him the opportunity to haul his ore to market. Suddenly, by the enterprise of others, and without any expectation on their part of aiding any project other than their own, a railroad is built, and he may attain the fruition of his hopes if he can use the railroad to ship his ore. Could it be contended with any merit that the railroad company, incorporated under the railroad laws of the State, can discriminate against him by saying, 'We are a private enterprise, for private use, and are not generally open to the public, and for this reason refuse to haul your ore, or to bring your machinery and supplies into these hills, and you cannot compel us to act otherwise?""

TOPIC

CASUAL EMPLOYMENT.

§ 115. Intermittent employment.

So where

Where the employment is casual only, and not a regular matter of business, the carrier is not a common carrier.1 a manufacturer who purchased a machine contracted with the seller to cart it, and the machine was injured, without negligence, while it was being carried, the manufacturer was held not to be a common carrier.2

In a case in Ceylon3 the owner of a wagon was complained of because he had not secured the license required of a common carrier. He had contracted to use his wagon in doing a particular job; and this was held not to make him a common carrier. Mr. Chief Justice Oliphant remarked that "obviously every one hiring out his cart for a job, as to bring a load of bricks or to remove earth from the foundations of a house, would not be obliged to get a license." So the owner of a boat propelled by oars and rowed for hire across a river from time to

1 Fuller v. Bradley, 25 Pa. St. 120 (1855).

2 Allis v. Voight, 90 Mich. 125, 51 N. W. 190 (1892). See to the same effect Benedict v. Arthur, 6 Up. Can. Q. B. N. S. 204 (1849); Samms v. Stewart, 20 Ohio, 270, 55 Am. Dec. 445 (1851).

3 Gibson v. Silva, Rama-Nathan, 105 (circ. 1850).

time by employes usually occupied in other ways is not a common carrier.4

§ 116. Shipmaster.

This principle is well illustrated by cases of carriage on vessels. If the vessel is casually employed to carry, it is not a common carrier.5

A leading case on this point is Allen v. Sackrider. The facts in that case were that "the defendants were the owners of the sloop Creole, of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the bay of Quinte to Ogdensburgh. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there. Being assured by the plaintiffs that she had, he engaged for the trip at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at one hundred dollars for the trip. The vessel proceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34; the injury did not result from the want of ordinary care, skill, or foresight, nor was it the result of inevitable accident, or what, in law, is termed the act of God." Mr. Justice Parker said: "The only question in the case is, were the defendants common carriers? The facts found by the referee do not, I think, make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever

4 Roussel v. Aumais, Rap. Jud. Quebec, 18 C. S. 474 (1900).

5 Pennewill v. Cullen, 5 Harr. (Del.) 238 (1849); Aymar v. Astor, 6 Cow. (N. Y.) 266 (1826); Fish v. Clark, 49 N. Y. 122 (1872). See, however, contra, Moss v. Bettes, 4 Heisk. (Tenn.) 661, 13 Am. Rep. 1 (1871), which holds that one who carries for hire on the river is a common carrier. The doctrine of the case is limited to water carriers. 637 N. Y. 341, B. & W. 5 (1867).

put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiffs' property falls short of proof sufficient to show them common carriers.'

Where a vessel is chartered by the owner, the charter being necessarily an isolated transaction, the owner does not thereby become a common carrier. If, on the other hand, the vessel in question is in the general freighting business, plying regularly between two ports and carrying freight, she is obviously carrying not casually but as a regular business, and the person who conducts the business is a common carrier.8

§ 117. Railroad not opened for passengers.

Where a railroad is under construction and is not yet publicly opened for passengers, it is not a common carrier of passengers; and this is true though persons have occasionally been carried over the road in construction trains their own solicitation." Thus in in McRae V. Canada

at

7 Lamb v. Parkman, 1 Sprague, 343 (1857); Sumner v. Caswell, 20 Fed. 249 (1884); The Dan, 40 Fed. 691 (1889).

8 Richardson v. Sewell, 2 Smith (Eng.) 205 (1805); Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 32 L. Ed. 788 (1888); The Huntress, 2 Ware, 89 (1840); Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745 (1838); Bennett v. Filyaul, 1 Fla. 403 (1847); Brown v. Clayton, 12 Ga. 564 (1853); Mershon v. Hobensack, 22 N. J. L. 372 (1850); Elliott v. Rossell, 10 Johns. (N. Y.) 1, 6 Am. Dec. 306 (1813); Swindler v. Hilliard, 2 Rich. L. (S. C.) 286, 45 Am. Dec. 732 (1846); Porterfield v. Humphrey, S Humph. (Tenn.) 497 (1847); Spencer v. Daggell, 2 Vt. 92 (1829).

* Shoemaker v. Kingsbury, 12 Wall. (U. S.) 369, 20 L. Ed. 432 (1871); Wade v. Lutcher, etc., Cypress Lumber Co., 74 Fed. 517, 41 U. S. App. 45, 20 C. C. A. 515 (1896); Albion Lumber Co. v. De Nobra, 72 Fed. 739, 44 U. S. App. 347, 19 C. C. A. 168 (1896); Menaugh v. Bedford Belt R. Co., 157 Ind. 20, 60 N. E. 694 (1901); Evansville & R. R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092 (1894); Nashville, etc., R.

Pacific Railway, 10 Mr. Justice Johnson, charging the jury, said: "A railway which occasionally carries goods or freight in passenger trains is not a common carrier of goods on such trains; and the same rule applies to a railway which occasionally carries passengers in its freight or construction trains, though when persons got on to ride, the defendants did not put them off. If you find the defendants did not solicit passengers, or publicly announce they would be carried, even, if in some or many instances, they have carried passengers for hire at the request and for the special accommodation of applicants, it is clear you have no right to impose upon the defendants the severe obligations which attach to common carriers." Where, however, notwithstanding the road has not been completed the railroad has made a practice of receiving for hire goods and passengers for carriage on its construction trains, it will be held to be a common carrier.11

So in Nashville and Chattanooga Railroad v. Messino,12 where the facts were that a temporary track was laid over hill while a cut was being dug through. The road was not opened, and the track was only used for the transport of materials and workmen. Neighbors, however, were allowed to ride, at first free, and presently, to diminish the number of those who rode, a fare was imposed. The railroad company did not, in terms, hold themselves out to carry passengers except on Sunday. Those who rode sat on the open cars, but the plaintiff, the morning being damp, rode in the box car, though one of the employes suggested that there were seats on the open car. It was

Co. v. Messino, 1 Sneed (Tenn.), 220 (1853). See San Antonio & A. P. Ry. v. Robinson (Tex.), 15 S. W. 584 (1891); Sheerman v. Toronto, etc., R. Co., 34 U. C. Q. B. 451 (1874); Graham v. Toronto, etc., R. Co., 23 U. C. C. P. 541 (1874); McCrae v. Canada Pacific R. R., Montreal L. R. 4 S. C. 186 (1888).

10 Supra.

11 Little Rock M. R. & T. Ry. v. Glidewell, 39 Ark. 487 (1882). 12 1 Sneed (Tenn.), 220 (1853).

held that the railroad company were liable, as common carriers, for an injury to plaintiff, under a verdict to that effect.

§ 118. Incidental employment-Wagoner.

It sometimes happens, especially in a new country, that a farmer or other person who is driving a wagon to town on his own business may agree to carry goods for his neighbors for hire. Where he consents to carry for all persons indifferently, the prevailing view is that he becomes a common carrier, at least as to the particular trip in connection with which he makes the offer, though he might not be compelled to undertake the duty on any other occasion. In the earliest case the plaintiff claimed exemption from distress upon his goods upon the ground that they were in the possession of a common carrier. The plaintiff had delivered them in London to one Richardson to carry, who was not a common carrier, but for some small time last past, brought cheese to London, and in his return took such goods as he could carry back in his wagon into the country for a reasonable price;" and the goods were distrained in his possession by his landlord. The court held the goods exempt, for the reason that " any man undertaking for hire to carry the goods of all persons indifferently, as in this case, is, as to this privilege, a common carrier." 13

The case does not distinctly decide that the carrier was a common carrier; indeed, the literal language of the court seems to imply the opposite. And in at least one case it has been held that in such a case the farmer is not a common carrier, nor, the court added, would it "make any difference how many applications of this kind had been made by the party thus carrying, or to how many different persons they may have been made, they would still remain so many special and individual transactions.' " 14 The view usually taken, however, is that the farmer

13 Gisbourn v. Hurst, 1 Salk. 249, B. & W. 2 (1710).

14 Samms v. Stewart, 20 Ohio, 69, 55 Am. Dec. 445 (1851).