tempt to show that they had used due care to provide accommodations. They demurred to the replication, instead of rejoining that there was an unexpected rush of passengers which they could not reasonably have anticipated. Dunlop v. Edin. & Glasg. R. Co. 16 Jurist, part 2, 407, 408, was a case where the company were clearly in fault. In Denton v. Great Northern R. Co. 5 El. & Bl. 860, the defendants were liable for falsely representing that a train would start when they knew it would not. There was no attempt on their part to comply with the advertisement. Weed v. Panama R. R. Co. 17 N. Y. 362, is a case where the delay was held chargeable to the fault of the defendants, on the principle that the act of their servant was their act. See also Blackstock v. N. Y. & Erie R. R. 20 N. Y. 48. In Deming v. Grand Trunk R. R. Co. 48 N. H. 455, it appeared that, on February 21, the plaintiffs told the defendants that they had wool to send to Boston, which had been contracted for and which they were very anxious to have go forward immediately, and that unless it could be sent forward from Northumberland the next day, it must go by another railroad route. The defendants thereupon received the wool, and agreed to forward it from Northumberland on February 22, but did not forward it until March 16. The defendants offered to show that, owing to the approaching termination of the reciprocity treaty, there was at this time a great and unusual rush of freight, and that this occasioned the delay. They did not offer to prove that the rush commenced after the making of their contract with the plaintiffs, or that the plaintiffs had knowledge of it. The evidence was rejected. (See the ruling on p. 461.) That case differs from the present in at least two vital particulars: First, the special stress laid on punctuality in the negotiation tended to show an absolute contract to carry within a prescribed time, and the jury found such a contract. See Harmony v. Bingham, 12 N. Y. 99; Wilson v. York, Newcastle & Berwick R. Co. 18 Eng. Law & Eq. 557, in note; Mullin, J., in Van Buskirk v. Roberts, 31 N. Y. 661, pp. 674, 675. Second, the existence of the alleged cause of delay was, for aught that appeared, fully within the knowledge of the defendants at the time they contracted with the plaintiffs. They were in fault for knowingly undertaking more than they could perform. See 17 Mo. 290. In New Orleans, &c. R. Co. v. Hurst, 36 Miss. 660, the company offered no excuse whatever for running past the station; and in Heirn v. M'Caughan, 32 Miss. 17, there was evidence tending to show want of due effort to stop. In Strohn v. Detroit & Mil. R. R. Co. 23 Wisc. 126, it seems to have been held that a mere statement by the carrier's agent that the ordinary time for transportation of freight is a certain number of days, is not sufficient to show a contract to carry within that time. In Angell on Carriers, 4th ed. sec. 527 a, it is said that the timetables are 'in the nature of a special contract, so that any deviation from them renders the company liable;' but we think no authority there cited, unless it be Hawcroft v. G. W. R. Co., directly sustains this position. "It would seem that the English railway companies are now in the habit of inserting notices in their time-tables that they do not warrant that the trains will arrive and depart at the precise time indicated. See Bovill, C. J., in Lord v. Midland R. Co., L. R. 2 C. P. 339, p. 345; Hurst v. Great Western R. Co. 19 C. B. N. S. 310; Prevost v. Great Eastern R. 13 Law Times N. S. 20; Buckmaster v. G. E. R. Co. 23 Law Times N. S. 471. But this practice may have been adopted from abundant caution, and does not seem to us to furnish decisive evidence of the understanding of the legal profession that the time-table, without the notice, would import a warranty. In this country nearly all the railroads publish time-tables, and delays, not attributable to negligence, are not uncommon; yet suits to recover damages for detention in such cases are almost, if not quite, unknown. That such actions are almost unprecedented, 'shows very strongly what has been 582 understood to be the law upon the subject."" It was accordingly held that the publication of a time-table, in common form, imposes upon a railroad company the obligation to use due care and skill to have the trains arrive and depart at the precise moments indicated in the table; but it does not import an absolute and unconditional engagement for such arrival and departure, and does not make the company liable for want of punctuality which is not attributable to their negligence. CHAPTER VII. CUSTODIA, § 665. § 665. Nature of. - In certain cases where one person has the goods of another in charge, the Roman law exacts what is called custodia, or absolute responsibility of custody. In such case the custodiary is liable for every injury of the thing held by him, as well as for theft; though he is relieved when the damage is through accident, or superior force. The cases in which custodia is exacted are those (1) of the warehouseman, who undertakes for pay safely to keep;1 (2) of the shipper, innkeeper, or stablekeeper, who receives the goods of a traveller as a traveller; 2 (3) of the operative, who undertakes the conductio operis or operarum; in other words, when he receives goods from his employer to work upon;3 (4) of the vendor, who sells goods by measure, until the goods are set apart by measure; (5) of the commodatary, when he pays nothing, and in any way forces himself into the trust; 5 (6) of the volunteer agent, or negiotorum gestor, when he has intruded in the trust.6 § 666. Diligence exacted in.—It must be however kept in mind that the better opinion is that custodia, in its absolute sense, is virtually undistinguishable from the custodia diligentis patrisfamilias. Hence it is concluded that the custodian is presumed to be liable in all cases of damage or loss, and that the burden is on him to show that the injury came from casus or from superior force. Baron, an eminent contemporaneous jurist, rejects this view, holding that the utmost care to be exacted from a custodian is the diligentia diligentis patrisfamilias, or the diligence which an honest and capable business man in the particular department would show in the particular transaction. Liability of commodatary for negligence, § 668. § 667. Characteristics of. Commodatum or loan is a contract by which one contractor, the commodans, passes to another, the commodatary, for the latter's gratuitous use, a thing to be subsequently returned to the commodans. Property in the thing loaned the commodans need not have. It is enough if he has an interest therein. The thing is to be returned in specie at a given time, at the close of the contract, or when its use by the commodatary is over, or when it is needed by the commodans. But the commodans cannot capriciously require the return of the article; and it is in this respect that commodatum differs from precarium.1 § 668. Liability of commodatary for negligence. The commodatary, from the facts, that the contract is solely for his benefit and that it is gratuitous, is liable for culpa levis (special negligence) as well as for culpa lata (gross negligence). In other words, he is held bound to bestow on the thing loaned to him the care which a good business man, versed in the use of such particular thing, would, under the particular circumstances, exhibit.2 A borrower is bound to special diligence and is liable for slight neglect. At the same time he is not bound, as has just been stated, to diligentia diligentissimi, in other words, it is sufficient if he brings to bear the diligence which a good business man is accustomed to exert in a similar case. Thus in a North Carolina case, where a horse, loaned by plaintiff to defendant, was carried to defendant's house and placed in the common horse lot, so used for many years, though it was somewhat slanting, and the horse, 1 Holtz. in loco. 2 Vangerow, § 629; Baron, § 275. Kennedy v. Ashcraft, 4 Bush, 530. 4 Fortune v. Harris, 6 Jones N. C. 532. being nearly blind, and the weather being wet, slipped and fell upon a stump, breaking its thigh, it was held that these facts did not import such negligence as to render the defendant liable for the loss of the property.1 1 Pearson, C. J.: "It is not necessary for us to inquire whether, if one borrows a horse, and it is injured so that it cannot be returned in as good condition as when received, the onus of proving how the injury occurred is upon the bailor or bailee; for admitting that, as the bailment was for the benefit of the bailee alone, she was liable for slight neglect; and admitting also that the onus of exculpation, by disproving any degree of neglect on her part, was on the defendant, we concur with his honor, that, upon the state of the facts assumed, she was not guilty of even slight neglect, as the damage was the effect of a mere accident." 585 |