Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/350

 § 352.] THE LAW OF PK1VATE CORPORATIONS. [CHAP. VII. by public notice brought borne to the owners of the goods or by inserting exemptions from liability in the bill of lading, or other contract of carriage. A modification of the strict rule of responsibility, exempting the carrier from liability for acci- dental losses where it can be safely done, enables the carrying interest to reduce its rates of compensation. . . . " The question is, whether such modification of responsibility by notice or special contract may not be carried beyond legiti- mate bounds, and introduce evils against which it was the direct policy of the law to guard ; whether, for example, a modifica- tion which gives license and immunity to negligence and care- lessness on the part of the public carrier, or his servants, is not so evidently repugnant to that policy as to be altogether null and void ; or at least null and void under certain circum- stances. . . . "It is a favorite argument in the cases which favor the ex- tension of the carrier's right to contract for exemption from liability, that men must be permitted to make their own agree- ments, and that it is no concern of the public on what terms an individual chooses to have his goods carried. . . . " Is it true that the public interest is not affected by the 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 exer- cising 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. 1 The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do 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 was not a public one, charging him with the duty of accommo- 1 See Mobile and Montgomery R'y Co. v. Steiner, 61 Ala. 559. 330