Street railroads in our larger cities are now common. In the cases cited below, interesting questions are considered in reference to the authority of municipal governments to permit their use of highways, and the construction of acts exercising this authority. (b) They are undoubtedly common carriers of passengers, and their rights and obligations, as such, must be much the same with those of the ordinary railroad companies. SECTION XVI. OF FRAUD. All fraud, or wilful misrepresentation, or intentional concealment, on the part of the sender of goods, or of the passenger, extinguishes the liability of the common carrier, so far as it is affected by such misconduct; and this must be equally true whether the fraud consists in the disregard of a notice, or, where there is no notice, in an intention to cast upon the carrier *254 a responsibility which he is not obliged to assume, which he does not know of, and against which he cannot therefore take the proper precautions. (c) (x) Indeed, the principle that the carrier is bound only by a respon (b) Musser v. Fairmount & Arch Street R. Co., 7 Am. Law Reg. 284; State of New York v. Mayor, &c. of New York, 3 Duer, 119. (c) Gibbon v. Paynton, 4 Burr. 2298; Kenrig v. Eggleston, Aleyn, 93; Tyly v. ticket. Keely v. Boston, &c. R. Co., 67 Me. 163. A carrier has a right to require a special check of passengers who stop over, or the payment of full fare from the stopping over station to his destination; and a passenger expelled for failure to comply with these regulations cannot insist on riding from the place where he was expelled until he has paid the sum previously demanded. Stone v. Chicago, &c. R. Co., 47 Iowa, 82. One who purchases a ticket, and has his baggage checked, to a certain point, cannot be compelled to stop short of that place and go on in another train, at least in the absence of a regulation of the company. Hicks v. Hannibal, &c. R. Co., 68 Mo. 329. The words "good on passenger trains only," on a ticket, do not constitute an agreement that all passengers trains will stop at the stations designated on the ticket. Ohio, &c. R. Co. v. Swarthout, 67 Ind. 567. — K. (x) One who, knowing that a railroad conductor has no authority to grant free transportation, rides on his train by a tacit understanding with him to ride free, commits a fraud on the company and, being a mere trespasser, can recover for personal injuries only in case they are caused by it wilfully or recklessly. Condran v. Chicago, &c. Ry. Co., 67 Fed. 522, 14 C. C. A. 506, 32 U. S. App. 182, 28 L. R. A. 749; McVeety v. St. Paul, &c., A passenger, though misled by a railroad employee, is not entitled to remain on the wrong train, such as one which does not stop at his intended destination. Miller v. King, 47 N. Y. S. 534. sibility which he knows and can provide for, seems to be the principal cause of a recent modification of his liability in respect to the baggage of a passenger, which appears now to be quite well settled. It may be stated thus: the common carrier of passengers is not liable as such for the loss of their baggage, beyond that amount which he might reasonably suppose such passenger would carry with him; nor for property such as is not usually included within the meaning of baggage. Thus, not for goods carried by way of merchandise; (d) nor for a larger sum of money than the passenger might reasonably take on such a journey for his expenses. (e) But there may be special 255 articles, as fishing gear, or sporting apparatus, which one carries for his amusement; (f) and in these and other cases 1 (d) Alling v. Boston, &c. R. Co., 126 Mass. 121; Blumantle v. Fitchburg R. Co., 127 Mass. 322. See Michigan, &c. R. Co. v. Carrow, 73 Ill. 348. Therefore the word "baggage" has been held not to include a trunk containing valuable merchandise and nothing else, although it did not appear that the plaintiff had any other trunk with him. Pardee v. Drew, 25 Wend. 459. So in Hawkins v. Hoffman, 6 Hill (N. Y.), 586, it was held, that the term "baggage" did not embrace samples of merchandise carried by a passenger in a trunk, with a view of enabling him to make bargains for the sale of goods. But in Porter v. Hildebrand, 14 Penn. St. 129, where the plaintiff was a carpenter, moving to the State of Ohio, and his trunk contained carpenter's tools to the value of $55, which the jury found to be the reasonable tools of a carpenter, it was held, that he was entitled to recover their value. See also Dwight v. Brewster, 1 Pick. 50; Beckman v. Shouse, 5 Rawle, 179; Bomar v. Maxwell, 9 Humph. 621; Great Northern Railway Co. v. Shepherd, 9 E. L. & E. 477, 14 id. 367, 8 Exch. 30; Mad River and Lake Erie Railroad Co. v. Fulton, 20 Ohio, 318; Smith. Boston, &c. R. Co., 44 N. H. 325. (e) Thus, in Orange County Bank r. Brown, 9 Wend. 85, it was held, that the owner of a steamboat used for carrying passengers, was not liable for a trunk, containing upwards of $11,000 in bank-bills, brought on board by a passenger as baggage, the object being the transportation of money. And in Hawkins v. Hoffman, 66 * * Hill (N. Y.), 586, it was doubted by Bronson, J., whether money to pay travelling expenses could be included within the term " baggage.' Men," says he, "usually carry money to pay their travelling expenses about their persons, and not in their trunks or boxes; and no contract can be implied beyond such things as are usually carried as baggage." It is, however, well settled that a traveller may carry, as a part of his baggage, a reasonable amount of money to pay his expenses. Thus, in Jordan v. Fall River Railroad Co., 5 Cush. 69, it was held, that common carriers of passengers are responsible for money bona fide included in the baggage of a passenger, for travelling expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. See, to the same effect, Weed v. S. & S. Railroad Co., 19 Wend. 534; Bomar v. Maxwell, 9 Humph. 621; Johnson v. Stone, 11 Humph. 419; The Ionic, 5 Blatchf. C. C. 538. This case holds, that a gold watch and chain, gold ornaments for presents, and American coin, are not "luggage." See also Dunlap v. International R. R. Co., 98 Mass. 371. (f) "If one has books for his instruction or amusement by the way, or carries his gun or fishing tackle, they would undoubtedly fall within the term ‘baggage,' because they are usually carried as such." Per Bronson, J., in Hawkins v. Hoffman, 6 Hill (N. Y.), 586. And so Hopkins v. Westcott, 6 Blatchf. 64. So in Brooke v. Pickwick, 4 Bing. 218, and McGill v. Rowand, 3 Penn. St. 451, carriers were held " 1 An opera-glass is “baggage,” Toledo, &c. R. Co. v. Hammond, 33 Ind. 379; but not an emigrant's feather-bed, not intended for use on the journey. Connolly v. Warren, 106 Mass. 146. K. it may often be very difficult to draw the line between what would come within the liability of the carrier, and what would not. The question would not only be materially affected by circumstances, but is one of those upon which different individuals would be very likely to differ; and it is perhaps impossible to fix upon anything like a definite standard. But the principle is plain enough, and the reason and justice of it are undeniable. And the difficulty in the application of the principle, whether by the court or by 256 the jury, is of a kind which must often occur in the ad ministration of the law. It must always be a question of mixed law and fact, where the court state the principle, and illustrate its bearing upon the case at bar, as they see fit, and the jury apply the principle so stated as they best can. A passenger in a railway train may consider one who takes charge of the baggage, on arrival at a place, as the agent of the company, and notice to him concerning the baggage is notice to the company. (f) (x) We have treated of steam railway companies; but in most of our responsible for ladies' trunks containing apparel and jewels. So in Woods v. Devin, 13 Ill. 746, a common carrier of passengers was held liable for the loss of a pocket-pistol and a pair of duelling pistols, contained in a carpet-bag of a passenger, which was stolen out of the possession of the carrier. And in Jones v. Voorhees, 10 Ohio, 145, it was held, that a gold watch of the value of ninety-five dollars was a part of a traveller's baggage, and his trunk a proper place to carry it in. But see Bomar v. Maxwell, 9 Humph. 621, where the plaintiff's trunk contained " a silver watch, worth about thirty-five dollars; also, medicines, handcuffs, locks, &c., worth about twenty dollars," and the court said: "The watch alleged to have been in the trunk, clearly does not () A railroad company is liable for the mistakes of its employees; such as the mistake of its baggageman who, contrary to its rules, which are not known to the passenger, checks merchandise which he is notified is such, as baggage without obtaining a release from liability, and the company is liable for its loss as freight. Trimble v. New York Cent. R. Co., 162 N. Y. 84, 56 N. E. 532. See Lawshe v. Tacoma Ry. Co. (Wash.), 70 Pac. 118; Brown v. Rapid Ry. Co. (Mich.), 90 N. W. 290; Trice v. Chesapeake & O. R. Co., 40 W. Va. 271, 21 S. E. 1022; Atlanta Cons. St. Ry. Co. v. Kenny, 99 Ga. 266, 25 S. E. 628. fall within the meaning of the term 'baggage;' and much less the handcuffs, locks, &c.; these certainly do not usually constitute part of a gentlemen's wardrobe, nor is it perceived how they are necessary to his personal comfort on a journey in a stage-coach." In Parmelee v. Fischer, 22 Ill. 212, it is laid down, that damages may be assessed for such articles of necessity and convenience as passengers usually carry for personal use, comfort, instruction, amusement, or protection, having regard to the length and object of their journeys; and in Davis v. Mich. S. & N. Ind. R. R. Co., id. 278, it was held, that a revolver is included in personal baggage. See also Dibble v. Brown, 12 Ga. 217; Doyle v. Kiser, 6 Ind. 242. (f) Ouimit v. Henshaw, 35 Vt. 605. A passenger who pays his own fare but will not pay for a child which he takes with him, may be rightfully ejected from a car, if his own fare is returned to him. Lake Shore & C. R. Co. v. Orndorff, 55 Ohio St. 589, 45 N. E. 447, 38 L. R. A. 140. And as to evasion of fare, see Springer v. Tacoma Traction Co., 15 Wash. 660, 47 Pac. 17, 43 L. R. A. 706. A railroad corporation is not liable for the unauthorized act of one of its conductors in illegally, wantonly, and oppressively arresting a passenger. Lake Shore, &c. R. Co. v. Prentice, 147 U. S. 101, 13 S. Ct. 261, 37 L. Ed. 97; Warner v. No. Pac. Ry. Co., 112 Fed. 114. large cities there are now [street] railroads. It seems that the iron rails laid by such a company in a public street are still their property, and another company authorized to lay a track in the same direction for a part of their route, have no right to pass over their rails. (fg) (x) A regulation by such a company that passengers shall not get off or on their cars by the front platform, is held to be reasonable; and one knowing the rule, and injured while violating it, cannot hold the company liable, even if permitted by the driver to get on in front. (fh) (fg) Jersey City, &c. R. R. Co. v. Jersey City, &c. R. R. Co., 20 N. J. Eq. 61. (x) Street railway companies, whether operated by electricity, steam or horse power, are subject to the same liabilities towards passengers as steam railroads and are common carriers. Spellman v. Lin (fh) Baltimore, &c. R. R. Co. v. Wilkinson, 30 Md. 224. coln Rapid Transit Co., 36 Neb. 890, 55 * 257 a * CHAPTER XII. ON THE LAW OF TELEGRAPHIC COMMUNICATIONS. SECT. I. Of Telegraphs in General. ALTHOUGH but a few years have elapsed since the invention of the electric telegraph, it is already in very general use. It joins provinces and nations separated by streams and seas, and now covers a large part of our country, and spans the ocean between the two great continents. And wherever it exists it is largely used as an instrument of communication for social, business, or political purposes. In Europe and in this country there are laws regulating the construction, establishment, and use of electric telegraphs. They embrace a wide extent and variety of topics. What we propose to do, as appropriate to the general purpose of this work, is to consider the Law of Communication by Telegraph in its relation to the Law of Contracts. We shall treat, first, of the legal character of the company which owns and works a telegraph. Secondly, the contract between the telegraph company and the sender of a message. Thirdly, the breaches of this contract. Fourthly, the contract between the telegraph company and the receiver of a message. Fifthly, the breaches of this contract. Sixthly, contracts between the sender and receiver made by telegraph. Seventhly, the measure of damages. THE LEGAL CHARACTER OF A COMPANY WORKING A TELEGRAPH. The main question here is, Is such a company a common carrier? There are decisions in which the affirmative is quite distinctly asserted. And there are others in which it is asserted with more When a or less of qualification. (a) * new kind or class of (a) See Parks v. Alta Cal. Tel. Co., 13 Cal. 422; McAndrews v. Electric Tel. Co., 33 Eng. L. & E. 180; Bowen v. Lake Erie Co., 1 Am. Law Reg. 685, where it was |