tually delivered." Interest is also allowed on such sum from the time the goods should have been delivered.** When there is no difference between the value of the goods when they were delivered and when they should have been delivered, then the loss is limited to the value of the use of the goods between the two dates; that is, during the period of the delay. Thus, in an action against the carrier for delay in delivering machinery (the value of which was not affected by the delay) the damages were the value of the use of the machinery during the period of its delay, or the sum for which the plaintiff might for this period have hired similar machinery. 65 68 Gulf, C. & S. F. Ry. Co. v. McCarty, 82 Tex. 608, 18 S. W. 716; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Western & A. R. Co. v. Summerour, 139 Ga. 545, 77 S. E. 802; Newport News & M. V. R. Co. v. Mercer, 96 Ky. 475, 29 S. W. 301; Atlanta & W. P. R. Co. v. Texas Grate Co., 81 Ga. 602, 9 S. E. 600; McGRATH BROS. v. CHARLESTON & W. C. RY. CO., 91 S. C. 552, 75 S. E. 44, 42 L. R. A. (N. S.) 782, Ann. Cas. 1914A, 64, Dobie Cas. Bailments and Carriers, 288; Wilson v. Ry. Co., 9 C. B. N. S. (Eng.) 632. See, also, Cutting v. Grand Trunk Ry. Co., 13 Allen (Mass.) 381; Weston v. Grand Trunk Ry. Co., 54 Me. 376, 92 Am. Dec. 552; Sherman v. Hudson River R. Co., 64 N. Y. 254; Scott v. Boston & N. O. S. S. Co., 106 Mass. 468; Collard v. Railway Co., 7 Hurl. & N. (Eng.) 79; Ayres v. Chicago & N. W. Ry. Co., 75 Wis. 215, 43 N. W. 1122; Ingledew v. Northern R., 7 Gray (Mass.) 86. Money spent looking for goods may be recovered. Hales v. Railway Co., 4 Best & S. (Eng.) 66. Cf. Woodger v. Railway Co., L. R. 2 C. B. (Eng.) 318. Where goods have been resold and the carrier notified of the price, such price is to be taken as their true value, Deming v. Grand Trunk R. Co., 48 N. H. 455, 470, 2 Am. Rep. 267; but where the carrier is not notified of such price, the market price is considered their true value, Horne v. Midland Ry. Co., L. R. 8 C. P. (Eng.) 131. Cf. Illinois Cent. R. Co. v. Cobb, 64 Ill. 128, where shipper was allowed to recover on basis of contract price. Where goods have been sold "to arrive," and the market value at the time when they should have arrived was greater than the contract price, recovery has been allowed on the basis of market value. Rodocanachi v. Milburn, L. R. 18 Q. B. Div. (Eng.) 67. Incidental expenses proximately flowing from the negligent delay may also be recovered. Murrell v. Pacific Exp. Co., 54 Ark. 22, 14 S. W. 1098, 26 Am. St. Rep. 17; Deming v. Grand Trunk R. Co., 48 N. H. 455, 2 Am. Rep. 267. 64 New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444, 37 L. Ed. 292; Houston & T. C. Ry. Co. v. Jackson, 62 Tex. 209. 65 Priestly v. Northern Indiana & C. R. Co., 26 Ill. 206, 79 Am. Dec. 369. So, in forwarding money, the measure of damages was held to be interest on the money during the period of delay. United States Exp. Co. v. Haines, 67 Ill. 137. DOB.BAILM.-33 SAME SPECIAL DAMAGES 163. Special damages arising from the carrier's default are ordinarily not allowed unless the peculiar circumstances out of which these damages arise are communicated to, or known by, the carrier, and unless these damages are also the natural and probable consequences of the carrier's breach of duty. In all the rules heretofore stated, with reference to the measure of damages, the damages allowed have been for losses directly flowing from the carrier's breach of duty. In addition, these losses are such as would normally arise, without regard to any distinctive details surrounding any individual shipment. It frequently happens, however, that by virtue of these peculiar facts in a particular shipment the loss suffered is far greater than that granted under the general rules already stated. It then becomes important to determine whether such unique or special damages are recoverable, or whether the shipper is limited to a recovery under the general rule appropriate to all cases of that kind. The accepted doctrine is that such unique and special damages cannot be recovered unless the peculiar consequences of a default (or circumstances from which such consequences should properly be inferred) are communicated to, or known by, the carrier at the time the contract of carriage was made. Only such losses can 66 66 International & G. N. R. Co. v. Hatchell, 22 Tex. Civ. App. 498, 55. S. W. 186; Hamilton v. Western N. C. R. Co., 96 N. C. 398, 3 S. E. 164; Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. E. 606; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644; Missouri, K. & T. R. Co. of Texas v. McLean, 55 Tex. Civ. App. 130, 118 S. W. 161. The owner of machinery lost in transportation could not recover from the carrier special damages for time lost and expense incurred in making successive calls for the freight at the carrier's office without proof of notice to the carrier's agent of the value of the time or attendant expense or the distance that would have to be traveled in making such calls. Pacific Exp. Co. v. Jones, 52 Tex. Civ. App. 367, 113 S. W. 952. Where, on shipment of fertilizer, there was no notice to the carrier of any special use to which it was to be applied or of such scarcity of fertilizer as to prevent another purchase of a like amount by consignee, consignee was not entitled to special damages for failure to deliver the fertilizer. MATHESON v. SOUTHERN RY. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290. Where a carrier contracting for the transportation of a musical instrument did not have notice of the shipper's intention to use the instrument for any particular purpose, the measure of damages for injuries to the instrument during transportation was the difference in its value at the time and in the condition in which it arrived at the point of destination, and its value at the time and in the condition in which it be recovered as were reasonably contemplated by both parties, at the time the contract was made, as likely to arise from the carrier's breach, and not losses due to circumstances which were then wholly unknown to the carrier. Damages, too, are awarded only for the reasonable and proximate, and not for the speculative and remote, consequences of the breach of the carrier's duty."7 68 Thus, when the carrier delayed the delivery of a shaft for a flour mill, it was held that, when the special circumstances were not communicated to the carrier, there could be no recovery for the loss of profits due to the fact that the mill was idle during such delay. Again, in the absence of special knowledge by the carrier, it was held, where there was a delay in delivering a package containing samples, that there could be no recovery of the shipper's hotel expenses during such period of delay, when he was waiting for the package. But when the carrier agreed to deliver the goods at their destination at a specified time, knowing that, unless the 69 should have arrived there. Missouri, K. & T. Ry. Co. v. Harris (Tex. Civ. App.) 138 S. W. 1085. A carrier, informed by a shipper that tents were intended to be used during severe weather as a stable for the protection of his horses, etc., had sufficient notice to render it liable for the expenses and damages which might result by reason of its failure to deliver them within a reasonable time. Pecos & N. T. Ry. Co. v. Maxwell (Tex. Civ. App.) 156 S. W. 548. 67 Gulf, C. & S. F. Ry. Co. v. Hodge, 10 Tex. Civ. App. 543, 30 S. W. 829; Harvey v. Connecticut & P. R. R. Co., 124 Mass. 421, 26 Am. Rep. 673; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458. See, on the recovery of special damages in general, the great leading case of Hadley v. Baxendale, 9 Exch. (Eng.) 341. Where a carrier lost goods in its possession for transportation to plaintiff intended for resale in the course of plaintiff's business, and no freight had ever been paid, the carrier was only liable for the fair market value of the goods at the time and place of delivery, and not for profits which plaintiff might have made had he resold the goods in the ordinary course of his business. Cincinnati, N. O. & T. P. R. Co. v. Hansford & Son, 125 Ky. 37, 100 S. W. 251, 30 Ky. Law Rep. 1105. Where a shipper of household goods notifies the agent that she needs the goods immediately, there is not a sufficient notice of special damages to authorize a recovery for a cold contracted by the shipper, caused by the lack of the household goods shipped. Alabama & V. Ry. Co. v. McKenna (Miss.) 61 South. 823. 68 Hadley v. Baxendale, 9 Exch. (Eng.) 341 (leading case). See, also, the recent case of Harper Furniture Co. v. Southern Exp. Co., 148 N. C. 87, 62 S. E. 145, 30 L. R. A. (N. S.) 483, 128 Am. St. Rep. 588, in which the facts (delay by carrier in transporting an engine shaft for a furniture factory) were strikingly similar in many respects to those of Hadley v. Baxendale. In the Harper Case a divided court (three judges to two) held that special damages were proper and that the facts and circumstances surrounding the shipment were sufficient to give notice to the carrier that these damages might reasonably be expected as the result of the delay. • Woodger v. Ry. Co., L. R. 2 C. P. (Eng.) 318. goods were then delivered, the owner would lose the profits of a splendid sale he had made, then the carrier for its negligent delay was held liable for the difference between the price stipulated in the plaintiff's advantageous contract of sale and the market value of the goods at the time of their actual delivery." To Deming v. Grand Trunk R. Co., 48 N. H. 455, 2 Am. Rep. 267. PART THREE CARRIERS OF PASSENGERS CHAPTER XVI THE NATURE OF THE RELATION 164. Who are Carriers of Passengers. Sleeping Car Companies. 166, Who are Passengers. WHO ARE CARRIERS OF PASSENGERS 164. Carriers of passengers are carriers engaged in the transportation of human beings. Like carriers of goods they are divided into: (a) Common carriers, who hold themselves out to carry all proper persons who apply. (b) Private carriers, who carry only on special contracts in individual cases. In General Practically, the passenger carrier differs from the carrier of goods as to what is carried. From this difference, however, flow necessarily legal consequences that must be in many respects utterly dissimilar. And yet there are still so many analogies between the two that the study of either throws light on the other, which is in itself sufficient justification for treating the two in a single book. The carrier of passengers is engaged in the transportation, not of goods, but of human beings. Human beings have reason, volition, and intelligence. They can move about and incur danger or avoid it when it is impending. It is clear, too, that the carrier of passengers as such is in no sense a bailee. The control of the carrier over the passenger is not, and cannot be, as complete as the measure of control which the carrier can exercise over the goods. Even in the carrier's regulations, the human aspect is predominant as a limitation on what regulations are reasonable. Though from an economic standpoint the carriage of goods is of relatively more importance than the transportation of passengers, yet the wonderful development of passenger traffic in modern |