carriage. This renders both the services, as well as the absolute undertaking for the carriage, as the contingent undertaking for the storage, to be services undertaken to be done for hire and reward. From this view of the duty and implied contract of the carriers by railroad, we think there result two distinct liabilities: first, that of common carriers, and afterwards that of keepers for hire, or warehouse keepers; the obligations of each of which are regulated by law.

"We may then say, in the case of goods transported by railroad, either that it is not the duty of the company as common carriers, to deliver the goods to the consignee, which is more strictly conformable to the truth of the facts; or, in analogy to the old rule that delivery is necessary, it may be said that delivery by themselves as common carriers, to themselves as keepers for hire, conformably to the agreement of both parties, is a delivery which discharges their responsibility as common carriers. If they are chargeable after the goods have been landed and stored, the liability is one of a very different character-one which binds them only to stand to losses occasioned by their fault or negligence. Indeed the same doctrine is distinctly laid down in Thomas vs. Boston & Providence Railroad, 10 Met., 472, with the same limitation. The point that the same company, under one and the same contract, may be subject to distinct duties, for a failure in which they may be liable to different degrees of responsibility, will result from a comparison of the two cases of Garside vs. Trent & Mersey Navigation, 5 T. R., 389 (260). See also Van Santvoord vs. St. John, 6 Hill, 157, and McHenry vs. Philadelphia, Wilmington & Baltimore Railroad, 4 Harring, 448.

"The company, having received an adequate

Vol V.-12.

compensation for the entire service, if they store the goods, are paid for that service; they are depositaries for hire, and of course responsible for the security and fitness of the place, and all precautions necessary to the safety of the goods, and for ordinary care and attention of their servants and agents, in keeping them and delivering them when called for. This enforces the liability of common carriers to the extent to which it has been uniformly carried by the common law, so far as the reason and principle of the rule rendered it fit and applicable, that is, during the transit; and affords a reasonable security to the owner of goods for their safety, until actually taken into his own custody.

"The principle, thus adopted, is not new; many cases might be cited; one or two will be sufficient. Where a consignee of goods, sent by a common carrier to London, had no warehouse of his own, but was accustomed to leave the goods in the wagon office, or warehouse of the common carrier, it was held, that the transit was at an end, when the goods were received and placed in the warehouse. Row vs. Pickford, 8 Taunt., 83. Though this was a case of stoppage in transitu, it decides the principle. But another case in the same volume is more in point. In re Webb, 8 Taunt., 443. Common carriers agreed to carry wool from London to France, under a stipulation that when the consignees had not room in their own store to receive it, the carriers, without additional charge, would retain it in their own warehouse, until the consignor was ready to receive it. Wool thus carried, and placed in the carrier's warehouse, was destroyed by an accidental fire; it was held that the carriers were not liable. The courts say that this was a loss which

would fall on them, as carriers, if they were acting in that character, but would not fall on them as warehousemen.

"This view of the law, applicable to railroad companies, as common carriers of merchandise, affords a plain, precise, and practical rule of duty, of easy application, well adapted to the security of all persons interested; it determines that they are responsible as common carriers until the goods are removed from the cars and placed on the platform; that if, on account of their arrival in the night, or at any other time, when, by usage and course of business, the doors of the merchandise depot or warehouse are closed, or for any other cause, they cannot then be delivered; or if, for any reason, the consignee is not there ready to receive them, it is the duty of the company to store them and preserve them safely, under the charge of competent and careful servants, ready to be delivered, and actually deliver them when duly called for by parties authorized and entitled to receive them; and for the performance of these duties after the goods are delivered from the cars, the company are liable, as warehousemen, or keepers of goods for hire." 21

SECTION 17. LIEN OF COMMON CARRIERS.

Common Carriers have a lien on all goods transported by them and still in their possession for all charges due for transportation or storage.22 This right to a lien covers charges for money advanced for the payment of custom duties,23 but does not cover demurrage charges.24

21 1 Gray (Mass.), 263.

22 Gisbourn vs. Hurst, 1 Salk., 249; Gracie vs. Palmer, 8 Wheat.: 635 Ohio, etc., R. Co. vs. Noe; 77 II., 513.

23 Wyman vs. Lancaster, 732 Fed. Rep., 72.

24 East Tennessee, etc., R. Co. vs. Hunt, 15 Lea. (Tenn.), 261.

CARRIERS OF PASSENGERS.

SECTION 18. COMPARISON WITH CARRIERS OF GOODS. "A carrier of passengers is one who undertakes to carry persons from place to place, gratuitously or for hire." 1

Such a carrier is to be distinguished from a carrier of goods not only as to the extent of his liability, but also as to the nature of his contract. The carriage of goods is a bailment, and the liability arising therefrom for injuries to the goods is a liability arising out of the contract; whereas the carriage of passengers is not a contract of bailment, and the liability of the carrier for injuries to his passengers depends entirely upon his negligence, and is sometimes said, as regards common carriers, to arise out of a public duty to carry safely imposed by law." The distinction between a carrier of passengers and a carrier of goods is aptly exemplified in the case of the carriage of passengers and the carriage of baggage by a common carrier; the carrier is at the same time a carrier of passengers and a carrier of goods. In the former case, the liability of the carrier depends upon the carrier's negligence, whereas in the latter case he is liable for all injuries not caused by an act of God or the public enemy.*

1 A person carrying prisoners of war, under contract with the Government is a carrier as to the necessary guards, and not merely a government agent. Truex vs. Erie R. Co., 4 Lans. (N. Y.), 198.

* Clark vs. M'Conald, 4 McCord 1, (S. C.), 223.

3 Ansell vs. Waterhouse, 2 Chit. Rep., 1, 18 E. C. L., 227. Christie vs. Griggs, 2 Campb., 79; Caldwell vs. Murphy, i Duer. (N. Y.), 233.