If the external qualities sufficiently show the necessity of the care, the carrier must take the necessary precautions,105 as in carrying live stock.

But if the owner has used fraud or artifice to deceive the carrier, and in consequence of it his risk is increased or his vigilance is lessened, the loss which may follow must be borne by the owner.

But after a loss has commenced by inherent defects, the carrier must use the utmost care to prevent the damage from proceeding any farther.106

1027. Attempts have been made by common carriers to limit their responsibility, by giving notices and making special contracts. This can be done within certain limits. The usual limitations are, that the carrier shall not be responsible for negligence or for more than a certain amount. In order to make such a limitation there must be a special contract either express or implied; it is not enough that the carrier gives notice of his intention, however publicly, or even if brought to the knowledge of the bailor.107

The reason for this is evident: a common carrier, as we have seen, is obliged to carry goods for all, and under the strictest responsibility. He may within reasonable limits regulate his charges according to the limits of his responsibility, and the bailor may waive his rights in consideration of reduced charges. In some cases a general public notice has been held to be sufficient, but this goes on the ground that a contract is implied, the notice being known to the bailor, who impliedly assents, if he does not actually dissent. But it is invariably held that some contract must be proved. 108

Such a contract, if fairly made, is valid; 109 but there is one exception. Public policy forbids that a common carrier should guard himself against his own misconduct, and, however the contract may be drawn, he will still remain liable for fraud, wilful misconduct, or gross negligence.110

111

When a special contract is set up the burden of proving it is on the carrier,' and when the contract is proved, the burden of proof is still on him to show that the loss was within the exception and without negligence.112

1028. The liability of a common carrier begins when the goods are delivered to him or his agent for transportation and accepted by him. It is a sufficient delivery if the goods are left at a place designated by the carrier, though there is no agent there to receive them.113 If the goods are placed in the carrier's warehouse and kept there merely as preparatory and accessory to the carriage, the liability is that of a carrier and not of a warehouseman.114

The delivery may be made to the carrier or his authorized agent, and the authority of his agent to receive the goods is governed by the general rules of agency. In general, it may be said that a captain of a vessel, clerk of a steam

105 Clarke v. Rochester R. R., 14 N. Y. 470; New Jersey R. R. v. Pennsylvania R. R., 3 Dutch. N. J. 100.

106 Chouteaux v. Leech, 18 Penn. St. 224; Lynx v. King, 12 Mo. 272; Bird v. Cromwell, 1 Mo. 58.

107 Derwort v. Loomer, 21 Conn. 245; Fish v. Chapman, 2 Ga. 349; Moses v. Boston R. R., 32 N. H. 523; Dorr v. New Jersey Co., 11 N. Y. 485.

108 Western Co. v. Newhall, 24 Ill. 466; Michigan R. R. v. Hale, 6 Mich. 243.

109 New Jersey St. Nav. Co. v. Merchants' Bank, 6 How. 344.

110 Berry v. Cooper, 28 Ga. 543; Illinois Cent. R. R. v. Morrison, 19 Ill. 136; Davidson v. Graham, 2 Ohio St. 131; Ashmore v. Pennsylvania Co., 4 Dutch. N. J. 180; Powell v. Pennsylvania R. R., 32 Penn. St. 414; Sager v. Portsmouth R. R., 31 Me. 228.

American Transp. Co. v. Moore, 5 Mich. 368; Western Co. v. Newhall, 24 Ill. 466; The Peytona, 2 Curt. C. C. 21.

12 Baker v. Brinson, 9 Rich. So. C. 201; Berry v. Cooper, 28 Ga. 543. Held contra that the bailor must prove negligence: Sager v. Portsmouth R. R., 31 Me. 228; Goldey v. Pennsylvania R. R., 30 Penn. St. 242.

113 Merriam v. Hartford R. R., 20 Conn. 354.

11 Clarke v. Needles, 25 Penn. St. 338; Fitchburg R. R. v. Hanna, 6 Gray, Mass. 539; Michigan R. R. v. Shurtz, 7 Mich. 515.

boat, freight agents and depot masters are authorized to receive, while common seamen, brakesmen, etc., are not.115

To constitute a delivery it is necessary that the goods should be placed completely under the control of the carrier. He is not liable, therefore, if the owner or his servant goes with the goods to take care of them and assumes their custody.116

1029. The liability of the carrier ends when the goods are deposited at their place of destination. He may there deliver them to the owner's agent or other proper person as consignee or warehouseman, or may by readiness to deliver, with due notice to such person, effect a constructive delivery. If after such constructive delivery they are not removed by the owner, the carrier's liability as such ends, and he is obliged merely to store them, and is responsible only as a depositary.117 It is the general rule in the case of railroads that their liability as carriers ends when the goods are deposited in their warehouse at the end of the route, and they then become merely warehousemen.118 But such a storage is not a delivery if the contract contemplates some further act, as where the goods are to be delivered "on board" a vessel; in this case the carrier's liability continues during the storage and until the goods are delivered "on board." 119

A reasonable time must be allowed for the consignee to remove the goods, and the carrier's liability continues for such time.120

Railroads and other carriers need not notify the consignee,121 but it is generally held that a carrier by vessel must give notice. 122 This distinction is founded on the course of business and the difference of time of delivery. The manner of delivering goods as to time, place, etc., will depend on usage, and the existence of a usage is a question of fact for the jury. It must be reasonable, certain, and well known 123

Where goods are to be carried to their final destination by several successive carriers, the question arises, when the liability of the first carrier terminates. This question is most important in the case of connecting railroads. In general, a railroad contracts only to deliver to the next road, but there is no doubt that by a special contract it may agree to carry to the ultimate destination, the connecting road then acting as its agents. 124 A receipt for goods directed to a point beyond their terminus is prima facie evidence of such a contract, but may be rebutted.125

115 Trowbridge v. Chapin, 23 Conn. 595; Chouteau v. St. Anthony, 11 Mo. 226; Farmers' Bank v. Champlain Co., 23 Vt. 186; Mayall v. Boston R. R., 19 N. H. 122; Hosea v. McCrory, 12 Ala. N. s. 349.

116 Gibson v. Culver, 17 Wend. N. Y. 305; White v. Winnisimmet Co., 7 Cush. Mass. 156; Powell v. Mills, 37 Miss. 691; Fisher v. Clisbee, 12 Ill. 344.

117

Chicago R. R. v. Warren, 16 Ill. 502; Stone v. Waitt, 31 Me. 409; McHenry v. R. R. Co., 4 Harr. Del. 448; Keystone v. Moies, 28 Mo. 243; Rome R. R. v. Sullivan, 14 Ga. 277; Thomas v. Boston R. R., 10 Metc. Mass. 472.

118 Morris R. R. v. Ayres, 5 Dutch. N. J. 393; McCarty v. New York R. R., 30 Penn. St. 247; Illinois Cent. R. R. v. Alexander, 20 Ill. 23; Hilliard v. Wilmington R. R., 6 Jones, No. C. 343.

119 Moore v. Michigan Cent. R. R., 3 Mich. 23.

120 Scholes v. Ackerland, 15 Ill. 474; Moses v. Boston R. R., 32 N. H. 523; Milwaukee R. R. v. Fairchild, 6 Wisc. 403; Miller v. Steam Nav. Co., 10 N. Y. 431.

Michigan R. R. v. Bivens, 13 Ind. 263; Porter v. Chicago R. R., 20 Ill. 407. Contra, Michigan Cent. R. R. v. Ward, 2 Mich. 538.

The Peytona, 2 Curt. C. C. 21; Price v. Powell, 3 N. Y. 322; Crawford v. Clark, 15 Ill. 561.

1 Sleade v. Payne, 14 La. Ann. 417; Huston v. Peters, 1 Metc. Ky. 558; Marshall v. Wells, 7 Wisc. 1.

124 Perkins v. Portland R. R., 47 Me. 573; Burtis v. Buffalo R. R., 24 N. Y. 269; Noyes v. Rutland R. R., 28 Vt. 110; Naugatuck R. R. v. Waterbury Co., 24 Conn. 486.

125

Angle v. Mississippi R. R., 9 Iowa, 487; Kyle v. Laurens R. R., 10 Rich. So. C. 382.

The carrier is liable if he deliver goods to the wrong person, and he must show clearly that such person was authorized to receive them, or that he had a right to presume such authority.'

126

1030. A common carrier of goods is entitled, in all cases, to demand the price of carriage before he receives the goods, and, if not paid, he may refuse to take charge of them; if, however, he receives them without the hire being paid, he may afterward recover it by action, and he has a lien on the goods for it, and need not deliver them until it is paid. This lien covers only the specific freight due on the goods, and not on a general balance. But where a part of a cargo has been delivered, he has a lien on the balance for the whole freight. And on the same principal, he has a lien on one cargo for the freight due on several previous cargoes, the whole being parts of one transaction.128

Where the carrier receives goods from other carriers, whose charges for transportation he pays, he has a lien on them for this back freight as well as for his own charges.

129

The only question arising in this case is, whether the amount of his lien is subject to be reduced for damages done by the previous carriers. The rule is, that he must use reasonable care to see that the goods are in apparent good order; if he does so, he has a lien for the whole freight, and the owner must recover his damages from the first carriers.130

A carrier's lien is lost by a delivery, and, when once waived, cannot be recovered.131 And he has no lien against the owner where the goods have been wrongfully placed in his hands by a third party.13

A carrier has a special property in the goods, and may sue a third person for damage done to them.133

1031. In the ordinary bills of lading the carrier is directed to deliver the goods to the consignee, "he or they paying freight." This is merely a recognition of the lien, and imposes on the carrier no obligation to hold the goods until the freight is paid. The consignor is, in all cases, bound to pay the freight. The consignee is not a party to the contract. If the consignee receives the goods, no contract is necessarily implied, but such a receipt is evidence for the jury, with other circumstances, from which they may infer a promise by the consignee to pay the freight.134

1032. Carriers of passengers may be divided into two classes-carriers by land and carriers by water. Carriers by land include railroads, stages, omnibuses, and horse-cars, and all others who make a regular occupation of carrying all who may come. They are obliged to carry all passengers who may offer themselves, if they have sufficient accommodation. But they may exclude all improper persons, or persons who refuse to comply with reasonable regulations,

126 Huntress, Dav. Dist. Ct. 82; Adams v. Blankenstein, 2 Cal. 413; Sweet v. Barney, 23 N. Y. 335.

127 Hunt v. Haskell, 24 Me. 339; Langworthy v. New York R. R., 2 E. D. Smith, N. Y. 195; Galena R. R. v. Rae, 18 Ill. 488.

128 Lane v. Old Colony R. R., 14 Gray, Mass. 143; Fuller v. Bradley, 25 Penn. St. 120. 129 White v. Vann, 6 Humphr. Tenn. 70; Hill v. Leadbetter, 42 Me. 572.

130 Bissel v. Price, 16 Ill. 408.

131 Bailey v. Quint, 22 Vt. 474.

182 Clark v. Lowell R. R., 9 Gray, Mass. 231; Robinson v. Baker, 5 Cush. Mass. 187; Stevens v. Boston R. R., 8 Gray, Mass. 262; Ames v. Palmer, 42 Me. 197; Fitch v. Newbury, 1 Dougl. Mich. 1.

133 Deford v. Seinour, 1 Ind. 532; White v. Bascom, 28 Vt. 2684 Farmer v. McCraw, 26 Ala. N. s. 189.

184 Wooster v. Taw, 8 All. Mass. 270; Sanders v. Vanzeller, 4 Q. B. 260; Young v. Moeller, 5 Ell. & B. 755; Maclachlan, Shipp. 426.

135 Jencks v. Coleman, 2 Sumn. C. C. 221; Pickford v. Grand Junction R., 8 Mees. & W. Exch. 372.

or agents of competing lines who take passage for the purpose of injuring their traffic. 136

1033. Common carriers of passengers are not insurers like common carriers of goods, but being entrusted with human life, they are held to a strict accountability. They must exercise the highest degree of care and diligence and a vigilant supervision, increasing in proportion to the danger of the mode of conveyance. They must employ suitable drivers, engineers, and other agents; and the employment of a man of known intemperate habits, or notoriously unfit, is gross negligence.'

137

138

They must provide good cars, coaches, engines, and other conveyances, and must see that the track is in good order, and are liable for all injuries from defects in any of these which might have been prevented by proper care.139 Although their agents are competent, the carriers are liable for any injury caused by their negligence. As to what is negligence, the cases might be multiplied indefinitely.140

141

Α passenger is bound to obey all reasonable regulations. The carrier is not liable for injury to a passenger caused by his own negligence, even if the carrier is partly in fault.142

1034. A carrier may make reasonable regulations, and their validity will depend on their reasonableness. Many questions have arisen in regard to railroads. Thus, although a railroad must carry all who come, it may divide goods into classes at different rates, and it may charge different rates for different trains.143 They may require passengers to purchase tickets before entering the cars under penalty of paying more.144

A ticket may be issued, good only for a certain time or a certain train.145 1035. Carriers of passengers, like carriers of goods, often attempt to limit their liability by notices and special contracts. The usual plan is by notices printed on passage tickets. Thus where free tickets are given, the carrier may exonerate himself from liability for the negligence of his servants.146 But this limitation does not apply to all free passengers unless the contract is made.17

1036. Carriers of passengers are liable, as common carriers, for their baggage; 148 but to make them thus liable, the baggage must be delivered into their custody,149 and must be accompanied by the owner as a passenger.

150

The term baggage includes such articles of necessity or personal convenience as are usually or properly carried by passengers as such. Thus it includes

136 Jencks v. Coleman, 2 Sumn. C. C. 221; Commonwealth v. Power, 7 Metc. Mass. 596.

137 Derwort v. Loomer, 21 Conn. 245; Fairchild v. California Stage Co., 13 Cal. 599; Galena R. R. v. Fay, 16 Ill. 558; Sales v. Western Stage Co., 4 Iowa, 547; Chicago R. R. v. George, 19 Ill. 510; Fuller v. Talbot, 23 Ill. 357; Bowen v. New York R. R., 18 N. Y. 408.

138 Frink v. Coe, 4 Greene, Iowa, 555.

13 Frink v. Potter, 17 Ill. 406; Hegeman v. Western R. R., 13 N. Y. 9; Virginia R. R. v. Sanger, 12 Gratt. Va. 230.

140 Farish v. Reigle, 11 Gratt. Va. 697; Nashville R. R. v. Messino, 1 Sneed, Tenn. 220; Stockton v. Frey, 4 Gill, Md. 406; McKinney v. Niel, 1 McLean, C. C. 540; Monroe v. Leach, 7 Metc. Mass. 274; New World v. King, 16 How. 474.

14 Sims v. Macon R. R., 28 Ga. 93; R. R. Co. v. Aspell, 23 Penn. St. 147.

142 Pennsylvania R. R. v. Zebe, 33 Penn. St. 318.

143

Chicago R. R. v. Parks, 18 Íll. 460; State v. Overton, 4 Zabr. N. J. 435.

14 Cleveland R. R. v. Bartram, 11 Ohio St. 457; Chicago R. R. v. Parks, 18 Ill. 460.

145 Boston R. R. v. Proctor, 1 All. Mass. 267.

146 Welles v. New York R. R., 24 N. Y. 181.

147 Todd v. Old Colony R. R., 3 All. Mass. 18.

148 Jones v. Voorhees, 10 Ohio, 145; Powell v. Meyers, 26 Wend. N. Y. 591.

149 Forbes v. Davis, 18 Tex. 268; Michigan R. R. v. Meyres, 21 Ill. 627.

150 Wright v. Caldwell, 3 Mich. 51; Collins v. Boston R. R., 10 Cush. Mass. 506. VOL. I.-2 H

257

pistols, jewelry, money for travelling expenses, carpenter's tools. It does not include articles carried as merchandise for sale, or large sums of money for business purposes.

152

Where an action is brought for the loss of baggage, the owner is usually the only witness able to prove the contents. In most of the states a party is allowed to testify in all cases, but in all the common-law rule, excluding the party's evidence, is relaxed in this case, and the owner is allowed to testify from the necessity of the case. 153 But this is limited to cases where no other evidence is attainable.154

1037. Carriers of passengers by water are in general bound by the same rules as carriers by land; and liable for the same faults both as to the person and as to the baggage of the passenger.

A captain of a vessel is invested with a very extensive authority. He may make all regulations necessary for the safety and discipline of the ship and oblige passengers to conform to them, placing them in confinement even if necessary. And he is obliged not only to use his utmost skill and care, but to show a proper attention to the needs and the feelings of the passengers.'

155

1038. Salutary regulations have been made by congress as to the amount of provisions or sea-stores which must be taken on board of vessels bound to or from the United States, intended for the carriage of passengers; and also as to the number of passengers which vessels may take.156

Inspectors are also appointed, charged with the duty of inspecting the boilers and machinery of steamers.157

1039. The post-office is a public institution, established for the general good, and the officers appointed to fulfil the duties incident to it are, first, the postmaster-general, who has the superintendence of the whole department; and, secondly, deputy-postmasters, officers who are located over the whole country. It is their duty to receive and send, according to direction, all letters and other mailable matters which are delivered to them. The delivery is usually made by being dropped into a box, at the place where they hold their office.

Deputy-postmasters are not responsible as common carriers, nor are they liable for the secret delinquencies of their sworn assistants,159 because there has been no default of their own; but when a postmaster is guilty of allowing a person, who is not permitted by law, to act as his assistant; for example, where he allowed one to have the custody of the mail without being sworn according to law, he is responsible for any loss that may happen in consequence,' is when guilty of negligence or fraud.161

160

as he

1040. In the next place will be examined the contract of pawn or pledge, which is the second kind of bailment for the mutual benefit of both parties. Various definitions have been given of this contract, differing but little from each other. A pawn or pledge, (for the term is used as synonymous,) is a con

151 Davis v. Michigan R. R., 22 Ill. 278; Doyle v. Kiser, 6 Ind. 242; Illinois R. R. v. Copeland, 24 Ill. 332; Porter v. Hildebrand, 14 Penn. St. 129; Bomar v. Maxwell, 9 Humphr. Tenn. 621.

152 Collins v. Boston R. R., 10 Cush. Mass. 506; Davis v. Michigan R. R., 22 Ill. 278; Whitmore v. Caroline, 20 Mo. 513.

153 Mad River R. R. v. Fulton, 20 Ohio, 318; Johnson v. Stone, 11 Humphr. Tenn. 419. 154 Dibble v. Brown, 12 Ga. 217; Pudor v. Boston R. R., 26 Me. 458.

155 Chamberlain v. Chandler, 3 Mas. C. C. 245.

156 Acts of Congr. March 2, 1819; Feby. 22, 1847; March 2, 1847; March 3, 1855, 10 Stat. 715.

157 Act of Congr. Aug. 30, 1852, 10 Stat. 63.

158 Rowning v. Goodchild, 3 Wils. 443; Bolan v. Williamson, 2 Bay, So. C. 551.

159 Schroyer v. Lynch, 8 Watts, Penn. 453.

160 Bishop v. Williamson, 11 Me. 495.

161 Dunlap v. Monroe, 7 Cranch, 242, 269; Schroyer v. Lynch, 8 Watts, Penn. 453.