tions arise. Is the company a common carrier as to the parcels thus carried by its subalterns? and is it to be treated as insuring the same, according to the law applicable to common carriers? These questions must be answered in the negative. To enable goods (not luggage) to be forwarded as freight, custom, if not contract, requires that certain formalities should be pursued, which formalities are not here attempted. What liability, then, if we must reject that of the common carrier at common law, does the company assume as to parcels which it thus permits its officers to carry? It has been said that its liability is simply for gross negligence: e. g. that of a depositary or other gratuitous bailee.1 But this conclusion rests on two assumptions, neither of which can be sustained. The first is that this particular contract is gratuitous, whereas, if the salary or income of the officers carrying such parcels is increased by these gratuities, and the company secures the service of these officers at a cheaper rate than it could do otherwise, then the carriage is not strictly gratuitous, though there be no such fixed pay as is necessary to constitute the agreement of common carriage. The second mistake is that in mandates, supposing them to be gratuitous, the diligence required is only the ordinary diligence of seeing what everybody sees, and that consequently the only negligence for which the mandatary is responsible is gross negligence, or culpa lata. But this, as has been seen, is not the law. Mandate means special confidence imposed and accepted; and whenever this takes place, and a service is done in pursuance of such service, then the mandatary can recover compensation from the mandator, and is bound to the mandator to apply to the mandate that special diligence which every good business man is bound to exhibit in every transaction which in his particular department he undertakes.2 1 Haynie v. Waring, 29 Alab. 263. See King v. Lenox, 19 Johns. 235; Sewall v. Allen, 2 Wend. 327, reversed by Sewall v. Allen, 6 Wend. 351; Chateau v. Steamboat St. Anthony, 16 Mo. 216. See supra, § 547. 2 See on this point discussion in 2 546 Redfield on Rail. § 169, and cases there cited; Farmers' & Mech. Bk. v. Champ. Trans. Co. 23 Vt. 186; Mayall v. Bost. & Me. R. R. 19 N. H. 122; Cincin. & Lou. Mail Line v. Boal, 15 Ind. 345; supra, § 438-547. But bound to diligence of good specialist in Removal of passenger from car, § 646. Stopping at spot where there is no platform, Nor for latent defects, § 631. No defence that maker of carriage was competent, § 633. Suddenly and without notice starting train, § 648. Conductor must notify of danger, § 649. Conductor must notify of approach of station, § 650. Track of road must be kept in safe running Conductor must notify when train is about order, § 634. All practicable improvements in transporta- But must rise in proportion to the risk, § 637. and "perfect" management, § 640. to start, § 651. Must be secure access to and egress from Platforms must be adequate, § 653. egress, § 654. And so of stairway and passages in boat, § 655. And so of access to road by level crossing, § 656. And so of modes of disembarking passengers to and from boat, § 657. Injury to passengers from cattle on track, § 659. Passengers leaning out of carriage windows, § 660. Burden of proof, § 661. No defence that road is under government Liability to passenger for failure in punctucontrol, § 644. ality, § 662. Auxiliary lines, § 663. § 625. Who are carriers of passengers. A common carrier of passengers, to extend the definition already given, is one who transports such passengers as choose to employ him from place to place for reward.1 A person driving his own carriage, therefore, who gives a seat in it to another, is not such a carrier as to subject himself to the liabilities of common carriers; and in case of damage, is liable, not for the negligence of an expert (culpa levis), but for the negligence only of a non-expert (culpa lata). Thus in an interesting English case, the plaintiff was a decorator and 1 See supra, § 545. 2 Moffatt v. Bateman, 8 L. R. Ap. 115. ornamental gardener in the service of the defendant, at a salary. On the day of the accident the defendant had asked the plaintiff to accompany him to a place about eight miles distant, for the purpose of assisting in papering some rooms, and had offered to drive him there in his trap. The plaintiff had with some hesitation consented to be driven over by the defendant; his hesitation apparently having arisen from his knowledge of the defendant's reckless habit of driving. The carriage was overturned on the way, and the plaintiff damaged. Except that the kingbolt had broken, there was no evidence to show how the accident occurred; and to rebut any presumption that might have been raised upon this fact, as to want of care, evidence was given that the carriage was regularly examined by a blacksmith every three months. The jury gave a verdict for the plaintiff, and the question for the court was, whether that verdict was warranted by the evidence. The judicial committee of the privy council in their judgment, delivered by Lord Chelmsford, held that there was no evidence of such negligence as to warrant the verdict. § 626. Carriers not insurers of passengers. The element of insurance, which by the English common law exists in contracts by a common carrier to carry goods, does not apply, it has been held by the same law, to the carriage of passengers.1 § 627. But bound to the diligence which a good specialist in such business is accustomed to exert. The carrier, however, is bound to exercise the diligence, prudence, and skill of a good business man in his particular work (the diligentia boni et diligentis patrisfamilias of the Romans); that is to say, in whatever branch of carrying he may be engaged, he must exhibit diligence, prudence, and skill such as a good business man in such department exhibits. With steam conveyances the care must increase in proportion to the risk.3 1 Aston v. Heaven, 2 Esp. 533; Munroe v. Leach, 7 Metc. 274; Feital v. R. R. 109 Mass. 398; Meier v. Penn. R. R. 64 Pa. St. 225; Frink v. Potter, 17 Ill. 496; Knight v. P. S. & 8 Knight v. P. S. & P. R. R. 56 Me. 234; Caldwell v. N. J. Steamboat Co. 47 N. Y. 282; Meier v. Penn. R. R. P. R. R. 56 Me. 234; McPadden v. N. Y. C. R. R. 44 N. Y. 478; and cases hereafter cited. 2 Sharp v. Grey, 9 Bing. 79; Christie v. Griggs, 2 Camp. 79; Skinner v. Co. 64 Pa. St. 225; and cases cited infra, § 637. As to reciprocal duties of carrier and § 628. Carriage must be adequate to the work. The carrier must have carriages adequate to the work to which they are sub London, Brighton & S. C. Ry. Co. 5 Exch. 787; Burns v. Cork & Bandon Ry. Co. 13 Ir. C. L. Rep. 543; Stokes v. Eastern Co. Ry. Co. 2 F. & F. 691; Ford v. London & S. W. Ry. Co. 2 F. & F. 730; Stokes v. Saltonstall, 13 Peters, 181; Meier v. Penn. R. R. 64 Pa. St. 225; Pendleton St. R. R. v. Shires, 18 Oh. St. 255. See infra, § 636-37. Thus, it has been held a primâ facie case of negligence that a passenger in passenger, see Contributory Negligence, supra, § 353. The authorities on this point are collected in an excellent opinion of Bellows, J., in Taylor v. Grand Trunk R. R. 48 N. H. 313. At the same time it must be remembered that the high degree of care required from railroads is not the antithesis of culpa levissima, but that of culpa lata; in other words, the diligence a good business man exercises in proportion to his responsibilities and opportunities. Bellows, J.: ... "The doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passengers is bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest neglect; holding their undertaking to be to carry their passengers with safety as far as human care and foresight can go. This is distinctly laid down in Story on Bail. § 601, 601 a, and also in 2 Greenl. Evi. § 221, and in 2 Kent's Comm. *601, *602, and Redfield on Rail. chap. 17. "This, it will be perceived, accords substantially with the definition of the highest degree of care required of bailees of goods, namely, that care an omnibus was injured by a blow from the hoof of one of the horses, which kicked through the front panel; there being no evidence that the horse was a kicker, but it being proved that the panel bore the marks of other kicks, and no precaution having been taken by the application of a kicking strap, and no explanation offered by the defendant. Simson v. London General Omnibus Co., L. R. 8 C. P. 390. and diligence which very prudent persons take of their own concerns. Story on Bail. § 16; Jones on Bail. 166; where it is said that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels. "It is true that doubts have often been expressed as to the utility of the theory which undertakes to define the degrees of negligence as slight, ordinary, and gross, as in Steamboat New World v. King, 16 How. U. S. Rep. 474, and cases cited, where Curtis, J., expresses the opinion that the attempt thus to define the degrees of negligence had better be abandoned. So it is in Briggs v. Taylor, 28 Vt. Rep. 184. "But however this may be, some light may be gained in respect to the duty of carriers of passengers by steam, by considering some of the rules which have governed the courts in relation to bailments. "When the contract of bailment is mutually beneficial to both parties, as in the case of bailments for hire, pledges, and the like, the bailee has been held for ordinary care; which is defined to be that care which every person of common prudence and ca jected, and he is liable for any damage caused by failure of his duty in this respect.1 pable of governing a family, takes of his own concerns; Jones on Bail. § 11; Story on Bail. § 11; while a bailee who alone receives a benefit, as in the case of the borrower, is bound to use extraordinary care. "In the case of the bailee of goods, the obligation of care and diligence rises in proportion to the demand for it, although it still is only ordinary diligence that is required; but it is obvious that what will constitute ordinary care will be affected by the natture, bulk, and value of the goods bailed, for no one would expect the same care to be taken of a bale of cotton as of a box of jewelry, or other things peculiarly liable to be stolen or injured. "The case of common carriers of goods is an exception to the general rule applicable to bailments, and they are now regarded as insurers, and liable for all losses except such as are caused by the act of God, or by the public enemies; and this is put upon the ground of public policy to guard against both negligence and collusion. Moses v. Boston & Maine Railroad, 24 N. H. 84. "Upon grounds of public policy, also, the carrier of passengers is bound to exercise the highest degree of care and diligence. To his diligence and fidelity are intrusted the lives and safety of large numbers of human beings. He assumes the trust voluntarily, and for it receives a suffi 1 Curtis v. Drink water, 2 B. & Ad. 169; Crofts v. Waterhouse, 3 Bing. 319; Brunner v. Williams, 1 C. & P. 414; Taylor v. Day, 16 Vt. 566; Derwort v. Loomer, 21 Conn. 245; Fuller v. Naugatuck R. R. 21 Conn. 557; Hollister v. Nowlen, 19 Wend. 611; cient compensation; and we think it very apparent that in no case of the bailment of goods is there so great and imperative a demand for the utmost skill and diligence as from the carrier of passengers; especially is this true when the passengers are carried upon railroads by steam; for then, in consequence of the greater speed, the hazards to life and limb are largely increased. "In the Philadelphia & Reading Railway Co. v. Derby, 14 How. U. S. Rep. 486, the court says: When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence; and whether the consideration be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance, or the negligence of careless agents; any negligence in such cases may well deserve the epithet of gross;' and this statement is emphatically indorsed in the case of the Steamboat New World v. King, 16 How. U. S. Rep. 474, as resting not only on public policy but on sound principles of law. "In Redfield on Rail. § 149, note 5, the author says: If the degree of care and watchfulness is to be in proportion to the importance of the business and the degree of peril incurred, it is scarcely possible to express the extreme severity of care and diligence Stokes v. Saltonstall, 18 Pet. U. S. 181; McPadden v. N. Y. Cent. R. R. 44 N. Y. 478; S. C. 47 Barb. 247, qualifying Alden v. N. Y. Cent. R. R. 26 N. Y. 102; Hegeman v. West. R. R. 16 Barb. 353; 13 N. Y. 9. |