CHAPTER V. COMMON CARRIERS OF GOODS. I. General principles, § 545. Common carrier one who transports goods from place to place for hire, § 545. Persons to be classed as common carriers, § 546. II. Liability based on duty, § 547. Foundation of action is duty, § 547. III. When insurers of goods, § 550. Roman law, § 550. By Anglo-American law are insurers of goods, § 552. IV. "Act of God," "Inevitable accident," Vis Major, § 553. "Act of God," "Inevitable accident," meaning of, § 553. Accidental fire not such, § 554. Nor hidden rocks known to navigators, § 555. But otherwise when rocks are unknown, § 556. Ambiguity of terms, § 557. Storms, and sudden extremes of weather, inevitable, § 558. But not accident brought about by carrier's negligence, § 559. Vis major, meaning of, § 560. Carrier by water relieved by statute from liability for fire by sea, § 562. V. Carrier not liable for inherent defects or bad packing, § 563. When goods are defective or untransportable, § 563. Vicious or restive animals, § 565. Perishable articles, § 567. VI. Duty of carrier after arrival of goods at destination; and herein of warehousemen, § 569. into that of warehouseman or forwarder, § 571. Diligence of warehousemen is that which good and capable warehousemen are accustomed to use under similar circumstances, § 573. This is required of railroads even as gratuitous warehousemen, § 574. Liability of common carrier continues as to goods in depot or warehouse for further transportation, § 575. Burden of proof in suit against warehouseman and forwarder, § 576. VII. Auxiliary and connecting lines, § 577. Wherever one line exhibits another as its partner or agent then it is liable for the negligence of such other line, § 577. Auxiliary line may make itself primarily liable for its own negligence, § 579. Combination of carriers may be sued jointly, § 580. Primary carrier undertaking only for himself, liable only for his own negligence, § 581. But mere selling of coupon tickets on a second road does not impose such liability, § 582. Valid agreement by primary carrier for a connecting series of roads relieves all the roads, § 583. Company though liable for any negligence by roads it makes its agents is not liable for injuries sustained by its passengers, from a collision brought about by the negligence of a line to which it had leased a portion of its road, but over which it had no control, § 584. Risks of warehousing distinct from VIII. Limitation of liability by contract, those of carriage, § 569. No sound reason for extending pecul iar liabilities of carriers to warehousemen, § 570. Time when liability of carrier passes § 586. Agreements valid to relieve carrier from liability as insurer, § 586. When notice brought home to owner sufficient, § 587. Agreement to relieve from negligence invalid, § 589. Common carrier relieved from insur- Owner or consignee selecting his own Special contracts as to transportation of live-stock, § 595. Valid when owner takes risk of over crowding, § 597.. Contract relieving carrier from loss by IX. Baggage, § 599. Baggage generally to be regarded as Carrier liable for baggage carried by Agreement exempting carrier from Proof of loss throws burden on car- Liability for negligence in connecting Carrier without notice not liable for What articles constitute baggage, § Money or bullion, § 608. Owner may separate from but cannot Carrier liable for its porter's negli gence in delivery, § 612. Owner's claim not based on consideration of contract, § 613. Notices restrictive of liability, § 614. X. Live-stock, § 615. Live-stock not subject to the incidents of "goods in common carriage, § 615. Duties of persons conveying live-stock not identical with those of common carrier's, § 616. Hence not an insurer, but a special agent bound to transport with suitable and safe carriage and motive power, § 617. By special agreement owner or agent may take charge of feeding and caring for cattle, § 618. If carrier undertakes care of cattle he must exercise due diligence, § 619. Illustrations of such diligence, § 620. [As to carrier's liability when animals are vicious or restive, see § 565.] [As to validity of contracts throwing on owner risks from over-crowding, see § 597.] XI. Gratuitous parcels, § 621. I. GENERAL PRINCIPLES. § 545. Definition. A common carrier of goods is one who undertakes to transport from place to place for reward the goods of such as choose to employ him.1 § 546. Hence we may class as common carriers : Stages, plying between different places, and transporting goods for hire.2 Omnibuses, under the same conditions.3 Street as well as steam railway companies if they allow their servants to carry trunks and parcels for hire.* 1 Story on Bailments, § 495; 2 Kent Com. Lect. 40. 2 Coggs v. Bernard, 2 Ld. Ray. 909; Forward v. Pittard, 1 T. R. 27; Gordon v. Little, 8 S. & R. 533; Beckman v. Shouse, 5 Rawle, 179; Powell v. Myers, 26 Wend. 591. 8 Dibble v. Brown, 62 Georg. 217. 4 Levi v. Lynn & Bost. Horse R. R. 11 Allen, 300; Blumenthal v. Brainard, 38 Vt. 402; Farmers' & Mech. Bank v. Champ. Trans. Co. 23 Verm. 186. Ferrymen.1 Porters, teamsters, and wagoners who carry parcels for hire, for all who apply, from point to point, though this is not their principal business.2 Boatmen on canals under the same limitations.3 Steamboat companies who allow their officers to carry parcels, when such carrying is within the range of the charter of the company.4 And expressmen.5 II. LIABILITY BASED ON DUTY. § 547. Foundation of action is duty.— Whether the railroad's liability rests primarily on the duty to carry a passenger and his luggage safely, or upon the contract entered into as evidenced by the ticket, has been in England the subject of some doubt. In the court of common pleas, it is held that an action for a loss of luggage through the defendant's negligence is based not on the contract specifically, but on the defendant's duty. The case was one of a servant suing in an action on the case for loss of luggage, the master having paid for the ticket; and Jervis, C. J., said: "But upon what principle does the action lie at the suit of the servant for his personal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely. If, under the circumstances of the case, the plaintiff could have recovered in respect of a personal injury sustained by him, there is no reason why he should not also in respect of the loss of his luggage. If the liability of the defendants arises, not from the contract, but from a duty, it is perfectly unimportant by whom the reward is to be paid; for the duty would equally arise, though the payment was by a stranger." 7 § 548. In the same case, Williams, J., said: "It seems to me that the whole current of authorities, beginning with Govett v. Radnidge,1 and ending with Pozzi v. Shipton,2 establishes that an action of this sort is, in substance, not an action of contract, but an action of tort against the company, as carriers. The earliest instance I find of an action of this sort is in Fitzherbert's Natura Brevium, writ de trespass on the case, in which it is said, 'If a smith prick my horse with a nail, &c., I shall have my action upon the case against him, without any warranty by the smith to do it well; for it is the duty of every artificer to exercise his art rightly and truly as he ought.' There is no allusion there to any contract.' "8 § 549. So in 1867, in the queen's bench, in a case where a company was held liable for injuries to a child, who had paid no fare, when in his mother's custody, though he was a few months over the age at which children travelling with their parents cease to go free of charge (there being no fraud on the mother's part, and she having paid her own fare), Blackburn, J., said: "I think that what was said in the case of Marshall v. Newcastle & Berwick Railway Co. was quite correct. It was there laid down, that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely." By Cockburn, C. J., Shee, J., and Lush, J., the case was rested on the ground of contract, without, however, negativing the liability on ground of duty. III. WHEN INSURERS OF GOODS. § 550. Roman law. By the Praetorian edict, common carriers, as well as innkeepers, are liable for the custodia, in its narrow sense, of goods given to their charge by travellers. Nor is it necessary that the carriage should be for pay; the same rule 1 3 East, 62. 2 8 Ad. & E. 963; 1 P. & D. 4. See also Wyld v. Pickford, 8 M. & W. 443; Glad well v. Steggall, 5 N. C. 733; 8 Scott, 60; Pippin v. Sheppard, 11 Price, 400; Great Northern Railway v. Harrison, 10 Exc. 376; Great West. Ry. Co. of Canada v. Braid, 1 Moo. P. C. N. S. 101. 4 Austin v. Great West. Ry. Co., L. R. 2 Q. B. 442; supra, § 436–7. applies when it is gratuitous.1 Actual delivery into the carrier's hands is unnecessary; if the traveller brings his goods to the carrier's boat or carriage for transport, this is enough.2 Whether the edict applies to carriers by land as well as those by water, has been much discussed; though if the carrier by land is liable for custodia in its narrow sense, as has been already declared, the question is merely verbal. As to all matters of casus, the carrier of goods must exercise the diligentia of a bonus et diligens paterfamilias.* § 551. As to misfortunes by water carriage, the Roman law adopts the Rhodian Code, which, when a peril of the sea requires that certain goods should be thrown overboard, averages the loss among all who are benefited by the act. The principle is extended by the jurists to losses through piracy; and even to injuries to the ship itself." § 552. By Anglo-American law common carriers are insurers of goods. It has been just seen that by the Roman law a common carrier's duty as to goods as well as persons, in cases of casus, is simply that of a good business man in his particular department, and hence that the common carrier can defend himself, in such cases, by setting up such casualty as a good business man in such department is not likely to foresee and avert. To impose a higher liability than this, it is argued by modern German and French jurists, who adopt the same rule, would be to require an intensity of exertion, the strain of which no business could bear; would shift upon particular industries the load of casus which should be distributed on all industries alike; would confuse the business of common carrying with that of insurance; and would add a purely speculative factor in the adjustment of freights. That there is force in this reasoning is shown not only by its acceptance throughout the Continent of Europe, but by the fact that our Anglo-American common carriers now almost universally limit by special contracts their liability to the extent just specified, and that these special contracts have been, as will be seen, sustained by the courts. At the same time, it may not be out of place here to observe that by the present North German 1 L. 6. pr. D. 4. 9. 2 L. 1. § 8. D. 4. 9. 8 See to this point, Baron, § 298. See supra, § 31, as defining this. 5 Tit. D. 14. 2; de lege Rhodia de jactu. L. 2. § 3; D. h. t. 14. 2. |