to sustain the verdict, and find no prejudicial error in the record.

The judgment is affirmed.

RUDKIN, C. J., DUNBAR, CROW, and MOUNT, JJ., concur.

[No. 8081. En Banc. May 3, 1910.]

CARSTENS PACKING COMPANY, Respondent, v. SOUTHERN PACIFIC COMPANY, Appellant.1

CARRIERS OF LIVE STOCK-CONTRACTS-EXEMPTION FROM LIABILITY-PUBLIC POLICY. A statute providing that a railway carrier of live stock cannot exempt itself from liability for losses or injuries caused by its own negligence is a rule of public policy in this state. An exemp

SAME CONTRACTS-VALIDITY-WHAT LAW GOVERNS. tion by contract from liability for negligence by a railroad transporting live stock into this state, contrary to the provisions of Rem. & Bal. Code, § 8648, is void as against public policy, although valid under the laws of the state where the contract was made; and comity does not require its enforcement in this state.

SAME CLAIMS FOR LOSS-EVIDENCE-ADMISSIBILITY. In an action for injuries to live stock transported by defendant under a contract requiring claims for loss sustained to be made in writing within ten days after unloading the stock, evidence of abnormal shrinkage in weight is admissible without a bill of particulars or specification of the item, where the claim was for loss and damage due to rough handling, bruises, and depreciation in value, and opportunity was given to inspect the stock on arrival at its destination.

SAME EVIDENCE OF NEGLIGENCE-SUFFICIENCY. The evidence is sufficient to sustain a verdict for loss and damage to cattle transported, through negligent rough handling of the train by the carrier, although the testimony of the shipper's representative accompanying the stock could not be obtained, where there was evidence tending to show the condition of the cattle when shipped, and when delivered, and that a great number were so seriously bruised as to be unsalable.

Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered November 20, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action of tort. Affirmed.

'Reported in 108 Pac. 613.

Opinion Per PARKER, J.

[58 Wash.

Wm. D. Fenton, R. A. Leiter, and Peters & Powell, for appellant, contended, among other things, that it is not sufficient to show that the stock arrived at its destination in an injured condition. Hutchinson, Carriers, § 1357; Elliott, Railroads (2d ed.), § 1549; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 32 Am. St. 239, 17 L. R. A. 339; St. Louis etc. R. Co. v. Weakly, 50 Ark. 397, 8 S. W. 134, 7 Am. St. 104; Peterson v. Chicago etc. R. Co., 19 S. D. 122, 102 N. W. 595; St. Louis S. W. R. Co. v. Vaughan (Tex. Civ. App.), 41 S. W. 415; Pennsylvania R. Co. v. Raiordon, 119 Pa. St. 577, 13 Atl. 324, 4 Am. St. 670. Under the laws of California, the contract was valid. Donlon Bros. v. Southern Pac. Co., 151 Cal. 763, 91 Pac. 603, 11 L. R. A. (N. S.) 811; Michalitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 Pac. 847; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; St. Louis & S. F. R. Co. v. Kimberlin (Tex. Civ. App.), 111 S. W. 671; California Civil Code, §§ 21742176. And the laws of California govern. 1 Hutchinson, Carriers, § 199 et seq. La Selle v. Woolery, 14 Wash. 70, 44 Pac. 115, 53 Am. St. 855, 32 L. R. A. 73; Hunter v. Wenatchee Land Co., 36 Wash. 541, 79 Pac. 40; Palmer v. Atchison etc. R. Co., 101 Cal. 187, 35 Pac. 630.

Ellis, Fletcher & Evans, for respondent.

PARKER, J.-This was an action to recover for loss and injuries to cattle in four shipments from points in California to Tacoma, in this state. Each shipment was made the basis of a separate cause of action. The loss and injuries occurring in the second, third, and fourth shipments it is alleged were caused by the defendant's negligence in the operation of its trains, and also by its failure to provide reasonably safe unloading facilities at Gazelle, California, where the cattle were unloaded for water, food and rest. The loss and injuries occurring in the first shipment are alleged to be the result of defendant's negligence in the operation of its

Opinion Per PARKER, J.

May 1910]

trains. The defendant by its answer denied all negligence upon its part, and alleged that the shipments were made under written contracts upon the terms and conditions of which, and not otherwise, it undertook to transport the cattle from the several points in California to Tacoma, setting forth the contracts, containing the following:

"That in no event is first party or its lessors to be liable for any loss of, or damage to, said live stock not proven to have been caused by the gross negligence of first party in the performance of or failure to perform some duty which under the terms of this contract, is due from first party to second party as to said live stock."

Defendant also alleged that, under the law of California where the contracts were made, such agreed exemption from liability is permissible, and set forth the sections of the civil code of California showing that such stipulated exemption is valid in that state. The trial resulted in a verdict in favor of the plaintiff upon each cause of action. Judgment was entered thereon, and upon the denial of defendant's motion for a new trial, it appealed to this court.

The learned trial court instructed the jury, in substance, that the defendant could not stipulate against its own negligence, and refused to give instructions requested by appellant's counsel to the effect that it could be held liable for its gross negligence only. This is assigned as error by counsel for appellant, upon which assignment it is contended that, since this contract was executed in California, and the law of California sustains the validity of the provision therein limiting the liability of appellant as against its own negligence, other than gross negligence, the law of California must govern in determining the construction and validity of that part of the contract and the respective rights of the parties thereunder. Of course the general rule is that the law of the place of the making of a contract controls in determining the rights and liabilities of the parties thereto. This rule, it is contended by learned counsel for respondent,

16-58 WASH.

Opinion Per PARKER, J.

[58 Wash.

has its exceptions and qualifications, and does not control in this case, because the limitations attempted to be placed upon appellant's liability resulting from its negligence, other than its gross negligence, is in contravention of the public policy of this state, and, therefore, when sought to be enforced in the courts of this state, should be regarded as void, and that appellant's liability for its negligence should be determined regardless of such provision. At the time of the making of the contracts it was a part of the statute law of this state, Laws of 1907, p. 691 [Rem. & Bal. Code, § 8648 et seq.],

"That no contract, receipt, rule, or regulation shall exempt any corporation engaged in transporting live stock by railway from liability of a common carrier, or carrier of live stock, which would exist had no contract, receipt, rule, or regulation been made or entered into."

It hardly needs argument to demonstrate that this is a declaration of public policy. Clearly, its enactment was prompted by a concern for the public welfare. It is in keeping with the law existing in many of the states of the Union, touching the power of public carriers to limit their liabilities and lessen their duties as such by rule or contract. Upon the question of attempting to so limit their liability against their own negligence, in Moore on Carriers, 313, it is stated:

"The doctrine is established by the great weight of authority in this country that a carrier cannot by stipulation or contract relieve or exempt itself from liability for losses or injuries caused by its own negligence or want of care and skill, or that of its servants, or by its own or their wilful default, misfeasance or tort. Public policy and every consideration of right and justice, it is held, demands that the right of the owners to absolute security against the negligence of the carrier, and of all persons engaged in performing its duty, shall not be taken away by any reservation in its receipt, or by any arrangement, contract or stipulation entered into. Such contracts are, therefore, declared to be void as being unreasonable and contrary to public policy and afford no protection to the carrier."

Opinion Per PARKER, J.

May 1910]

This court has recently recognized this rule in Bartelt v. Oregon R. & Nav. Co., 57 Wash. 16, 106 Pac. 487. In view of the importance of the question involved, we deem it appropriate to notice the reasons upon which this doctrine rests. They have been ably stated by Justice Bradley, speaking for the supreme court of the United States, in the case of Railroad Co. v. Lockwood, 84 U. S. 357, 378. We quote from that decision at some length, commencing at page 378:

"It is a favorite argument in the cases which favor the extension of the carrier's right to contract for exemption from liability, that men must be permitted to make their own agreements, 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 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 exercising 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. 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 were not a public one, charging him with the duty of accommodating the public in the line of his employment; then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which