negligently failed to do so, he will be liable.1 This is brought out in two well known United States Supreme Court cases. In Express Company v. Kountz 2 it was pointed out that if the carrier chooses the route which would very probably expose the goods to capture by the enemy it will be liable for their capture. In Railroad Company v. Reeves 3 it was pointed out that unless the carrier failed to exercise whatever care was practicable to remove the goods from a rising flood it would not be held liable. These cases it will be seen are entirely consistent, being in effect complementary.

3

§ 921. Absolute liability the result of deviation.

It is generally agreed that proof of deviation and loss concurrent with it from whatever cause arising make out a case of liability without more. By the general theory

Southern Express Co., 1 Flipp, 85,
Fed. Cas. No. 2,303 (1866).

Alabama.-Smith v. Western Ry. of Ala., 91 Ala. 455, 8 So. 754, 11 L. R. A. 619 (1891).

Tennessee.-Express Co. v. Jackson, 92 Tenn. 326, 21 S. W. 666 (1893).

Texas. St. Louis Ry. Co. v. Bland (Tex. Civ. App.), 34 S. W. 675 (1896).

1 Georgia. Savannah Ry. Co. v. Commercial Guana Co., 103 Ga. 590, 30 S. E. 555.

Nebraska.-Black v. Chicago, B. & O. R. R. Co., 30 Neb. 197 (1890). New York.-Wing v. New York, etc., Ry. Co., 1 Hilton (N. Y. C. P.), 235.

South Carolina.-Ewart v. Street, 2 Bailey (S. C.), 157, 23 Am. Dec. 131 (1831).

28 Wall. 342, 19 L. ed. 457 (1869).

3 10 Wall. 176, 19 L. ed. 909 (1870).

4 See:

United States.-The Maggie Hammond, 9 Wall. 435, 19 L. ed. 773 (1869).

Connecticut.-Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745 (1838). Colorado.-Denver & R. G. R. R. Co. v. De Witt, 1 Colo. App. 419, 29 Pac. 824 (1892).

Georgia. Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 227 (1889). Illinois. Merchants' Dispatch Co. v. Kahn, 76 Ill. 520 (1875).

Indiana.-Powers v. Davenport, 7 Blackf. 497, 43 Am. Dec. 100 (1845).

Kansas.-Chicago & Gt. W. Ry. Co. v. Dunlap, 71 Kan. 67, 80 Pac. 34 (1905).

Iowa.-Stewart V. Merchants' Dispatch Transp. Co., 47 Iowa, 229 (1877).

taken in this chapter this liability is not based upon negligence in the conduct of the undertaking, nor do the cases require proof of negligence. The mere fact of deviation is essentially a wrong in itself, as it constitutes a repudiation of the arrangement under which the carrier was authorized to act. It has in fact never been an issue in any case of liability for deviation, whether the loss was directly or remotely caused by deviation. The carrier is unhesitatingly held liable, even when the act of God or the king's enemies is the plain cause of the loss. The explanation of this rule making the carrier who has deviated from his undertaking liable at all events thereafter, is the peculiar liability for improper intermeddling. Any bailee is regarded by the law as absolutely liable for any loss happening in the period after his intermeddling. As this intermeddling makes the whole performance thereafter fundamentally different, this absolute liability should persist until the goods are finally delivered. And very probably this is the law, although some doubts may be entertained after reading the opinions in the leading cases.1

Co., 45 N. Y. 514, 6 Am. Rep. 124 (1871).

Note the decisions in Thorley, Ltd., v. Orchis S. S. Co., Ltd. (1907), 1 K. B. 660, and in Galveston & H. Ry. Co. v. Allison, 59 Tex. 193 (1883).

See the analogy drawn in Wald v. Pittsburg, C., C. & St. L. R. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332 (1896); and in Bibb Broom Corn Co. v. Atchison, T. & S. F. Ry. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361 (1905).

But note the distinctions made

§ 922. Absolute liability when special contract.

In the last place, it should be stated that where the carrier has made an express contract to carry and deliver within a specified time, he is bound to fulfill his contract.1 Nothing will excuse him, and he is liable for any delay, no matter from what cause it may have arisen.' There is nothing remarkable in holding that one who makes a contract must perform it at his peril, notwithstanding good explanations. A carrier need not make any special contract, but may insist upon taking the goods under his common-law liability, or not at all. Then his commonlaw excuses will be available; but if he actually contracts he has no more excuses than any other contractor.

V.

South Carolina.—M a this Southern Ry. Co., 65 S. C. 271, 43 S. E. 684, 61 L. R. A. 824 (1902). Tennessee.-Southern Ry. Co. v. Deakins, 107 Tenn. 522, 64 S. W. 477 (1901).

Texas.-International & B. N. R. R. Co. v. Young (Tex. Civ. App.), 28 S. W. 819 (1894); Texas & P. Ry. Co. v. Shawnee Cotton Oil Co. (Tex. Civ. App.), 118 S. W. 776 (1909).

Topic B. Liability for Injuries Caused by Its Own Servant

935. Duty to protect passenger.

936. Obligation to protect guest.

937. Blameworthiness must be shown.

938. Basis of liability for unauthorized injury.

939. Action outside of the employment.

940. Cumulative liability where two services involved.

Topic C. Protection Against Injury by Third Parties

§ 941. Limited extent of the duty.

942. Protection against fellow passengers.

943. Injuries from negligent conduct.

944. Liability for injuries by outsiders.

945. Injuries resulting from overcrowding.

946. Proper extent of the duty.

947. Duty of innkeepers to protect from third parties.

948. Special protection in sleeping cars.

Topic D. Duty to Act in Emergencies

§ 949. Duty to meet emergencies.

950. Duty to repair damage.

951. Duty to stop performance.

952. Duty to take appropriate action.

§ 930. Extent of duty to protect.

All proprietors of, public services who have persons or

property in their charge are bound to use their utmost efforts to protect them and safeguard them. As will be pointed out later, the carrier as to goods and the innkeeper as to baggage, are liable in many instances for injuries done to the property in their charge notwithstanding their utmost efforts; but as to their passengers and guests they owe no further duty than the rule just stated. The rule requiring protection is not necessarily limited to carriers and innkeepers, although almost all the cases upon the subject come from these departments. But the application of this law is necessarily confined to the services where the patrons and their belongings are taken in charge. Such is the case of passengers in sleeping cars and even of patrons in telegraph offices; and there are modern cases extending the rule requiring peculiar protection to such businesses.

Topic A. Proper Protection of Patrons

§ 931. Duty to care for patrons.

1

Of the general obligations to protect those with whom the proprietors are having business relations there can be no doubt. In a recent case 1 where a patron who had come to a telegraph office to send a message was insulted, the opinion was prefaced by these generalizations: "One of the great requirements which the government demands of every institution impressed with a public interestand one which is thrown over every citizen as a great and protective shield-is the duty to act impartially with all. They are under obligations to extend their facilities to all persons, on equal terms, who are willing to comply with their reasonable regulations, and to make such compensation as is exacted from others in like circumstances.

1 Dunn v. Western Union Tele

graph Co., 2 Ga. App. 845, 59 S. E. 189 (1908).