one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward.' A common carrier differs from a private carrier in two important respects; (1) in respect of duty, he being obliged by law to undertake the charge of transportation, which no other person, without a special agreement is, and (2) in respect of risk, the former being regarded by the law as an insurer, the latter being liable like ordinary bailees."'. 8 SECTION 3. CARRIER OF PASSENGERS. There cannot be a bailment of a person, and therefore carriers of passengers are not bailees as to the passengers themselves. Carriers of passengers, however, are engaged in a quasi public occupation, similar to that of common carriers, and their liabilities are, therefore, properly treated under this subject. Carriers of passengers also, are bailees as to the baggage of their passengers. Carriers of Passengers will be the subject of Chapter IV of this Subject. 'Piedmont Mfg. Co. vs. Columbia, etc., R. Co., 19 S. C., 353; Coggs vs. Bernard, 2 Ld., Raym., 909, 917. Varble vs. Bigley, 14 Bush. (Ky.), Fish vs. Clark, 49 N. Y., 122, 6 CHAPTER II. COMMON CARRIERS. SECTION 4. WHO ARE. 1 There is more or less conflict between the decisions and the authorities as to what is required to constitute a carrier of goods, a common carrier. All the cases agree that the carriage must be for hire. Upon the question whether it is necessary that to be a common carrier, one must hold himself out to the public in general as ready to transport goods, or whether a single act of transportation for hire is sufficient, a disagreement between the decisions is to be found. Many of the earlier cases take the latter view. This view is set out in the case of Gordon vs. Hutchinson where the Court said: "I take it a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. * * * I can readily understand why a carpenter, encouraged by an employer to undertake the job of a cabinet-maker, shall not be bound to bring the skill of a workman to the execution of it; or why a farmer, taking his horses from the plough to turn teamster at the solicitation of his neighbor, shall be answerable for nothing less than lack of good faith; but I am unable to understand why a wagoner soliciting the employment of a common carrier, shall be prevented, by the nature of any other employment he may sometimes follow, from contracting the responsibility of one. What has a merchant to do 1 I W. & S. (Pa.), 285, decided 1841. with the private business of those who publicly solicit employment from him? They offer themselves to him as competent to perform the service required and in the absence of express reservation, they contract to perform it on the usual terms, and under the usual responsibility. Now, what is the case here? The defendant, is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business and consequently on the usual conditions. His agency was not sought in consequence of a special confidence reposed in him-there was nothing special in the case—on the contrary, the employment was sought by himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury; but, independent of that, we are of opinion that he is liable as an insurer." The more modern, and probably better opinion on this point is expressed in the following quotation: "A common carrier is one who holds himself out as ready to engage in the transportation of goods for hire as a public employment, and not as a casual occupation. It is sometimes said that one who undertakes for a single occasion only to carry goods for any person who desires to employ him for that occasion is a common carrier for that transportation. But the cases of this kind will be perhaps the principal business of the one sought to be charged as carrier, it is incidentally his business for the time being. In general the liability of carrier does not attach to one who does not hold himself out as pursuing that business, but in the 2 Fish vs. Chapman, 2 Ga., 349, 46 Am. Dec., 393; Roussel vs. Aumais, 18 Quebec Super. Ct., 474. 396; Harrison vs. Roy, 39 Miss., particular case, and in each particular case, acts only in consequence of a special employment." 45 "What constitutes a common carrier is a question of law. Whether the person comes under the definition is one of fact. Whether a contract of carriage changes the relation of the carrier from that of a common carrier to that of a private carrier is one of law. Whether the facts shown establish the legal position of common carrier is a question for the jury." The following are common carriers: railroad companies, carriers by boat or vessel,10 ferrymen,"1 draymen or truckmen,12 and express companies.13 Carriers of live stock are generally held to have the liability of common carriers," although there are some decisions to the contrary.15 A receiver appointed by a court to operate a railroad is a common carrier, the same as the corporation which he represents.18 Forwarding agents," and owners or operators of tugboats, are not common carriers.18 Sumner vs. Caswell, 20 Fed., 249. 6 Cyc., 366. • Remnewill vs. Cullen, 5 Harr. (Del.), 238. 7 Kimball vs. Rutland, etc., R. Co., 26 Vt., 247. 8 Avinger vs. South Carolina R. Co., 29 S. C., 265, 7 S. E., 493, 13 Am. St. Rep., 716. Bausemer vs. Toledo, etc., R. Co., 25 Ind., 434; Heineman vs. Grand Trunk R. Co., 10 Biss. (U. S.), 70, 7 Fed. Rep., 68. 10 Liverpool, etc., Steam. Co. vs. Phenix Ins. Co., 129 U. S., 397, "Slimmer vs. Merry (23 Iowa, 90; 19 Feiber vs. Manhattan Dist. Tel. 13 Gulliver vs. Adams Express Co., 15 Heller vs. Chicago, etc., R. Co., 16 Paige vs. Smith, 99 Mass., 395. (N. Y.), 232, 7 Am. Dec., 311. 18 Knapp vs. McCoffrey, 178 I., 107, 52 N. E., 898. SECTION 5. DUTY TO RECEIVE GOODS FROM ALL PERSONS. The great duty which a common carrier owes to the public is that of receiving and carrying the goods of all persons indiscriminately. Carriers are bound to receive and transport all freight tendered, according to the custom and usage of their business.19 It is the specific duty of carriers to serve all alike. Favors and preferences are to be avoided. A common carrier cannot carry for one and refuse to carry for another. A railroad is without right to grant privileges where the public is concerned.20 A common carrier, however, may restrict the scope of his business, either as to location, or as to the class of goods transported; for example, a common carrier is not bound to receive dangerous articles, such as nitroglycerine, dynamite, gunpowder, oil of vitriol, matches, etc.21 But as to kinds of property, which the carrier is in the habit of carrying in the prosecution of his business, he is bound to serve all customers alike.22 In order to be a refusal to transport, there must be a tender of goods for shipment.23 SECTION 6. WHEN AND WHERE DELIVERY MUST BE MADE. The question as to when and where delivery of goods intrusted to a common carrier must be made, is one to which no general answer can be made and which must depend upon the particular facts of each individ |