Viscount Haldane:—

The question raised in this appeal relates to the right of the respondent, who was plaintiff in an action in the High Court of Justice for Ontario, to recover damages against the appellants for injuries suffered by him in an accident on the appellants' railway. He was travelling in charge of a horse consigned under what is known as a "Live-stock special contract," in a form authorised by the Railway Commissioners for Canada. The terms of the contract purported to relieve the appellants from liability for injuries arising from accident, even where caused by negligence, to a person travelling with the live-stock, in case he had been permitted to travel at less than full fare.

The course of the litigation disclosed much difference of judicial opinion. The Court of first instance decided in favour of the respondent. The Court of Appeal for Ontario by a majority (Garrow, Maclaren and Meridith, J. J. A.) reversed this decision, Magee and Lennox, J.J.A., dissenting. There was an appeal to the Supreme Court of Canada, and in that Court, by a majority (Davies, Idington, Duff, Anglin, and Brodeur, JJ., the Chief Justice dissenting), the judgment of the Court of Appeal for Ontario was reversed. On an application for special leave to appeal to the King in Council this Board thought fit, in view of the importance of the question raised, to recommend that special leave should be given, but, in the circumstances, only on the terms that the appellants should, whatever the result of the appeal might be, pay the whole costs of this appeal as between solicitor and client.

Before adverting to the facts out of which the litigation arose, it will be convenient to refer to certain provisions of the Railway Act of Canada. Apart from statute a carrier is liable in Canada, as in England, for injury arising from negligence in the execution of the contract to carry, unless he has effectively stipulated that he shall be free from such liability. The freedom so to stipulate has been restricted in Canada by the Railway Act. Under s. 340 no contract restricting liability for carriage is to be valid unless it is of a kind approved by the Railway Board, which is empowered to determine the extent to which such liability may be impaired, restricted, or limited, and generally to prescribe by regulation the terms and conditions under which any traffic may be carried. Standard and special freight tariffs are to be filed with the Board and to be subject to its approval, and are to be published, and made open to the inspection of the public at the railway companies' stations and offices. Under the Act the companies are, by S. 284, put under a general obligation to carry and deliver with due care and diligence, and any one aggrieved by a breach of this duty is to have a right of action, from which the companies are not to be relieved by any notice, condition, or declaration if the damage arises from negligence or omission. It is, however, to be observed that this right is expressed by the section to be given "subject to this Act." Their Lordships think that where, under S. 340 and the other sections which deal with special tariffs, forms of stipulation limiting liability have been approved by the Board, and the conditions for making them binding have been duly complied with, the companies are enabled in such cases to contract for complete freedom from liability for negligence.

In 1904 the Board approved a form of live-stock special contract, and the order approving it was duly published. The appellants adopted this form, and so far as appears have complied with the conditions described for its use. It is out of a contract in the approved form that the present question arises.

The facts of the case are shortly as follows : — The respondent lives in the town of South River, in Ontario. He undertook to Dr. MeCombe, who resides in that town, to go to Milverton and bring back a horse by rail from there. Dr. MeCombe had arranged with Dr. Parker of Milverton, t