BINGHAM, J.
The defendants are engaged in the carrying trade, as common carriers of freight and passengers. Whiting Sons are milk contractors who buy and sell milk, buying it of the producers on the line of the defendants' road and distributing it at different points along the same. In consideration of the defendants agreeing to furnish Whiting Sons with cars provided with icing facilities for the transportation of their milk, Whiting Sons agreed to pay them a stipulated sum, to furnish the ice, to provide men to do the work incident to handling and caring for the milk while in transit, and to indemnify the defendants against the claims of any of the employees of Whiting Sons "on account of personal injury or damage to property received while on the cars or premises" of the road. In view of the provisions of this contract, and in consideration of his future employment and other considerations, the plaintiff, an employee of Whiting Sons engaged to handle and care for the milk, agreed with Whiting Sons not to make or prosecute any claim against the defendants on account of injuries received by him during his employment and to indemnify Whiting Sons against all liability on account of any such claim. The plaintiff was injured through the defendants' negligence, while on their train in the performance of his duties under the contract; and the question we are called upon to consider is whether these contracts are valid and constitute a defence to this action.
The defendants say that both contracts are valid, and that they should be permitted to avail themselves of the benefits of the plaintiff's contract with Whiting Sons to avoid circuity of action. But whether they can avail themselves of the provisions of that contract to avoid circuity of action depends upon whether their contract with Whiting Sons is one the law will recognize and enforce. The defendants do not dispute the proposition that common carriers cannot by contract relieve themselves from liability arising from their own negligence in the performance of duties imposed upon them by law. Their first contention is, that upon the facts disclosed in the plea the shippers could not demand as of right that the defendants should furnish the cars called for in the contract for the transportation of milk; that neither the common law nor any provision of statute required them to do more than furnish ordinary freight cars for that purpose; that this service was something which they were under no public duty to perform; and that in undertaking to render it they were private carriers and could lawfully impose such terms as they deemed proper as a condition to its performance.
Were the defendants common carriers of milk? Our statutes provide that "Every railroad corporation which shall contract with any person for the transportation of milk in large quantities over any portion of its road shall establish a tariff for the transportation of milk by the can over the same portion of its railroad with fairly proportionate advantages and facilities in every respect." P.S., c. 160, ss. 21, 22, 23; Laws 1881, c. 81. And it would seem that when the defendants entered into the contract with Whiting Sons, they thereupon and by force of the statute became common carriers of milk and were required to establish a tariff for its transportation. The same conclusion would be reached if we applied the principles of the common law as laid down in McDuffee v. Railroad, 52 N.H. 430, 454. It was there said: "A railroad corporation carrying one expressman, and enabling him to do all the express business on the line of their road, do hold themselves out as common carriers of expresses." But it is unnecessary to further consider this question, as the defendants in their plea do not deny the allegation of the plaintiff's declaration that they are common carriers of milk, and in their brief practically concede this fact. Their contention as to this matter is simply this: that the furnishing of cars without icing facilities would have been a full compliance with their public duty as common carriers; and that Whiting Sons, as shippers of milk, could not have required them to furnish cars with icing facilities for its transportation. In answer to this it may be said that, as incident to their business of common carriers of milk, it was the defendants' public duty to provide reasonable facilities for its reception and delivery, including care during transportation. Flint v. Railroad, 73 N.H. 141, 144; Sager v. Railroad, 31 Me. 228; Steinweg v. Railway, 43 N.Y. 123; Welsh v. Railroad, 10 Ohio St. 65; Beard Sons v. Railway, 79 Ia. 518, 520; Ports v. Railway, 17 Mo. App. 394; Merchants' Dispatch Co. v. Cornforth, 3 Col. 280; 2 Hutch. Car. (3d ed.), ss. 495-497; Ray Fr. Car., s. 4, and cases there cited. "A railway company is bound to provide cars reasonably fixed for the convenience of the particular class of goods it undertakes to carry. It is the duty of the carrier to provide suitable means of transportation adapted in each case to the particular class of goods he undertakes to transport. He must protect his goods from destruction or injury by the elements, from the effects of delay, from any sources of injury which, in the exercise of care and ordinary intelligence, may be known or anticipated." Ray Fr. Car., supra. He must "provide all suitable means of transportation and exercise that degree of care which the nature of the property requires." Smith v. Railroad, 12 Allen 531, 534. In addition to the duty imposed upon the defendants by the common law, our statutes provide that "the proprietors of every railroad shall furnish to all persons reasonable and equal terms, facilities, and accommodations for the transportation of persons and property over their railroad, and for the use of depots, buildings, and grounds in connection with such transportation." P. S, c. 160, s. 1; McDuffee v. Railroad, 52 N.H. 430, 457.
Inasmuch, therefore, as the defendants were common carriers of milk, and as it was their public duty to furnish all persons desiring to ship that commodity with reasonable facilities and accommodations for its transportation, this contention of the defendants resolves itself into the inquiry whether their plea states facts from which it can be inferred that the furnishing of cars with icing facilities was under the circumstances more than they could reasonably be required to do in the fulfilment of their public duty; for the question what facilities and accommodations were a reasonable compliance with their public duty — or, to state the proposition in another way, whether the cars furnished were more than their public duty required them to do — is a question of fact. Boothby v. Railroad, 66 N.H. 342, 344. The plea does not allege that it would have been reasonable, in view of the defendants' public duty, for them to have refused to furnish the Whitings with cars provided with icing facilities for the transportation of the large quantity of milk which they were daily desiring to ship, nor facts from which such an inference could reasonably be made. On the contrary, it is alleged in the plea that "at the time of the execution of all the agreements herein mentioned, large quantities of milk were produced by individual farmers living along the line of said defendant's railroad. The quantity was such that it was more economical and more advantageous to all parties — producers, distributors, and consumers — to have it transported in special cars furnished with icing facilities, than to have it carried in ordinary cars." The only reasonable deduction to be made from this allegation is that cars with icing facilities were reasonably necessary, and that those furnished did not afford greater facilities than the defendants' public duty required.
It is further contended that the defendants could not have been required to carry the shippers' servants in milk cars, and that when they agreed to carry them in these cars they undertook to do more than their public duty required, and on this account could lawfully demand of the shippers the contract of indemnity which they did. But this contention is not supported by the facts in the case. As already stated, it was the defendants' duty to provide suitable cars in which to transport the milk. It was also their duty to provide men to handle and care for it while being transported. Beard Sons v. Railway, 79 Ia. 518; Boscowitz v. Company, 93 Ill. 523; Chesapeake etc. Ry. v. Bank, 92 Va. 495; and cases above cited. But by the terms of the special contract the duty of providing men to handle and care for the milk was imposed upon the shippers; and this being so, it would not seem that the defendants were undertaking more than their public duty called for when, by the contract, they required the shippers to perform a part of their public duty — a part the performance of which necessitated the presence of the shippers' servants upon the cars. But however this may be, it is the policy of the law that common carriers should be ready and willing at all times to contract with shippers for the full performance of their public duty; and in cases where this phrase of question had been presented, it has generally been held that a contract limiting a carrier's common-law liability is unreasonable and void when transportation according to the carrier's public duty is not afforded the shipper as an alternative, and no reduction of rates is made as a consideration for the limitation. If carriers could maintain limitations or exemptions of their common-law liability in cases where the shipper was not afforded the opportunity of making a contract without them, the result would be that such contracts would be universal — that the carrier's duty would be dispensed with, and the policy of the law be defeated. Illinois etc. R. R. v. Insurance Co., 79 Miss. 114; Louisville etc. R. R. v. Gilbert, 88 Tenn. 430; Illinois etc. R. R. v. Craig, 102 Tenn. 298; Little Rock etc. Ry. v.; Cravens, 57 Ark. 112, — 18 L.R.A. 527, note: Atchison etc. R. R. v. Mason, 4 Kan. App. 391; Lewis v. Railway, 3 Q. B. Div. 195; Ray Fr. Car., ss. 45, 48, 181; 4 Elliott R. R., s. 1504; Redman Car. (2d ed.) 68; 6 Cyc. 392-401.
In this case it does not appear that the shippers were afforded the opportunity of having the defendants perform their full duty and handle and care for the milk. There is no allegation in the defendants' plea, or provision in the contract of shipment, to that effect; and in view of the absence of such an allegation or provision, and of the defendants' contention that they were under no duty even to provide cars with icing facilities for shipping the milk, it is to be inferred the shippers were not afforded such an opportunity, and that the defendants refused to provide the cars for the milk unless the shippers would furnish the men to handle and care for it and would indemnify the defendants against all liability for damages to the men and their property. In such case it is clear that we must hold that the plaintiff's contract of indemnity is unreasonable and void, and that the plaintiff's contract with the shippers, which is based upon the indemnity contract, cannot be availed of by the defendants as a defence to this action.
The plaintiff was upon the cars at the time of the accident with the defendant's consent. His passage was not free. The consideration for it was the service he rendered in caring for the milk, or the charge against his employers in shipping it. And as the defendants cannot, on the facts disclosed in the plea, avail themselves of the plaintiff's agreement with the shippers, it was the defendants' duty to use due care for the plaintiff's safety; and if they or their servants were negligent, and he was injured in consequence thereof, they were liable in damages.
Whether the agreements relied upon in the plea would have been enforceable if the defendants had been ready and willing for a reasonable compensation to perform their full duty as carriers and had afforded the shippers the opportunity of having the milk carried without restriction or limitation of their public duty, and the shippers, instead of requiring the defendants to perform their full duty, had voluntarily agreed, in consideration of a reduced rate, to furnish the men to handle and care for the milk and to indemnify the defendants against liability for loss occasioned the person or property of the men by the negligence of the defendants or their servants, we are not called upon to decide. It may be said, however, that it has been held in this state that common carriers cannot relieve themselves from the consequences of their own wrongful acts by special contract (Peerless Mfg. Co. v. Railroad, 73 N.H. 328; Durgin v. Company, 66 N.H. 277; Duntley v. Railroad, 66 N.H. 263; Merrill v. Company, 63 N.H. 514), and that these decisions may be sustained upon the broad ground that it is against the policy of the law to permit any one, be he common carrier or not, to relieve himself by contract from the performance of his common-law duty to use ordinary care to avoid injuring those with whom he knew or should have known his business would bring him in contact. Nashua etc. Co. v. Railroad, 62 N.H. 159, 161; Johnson v. Railroad, 86 Va. 975. But whether common carriers may under some circumstances contract for a release from liability for the negligence of their servants in respect to acts which do not pertain to the performance of non-delegable duties, is a question that has never been decided in this jurisdiction and is not now considered.
Demurrer sustained.
PARSONS, C.J., and WALKER and YOUNG, JJ., concurred: CHASE, J., doubted.