SECTION II. Railway Companies Common Carriers. 1. Common carriers, those who carry for all | 3. Railways liable as common carriers of who apply. 2. Under the English statute entitled to notice of claim. passenger's baggage, and of freight. § 152. 1. It was decided at an early day that persons assuming to carry goods upon railways for all who applied, were to be held as common carriers, and it is now regarded as an elementary* principle in the law that all who carry goods, for all who apply, are common carriers.1 1 Parker v. Great Western Railw., 7 Man. & G. R. 253; Muschamp v. Lancaster Railw., 8 M. & W. 421; Palmer v. Grand Junction Railw. Co., 4 M. & W. 749; Pickford v. Grand Junction Railw., 12 M. & W. 766; Eagle v. White, 6 Whart. 505; Weed v. S. & S. Railw. Co., 19 Wend. 534; Camden & Amboy Railw. Co. v. Burke, 13 Id. 611; Story on Bailments, § 500; Angell on Carriers, § 78. In the case of Fuller v. The Naugatuck Railw., 21 Conn. R. 570, it is said that in order to charge railways, as common carriers, it is not necessary to allege that they had power under their charter to become common carriers, but that having assumed the office and duty of common carriers of freight and passengers, they are thereby estopped to deny their obligations, therefrom resulting, by falling back upon any limited construction of their powers under their charter. The same rule of construction in regard to the liabilities of railways was adopted in Welling v. The Western Vermont Railw., 27 Vt. R. 399, and in Noyes v. The Rutland & Burlington Railw., 27 Vt. R. 110. The citation of cases under this head might be multiplied almost indefinitely. In Jones v. Western Vermont Railw., 27 Vt. R. 399, it is laid down as the governing principle of the case, that the company are liable even for torts, committed by their agent or servants, within the apparent scope of their authority, or in the pursuit of the general purpose of the charter, and where the departure from the general scope of the charter powers is not such as to be notice to all, that the agent is departing from the proper business of the corporation. Two of the three last were cases where the railway company so constructed an embankment as to serve the purpose of a dam, to create a reservoir for the accommodation of the mill-owners below, whereby the company obtained some advantage in regard to compensation to land-owners, through whose land they were constructing the embankment. The embankment was so defectively constructed, that it yielded to the pressure of the water, and caused damage to the proprietors below, by the sudden outbreak of the waters, and the company were held liable for the injury thereby sustained. In England, it is not uncommon to convert railway structures, by means of additions, into stables, and even dwelling-houses, which the company let to tenants. 2. Some of the English statutes require notice of any claim against railway companies, for default in any undertaking under their charters, before suit brought. But under such statutes it has been held that no such previous notice is necessary where the act complained of is negligence in carrying goods or passengers, this not being a suit for anything done under the act within the meaning of the statute requiring notice.2 But it is held that where the action was brought to recover the excess of charges for carrying goods above what was charged others for similar service, the company were entitled to notice of the claim before action.3 3. By the English statute, the Railways Clauses Act, railways, stage-coach proprietors, and other common carriers of passengers, * their baggage and other freight, are put upon precisely the same ground, both as to liability and as to any protection, privilege, or exemption. The same rule obtains in this country, except, perhaps, that inasmuch as this mode of transportation is infinitely more perilous to the lives of passengers, a proportionate degree of watchfulness is demanded of the carriers of passengers in this mode. But this is but extending a general principle of the law to this particular subject, to wit, that care and diligence are relative terms, and the degree of care and watchfulness are to be increased in proportion to the hazard of the business.4 Such buildings, although subject to the poor-rate, are not regarded as under the supervision of the Metropolitan surveyors of buildings, as to fire, party-walls, roofs, and the right to order buildings pulled down, forming, as they do, an important and indispensable portion of the railway structures. N. Kent Railw. v. Badger, 30 Law Times, 285. Russell v. Livingston, 19 Barb. 346; s. c. 16 Court of Ap. 515. 2 Carpue v. The London & Brighton Railw. Co., 5 Q. B. 747; Palmer v. Grand Junction Railw. Co., 4 M. & W. 749. Proof of the delivery of goods to a common carrier, and of a demand and refusal of the goods, or of their loss, throws upon the carrier the burden of showing some legal excuse. Alden v. Pearson, 3 Gray, 342. Kent v. The Great Western Railw. Co., 4 Railw. C. 699. This action is similar to Parker v. Great Western Railw. Co., 3 Railw. C. 563. In these cases, it was held, the taking of tolls is an act done in the execution of their charter powers. * Commonwealth v. Power, 7 Met. 601; Jencks v. Coleman, 2 Sumner, 221; Camden & Amboy Railw. v. Burke, 13 Wend. 611; Pardee v. Drew, 25 Wend. 459. Carriers from places within the realm to places without, are subject to the same liability as carriers who carry only within the realm. Crouch v. London & North W. Railw., 25 Eng. L. & Eq. 287. The duty of common carriers is independent of contract. Pozzi v. Shipton, 8 SECTION III. Liability for Parcels carried by Express. 1. Carriers, who allow servants to carry parcels, are liable for loss. 7. Express companies responsible as common carriers. 2. Importance of making railways liable for 8. Such companies who carry parcels or acts of agents. 3. Allowing perquisites to go to agents will not excuse company. 4. Owner of parcels, carried by express, may look to company. baggage from one city to another, or from one depot to another, are common carriers. 9. Omnibus lines and railways common carriers ex vi termini. 5. May sue subsequent carrier, who is in fault. 10 and n. Extended discussion of the prin6. European railway companies are express carriers. ciples and grounds of decision of the cases as to the duty of express carriers. § 153. 1. It may perhaps be assumed, that upon general principles common carriers who allow their servants, as the drivers of stage-coaches and the captains of steamboats, or the conductors of railway trains, to carry parcels, are liable for their safe delivery, whether they themselves derive any advantage from the transactions or not. Our own views upon this subject were expressed in a late case1:— Ad. & Ellis, 963; 1 P. & D. 4; 1 W. W. & H. 624; Bretherton v. Wood, 3 Bro. & B. 54. In both these cases, it is held the action may be in tort as well as in contract, there being no necessity of any special undertaking, a general duty to carry safely resulting from the very office of a common carrier. Therefore, a verdict may pass against some defendants and not against all, where the declaration is, in form, ex delicto. 1 Farmers' & Mechanics' Bank v. The Champlain Transportation Co., 23 Vt. 186, 203, 204. But it is said, in some of the elementary writers, and by some judges, that if such servant is allowed to do this, as a mere gratuity to him of the perquisites, and this is known to those who employ him, his principals are not liable for his default. 1 Parsons on Cont. 656; King v. Lenox, 19 Johns, 235. This was a case where the owner of the ship freighted her himself, and the master had no authority to take freight from others, and this known to those who employed him. Walter v. Brewer, 11 Mass. 99; Reynolds v. Toppan, 15 Mass. 370; Butler v. Basing, 2 C. & P. 613. But see the opinion of the court, in 23 Vt. R. 203, upon this point, where it is said: "It seems to us that this case is distinguishable from those, where it has been held incumbent upon the plaintiffs to show, by positive proof, that the company consented to the captain of their boat carrying money on their account, in order to hold the company responsible for the loss of the money. Sewall v. Allen, 6 Wend. 351, reversing the judgment in Allen v. Sewall, 2 Wend. 327, is one of that class of cases, so far as the determination of the Court of Errors is concerned. And that determination seems to *"It seems to us that when a natural person, or a corporation whose powers are altogether unrestricted, erect a steamboat, appoint a captain and other agents to take the entire control of their boat, and thus enter upon the carrying business from port to port, they do constitute the captain their general agent, to carry all such commodities as he may choose to contract to carry within the scope of the powers of the owners of the boat. If this were not so it would form a wonderful exception to the general law of *agency, and one in which the public would not very readily acquiesce. 2. "There is hardly any business in the country where it is so important to maintain the authority of agents as in this mat meet with approbation in Angell on Carriers, § 101, and note 4. And Story, J., in Citizens' Bank v. Nantucket, S. B. Co., 2 Story, 16, and Chancellor Kent, 2 Kent, 609, seem also to approve the decision of the Court of Errors. But these cases, and the writers named, adopt this view of the subject, upon the ground that the charter of the company limits their business to the carrying of ' ' goods, wares, and merchandise,' and that bank-bills are neither, and so the company primâ facie are not liable; and not liable in any event, unless they have given their consent to their proper business being enlarged, so as to include bank-bills, and also that this was a suit against the stockholders in their individual capacity, under the charter. Upon this narrow view of that case, the decision of the Court of Errors may stand; but, as applicable to a company, whose charter, on the face of it, does include the carrying of bank-bills, and in a suit directly against the corporation, it seems to us the reasoning is altogether unsound and unsatisfactory. And unless that case is to be distinguished from the present, upon the ground of the restricted nature of the charter of that company, we should certainly incline to the opinion of the Supreme Court of New York, in Allen v. Sewall, rather than that of the Court of Errors. Mr. Justice Story (in 2 Story, ut supra) seems to admit, that, upon general principles, the captain's contract will bind the company to the extent of the charter powers." But see Chateau v. Steamboat St. Anthony, 16 Mo. R. 216. Where the clerk of a steamboat carried money letters, as a mere gratuity, it was held, that this did not render the proprietors of the boat liable as common carriers, but only as gratuitous bailees, for loss by gross neglect. Haynie v. Waring & Co., 29 Alab. R. 263. But the rule in the text is maintained, in Mayall v. Boston & Maine Railw., 19 New H. R. 122. See the opinion of Gilchrist, Ch. J., in the last case. In a suit against the owners of a steamboat to recover the value of a package of money intrusted to the clerk of the boat, to be transported to another port, it was held that the liability of the carrier in such case is to be determined by an inquiry into the nature and extent of the employment and business in which he holds himself out to the public to be engaged. And that proof of the usage of the clerks of such boats to receive and carry such packages from * 237, 238 ter of carrying, by these invisible corporations, who have no local habitation, and no existence or power of action except through these same agents, by whom almost the entire carrying business of the country is now conducted. If then the captains of these boats are to be regarded as the general agents of the owners, and we can hardly conceive how it can be regarded otherwise, whatever commodities, within the limits of the powers of the owners, the captains as their general agents assume to carry for hire, the liability of the owners as carriers is thereby fixed, and they will be held responsible for all losses; unless, from the course of business of these boats, the plaintiffs did know, or upon reasonable inquiry might have learned, that the captains were intrusted with no such authority. Prima facie the owners are liable for all contracts for carrying made by the captains, or other general agents for that purpose, within the powers of the owners themselves, and the onus rests upon them to show that the plaintiffs had made a private contract with the captain, which it was understood should be kept from the knowledge of the defendants, or else had given credit exclusively to the captain. Butler v. Basing, 2 C. & P. 613. 3. "But it does not appear to us that the mere fact that the captain was, by the company, permitted to take the perquisites of carrying these parcels, will be sufficient to exonerate the company from liability. Their suffering him to continue to carry bank-bills ought, we think, to be regarded as fixing their responsibility, and allowing the captain to take the perquisites, as an arrangement among themselves. But we are aware that the question, with whom was the contract, and to whom the credit was given, will generally be one of fact to some extent." 4. And the general law upon this subject is well stated by the highest tribunal in the country, in an important case by Mr. Justice Nelson.2 In this case it was considered that the owner of parcels carried by express might look to the responsibility of the company as common carriers, treating the express company as the agents of the owners of property carried, and that they were entitled to sue in their own names upon any contract, exone port to another without hire, in the expectation that such boat would be preferred by these parties in their shipment of freight, is insufficient to bind the owners. Cincinnati & Lou. Mail Line Co. v. Boal, 15 Ind. R. 345. 'New Jersey Steam Nav. Co. v. The Merchants' Bank, 6 Howard, 344. |