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customary hire for merchandise (m). Deeds and money carried by an attorney in his portmanteau for use in the causes in which he may be engaged are not "ordinary luggage" for which a railway company is responsible(n), nor is a child's rocking-horse(o), nor sheets and blankets intended for the use of the passenger's household when permanently settled(p), but a chronometer is, it seems, luggage for a master mariner(q).

(m) Great Northern Rail Co. v. Shepherd, 8 Exch. 30; 21 Law J., Exch. 114. Merrill v. Grinnell, 30 N. Y. 594. Smith v. Boston, etc., R. R. Co., 44 N. H. 325. Glasco v. New York, etc., R. R. Co., 36 Barb. (N. Y.) 557. Hutchings v. Western, etc., R. R., 25 Ga. 61. The Elvira Harbeck, 2 Blatch. Ct. Ct. 336. Dibble v. Brown, 12 Ga. 217. (n) Phelps. Lond. and North-West. Rail. Co., 34 Law J., C. P. 259. (0) Hudston v. Midland Rwy., 38 L. J., Q. B. 213; L. R., 4 Q. B. 366 (p) Macrow v. Gt. Western Rwy., L. R., 6 Q. B. 612.

(g) Le Conteur . Lond. and South-West. Rail. Co., L. R., 1 Q. B. 54. A gold watch deposited in a trunk by a traveller on a railroad is baggage for the loss of which the carrier is liable. American Contract Co. v. Cross, 8 Bush (Ky.), 472. McCormick v. Hudson River R. R. Co., 4 E. D. Smith (N. Y. C. P.), 181. Jones v. Voorhees, 10 Ohio. 145.

So is a proper sum of money for travelling expenses. Merriil v. Grinnell, 30 N. Y. 594. Whitmore . Steamboat Caroline, 20 Mo. 513. Dunlap v. International, etc., R. R. Co., 98 Mass. 371. Doyle v. Kiser, 6 Ind. 242.

An opera glass. Toledo, Wabash & Western R. R. Co. v. Hammond, 33 Ind. 379. Manuscripts, carried by a student, author or professional man, for the purpose of the studies or business upon which he is travelling. Hopkins v. Westcott, 6 Blatch. 64. A revolver. Chicago, etc., R. R. Co. v. Collins, 56 II. 212. Davis v. Michigan, etc., R. R. Co., 22 Ill. 278. Laces, carried by a lady in her trunk. Traloff v. New York Central, etc., R. R. Co., 10 Blatchf. 16.

A bed and bed-coverings, belonging to a poor man who is moving with his wife and family. Onimit v. Henshaw, 35 Vt. 605. But see Connolly v. Warren, 106 Mass. 146. Or to a steerage passenger on a vessel. Hirschson v. Hamburgh Packet Co., 34 N. Y. Sup. Ct. 521. Linen cut into shirt bosoms. Duffy. Thompson, 4 E. D. Smith (N. Y. C. P.), 178. And also such articles of wearing apparel or other articles generally as are designed for the personal use of the traveller or the members of his family, and are of the kind customarily carried by travellers as baggage, although they are not intended to be used, and are not necessary for the use, comfort or convenience of the traveller on the journey. Dexter v. Syracuse, Binghamton and New York R. R. Co., 42 N. Y. 326. Dunlap v. International, etc., Co., 98 Mass. 371. The liability of the carrier for money contained in the trunk of a passenger and carried aa personal baggage, is limited to money taken for travelling expenses properly so calleu. Merrill v. Grinnell, 30 N. Y. 594. Bell v. Drew, 4 E. D. Smith (N. Y.), 59. Davis v. Michigan, etc., R. R. Co., 22 Ill. 278. Whitmore v. Steamboat Caroline, 20 Mo. 513.

The amount for which the carrier will be liable must depend upon the character of the journey and the special circumstances of the case; and must be measured by the requirements of the transit over the whole contemplated journey, including such an allowance for accidents or sickness and for sojourning by the way as a reasonably prudent man would deem it necessary to make. Merrill v. Grinnell, 30 N. Y. 594.

A common carrier will not be liable for the loss of articles which the passenger has purchased for persons not members of his family and packed with his baggage. Dexter v. Syracuse, Binghamton and New York R. R. Co., 42 N. Y. 326. Nevins v. Bay State, etc., Co., 4 Bosw. (N. Y.) 225. The Ionic, 5 Blatchf. Ct. Ct. 538.

Nor for masquerade costumes furnished for use at a ball and carried in a trunk. Michigan, etc., R. R. Co. v. Oehm, 56 Ill. 293. Nor for more than one revolver. Chicago, etc., R. R. Co. v. Collins, 56 Ill. 212. Nor for baggage which the passenger has in charge. The R. E. Lee, 2 Abb. (U. S.) 49. But see Gore v. Norwich, etc., Transportation Co., 2 Daly (N. Y. C. P.), 254.

Nor for masonic regalia. Nevins v. Bay State, etc., Co., 4 Bosw. (N. Y.) 225. Nor for engravings. Id.

But if a carrier knows or has notice of the character of the goods taken as baggage, and

650 Who may be said to be a common carrier.-Every person who plies with a carriage by land, or a boat or vessel by water, between different places, and professes openly to carry passengers and goods for hire, is a common carrier(qq). Such are railway companies, who profess to carry passengers, parcels, and merchandise from one place to another(), stage-coach and stage-wagon proprietors(r), lightermen, hoymen, barge-owners, canal boatmen, and the owners and masters of ships and steamboats employed as general ships for the transportation of all persons offering themselves or their goods to be conveyed for hire to the port of destination(s). The owner of a cart or carriage who does not ply regularly for hire to a particular destination, but merely lets out a private carriage, with horses and driver, by the hour, day, or job, to proceed to any destination ordered by the hirer, is not a common carrier. A London cab-driver, or hackney coachman, for example, is not a common carrier(ss).

651 Public profession of railway companies through their time-tables and toll-tables. If a railway company publishes, or authorizes the publication of a time-table, representing that a train will start at a particular hour to a particular place, and no train is prepared, the company is responsible in damages to all persons who have acted upon the faith of the representation, and have been deceived and put to expense, and have sustained damage thereby(t). The company make a continuous representation whilst they continue to hold out written or printed papers as being their time-tables, and they thereby make a public profession that they will exercise their vocation of common carriers,

still undertakes to transport them, he is liable for their loss although they are not traveller's baggage. Stoneman v. Erie Railway Co., 52 N. Y. 429; 2 Redf. on Railw. 149, 151, note. (99) Dwight v. Brewster, 1 Pick. 50. Orange Bank v. Brown, 3 Wend. 161. Allen v Sackrider, 37 N. Y. 341. Self v. Dunn, 42 Ga. 528.

(r) Ryland v. Peters, 5 Pa. Law G. Rep. 126. Virginia, etc. v. Sanger, 15 Gratt. 230. Fuller v. Naugatuck, etc., 21 Conn. 557, 570. Contra, Costa, etc., R. R. Co. v. Moss, 23 Cal. 323. (rr) Powell v. Mills, 30 Miss. 231. Hollister v. Nowlen, 19 Wend. 234. Cole v. Goodwin, id. 251. Jones v. Voorhees, 10 Ohio, 145.

Hale v.

(8) Bac. Ab. CARRIERS, A. Lovett v. Hobbs, 2 Show. 127. Ingate v. Christie, 3 C. & K. 61. Faulkner v. Wright, 1 Rice, 107. Chouteau v. Steamboat St. Anthony, 16 Mo. 216. New Jersey Steam Navigation Co., 15 Conn. 539.

Express companies are also common cariers. Stadhecker v. Combs, 9 Rich. 193. Belger v. Dinsmore, 51 N. Y. 166. Christenson v. American Express Co., 15 Minn. 270. Southern Express Co. v. McVeigh, 20 Gratt. (Va.) 261. Southern Express Co. v. Newby, 36 Ga. 635. Lowell Wire Fence Co. v. Sargent, 8 Allen, 189. Baldwin v. American Express Co., 23 Ill. 198. Verrier v. Sweitzer, 32 Penn. St. 203. Sweet v. Barney, 23 N. Y. 335. 2 Redf. on Railw. 19, 30. So are tow-boats, used in towing barges or other water craft, loaded with freight, from one point to another on inland rivers. Bussey v. Mississippi Valley Transportation Co., 24 La. An. 165. But see Arctic, etc., Ins. Co. v. Austin, 54 Barb. (N. Y.) 559; Leonard v. Hendrickson, 18 Penn. 40; Wells v. Steam Navigation Co., 2 N. Y. 204.

(88) Brind v. Dale, 8 C. & P. 207. Ross v. Hill, 2 C. B. 887; 15 Law J., C. P. 182. Liverpool Alkali Co. v. Johnson, L. R., 7 Exch. 267.

(t) Post, ch. 18, s. 1.

and dispatch passengers or goods, as the case may be, to certain specified places(u) at or about the time named in such time-tables; and if they fail to do so they commit a breach of their duty as common carriers, and are responsible in damages to those who tender themselves or their goods for conveyance at the appointed time, and find that there is no train about to start(). But the sticking up of a table of tolls at the different stations does not imply that the company carries all the things mentioned therein from each station(a). The mere taking of a ticket is not sufficient evidence of a contract to convey a passenger to a certain place within a given time; the time-bills must be produced to prove the contract(y).

652 Duty of railway and canal companies to afford reasonable facilities for

the carriage of passengers, merchandise, and chattels.-By the Railway and Canal Traffic Act (17 & 18 Vict. c. 31) it is enacted (s. 2), that every railway company and canal company shall, according to their respective powers, afford all reasonable facilities for the receiving, forwarding, and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever(2); and every

(u) Not necessarily, however, by the shortest route. Myers v. L. & South-West. Rwy., L. R., 5 C. P. 1.

(v) Denton v. Gt. Northern Rail. Co., 5 Ell. & Bl. 868; 25 Law J., Q. B. 129. 1 C. B., N. S. 454.

(x) Oxlade v. North-East. Rail. Co., 15 C. B., N. S. 680; 33 Law J., C. P. 171.

Oxlade, In re,

(y) Hurst v. Gt. West. Rail. Co, 34 Law J., C. P. 265. And see Robinson v. Gt. West. Rail. Co., 35 Law J., C. P. 123.

(z) Sutton v. Gt. West. Co., 35 Law J., Exch. 18; L. R., 4 Eng. & Ir. App. 226; 38 Law J., Exch. 177 See post, p. 603; New England Express Co. v. Maine Central R. R. Co., 57 Me. 188; McDuffie v. Railroad, 52 N. H. 730.

Railroad companies are bound to provide the most ample accommodations for the public, and to discharge the duties imposed on them with the utmost fidelity. Illinois Central R. R. Co. v. Waters, 41 Ill. 73.

They are under obligation to receive and transport impartially, all merchandise and passengers offered to them on the terms prescribed by the grant through which they hold their franchises; and a railroad company cannot free itself from this obligation by an agreement between its directors and an express company which transfers the whole business of carriage of merchandise over its route to the latter, and under which the railroad company refused to carry for the general public, and the express company decline to carry subject to the liabili ties of common carriers. Rogers Locomotive, etc., Works v. Erie R. R. Co., 20 N. J. Eq. 349. New England Express Co. v. Maine Central R. R. Co., 57 Me. 188.

But a railroad company is not obliged to become a common carrier of money under a clause

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railway company and canal company having or working railways or canals which form part of a continuous line of railway or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one, near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such 'railways or canals to the other, without any unreasonable delay, and without any such preference or advantage, or prejudice, or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public. It has been held, however, that the above section applies only to the "receiving," "forwarding," and "delivering" of traffic, and not to facilities for storing goods after they have been delivered to the consignees. Where, therefore, a railway company let the surplus land adjoining their station to one coal merchant to the exclusion of others, it was held that another coal merchant had no ground of complaint, although the first named merchant did not require or use the whole of the surplus land for the purpose of storing his coals(a).

If railways are blocked up and impeded by snow, the company is bound to use all reasonable exertions to forward the passengers, though extra expense must be incurred by the company in so doing, which they have no means of recovering from their passengers; but the owners of goods and cattle have no right to complain that extraordinary efforts which are made to forward passengers are not used to for

in the charter requiring it to transport "all merchandise and property" offered. Kuter v. Michigan Central B. R. Co., 1 Biss. 35.

And when, by reason of an unusual pressure of business, the rolling stock of a railroad company becomes inadequate to transport the freight already received, the company may lawfully decline to receive other freight offered for transportation. Faulkner v. South Pacific R. R. Co., 51 Mo. 311.

But in every case where a carrier has reasonable ground for refusing to receive and carry either persons or merchandise, he must make the objection at the time the application for carriage is made; for if he receives the person or property for transportation without ob jection, his liability is the same as though no ground for refusal existed. Faulkner v. South Pacific R. R. Co., 51 Mo. 311. Hannibal R. R. Co. v. Swift, 12 Wall. 262. But see Wibert v. New York & Erie R. R. Co., 12 N. Y. 245.

Even after the receipt of goods by the carrier for transportation, he may refuse to carry them if the freight thereon is not paid by the shipper as stipulated. Stewart v. Bremer, 63 Penn, St. 268.

If a common carrier in forwarding freight discriminates between two classes of shippers by deliberately delaying or stopping the property of one class in order to give preference to another, contrary to the usual course of business, he is guilty of a wrong, and liable therefor. Keeney v. Grand Trunk R. R. Co., 59 Barb. (N. Y.) 104.

(a) West v, L. & N.-W. Rwy., L. R., 5 C. P. 622, per Montague Smith and Brett, JJ., diss. Bovill, C.J., and Keating, J.

ward cattle and goods. "If a snow-storm occurs which makes it impossible to forward cattle except by extraordinary means, involving additional expense, the company are not bound to use such means and to incur such expense "(b). So if there be delay in delivering goods by reason of an accident occurring on the defendant's line, such accident being caused wholly by the negligence of another railway company, which had running powers over the defendants' line, the defendants, in the absence of a special contract to deliver within a certain time, are not responsible(c).

Whenever there has been an apparent preference in respect of the conveyance of goods conceded by a railway company to certain persons to the prejudice of a complainant, there is sufficient ground to call upon the company for an explanation and justification of their conduct in the matter(d).

66

653 Loss of goods by common carriers.-"The law," observes Holt, C.J., charges every person exercising the public employment of a common carrier, common hoyman, master of a ship intrusted to carry goods, against all events but acts of God and enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sort of persons, that they may be safe in their dealings. For else these carriers might have an opportunity of undoing all persons that had any dealings with them by combining with thieves, etc.; and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point "(e).

(b) Briddon v. Gt. North. Rail. Co., 28 Law J., Exch. 51. Ballentine v. North, Missouri R. R. Co., 40 Mo. 491. See Penn. v. Buffalo & Erie R. R. Co., 49 N. Y. 204.

(c) Taylor v. Gt. North. Rail. Co., L. R., 1 C. P. 385.

(d) Garton v. Bristol & Exeter Rail. Co., 28 Law J., C. P. 306. Baxendale v. Gt. West. Rail. Co., ib. 81. As to injunctions, see post, s. 3.

(e) Coggs v. Bernard, 2 Ld. Raym. 909; 1 Smith's L. Ca., 6th ed. 177. Where a railroad is in good order and well equipped, and as many trains are run as can be run with safety, the company, in the absence of an express contract to transport property within a limited time, will not be responsible for delays occasioned by an unusual quantity of freight being deliv ered to it, which was forwarded without preference in the order of its receipt. Wibert v. New York & Erie R. R. Co., 12 N. Y. 245. East Tennessee, etc., R. R. Co. v. Nelson, 1 Cold. (Tenn.) 272. Peet v. Chicago, etc., R. R. Co., 20 Wis. 594. But see Faulkner v. South Pacific R. R. Co., 51 Mo. 311.

The fact that the company had not the proper appliances for transportation is no defence to an action for damages for delay in forwarding stock. Tucker v. Pacific R. R. Co., 50 Mo.

385.

Nor is the fact that the employees of the company were on a strike excuse for the failure

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