verbal statements of others as to the fact. The conductor has other duties to perform, and it would often be impossible for him to ascertain and decide upon the right of the passenger, except in the usual, simple and direct way.” 1 passenger should have paid fare and avoided the damage. In Riley v. Chicago City Ry. Co., 189 Ill. 384, 59 N. E. 794 (1901), it is pointed out that the 1 PART VII. LIABILITY FOR DEFAULT CHAPTER XXVI CONDUCT OF THE UNDERTAKING $900. Proper conduct of the undertaking. Topic A. Delay in Performing Service § 901. Duty to act promptly. 902. Reasonable time allowed for performance. 903. Special circumstances calling for haste. 904. Adherence to schedule time. Topic B. Deviation from the Undertaking § 905. Usual course of performing service. Topic C. Excuses for Default in Performing Service § 909. Natural forces. 910. Governmental authority. 911. Violent intervention. 912. Interruption by strike. 913. Interference of patron. 914. Press of business. Topic D. Liability Consequent upon Default § 915. Delay must be negligent. 916. Loss directly caused by delay. 917. Loss merely concurrent with delay. 918. Extreme liability according to other authorities. 919. Negligence contributing to the catastrophe. 920. Negligence in not avoiding the catastrophe. 921. Absolute liability the result of deviation. 922. Absolute liability of special contract. § 900. Proper conduct of the undertaking. Those who have undertaken a public service have always been strictly held to use due diligence to carry it through promptly. Of course there are many unexpected obstacles which will excuse delay in performing services. But even if the delay is excused, their duty remains to complete performance as best they may. Indeed, quite extraordinary steps are often required by the law for the protection of the interests of the patron in such an emergency. Moreover, by the general rule public servants are held strictly accountable for any deviation from their undertaking. What they have assumed to do for their patrons they must do in the very way that they have undertaken to do, and if they fail to perform in the way they have undertaken they are held absolutely liable for the time being. But here again extraordinary events may intervene; and in the unexpected emergency not only are they excused for making a deviation, but in many instances it is their duty to complete performances in some other way. Topic A. Delay in Performing Service § 901. Duty to act promptly. One who has undertaken public service is bound to exercise due diligence to perform the service undertaken within proper time. The cases upon this elementary proposition are almost countless, particularly in common carriage. Although no certain time be promised for 1 See in general these cases among many others: Arkansas. St. Louis, I. M. & So. Ry. Co. v. Heath, 41 Ark. 476 (1883). California.-Palmer v. Atchison, T. & S. F. Ry. Co., 101 Cal. 187, 35 Pac. 630 (1894). Illinois. Mich. So. & N. I. R. R. Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278 (1858). Louisiana.-Berje v. Texas & P. Ry. Co., 37 La. Ann. 468 (1885). Mississippi.-Vicksburg & M. R. R. Co. v. Ragsdale, 46 Miss. 458 (1872). completion, a reasonable time will be implied.1 Sometimes this default is so obvious as to speak for itself. Thus the consumption of seventeen days for the carriage of goods usually taking but three days is certainly apparently negligent. And of course a delay of seventy days in completing the carriage of goods where usually but a few days are taken, could only be explained away in the most extraordinary case.3 Where a cattle train was stopped for six hours upon a journey covering in all two hundred miles, it was held to be an unreasonable delay.1 So where the usual course of transporting freight was one day the taking of two days was held unreasonable, when the market for perishable goods was lost thereby.5 Maine.-Grindle v. Eastern Exp. Co., 67 Me. 317 (1877). Minnesota. Bibb, Broom Corn Co. v. Atchison, T. & S. F. R. R. Co., 94 Minn. 269, 102 N. W. 709, 110 Am. St. Rep. 361, 69 L. R. A. 509 (1905). North Carolina.-Boner & C. v. Merchants' So. Co., 1 Jones (N. C.) 211 (1853). Pennsylvania.-Empire Transp. Co. v. Wallace, 68 Pa. St. 302 (1871). Texas.-International & Gt. R. England.-Briddon v. Gt. No. West Virginia.-McGraw v. Baltimore & O. R. R. Co., 18 W. Va. 361, 41 Am. Rep. 696 (1881). 2 Michigan & S. & N. Indiana R. R. Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278 (1858). A fortiori when thirty days were taken for a similar distance. Illinois Central Ry. Co. v. Cobb C. & Co., 64 Ill. 128 (1872). St. Louis, Iron Mountain & So. Ry. Co. v. Heath, 41 Ark. 476 (1883). See also Jennings v. Grand Trunk Ry. Co., 52 Hun, 227, 5 N. Y. Supp. 140 (1889). Minter v. Chicago, R. I. & P. Ry. Co., 82 Mo. App. 130 (1899). See also Ormsby Ry. Co. v. Union Pacific Ry. Co., 2 McCreary, 48, 4 Fed. 706 (1880). 'Frey v. New York C. & H. R. R. R. Co., 114 N. Y. App. Div. 747, 100 N. Y. Supp. 225 (1906). But see Pennsylvania R. R. Co. v. Clark, 2 Ind. App. 146, 28 N. E. 208 (1891). Furthermore, aside from the common law liability for unreasonable delay there are in many jurisdictions special statutes penalizing delays beyond a fixed time in certain services. Such is the North Carolina statute, making the carrier lia § 902. Reasonable time allowed for performance. A reasonable time for performance is, however, allowed in all cases. What is reasonable time for performing transportation depends upon the mode of conveyance, the distance to be traversed, the nature of the goods, the season of the year, and the facilities available for transportation. The requirement of reasonable dispatch in forwarding goods does not necessarily require performance at the earliest possible moment, not by the next train certainly, nor even on the same day. Nor is it at all unreasonable to make the halts in transportation which are incident to the ordinary transaction of the business." Similarly a telephone company is allowed a reasonable time after notice of the trouble for the repair of a sub ble for delay for more than four days in beginning transportation and for delay during transportation at any intermediate point for more than two days. See Parker v. Atlantic Coast Line R. R. Co., 133 N. C. 335, 45 S. E. 658, 63 L. R. A. 827 (1903), and Meredith v. Railroad Co., 137 N. C. 478, 50 S. E. 1 (1905). As this statute and similar statutes are along the lines of the common law obligation they are held constitutional; but in order to be constitutional it would seem that such statutes should receive common law interpretation and the delays forbidden should be held subject to the excuses for delay at common law. See Grocery Co. v. Railroad Co., 136 N. C. 396, 48 S. E. 801 (1904), and Stone Co. v. Atlantic Coast Line R. R. Co., 144 N. C. 220, 56 S. E. 932 (1907). See the following cases among many others: 3 Illinois.-Adams Express Co. v. Bratton, 106 Ill. App. 563 (1902). Indiana.-Cincinnati, I., St. L. & C. Ry. Co. v. Case, 122 Ind. 310, 23 N. E. 797 (1889). Kentucky.-Louisville & C. Packet Co. v. Bottorff, 25 Ky. L. Rep. 1324, 77 S. W. 920 (1904). Michigan.-McKenzie v. Michigan Central R. R. Co., 137 Mich. 112, 100 N. W. 260 (1904). Nebraska.-Johnston v. Chicago B. & Q. R. R. Co., 70 Neb. 364, 97 N. W. 479 (1903). Texas.-San Antonio & A. P. Ry. Co. v. Turner, 42 Tex. Civ. App. 532, 94 S. W. 214 (1906). West Virginia.-McGraw v. Baltimore & O. R. R. Co., 18 W. Va. 361, 41 Am. Rep. 690 (1881). 2 Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586 (1891). 3 Bank of W. V. v. Southern Exp. Co., 71 Miss. 741, 16 So. 300 (1894). 'Southern Pacific Co. v. Arnett, 61 C. C. A. 131, 126 Fed. 75 (1903). |