreed to and accepted-the terms of the receipt or contract either by himself or agent, that, even if entitled to judgment, he could only recover to the amount of fifty dollars, the named in said receipt.”
These instructions were refused by the court.
The jury found a verdict -for plaintiff below for the sum of three hundred and three dollars and sixty-seven cents. Judgment was rendered thereon, and this writ is prosecuted to verse the judgment, and the refusal to give the instructions| asked for the express company is assigned for error here.
A common carrier is bound, for reasonable reward, to receive; and carry goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to am action in case of refusal. He is an insurer against all loss,* the acts of Hod, the public enemies, or the owner of the goods only excepted. He cannot, by notice or other artifice or eva-sion, avoid the just responsibilities wisely imposed upon him for the public good, by the old and well-established rules of law governing his conduct and protecting the community against the unlimited temptations to fraud, collusion, robbery, and peculation incident to his employment.
Rigorous as this law may seem, and hard as it may actually be in some instances, it is nevertheless founded on the principles of public utility and safety, to which all private considerations ought to yield. Consignors have only to insist on a simple receipt for their goods, offering to pay reasonable compensation for insurance and transportation, and steadily refus*832ing the artfully-prepared receipts limiting the carrier’s liability and depriving the consignor of his legal rights, to restore in practice the security and safety which the law affords. They will in this manner avoid the losses which scheming corporations and unconscionable tricksters, under the guise of special agreements, are daily inflicting on them.
The public policy on which the extraordinary liability of common carriers is founded is too important to be thus virtually repealed by the fraud and circumvention of artfully-contrived, printed, or prepared receipts thrust upon those to whom the hurry and press of railroad travel denies the time of examination, or the opportunity of fair assent.
,
As the case before us does not necessarily call for a review of the cases on this point, we shall concede for the present that the number of cases sanctioning this doctrine greatly preponderate in favor of the right of limitation by special contract. But in such cases express assent, with a full knowledge of the terms of the special contract and of the legal rights thereby waived, as well as a consideration for such waiver on the part of the consignor, must exist. And if it be merely doubtful whether the consignor intended to waive his legal rights, public policy requires that they should be presumed and upheld,
Exceptions inserted in the receipts of carriers are generally^ construed strictly against the carrier; and, notwithstanding the exception, the burden of proof still rests upon the carrier to exonerate himself from liability, by showing a loss of the goods; from a cause within the exception.
Where, as in the case of carriers, a public duty is imposed by law, and it is sought by special agreement to avoid that duty, no implication can be indulged to support such an agreement; but an actual contract, assented;/ to in fact by both parties, must be shown. Edwards on Bailments, 486-488; 19 Wend. 234-247; 6 Howard (U. S.) R. 334.
These general principles of familiar application afford an easy solution of the only point presented for decision in this case.
The error relied on for reversal here is the refusal to give the second instruction.
That instruction asserts the principle that, in all cases where *833there is a special agreement limiting the carrier’s responsibility to a given amount, and the goods are lost, the owner is only entitled to recover the sum stipulated in the agreement.
In the case of Cole v. Goodwin, 19 Wend. 251, it is said by Justice Cowen to be well settled that the carrier cannot, either capriciously in a single instance, nor by public notice, seen and read by his customer, nor even by special agreement, exonerate himself from the consequences of gross neglect; and numerous cases to this effect are cited by him in support of the position. And so the doctrine is stated in the text by Mr. Angell in his work on Carriers, 267. See also Redfield on Railroads, p. 272, sec. 5, where it is said by the author: “ There is certainly something very incongruous, and not a little revolting to the moral sense, that a bailee should be allowed to stipulate for exemption from the consequences of his own negligence, ordinary or extraordinary.”
If, -therefore, it were even admitted that the record shows that there was a special agreement, fully understood and assented to by the owner, upon a sufficient "consideration, limiting the carrier’s liability to fifty dollars, such agreement would be -no defence in this action, where the ground of recovery relied on is the negligence of the carrier.
The second instruction asserts the contrary doctrine, and was therefore properly refused; and the circumstances appearing in this record fully warrant the jury in their verdict on the ground of gross negligence.
Let the judgment be affirmed.