The opinion
WalkeR, J.,
dissenting: I concur in tbe dissenting opinion of Justice Brown. Tbe Court now reverses its former rulings in Jones v. R. R., 148 N. C., 580 (decided by a unanimous Court), and Winslow v. R. R., 151 N. C., 250 , and, as I think, Gardner v. R. R., 127 N. C., 293 , wbicb cases are clearly sustained, in principle, at least, by Mitchell v. R. R., 124 N. C., 246 ; Selby v. R. R., 113 N. C., 588 , and Everett v. R. R., 138 N. C., 71 , in tbe last of wbicb cases Justice Hoke. said, when addressing himself to tbis subject: “Sucb agreements are upheld where, tbe carrier being without knowledge or notice of tbe true value, tbe parties agree upon a valuation of tbe particular goods shipped, approximating the average value of ordinary goods of like kind, and make sucb valuation tbe basis of a just and reasonable shipping rate.” Tbe cases cited by tbe Court, *248 in its opinion, did not repudiate or even modify the general rule we had adopted, after much consideration and discussion of the matter, but were simply decided upon the ground that the rule was not applicable to their peculiar and exceptional facts. The stipulation in the bill of lading, as to value, is not any attempted evasion by the railroad company of its liability for negligence as a carrier, which still remains, as is said in Kime v. R. R., at this term, but it is merely a legitimate, reasonable, and lawful arrangement for the liquidation of the quantum of damages, upon a just basis, should a loss occur by the negligence of the carrier, for it does not relieve him of any obligation to exercise diligence, fidelity, and care. It is not, by any means, unusual for parties to agree beforehand upon the extent of the recovery in the way of stipulated damages, where there is a breach of contract, and such agreements have been upheld by the courts, even if the breach is intentional or willful, or amounts technically, as in this case, to a tort. Our former and well-considered decisions, now overturned, were in perfect harmony with the view of the Supreme Court of the United States in Hart v. R. R., 112 U. S., 331 ( 28 L. Ed., 717 ), in which it was held that where a contract of carriage, signed by the shipper, is fairly made with a railroad company, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations. It will be seen from this statement of the law that the liability of the carrier for negligence, in the receipt, transportation, and delivery of the goods entrusted to him, is in no degree diminished, hut the clause by which the value of them is fixed is for the twofold purpose of determining what is a reasonable tariff rate and of protecting the carrier against imposition and fraud, as well as to predetermine the damages in case of a loss. There is nothing-unlawful or oppressive in this arrangement, and no attempt •: o *249 take advantage of the skipper, but, on tke contrary, tke stipulation prevents tke skipper from taking any advantage of tke carrier by a false representation as to value. Tke ckarge for carriage must be settled beforehand by some fixed standard.
In York Co. v. R. R., 70 U. S. (3 Wall.), 107, tke same Court keld tkat “A common carrier may prescribe regulations to protect kimself against imposition and fraud, and fix a rate of charges proportionate to tke magnitude of tke risks he may have to encounter.” And in R. R. v. Lockwood, 84 U. S. (18 Wall.), 357, tke Court, while recognizing fully tke general rule tkat a common carrier cannot lawfully stipulate for exemption from responsibility if tke exemption is not just and reasonable, and tkat it is not so for a common carrier to stipulate for kis exemption from responsibility for tke negligence either of kim-self or kis servants, nevertheless decided it to be “just and reasonable tkat he should not be keld responsible, in law, for losses happening by sheer accident, nor chargeable for valuable articles liable to be damaged, unless apprized of their character or value.”
We have referred to tke law as thus stated by courts entitled to our highest respect, and whose decision on any particular question of general law, though not conclusive upon us, is not to be lightly considered or disregarded, but should have tke greatest weight with us in deciding the same or similar questions, for tke purpose of showing clearly tke difference between Kime v. R. R. and this case, and it is emphasized and accentuated in this passage taken from tke opinion of Justice Blatchford in Hart v. R. R., supra: “Tke limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from tke carrier tke measure of care due to tke value agreed on. Tke carrier is bound to respond in tkat value for negligence. Tke compensation for carriage is based on tkat value. Tke shipper is stopped from saying tkat tke value is greater. Tke articles have no greater value, for tke purposes of tke contract of transportation, between tke parties to tkat contract. Tke carrier must respond for negligence up to tkat value. It is just and reasonable tkat suck a contract, fairly entered into, be upheld. There is no *250 violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.”
In Kime’s case we were discussing the right of the carrier to limit his liability, at common law, as an insurer, and also for negligence. We held that he might rid himself of his liability as insurer by notice given in advance to the shipper, if the agreement made in response thereto is reasonable and founded upon a fair consideration and conforms to the sound public policy by which the obligations of the carrier to the public are settled (6 Cyc., 396), but that he cannot stipulate for an exemption from responsibility for a loss of goods caused by his negligence in their transportation. The question decided in this case was not presented, as the judge instructed the jury, in Kime’s case, that the stipulation in the bill of lading, that the carrier assumed liability only to the extent of the agreed valuation, which was $100 for each horse in the car-load, was valid, and that they should assess plaintiff’s damages accordingly. He did not appeal, and therefore could not avail himself in this Court of any error in the charge, if there was any, nor could defendant, as it was in its favor, and I then thought, and still think, that there was none. But the question as to the validity of the clause which provides • for the payment of a stipulated amount or the agreed value of the goods was not involved in that case at all, the only issue being as to the negligent conduct of the defendant railroad company in the carriage of the horses from Richmond, Ya., to Burlington, N. C., and we held that the stipulation in the bill of lading as to the examination of the car by the shipper did not so far limit the responsibility of the defendant as to relieve it from the exercise of due and proper care in the transportation, and that loading and transporting the horses in a close car, without any ventilation, and almost air-tight, which caused them to be smothered, so that they staggered as they were being unloaded at Burlington and had to be assisted from the car, was itself gross, if not wanton, *251 negligence. Tbe distinction is clearly to be seen between sucb a case, where the attempt of the carrier was to limit his liability for a negligent transportation, and a clause fixing the amount of the recovery or quantum of damages if the horses were injured by such negligence, and obtaining a considerable reduction in the freight charges by a fair and optional agreement as to value.
I have said this much in the case, not for the purpose of vindicating our former opinions at the present time, but tó show how unlike this case is that of Kime v. R. R., decided at this term, and in which, at its request, I expressed the views and stated the conclusions of the Court. I may, perhaps, have occasion to discuss the other question later, when I will attempt to show, by reason and, as I think, by the great weight of authority, that the view we formerly entertained is the correct one. Nor do I intend, now, to dwell upon the remaining question, viz., whether by the recent amendments to- the Interstate Commerce Act the Congress has not made the question of fixing the rate by an agreed valuation, or upon such a valuation as its basis, one of Federal law, so that when the schedules are filed with the Interstate Commerce Commission that body is vested with the power to determine as to the reasonableness and validity of the rates, it having actually decided that such an agreement as is now in question is a valid one and that a lawful rate is 'established thereby. I am thoroughly satisfied, in all these respects, with the able and learned opinion of Justice Brown, in which I have concurred, and which to my mind presents unanswerable arguments in support of our views. If it is a Federal question, the decision of the Court in Hart v. R. R. and in Hughes v. Railway, cited in the principal opinion in this case, in which the Court adheres to its former rulings, are controlling upon us, however much we may differ with that Court in its reasoning and conclusion.