law, which exempted the carrier; (c) and the same rule has been adopted in the Civil Code of Louisiana. (d) In Scotland, loss by fire is also considered as one happening by inevitable accident, and for which the carrier is not responsible; but Mr. Bell insists that loss by robbery ought not to be deemed an exception to the responsibility of the carrier, and that the many practical illustrations in the English law ought to be received "as of more authority than hundreds of dicta rescued from the cobwebs of the civilians." (e)

Common carriers undertake, generally, and not as a casual occupation, and for all people indifferently, to convey goods, and deliver them at a place appointed, for hire as a business, (ƒ) and with or without a special agreement as to price. (g)2 They consist of two distinct classes of men, viz.: inland carriers by land or water, and carriers by sea; and in the aggregate body are included the owners of stage-wagons and coaches, and railroad

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cars, who carry goods as well as passengers for hire, wagon* 599 ers, teamsters, cartmen, porters, the masters and owners of ships, vessels, and all watercraft, including steam vessels, and steam tow-boats, belonging to internal as well as coasting and foreign navigation, lightermen, barge owners, canal boat

(c) Code Civil, art. 1782, 1784, 1929, 1954.

(d) Art. 2722, 2725, 2939.

(e) 1 Bell's Com. 470. The English and American decisions held the common carriers responsible for loss by fire. See infra, vol. iii. 303, note 3. Hale v. N. Jersey Steam Navigation Company, 15 Conn. 539, S. P.1

(f) Gisbourn v. Hurst, 1 Salk. 249. Brind v. Dale, 8 Carr. & Pa. 207. In this last case Lord Abinger suggested, that a town cartman, whose carts ply for hire near the wharves, was not a common carrier. See Story on Bailments, § 496, n. 3, 2d edit., who strongly, and I think properly, questions the solidity of this distinction.

(g) Lawrence J., in Harris v. Packwood, 3 Taunt. 264. Story on Bailments, § 495, 3d edit.

measure of damages, see Gee v. Lancashire R. R., 6 Hurl. & Nor. 211; Collard v. S. E. R. R. 7 Hurl. & Nor. 79; Black v. Baxendale, 1 Exch. 410; Bracket v. McNair, 14 Johns. 170.

1 Parker v. Flagg, 26 Maine, 181. And the carrier will be liable for a loss by fire at his warehouse, where the goods were detained in transitu, until the completion of an aqueduct. Graff v. Bloomer, 9 Barr, 114.

In Hosea v. McCrory, 12 Ala. 349, it was held, that the carrier was liable for a failure to deliver money on request, though the carrying of the money under the circumstances was admitted to be a violation of the Post-Office Laws. Delivery to a common carrier is requisite to charge him with responsibility, but this delivery may be actual or constructive. Evidence of constant usage by the carrier to receive goods left at a certain place, will be sufficient to render him responsible for goods left at such place. Merriam v. Hartford, &c., R. Co. 20 Conn. 354.

Fish v. Chapman, 2 Kelly (Geo.) 349. Citizens' Bank v. Nan. St. Bt. Co., 2 Story C. C. 16. Garton v. Bristol R. R., 1 B. & Smith, 112. 6 C. B. (N. S.) 639.

men, and ferrymen. As they hold themselves to the world as common carriers for a reasonable compensation, they assume to do, and are bound to do, what is required of them in the course of their employment, if they have the requisite convenience to carry, and are offered a reasonable or customary price; and if they refuse without some just ground, they are liable to an action. (a) 2

In Morse v. Slue, (b) it was decided, in the reign of Charles II., by the Court of K. B., upon great consideration, that the master of a vessel employed to carry goods beyond sea, in consideration of the freight, was answerable as a common carrier. It was admitted, in that case, and afterwards declared by Lord Hardwicke, in Boucher v. Lawson, (c) that the action lay equally against masters and owners of vessels. The doctrine in those cases has been recognized ever since; (d) and it applies equally to the carrier of goods in the coasting trade from port to port, (e) and to a

(a) Jackson v. Rogers, 2 Show. 332. Lord Kenyon and Ashurst J., in Elsee v. Gatwerd, 5 Term Rep. 143. Holroyd J., in Batson v. Donovan, 4 Barn. & Adol. 32. Pickford v. Grand J. Railway Co. 8 Mees. & W. 372. 1 Bell's Com. 467. Dwight v. Brewster, 1 Pick. 50. Jencks v. Coleman, 2 Sumner, 221. Story's Com. on Bailments, § 496. Bonney v. The Huntress, District Court of Maine, 1840. Pomeroy v. Donaldson, 5 Miss. 36. Patton v. Magrath, Dudley (S. C.) Law & Eq. 159. Hale v. New Jersey Steam Co. 15 Conn. 539. See also infra, pp. 608, 609. An action against a common carrier upon the custom is founded upon a tort, and arises ex delicto; and it is unnecessary to join as defendants all the owners of the vehicle employed in the conveyance. Orange Bank v. Brown, 3 Wendell, 158.

(b) 1 Vent. 190, 238. 2 Lev. 69. Barclay v. Gana, 3 Doug. 389, S. P.

(c) Cases temp. Hardw. 85, 194.

(d) See Goff v. Clinkard, cited in 1 Wils. 282.

(e) Dale v. Hall, 1 Wils. 281. Proprietors of the Trent Navigation v. Wood, 3 Esp. N. P. 127.

1 A steam-tug, or towing-boat is not subject to the rules which govern the liability of common carriers. Abbey v. The Robert L. Stevens, 22 How. Pr. 78, per Betts U. S. Dis. J. The New Philadelphia, 1 Black, 62. A ferryman is a common carrier. Sanders v. Young, 1 Head, 219. It seems that electric telegraphic companies are common carriers. McAndrew v. El. Tel Co., 33 Eng. L. & Eq. 180. Parks v. Alta Cal. Tel. Co., 13 Cal. 422. See, also N. Y. & Wash. Tel. Co. v. Dryburgh, 35 Penn. 298, for the rule of their responsibility to the recipient of an erroneous message who is thereby led to act, and suffers loss in consequence. It is held in Hersfield v. Adams, 19 Barb. (N. Y.) 577, that expressmen, who forward goods by the conveyance of others, are not common carriers.

2 If a carrier carries goods without an order from the owner or his agent, he is not entitled to any compensation. Fitch v. Newberry, 1 Doug. (Mich.) 1. It seems that a railway company are not excused from carrying ticket-holders according to their contract, on the ground that there is no room in the train. To exempt themselves, their contract should be conditional upon there being room. Hawcroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362.

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bargeman and hoyman upon a navigable river. (ƒ) The cases are contradictory as to its application to wharfingers; and *600 the later cases do not make the application to them. (a) They are all liable in their respective characters as common carriers, and to the whole extent of inland carriers, except so far as they may be exempted by the exceptions in the contracts of charter-party and bill of lading, or by statute. They are bound to indemnify, in cases in which they are liable as common carriers, according to the value at the place of destination where they contracted to deliver the goods. (b) There is no distinction between a land and a water carrier; and so it was declared by Lord Mansfield, and the other judges of the K. B., in the case of The Proprietors of the Trent Navigation v. Wood; (c) and the carrier is equally liable for the acts of his servants or agents, and for his own. The maxim of respondet superior applies. (d)

The proprietors of a stage-coach do not warrant the safety of passengers in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care. (e) Slight fault, unskil

(f) Rich v. Kneeland, Cro. Jac. 330. Wardell v. Mourillyan, 2 Esp. N. P. Cas. 693. Elliott v. Rossell, 10 Johns. 1.

(a) Ross v. Johnson, 5 Burr. 2825, Maving v. Todd, 1 Starkie, 72, are cases which countenance the idea that wharfingers are liable as common carriers, but later authorities justly question this doctrine; and in Roberts v. Turner, 12 Johns. 232, Platt v. Hibbard, 7 Cowen, 497, Blin v. Mayo, 10 Vermont, 60, and Ducker v. Barnett, 5 Missou. 97, it was considered that wharfingers were not liable as common carriers, unless they superadd the character of carrier to that of wharfinger; they are, like warehousemen, bound only to ordinary care. Supra, p. 591.1

(b) Watkinson v. Laughton, 8 Johns. 213. Amory v. M'Gregor, 15 Ibid. 24. Oakey v. Russell, 18 Martin (Louis.) 62. M'Gregor v. Kilgore, 6 Ohio, 358. Sedgwick on Damages, p. 370.

Ellis v. Turner, 8 Term Rep. 531.

(c) 3 Esp. N. P. 127. 4 Douglas, 287, S. C. (d) Cayenagh v. Such, 1 Price Exch. 328. (e) Aston v. Heaven, 2 Esp. N. P. 533. Christie v. Griggs, 2 Campb. 79. Crofts v. Waterhouse, 3 Bing. 321. In Boyce v. Anderson, 2 Peters U. S. 150, it was decided, that the law regulating the responsibility of common carriers did not apply to the case of carrying human beings, such as negro slaves, unless the loss was occasioned by the negligence and unskilfulness of the carrier or his agents. It was decided, in Talmadge v. Zanesville & M. R. Co. 11 Ohio, 197, that if a coach be upset by the negligence of the

1 Foote v. Storrs, 2 Barb. (N. Y.) 326. As to rights of warehousemen, see Sage v. Gittner, 11 Barb. (N.Y.) 120; Teall v. Sears, 9 Barb. (N. Y.) 317. Nor are forwarders liable as common carriers. Johnson v. N. Y. Central R. 31 Barb. (N. Y.) 196. Van Sautvoord v. St. John, 6 Hill (N. Y.) 157. See, also, Place v. Union Expr. Co. 2 Hilton, 19. Dillon v. N. Y. & Erie R. R. 1 Ibid. 231.

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fulness, or negligence, either as to the competence of the carriage, or the act of driving it, may render the owner responsible in damages for an injury to the passengers; * 601 they are to be transported as safely as human foresight and care will permit. (a) 2 It was held, also, by Lord Holt, that

driver, an injured passenger may recover his damages from the proprietors. But the coach proprietors cannot recover an indemnity over against the road company for their negligence in not keeping the road in repair. The proprietors in both cases were wrongdoers by their negligence, and the proprietor of the coach can only recover his direct damages for the injury done to his coach by the bad road of the company.2

(a) Woodsworth v. Willan, 5 Esp. N. P. 273. Mayhew v. Boyce, 1 Starkie, 323. Jones v. Boyce, Ibid. 493. Jackson v. Tollett, 2 Ibid. 37. Dudley v. Smith, 1 Campb. 167. Israel v. Clark & Clinch, 4 Esp. N. P. 259. Sharp v. Grey, 9 Bing. 457. If a carriage be upset and a passenger injured, it is incumbent on the part of the owner, to relieve himself from damages, to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business, and that he acted on the occasion with reasonable skill, and with the utmost prudence and caution. Stokes v. Saltonstall, 13 Peters U. S. 181. M'Kinney v. Neil, 1 M’Lean, 540. Peck v. Neil, 3 Ibid. 22. Maury v. Talmadge, 2 M'Lean, 157. This question, as to the responsibility of the proprietors of stage-coaches for accidents to passengers, was ably and learnedly discussed in the case of Ingalls v. Bills, 9 Metcalf, 1, and it was adjudged that the proprietors were answerable for injuries to a passenger resulting from a defect in a coach which might have been discovered by the most careful and thorough examination, but not from injuries resulting from defects not so discoverable. This appears to be a reasonable and sound distinction. The case went further, and held that the proprietors were liable for an injury to a passenger in leaping from the coach, provided it was an act under the circumstances of "reasonable precaution." 1

* In England, passengers are deemed to be so far identified with the vehicle in which they are carried that they cannot recover against third persons for injuries, when such injuries have been in part occasioned by the negligence of the driver or conductor of the vehicle in which they were being carried. Thorogood v. Bryan, 8 Mann., Gr. & S. 115. In New York, this rule was admitted in Brown v. N. Y. Cent. R. R. 31 Barb. (N.Y.) 385, but in Chapman v. New Haven R. R. 19 N. Y. 341, the Court of Appeals refused to apply it to the case of railroad passengers.

1 The doctrine of Ingalls v. Bills was recognized as law in Frinks v. Potter, 17 Ill. 406. And see Fuller v. Talbot, 23 Ill. 357. Bowen v. N. Y. Cent. R. 18 N. Y. 408. In Hegeman v. W. R. R. Co. 3 Kernan, 9, the company was held responsible for injuries caused by a defect in a car-axle which might have been discovered in the process of manufacture, though it could not be found by the closest external examination, and though the car was obtained from skilful manufacturers. See Curtis v. R. & S. R. R. Co. 20 Barb. (N. Y.) 282. Frink v. Potter, 17 Ill. 206. As to how far the negligence of the passenger is a defence to the carrier, see R. R. Co. v. Aspell, 23 Penn. 147. Holbrook v. The U. & S. R. R. Co. 2 Kernan, 236. Martin v. G. N. R. Co. 30 Eng. L. & Eq. 473. On the liability of common carriers for passengers gratuitously carried, see P. & R. R. R. Co. v. Derby, 14 How. U. S. 468. Steamboat New World v. King, 16 How. U. S. 469. It was held, in Peters v. Rylands, 20 Penn. 497, that the owners of cars were responsible as common carriers of passengers, though the rail- . road was owned by the state and the cars managed by its agents. See Schopman v. B. & W. R. R. 9 Cush. 24; Hersfield v. Adams, 19 Barb. (N. Y.) 577.

2 Peck v. Neil, 3 M'Lean, 22. Fairchild v. Cal. Stage Co. 13 Cal. 599. If a passenger who, during his journey, kept his overcoat in his possession, upon going from the car, leaves

the owners were not answerable as carriers for the baggage of the passengers, unless a distinct price was paid for the baggage; and that it was not usual to charge for baggage, unless it exceeded a certain amount in weight or quantity. (b) But the custody of the baggage is an accessory to the principal contract; and the modern doctrine and the tendency of the modern cases seem to be, to place coach proprietors, in respect to baggage, upon the ordinary footing of common carriers. (c) 5 Whenever the owner

Upshare v. Aidee, Comyn, 25.

(b) Middleton v. Fowler, 1 Salk. 282. (c) Brooke v. Pickwick, 4 Bing. 218. 1 Bell's Com. 475. Story's Com. § 499. Hollister v. Nowlen, 19 Wendell, 234. Hawkins v. Hoffman, 6 Hill (N. Y.) 586. In the case of the Orange County Bank v. Brown, 9 Wendell, 85, it was held, after a very full discussion, that a common carrier, as in the case of the owner of a steamboat, who carries passengers and their baggage, is responsible for the baggage, if lost, although no distinct price be paid for its transportation. But where the baggage consists of an ordinary travelling trunk, in which there is a large sum of money, exceeding an amount ordinarily carried for travelling expenses, such money is not considered as included under the term baggage, so as to render the carrier responsible for it.3 So if a trunk, containing valuable merchandise, was deposited as baggage, and lost, the carrier was held not liable. Pardee v. Drew, 25 Wendell, 459. Hawkins v. Hoffman, 6 Hill (N. Y.) 586, S. P. The Act of Congress of March 2, 1819, ch. 170, regulates the conveyance of passengers in American vessels from foreign countries to the United States, as to

it behind, and it be lost, the company is not liable as a common carrier. Tower v. Schenectady R. R. Co. 7 Hill (N. Y.) 47.

At common law no action lies by a widow for the loss of her husband, or by a father for the loss of his child against a railway company, by the negligence of the latter. Carey v. Berkshire Railroad Co. 1 Cush. 475. For statutory actions in such cases, see supra, 172, n. There is no distinction between railroads and ordinary highways as to the care required in the management of vehicles upon them. Beers v. Housatonic R. R. Co. 19 Conn. 566.

3 In the case of Grant v. Newton, the New York Court of Common Pleas, in an opinion in which all the cases on the subject are thoroughly examined, held that it is not settled in that state, whether the liability of a passenger carrier, for baggage lost through his negligence, extends to money, even sufficient for travelling expenses, contained in the trunk of the passenger. And the court decided that the liability does not extend to money contained in the trunk of the passenger, however small the amount. 1 E. D. Smith, 95. In Illinois, a reasonable amount of money and a revolver are held to be properly baggage, and carriers are deemed liable therefor. Illinois Central R. v. Copeland, 24 Ill. 332. Davis v. Mich. So. R 22 Ibid. 278. In England, if merchandise be carried as baggage, the railroad carrier is not liable. Cahill v. London & N. W. R. 10 C. B. (N. S.) 154.

4 See, also, Bomar v. Maxwell, 9 Humph. 624; Dibble v. Brown, 12 Geo. 217; Doyle v. Kiser, 6 Ind. 242; Jordan v. Fall River R. R. Co. 5 Cush. 69; Collins v. B. & M. R. R. 10 Cush. 506; G. N. R. v. Shepherd, 9 Eng. L. & Eq. 477, and Am. editor's note, S. C. 14 Eng. L. & Eq. 367.

5 Peixotti v. McLaughlin, 1 Strobh. 468. And they are bound not only to carry, but to deliver the baggage to the passenger. Cary v. Cleve. & Tol. R. 29 Barb. (N. Y.) 35. In Connecticut, it is provided that if a passenger be separated from his baggage, he may require a check of the company. Rev. St. 1849, tit. 44. In New York, there is a somewhat similar provision. Laws of New York, 1850, p. 232, § 37. Camden R. Co. v. Burke, 13 Wendell, 611. Same v. Belknap, 21 Wendell, 354.