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be regarded as the consequence of the personal negligence of the owner, against which no contract will protect him. And if he be a carrier by lighter or barge, he must see that it is sufficiently strong to resist all external forces to which it may be subjected in the ordinary course of navigation, and, in considering its fitness for the voyage, the nature of the service which it is to perform and the dangers attending the navigation in which it is engaged are to be taken into consideration. These, as well as the condition of his vessel, and its fitness for the service, the carrier must know at his peril.12 He must also provide his vessel with a competent master and with a good and sufficient crew.13 So if he be a carrier by land, it is clearly his duty to furnish vehicles which are safe and sufficient for the purpose intended ;14 and if it fails in the performance of this duty and injuries therefrom ensue, the carrier will be liable unless with knowledge of the defect the shipper has assented to the use of the insufficient vehicle.15

Sec. 498. Same subject-Carrier not excused because defective vehicles used by him are owned by another.—The duty of the carrier to provide safe and suitable vehicles is the same whether the goods are carried in his own vehicles or in those of

12. The Northern Belle, 9 Wall. road Co. v. Crews, 53 Ill. App. 50; 526; Lyon 0. Mells, 5 East, 428; Railway Co. v. Searles, 71 Miss. Propeller Niagara v. Cordes, 21 744, 16 So. Rep. 255, citing HutchHow. 23; Sharp v. Grey, 9 Bing inson on Carr; Jones v. Railroad 457; Cam. & Am. R. R. v. Burke, Co., Mo. App.

91 S. W. 13 Wend. 611.

Rep. 158. 13. Propeller Niagara v. Cordes, 15. Potts v. Railway Co., 17 Mo. supra; Missouri Pac. Ry. Co. v. App. 394; Mason v. Railway Co., Kingsbury, (Tex. Civ. App.) 25 25 Mo. App. 473; Coupland v. RailS W. 322, citing Hutchinson on road Co., 61 Conn, 531, 23 Atl. Rep. Carr; The Giles Loring, 48 Fed. 870, 15 L. R. A. 534; Hoosier Stone 463.

Co. v. Railway Co., 131 Ind. 575, 14. Sloan v. Railway Co., 58 Mo. 31 N. E. Rep. 365; Haynes v. Rail. 220; Illinois Cent. R. Co. v. Hall, road Co., 54 Mo. App. 582. 58 Ill. 410; Railroad Co. v. Pratt, Mere knowledge of the defect 22 Wall. 123; Hawkins v. Railway does not amount to assent. Potts Co., 17 Mich. 62, 18 Mich. 427; v. Railway Co., supra; Mason v. Railway Co. v. Fairbanks & Co., 90 Railway Co., supra. Fed. 467, 33 C. C. A. 611; Rail

another, and he cannot escape responsibility for his failure to provide vehicles reasonably fit for the conveyance of the particular class of goods which he undertakes to carry by alleging that the vehicles used for the purpose of his own transit were the property of another.16 This would be true, for instance, where the defective vehicles were owned by a refrigerating or a fruit transportation company, and were furnished for a consideration to a railroad company. In such a case, the railroad company would be liable for all damages resulting from the use of the defective vehicles, although the ownership of the vehicles was in another. Nor can the carrier avoid responsibility as a carrier by devolving upon the shipper the duty of inspecting or selecting the vehicle in which his goods are to be carried,17 and a stipulation in the bill of lading that the shipper has examined the vehicle for himself and found it to be in good order, and has accepted it as “suitable and sufficient" for the purpose of his shipment will not discharge the carrier from liability for damages resulting from defects in the vehicle since the necessary effect of such a stipulation would be to release the carrier from liability for his own negligence in failing to provide a safe and suitable vehicle.18

Sec. 499. Same subject-Liability of initial carrier for defective vehicles provided by him.—Where the vehicle is furnished by an initial carrier for the transportation of goods to a point beyond his own line, and he negligently violates his duty by furnishing a vehicle which is defective, he will be liable for any subsequent damage arising from the defective condition of the vehicle, although such damage develops on the line of a connecting carrier.19 And this rule will remain true even though the initial carrier expressly confines his liability for damages to his own line.20 Nor is the carrier exempted from liability by the fact that the shipper knew the vehicle to be defective and used it, or had entered into an express agreement with the carrier that the carrier should not be liable therefor. 21

16. Railway Co. v. Fairbanks & 444, 49 L. R. A. 462, 81 Am. St. Co., 90 Fed. 467, 33 C. C. A. 611; Rep. 722. Mathis v. Railroad Co., 65 S. C. 17. Railway Co. v. Fairbanks & 271, 43 S. E. Rep. 684, 61 L. R. A. Co., supra. 824; Railroad Co. v. Dies, 91 Tenn. 18. Railroad Co. v. Dies, supra. 177, 18 S. W. Rep. 266, 30 Am. St. 19. Railway Co. v. Marshall, Rep. 871; Railroad Co. v. Crom- Ark. _, 86 S. W. Rep. 802; Railwell, 98 Va. 227, 35 S. E. Rep. way Co. v. Searles, 71 Miss. 744,

If the shipper contracts with the initial carrier for a special kind of vehicle to be used on the entire journey, and the connecting carrier for any reason refuses to receive it, as for instance, if it be too large for travel over his line, it is nevertheless the duty of the initial carrier to see that the best adapted vehicle that can reasonably be procured is obtained into which to transfer the goods, and that the vehicle is in a suitable condition to carry the goods with safety. And in so doing, he is bound to regard all the conditions of which he has notice, the season, the length of the journey accomplished and still ahead, the delay already experienced, the value of the goods—in a word to use proper care according to the circumstances.22

Sec. 500. Same subject Liability of connecting carrier for defective vehicles received by him from initial or another connecting carrier.-It is the duty of a connecting carrier as much as it is the duty of the initial carrier to provide vehicles which are reasonably fit for the conveyance of the particular kind of goods he accepts for transportation, and he will not be excused from this duty even though the goods are received and carried by him in a vehicle which belongs to the initial carrier or another connecting carrier. When once a connecting carrier accepts vehicles from a preceding carrier for the purpose of transporting them either to destination or to the line of another carrier, he adopts and makes them his own for the purpose of conveying the goods contained in them, and he will therefore be liable for any damages arising from their unfitness for the carriage of the goods.23 It has been held, however, that where the carrier contracts for the shipment of live stock, and the contract contemplates that the cars containing the stock shall go through to destination in the condition they were in with respect to bedding, a connecting carrier does not, by accepting such cars, render itself responsible for damages arising from the cars not being properly furnished with bedding at the time the shipment was begun, since the negligence in such a case is that of the initial carrier alone. 24

16 So. Rep. 255; Searles v. Rail- by v. Railroad Co., Mich. way Co., 69 Miss. 186, 13 So. Rep. 105 N. W. Rep. 769; Jones v. Rail815; Railroad Co. v. Wilkerson road Co., Mo. App.

91 Bros., (Tex. Civ. App.) 82 S. W. S. W. Rep. 158. See post, $ 508. Rep. 1069.

21. Railroad Co. v. Pratt, 89 U. 20. Railway Co. v. Strain, 81 Ill. S. 123, 22 L. Ed. 827; Railway Co. 504; Railroad Co. v. O'Loughlin, V. Marshall, Ark.

86 S. (Tex. Civ. App.) 84 S. W. Rep. W. Rep. 802. 1104; Railroad Co. v. Aten, (Tex. 22. Eckert v. Pennsylvania R. Civ. App.) 81 S. W. Rep. 346; Kib. Co., 211 Pa. 267, 60 Atl. 781.

Sec. 501. Vehicles must not only be safe and suitable, but must be inspected while in transit.—A common carrier is not only bound to provide vehicles at the commencement of the journey reasonably fit and sufficient for the conveyance of the goods which he undertakes to carry, but he must from time to time, as the good management of his road would seem to require it, inspect such vehicles while they are in transit. And the same duty of inspection in respect of vehicles received from a connecting carrier, and run over his own line, devolves upon him as in respect of those provided by himself; and if he fail to make such reasonable inspection he will be deemed guilty of such negligence as will render him liable for any resulting loss, although his contract would otherwise excuse him.25

Sec. 502. Carrier, in the selection of vehicles, must guard against the exigencies of such weather as may reasonably be expected.—In the selection of vehicles for the transportation of the goods, it is the duty of the carrier to guard against the exigencies of such weather as may reasonably be expected at the particular season of the year and latitude in question.


23. Shea Railway Co.,


24. Railroad Co. v. O'Loughlin, Minn. 102, 68 N. W. Rep. 608 (Per. (Tex. Civ. App.) 84 S. W. Rep. ishable fruit); Railway Co. v. Car- 1104. lisle, (Tex. Civ. App.) 78 S. W. 25. Ruppel v. Railway Co., 167 Rep. 553 (Live stock); Willing Pa. St. 166, 31 Atl. Rep. 478, 46 ford v. Railroad Co., 26 S. Car. Am. St. Rep. 666. 258, 2 S. E. Rep. 19.

Very cold weather in a latitude where such weather is at times experienced, and at a time of the year when such weather is likely to be experienced, cannot be termed a “stress of weather" within the meaning of an exemption in the bill of lading from liability for loss. 26

Sec. 503. (§ 294.) Duty as to providing appliances for preventing the escape of sparks.—Cases as to the sufficiency of the vehicles used by the carrier will, of course, more frequently occur in actions by their passengers against passenger carriers, for personal injuries sustained by them by reason of defects in the means used for their transportation, than in actions against common carriers of goods. But such questions may also arise and become of vital importance in reference to such defects in the instruments for the conveyance of goods used by the latter. If the carrier has protected himself by contract against liability for loss occasioned by certain accidents, it may become an important question whether, by his failure to provide himself with machinery and vehicles of the most improved modes of construction, and such contrivances as are in approved use for the prevention of such accidents, he has not subjected himself to the charge of negligence, and has not thereby lost the benefit of the exceptions to liability in his contract. This was the principal question in Steinweg v. The Erie Railway.27 The railway company had provided in its bill of lading for exemption from liability for loss by fire. It was proven that the goods were destroyed by fire originating from a spark from the engine of the train on which they were loaded, and it was also proven by the plaintiff that there were appliances by which locomotives were made to consume their own sparks, which were not in use by the road, and that the failure of the road to provide itself with these appliances constituted negligence on its part, and deprived it of the benefit of the limitation to its liability in its bill of lading; and the rule of law was held to be, that the common carrier was guilty

27. 43 N. Y. 123.

26. Cleveland, etc. Railway Co. 0. Heath, 22 Ind. App. 47, 53 N. E. Rep. 198.

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