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attention which must be bestowed upon them in the event of the many accidents which may happen to them during the carrier's custody.

Sec. 494. ($ 291a.) General nature of carrier's duty.-"A carrier's duty," it is said,1 "is not limited to the transportation of goods delivered for carriage. He must exercise such diligence as is required by law to protect the goods from destruction and injury resulting from conditions which, in the exercise of due care, may be averted or counteracted. He must guard the goods from destruction or injury by the elements; from the effects of delays; indeed, from every source of injury which he may avert, and which, in the exercise of care and ordinary intelligence, may be known or anticipated. Unknown causes, or those which are inherent in the nature of the goods and cannot be, in the exercise of diligence, averted, will not render the carrier liable. The nature of the goods must be considered in determining the carrier's duty. Some metals may be transported in open cars. Many articles of commerce, when transported, must be protected from rain, sunshine and heat, and must have cars fitted for their safe transportation. Live animals must have food and water when the distance of transportation demands it. Fruit and some other perishable articles must be carried with expedition and protection from frost. So the carrier must attend to the character of the goods he transports. IIe is informed thereof by inspection of the freight bills or by other papers accompanying the shipment."

Sec. 495. ($ 292.) His duty to provide sufficient means of conveyance. The first duty of the common carrier, who holds himself out to the public as ready to engage in the carrying business, is of course to provide himself with reasonable facilities and appliances for the transportation of such goods as he holds himself out as ready to undertake to carry. Ile must put himself in a situation to be at least able to transport an amount of freight of the kind which he proposes to carry equal to that which may be ordinarily expected to seek transportation upon his route; for, while the law will sometimes excuse him for

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1. Beck, J., in Beard v. Railway Co., 79 Iowa, 518.

delay in the transportation, and even for a refusal to accept the goods which may be offered for carriage, when there occurs an unprecedented and unexpected press of business, it will not do so when his failure or refusal results from his not having provided himself with the means of present transportation for all who may apply in the regular and expected course of business. He cannot discriminate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance ;3 nor can he discriminate in favor of one shipper although the demands for transportation facilities exceed his capacity or the anticipated or usual calls upon him. And if, owing to an unexpected influx of business, there results a temporary scarcity of such facilities, he will be entitled to apportion the same in an equitable manner among his patrons, having in mind their relative volume of business, facilities for loading, and the merchandise in sight.5

The law implies an agreement to furnish the necessary facilities for transportation on a particular day when a request has in due time been made by the shipper of a station agent, who, for that purpose, has the authority of a general agent.6 If for any cause the carrier is unable to furnish vehicles at the time he has agreed to do so, it becomes his duty to inform the shipper of such fact within a reasonable time; and if, in the absence of such notice, the shipper believes that the vehicles will be in readiness at the time named, and, relying upon the conduct of the carrier, he presents his goods at the time and place agreed upon, and there are no vehicles ready to receive them, the carrier will be liable in damages if injury is caused by his neglect of such duty. But where the carrier has agreed to furnish vehicles on a particular day, a delivery at any hour of the day will be sufficient.

2. See Texas, etc., R’y Co. v. State v. Railroad Co., Neb. Barrow, (Tex. Civ. App.), 94 S. 99 N. W. Rep. 309. W. Rep. 176, citing this section; 6. Where the shipper requires a Hoffman, etc. Co. v. Railway Co., car at a certain station for his exMo. App.

94 S. W. Rep. clusive use, he must, at common 597.

law, give notice to the railroad 3. Ayres v. Railway Co., 71 Wis. company, after which notice the 372.

company has a reasonable time 4. Strough v. Railroad Co., 87 in which to furnish the car. RailN. Y. Supp. 30, 92 App. Div. 584. road Co. v. Bundy, 97 Ill. App. 5. State v. Railroad Co.,

202. Neb.

101 N. W. Rep. 23;

Sec. 496. Same subject—Must inform shipper of necessary delay_Burden of proof.—But while the carrier cannot be excused if he has failed to provide himself with a sufficiency of conveyances and other means for the transportation of that which he may reasonably expect to be offered, he is not bound to provide in advance for extraordinary occasions nor for an unusual influx of business. But while an unusual press of business may justify his refusal to accept the goods which may be offered, if, having provided himself with reasonable facilities, he finds it impossible from previous engagements to commence its shipment according to the usual and regular course of his business, and he accepts the goods without notice to the shipper of the circumstances, and without obtaining his assent, either express or implied, he cannot be heard to say that his delay was caused by such a contingency. He must, at his peril, inform the shipper of the necessary delay, that the shipper may exercise his own discretion as to the propriety of making the shipment; and even though the delay may occur from such a cause upon a connecting route over which he has bound himself to carry the goods to destination, which may not be known to him at the time of their acceptance, he is liable for any unreasonable delay in the transportation, and such unavoidable difficulty, though wholly unknown and unanticipated, will not excuse him. The burden of proving that he could not in a particular instance furnish the cars needed without jeopardizing his other business, and with reasonable diligence, is upon the carrier.10

7. Nichols V. Railroad Co., 24 formed that there are no cars in Utah, 83, 66 Pac. Rep. 768, 91 which to ship his live stock, and Am. St. Rep. 778.

he permits the stock to remain in Where a shipper makes applica the carrier's pens to await the artion for cars on a certain day, it is rival of cars, the carrier will be the duty of the carrier to advise liable for a shrinkage occasioned him within a reasonable time if by a lack of food and water it will be unable to furnish them where he promises the shipper at that time; and if it fails to do that the cars will arrive before so, and leads the shipper to rely the stock is in need of food and on having the cars on that day, water. Gulf, etc. R’y Co. v. House it will be liable to him in dam- & Watkins, Tex. Civ. App. ages. Ayres v. Railway Co., 71

88 S. W. Rep. 1110. Wis. 372.

8. McGrew v. Railway Co., 109 And although the shipper is in- Mo. 582, 19 S. W. Rep. 53.

Sec. 497. (§ 293. Same subject Must provide safe and suitable vehicles.-And not only must he provide himself with means sufficient to transact the business for which he has advertised and held himself out to the public as soliciting, but he must provide himself with means of transportation safe and suitable for his business in which he engages. No defect in any vehicles, or in any instrument used in the transportation of goods, can excuse the common carrier from his common-law liability to be answerable for the safety of the goods at all events, except when the loss may occur from the act of God or of the public enemy. He can guard himself against responsibility for loss or damage from such cause only by contract; and, as we have seen, if the accident which has occasioned such loss or damage can be traced to his negligence, not even his contract will be a protection to him except in those states in which he is allowed to contract for exemption from the consequences of his negligence; and not in them, unless such contract explicitly so provides. If he be a carrier by water, he must provide himself with a vessel tight and staunch and provided with all tackle and apparel of every kind which may be in use by those skilled in the business and which may promote the safety of the voyage. It is a part of the contract on the part of every owner of a vessel who holds himself out as a common carrier, that his ship is seaworthy.11 This is implied by the law as the very foundation of his employment, and if any damage occurs to the goods by reason of its unseaworthiness, or because it is not provided with all the needed appliances for avoiding or escaping the danger, it will

9. The acceptance of the goods Carter V. Peck, 4 Sneed, 203; without notifying the shipper that Southern Ex. Co. v. Womack, 1 they cannot, owing to extraordi- Heisk. 256; Place v. Union Ex. nary conditions prevailing upon Co., 2 Hilton, 19; Ill. Cent. R. R. the route, be promptly delivered is V. Waters, 41 Ill. 73; Great W. R. tantamount to an assurance that R. v. Hawkins, 18 Mich. 427; they will be delivered within a Porcher V. Railroad, 14 Rich. reasonable time. Russell Grain (Law), 181; Sager v. Railroad, 31 Co. v. Railroad Co., Mo. App. Me. 228; Empire T. Co. v. Wam

89 S. W. Rep. 908; Texas, sutta Oil Co., 63 Penn. St. 14; Conetc, R'y Co. v. Kolp, Tex. Civ. dictv. Railroad, 54 N. Y. 500; App.

88 S. W. Rep. 417; Ill. Cent. R. R. v. Cobb, 64 Ill. 128; Palmer v. Railroad Co., 101 Cal. Mich. Cent. R. R. v. Burrows, 33 187, 35 Pac. Rep. 630; Railway Co. Mich. 6; Ayres v. Railway Co., 75 0. Edwards, 78 Fed. 745, 24 C. C. Wis. 215. A. 300; Pittsburgh, etc. R’y Co. 0. And where the delay arises Racer, 5 Ind. App. 209, 31 N. E. through the carrier's inability to Rep. 853; Railroad Co. v. Farm- make delivery to a succeeding carers', etc. Firm, 107 Ky. 53, 52 S. rier, he must, if practicable, notiW. Rep. 972; State v. Railroad fy the shipper of such delay and Co., Neb. 99 N. W. Rep. not undertake to forward the 309; Toledo, etc. R. R. v. Lock- goods by another route than that hart, 71 III. 627; The Great W. etc. contemplated. Fisher v. Railroad R. R. v. Burns, 60 id. 284; Galena, Co., 99 Me. 338, 59 Atl. Rep. 532, etc., R. R. v. Rae, 18 id. 488; Wi- 105 Am. St. Rep. 283, 68 L. R. A. bert v. Railroad, 12 N. Y. 245; 290. S. C. 19 Barb. 36; East Tenn. & 10. Ayres v. Railway Co., 71 Wis. Ga. R. R. v. Nelson, 1 Cold. 272; 372.

11. "In every contract for the Sumner v. Caswell, 20 Fed. Rep. carriage of goods by sea,” says Mr. 249; Crow v. Falk, 8 Q. B. 467; Justice Gray, “unless otherwise Valente v. Gibbs, 6 C. B. (N. S.) expressly stipulated, there is a 270; The Caledonia, 157 U. S. 124, warranty on the part of the ship- 15 Sup. Ct. 537, 39 L. Ed. 644, owner that the ship is seaworthy affirming 43 Fed. 681 and 50 Fed. at the time of beginning her voy. 567. age, and not merely that he does See also sections on this subnot know her to be unseaworthy, ject under the Harter Act, ante, or that he has used his best efforts $8 345-387. to make her seaworthy. The war- A vessel may be unseaworthy ranty is absolute that the ship is, as to a passenger's baggage. The or shall be, in fact seaworthy at Kensington, 183 U. S. 263, 46 L. that time, and does not depend on Ed. 190, 22 Sup. Ct. R. 102, rehis knowledge or ignorance, his versing 94 Fed. 885, 36 C. C. A.

or negligence." The Cale- 533 and 88 Fed. 331. In Upperdonia, 43 Fed. Rep. 681, citing ton v. Steamship Co., (1903), 89 Work v. Leathers, 97 U. S. 379; Law T. 289, 9 Com'l Cas. 50, the Cohn V. Davidson, 2 Q. B. Div. vessel was held unseaworthy as to . 455; The Glenfruin, 10 Prob. Div. a passenger's baggage because it 103. See, also, Bowring v. The. was stowed in one of the lavabaud, 42 Fed. Rep. 794; The tories. Eugene Vesta, 28 Fed. Rep. 762;

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