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CHAPTER III.

REQUISITES OF COMMON CARRIAGE.

TOPIC A.-BY WHOM THE CARRIAGE IS UNDERTAKEN.

§ 71. Who are common carriers.

72. Carriage of goods by servant of a carrier.

73. Carriage of passengers by servant of a carrier.

74. Carrier must control the thing carried.

TOPIC B.- -WHETHER THERE HAS BEEN ACCEPTANCE OF PASSEN

GERS AND THEIR BELONGINGS.

75. Carriage in vehicle not intended for passengers.

76. Carriage on freight cars.

77. Carriage in a place not intended for passengers.

78. Whether there is acceptance in such cases.

79. Baggage carried in car with passenger.

80. American rule as to baggage carried by passenger.

TOPIC C. WHETHER THERE HAS BEEN BAILMENT MADE OF

GOODS.

§ 81. Owner accompanies the goods and retains possession.

82. Owner accompanies the goods without retaining possession.

83. Cattle carried with a drover furnished by the owner.

84. Goods taken across a ferry by the owner.

85. Goods carried across a bridge.

86. Issue of bill of lading without receipt of goods.

TOPIC D.-TRANSPORTATION NECESSARY FOR THE CONCEPTION

OF CARRIAGE.

§ 87. Carrier must undertake transportation.

88. Storage hulks not carriers.

89. Log drivers not carriers.

90. Drovers of cattle not carriers.

91. Vehicles leased for carriage.

92. Shipper furnishes servants to manage vehicle.

TOPIC E. WHEN TRANSPORTATION IS FURNISHED BY OTHERS.

§ 93. Leased railways.

94. Chartered accommodations.

95. Refrigerator car lines not carriers.

96. Sleeping car companies not carriers.

97. Forwarding agents not carriers.

TOPIC A.-BY WHOM THE CARRIAGE IS UNDERTAKEN.

§ 71. Who are common carriers.

A common or public carrier, whether of goods or of passengers, is one who is engaged in carrying as a public employment. "One who by virtue of his calling undertakes for compensation to transport personal property from one place to another for all such as may choose to employ him "-is one succinct definition.1 "A person who undertakes to transport from place to place for hire the goods of those who choose to employ him ". is another.2

1 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 38, 52 N. E. 665, 70 Am. St. Rep. 432 (1899).

2 Quoted from Elkins v. Boston & M. R. R., 23 N. H. 275 (1851).

See also various definitions in

FEDERAL COURT:

The Neaffie, 1 Abb. (U. S.) 465, 467, 17 Fed. Cas. 10,063 (1870). STATE COURTS:

Alabama-Babcock v. Heiteit, 3 Ala. 392, 396, 37 Am. Dec. 695 (1842). Illinois-Ill. Cent. R. R. v. Frankenberg, 54 Ill. 88, 95, 5 Am. Rep. 92 (1870).

Georgia-Fish v. Chapman, 2 Ga. 349, 352, 46 Am. Dec. 393 (1847). Kentucky-Robertson v. Kennedy, 2 Dana (Ky), 430, 431, 26 Am. Dec. 466 (1834).

Massachusetts-Dwight v. Brewster, 1 Pick. (Mass.) 50, 53, 11 Am. Dec.

133 (1822).

New Hampshire-Shelden v. Robinson, 7 N. H. 157, 163, 26 Am. Dec. 726 (1834).

New Jersey-Mershon v. Hobensach, 22 N. J. L. 372, 377 (1850). New York-Alexander v. Greene, 7 Hill (N. Y.), 533, 544 (1844). Oregon-Honeyman v. Oregon, etc., R. Co., 13 Oreg. 352, 353, 10 Pac. 628, 57 Am. Rep. 20 (1886).

Common carriage, therefore, involves a certain kind of service performed under certain conditions. In order to determine whether a person is a common carrier, it must be determined first, whether his business is that of carrying, second, whether it is a public one. The first of these questions will be the one discussed in this chapter. This question itself has two branches; for the conception of carriage involves first that the carrier shall have control of the person or thing carried; second, that the carrier shall transport the person or thing carried.

72. Carriage of goods by servant of a carrier.

It sometimes happens that a parcel is given to the servant of a carrier under such circumstances that it seems doubtful whether the servant or the master becomes the bailee and carrier. It is quite possible for the servant of a carrier to take and carry goods independently of his master, and when this is alleged to be the case all the circumstances must be examined to determine the question. If the shipper is aware that the carriage is a private matter, for the private gain of the servant, he cannot hold the master liable;3 and so if he delivers to the servant to be carried gratuitously, as a matter of friendship, since such an arrangement is not a business arrangement and could hardly be supposed by the shipper to be made on the master's account. But the mere fact that by an arrangement between the carrier and his servant the latter was to receive the

Pennsylvania-Beckman v. Shouse, 5 Rawle (Pa.), 179, 187, 28 Am. Dec. 653 (1835); Gordon v. Hutchinson, 1 W. & S. (Pa.) 285, B. & W. 3 (1841).

South Carolina-Bambeig v. So. Carolina R. Co., 9 S. C. 61, 67, 30 Am. Rep. 13 (1877).

West Virginia-Mashin v. Boston, etc., R. Co., 14 W. Va. 180, 188, 35 Am. Rep. 748 (1878).

Wisconsin-Doty v. Srong, 1 Pinn. (Wis.) 313, 326, 40 Am. Dec. 773

(1843).

England-Gisborn v. Hurst, 1 Salk, 249, B. & W. 2 (1700).

3 Butler v. Basing, 2 C. & P. 613 (1827).

4 Suarez v. The Washington, 1 Woods, 96, Fed. Cas. 13,585 (1870); Me

compensation would not absolve the carrier from liability to the shipper.5

§ 73. Carriage of passengers by servant of a carrier.

One who is riding in the carrier's vehicle, not as ordinary passengers ride, but upon invitation of the carrier's servant, without paying fare, is not a passenger; his relation is with the servant, not with the carrier.

Thus, where a yardmaster out of hours took an engine and car without permission of the defendant company, and invited persons to ride free in the car to a meeting, over a portion of the road not used for passenger trains, he was held not to have even apparent authority to act for the company, and the persons so riding were not passengers. And where a party of children were invited by a servant of the carrier to ride on a train which was being shifted through the yard, they were not passengers.8

7

In a few cases however it has been held that children riding on a vehicle by invitation of a servant of the company are entitled to be regarded as passengers. Thus, where the driver of a street car invited children to ride on the front platform, they

chanics & T. Bank v. Gordon, 5 La. Ann. 604 (1850); Choteau v. Steamboat St. Anthony, 16 Mo. 216 (1852).

5 Dwight v. Brewster, 1 Pick. (Mass.) 50 (1822); Beau v. Sturtevant, 8 N. H. 146 (1835); Mayall v. Boston & M. R. R., 19 N. H. 122 (1848); Farmers' & M. Bank v. Champlain T. Co., 23 Vt. 186 (1851).

6 Waterbury v. New York C. & H. R. R. R., 17 Fed. Rep. 671 (riding on engine by consent of engineer) (1883); Atchison, T. & S. F. R. R. v. Headland, 18 Col. 477 (1893), 33 Pac. Rep. 185 (conductor induced to let plaintiff ride free on freight train); Toledo, W. & W. Ry. v. Brooks, 81 Ill. 245 (1876) (conductor induced to let plaintiff ride free on passenger train); Chicago & A. R. R. v. Michie, 83 Ill. 427 (1876) (riding on engine by consent of engineer); McVeety v. St. Paul, M. & M. Ry., 45 Minn. 268, 47 N. W. Rep. 809 (1891) (riding free on freight train); Woolsey v. Chicago, B. & Q. R. R., 39 Neb. 798, 58 N. W. Rep. 444 (1894) (riding on engine by consent of fireman, to shovel coal); Robertson v. New York & E. R. R., 22 Barb. (N. Y.) 91 (1856) (riding on engine by consent of engineer).

7 Chicago, S. P. M. & O. Ry. v. Bryant, 65 Fed. Rep. 969 (1895).

8 Reary v. Louisville, N. O. & T. Ry., 40 La. Ann. 32, 3 So. Rep. 390 .1988). [81]

were held to be passengers; and where a conductor invited a boy to ride in a freight train (on which passengers were sometimes carried) the boy was held to be a passenger.10 But these cases can hardly be supported on this point. The children concerned were clearly guests of the servant, not of the carrier. However far the apparent authority of a conductor may be held to extend, it cannot cover an invitation to ride free; free carriage is not the carrier's business.

If one riding free by invitation of a servant is not a passenger, a fortiori one who by misrepresentation induces the servant to let him ride free is not a passenger;11 and still more clearly one who bribes the servant by a small fee to let him ride without paying the regular fare is not a passenger.

12

It will be noticed that the cases follow closely the principle that the carrier must accept the passenger; and that to prove himself a passenger one must prove either actual acceptance as such by a servant having authority, or else an exact compliance with the terms of an invitation extended by the carrier to the public.

§ 74. Carrier must control the thing carried.

In order to be a carrier, rather than a mere furnisher of motive power, the person in question must take control of some sort over the thing to be carried, whether it be a chattel or a person. There is to be sure a difference in the degree of control exer

9 Wilton v. Middlesex R. R., 107 Mass. 108 (1871); Muehlhausen v. St. Louis R. R., 91 Mo. 332, 2 S. W. Rep. 315 (1886); Buck v. Power Co., 108 Mo. 185, 18 S. W. Rep. 1090 (1891).

10 St. Joseph & W. R. R. v. Wheeler, 35 Kan. 185, 10 Pac. Rep. 461 (1886); Sherman v. Hannibal & S. J. R. R., 72 Mo. 62 (1880) (semble); Whitehead v. St. Louis, I. M. & S. Ry., 99 Mo. 263, 11 S. W. Rep. 751 (1889).

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11 Condram v. Chicago, M. & S. P. Ry., 67 Fed. Rep. 522 (1895).

12 McNamara v. Great Northern Ry., 61 Minn. 296, 63 N. W. Rep. 726 (1895); Janny v. Great Northern Ry., 63 Minn. 380, 65 N. W. Rep. 450 (1896); Brevig v. Chicago, S. P. M. & O. Ry., 64 Minn. 168, 66 N. W. Rep. 401 (1896).

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