568 



THE NEW BOOK OF THE DOG. 



caused by the negligence of someone for 

 wliom they were responsible, but relied on 

 the special contract which had been signed 

 on behalf of the plaintiff, among the con- 

 ditions of which was the following : " The 

 company will not in any case be responsible 

 beyond the following sums : dogs, deer or 

 goats, £2 each, unless a higher value be 

 declared at the time of delivery to the 

 company, and a percentage of i:^ per cent, 

 (minimum 3d.) paid upon the excess of the 

 value so declared." 



The value of the dog being agreed, the 

 only question in the case was whether or 

 not this special contract was in its terms 

 just and reasonable within the meaning of 

 Section 7 of the Railway and Canal Traffic 

 Act, 1854. 



The dog was sent from Neath to Chester- 

 field, the ordinary rate of 4s. being paid, 

 and no declaration of its value was made 

 by the sender. The railway company con- 

 tended they were only liable for £2, and 

 paid that amount into court. The plaintiff 

 contendedthat the contractwas unreasonable, 

 and in proof of this pointed out that i:^ per 

 cent, on the value would make the rate come 

 to £3 15s. for the journey, which was out 

 of all proportion to the risk, that it would 

 amount to five times as much as a third 

 class passenger would have to pay for the 

 same distance, his fare being admitted to 

 be 15s. 6d., and also that it would not 

 be reasonable to seek to impose one rate 

 applicable irrespective altogether of distance. 

 The defendants called evidence to show that 

 the special rate of ij per cent, was the usual 

 charge made by all railway companies, and 

 that there was extra risk in the carriage of 

 dogs, and contended that the special con- 

 tract was just and reasonable, that the 

 argument of the plaintiff, based upon a 

 comparison of the rate charged for a passenger 

 and that for a dog, was fallacious, inasmuch 

 as the risk in the case of a passenger was 

 infinitesimal, whereas it was very appreciable 

 in the case of a dog, and that for the extra 

 risk the company were entitled to impose an 

 extra rate, and the suggested rate was fair 

 and reasonable, and the one commonly 

 made. 



The learned judge in giving a reserved 

 judgment went fully into the law on the 

 subject, saying that the case was in principle 

 on all fours with Dickson v. Great Northern 

 Railway, decided in the Court of .\ppeal, and 

 agreed with the judgment of Lord Lindley 

 in that case, wherein he held " that the 

 burden of proving a contract of this sort 

 to be reasonable is thrown by the statute on 

 the defendants." Mr. Justice Walton said : 

 To give evidence of the reasonableness of 

 this contract might present some difficulty, 

 but the burden of proof was on the company. 

 There was another thing, in considering 

 whether a condition like this was reasonable, 

 he might — as appeared from the judgment 

 in Dickson v. Great Northern Railway — 

 rightly look not merely at the particular 

 journey which this dog made, but also with 

 reference to the question as to whether it 

 was reasonable, having regard to the public 

 generally. He must look, as it were, at an 

 average journey. That being so, what was 

 the evidence ? There was evidence that 

 the carriage of dogs by railways was attended 

 by considerable risk of loss arising mainly 

 from the fact that they were trying to 

 escape all the time, often in most extra- 

 ordinary ways. One of the witnesses for 

 the railway company had said, in comparing 

 the risk of carrying passengers with that of 

 carrying dogs, that it was as a million to one. 

 That was rather poetical or metaphorical 

 language, and did not pretend to be in any 

 way statistical, and only established that 

 the risk in the case of a dog was much greater 

 than in tliat of a passenger. That kind of 

 evidence did not assist him very much, and 

 still left the question whether this charge 

 was a reasonable one to protect the company 

 from the risk of liability for loss. He had to 

 decide whether this was a reasonable premium 

 to attempt to impose for this risk. It was 

 idle, he thought, to compare fares for passen- 

 gers with those for dogs as had been done in 

 argument. He could take as an illustration 

 an ordinary journey by a dog, of, say, forty 

 miles. The charge would be is., and would 

 include the liability of the company up to £2. 

 Suppose, then, that the owner declared excess 

 value to the amount of £2, he would have to 



