It is most obvious that such could not have been the intention; and that the true meaning and intention was, that they would not call upon them for any damage whatsoever, 'that may happen to any horses, oxen, or any other live stock, that we send or may send over said company's railroad.' The intention of the parties, by the use of the language contained in this last clause, is then attempted to be explained as follows: - meaning by this, that we will take the risk upon ourselves of all and any damages that may happen to our horses, cattle, etc. The meaning of damage happening to live animals is to be sought. The word 'happen' is defined by the words, to come by chance, to fall out, to befall, to come unexpectedly. An accident, or that which happens or comes by chance, is an event which occurs from an unknown cause, or it is the unusual effect of a known cause. This will exclude an event produced by misconduct or negligence, for one so produced is ordinarily to be expected from a known cause. Misconduct or negligence under such circumstances would usually be productive of such an event. Lord Ellenborough, in the case of Lyon v. Mells (6 East, 428), speaking of what 'may or may not happen,' explains it as 'that which may arise from accident, and depends on chance.' An injury occasioned by negligence, is the effect ordinarily to be expected as the consequence of that negligence, without reference to any accident or chance. A correct construction of the agreement will not therefore relieve the defendants from their liability for losses occasioned by the misfeasance or negligence of their servants." So in Reno v. Hogan, 12 B. Mon. 08, the carriers received a box of glass, with a clause in the bill of lading, that they should not be "accountable for breakage." On its arrival at the place of destination, the glass was found broken into small fragments, which was proved to have been caused by the gross negligence of the defendant or his servants. The court, while admitting the validity of the special contract, held, that its provisions did not apply to injuries arising from gross negligence. Opinions and dicta to the same effect will be found in Dorr v. N. J. Steam Navigation Co. 4 Sandf. 136; Stoddard v. Long Island Railroad Co. 5 Sandf. 180; Laing v. Colder, 8 Penn. St. 479; N.J. Steam Navigation Co. v. Merchants by it, and insist * that his baggage shall be carried under the responsibility which the law creates; and if the carrier refuses to take the goods, he * will render himself liable to an action. But if the notice be only a limited and qualified notice, and in itself reasonable, the * sender, having knowledge of it, is bound by it. Nor can he insist that the carrier shall receive and transport his goods without reference to it.

In a recent decision in New York, a rule of law of much importance is asserted; it is that a railroad company is bound to * introduce improvements which are ascertained to be practicable and conducive to safety; and are therefore liable for an injury caused by neglect in not introducing them. (s)

From what we have already said, and from the authorities we have cited, it may be inferred, that the right of a common carrier to limit his responsibility by a special contract cannot be considered as settled, or clearly defined. The common law makes a common carrier responsible for all damage, excepting only that which is caused by an act of God, or by a public enemy. If this responsibility rests only on usage, it disappears, of course, when the parties make an express contract, covering the same ground; because usage binds parties only on the supposition that it entered into their intention and their contract. If this responsibility is matter of positive law, - whatever be its origin, - then, of course, it cannot be evaded or modified at the pleasure of the parties. And if either of these grounds were taken, no question would and then the difficult questions come, What is this policy, what is its obligation, and to what extent does it admit of modification by the contract of the parties?

remain. But neither of them is taken. * For a time, some courts were disposed, as we have seen, to hold the responsibility of a common carrier to be determined by law, and to be beyond the reach of contract. But it is not so now. It is held, that his responsibility rests upon, and is preserved by, "public policy;"

Bank, 6 How. 844; Slocum v. Fairchild, 7 Hill (N. Y.), 292; Swindler v. Hiiliard, 2 Rich. L. 286; Parsons v. Monteath, 18 Barb. 363; Camden & Amboy Railroad Co. v. Baldauf, 16 Penn. St. 67; Pennsylv. R. R. Co. v. McCloskey's Admr. 28 Penn. St 526. See also the notes of the learned American editors to Austin v. The M. S. & L. Railway Co. 11 E. L. & E. 506; a. c. 10 C. B. 464; and Carr v. The L. & Y. Railway Co. 14 id. 340, 7 Exch. 707. See also Shaw v. York & North Midland Railway Co. 18 Q. B. 868; Morville v. Great Northern Railway Co. 10 E. L. & E. 866. - In England it has been held, after much consideration, that notices published in pursuance of the Carriers Act, if not complied with, exempt the carrier from liability for gross negligence. Hinton v. Dibbin. 2 Q. B. 646. See also Owen v. Burnett, 2 Cr. & M. 353.

(s) Smith v. New York & Harl. R. R. Co. 19 N. Y. 127.

We apprehend that the difficulty of the question, as to the obligation of the common carrier, after notice and contract, arises from the extreme uncertainty of the principle thus brought to its determination. Anything more indistinct, undefined, and incapable of certainty or uniformity, than the requirement of "public policy," can hardly be imagined. Of late years this principle is invoked with increasing frequency; and sometimes, at least, seems to be made use of as authority for deciding in whatever way the court thinks would, on the whole, be most useful. It need not be said, that such use of such a principle must diminish greatly the certainty and uniformity of law.

The cases in which public policy conflicts with the contract of the common carrier, may be reduced to three classes.