plaintiff being aware, from the very nature of the transaction, that he would be exposed to perils of this character, must be supposed to undertake, upon his own part, to sustain that hazard, and could not justly be allowed to throw it upon an innocent party, who was known to him, at the time of entering into the contract, to have no control over the persons causing the plaintiff's injury.2 3. In a recent case in Massachusetts, it was held, that a railway company, which receives the cars of another company upon its track, placing them under the control of its agents and servants, and drawing them by its locomotive power, assume towards the passengers the common liability of passenger-carriers,3 and that it makes no difference, in regard to the liability of the company, to passengers passing over their road, whether they purchase tickets of them, or of any other railway company or agent, authorized to sell such tickets.3 tiff went, as incidental to the main contract, the same kind of liability should be assumed in regard to him, if not to the same extent. But the plaintiff can in no sense be regarded otherwise than as a passenger. The same rule applies to agents and servants, and to negro slaves. United States v. The Thomas Swan, (Dist. Court of U. S. Dist. South Carolina,) before Magrath, J., 19 Law R. 201. There is the same difference between the liability of carriers always for the person of a passenger and for his baggage. In the case of Sullivan v. Philadelphia & Reading Railw., 6 Am. Law Reg. 342; s. c. 30 Penn. St. 234, it is decided that a railway company cannot excuse themselves as carriers of passengers where injury occurs in consequence of cattle straying upon the track, through defect of fences, which, as to the owners of the cattle, the company were not bound to maintain, because such act is a trespass against the company. It is the duty of the company to exclude cattle from their track for the security of their passengers. But this rule would not probably be extended to such acts of trespass as no reasonable foresight or caution could have anticipated or guarded against. Ante, § 127, n. 5. 2 Bridge v. Grand J. Railw., 3 M. & W. 244; Thorogood v. Bryan, 8 C. B. 115, 129. But the carrier is himself responsible for the acts and neglects of all persons, natural or corporate, who are employed in carrying out his undertaking, and they are, pro hac vice, his servants. Ryland v. Peters, 1 Wallace Philadelphia R. 264. 3 3 Schopman v. Boston & Worcester Railw., 9 Cush. 24. * 354 SECTION XV. How the Law of the Place governs. 1. Corporations are only liable according to | 2. This in conformity with the general law. lex loci. 3. Corporations must be judged by local law. § 189 a. 1. Corporations, as we have seen,1 can only act in conformity with the law of the state or sovereignty by which they are created. It must follow, by parity of reason, that such corporations are responsible, as carriers, only to the extent and in conformity to the law of the state or jurisdiction where the contract is made or the duty undertaken. And it will make no difference whether the action is in form ex contractu or ex delicto. 2. This is in conformity to the general rule of law upon the subject of contracts and torts. Thus, in a very recent English case 2 in the Exchequer Chamber, where the subject is considerably discussed with reference to torts committed abroad, it was held, that an action will lie in the common-law courts of the realm, in respect of an assault or other tort committed by one English subject against another English subject beyond the realm, provided that the foreign law prevailing on the spot gave compensation or damages for the offence to the party injured. 3. So that, most unquestionably, where railway corporations are sued out of the jurisdiction by which they were created, and under whose laws alone they can act, the extent and degree of their responsibility must be determined by the law of the place of the existence and action of such corporation. 4. And on a contract made in a foreign country with carriers. to transport goods to this country, and alleged breach of duty by negligence in causing an injury to them in that country, no question of the lex loci being raised, upon the express contract and evidence of the course of business there, and other facts in the case, it was left to the jury .to form a judgment whether 1 Ante, § 17 a. 2 Lord Seymour v. Scott, 9 Jur. N. S. 522; s. c. 1 H. & C. 219; 8 Jur. N. S. 568. there had been such negligence as to cause a breach of duty, and what would be reasonable under the circumstances.3 * Cohen v. Gaudet, 3 F. & F. 455. And in this case, where there was an express contract to send goods into England, the jury were told that meant in a reasonable time, and that the default of carriers by sea employed by them to carry the goods would be no excuse for a delay to ship them in a reasonable time, or for damage done on the quay or on the passage, which might have been avoided by reasonable despatch. NOTE I. TO § 154, ante, p. 30. A man and woman living in another state came into this commonwealth for the purpose of being married, and were married here. A few days afterwards, while they were living here at an inn, she wrote to a broker in that state, with whom, before the marriage, she had deposited property earned by her, to send her a sum of money by an expressman, which the broker did, with instructions to the expressman to deliver it to her upon her personal receipt; but the expressman delivered it to the husband, who absconded with it. Held, that under Stat. 1845, c. 304, she might maintain an action in her own name against the expressman for the money, if she had not authorized her husband to receive it, or held him out as her agent to collect money. Read v. Earle, 12 Gray, 423. NOTE II. TO § 160, ante, pp. 82, 94. The first section of the Act of Congress of March 3d, 1851, entitled "An act to limit the liability of ship-owners, and for other purposes," exempts the owners of vessels, in cases of losses by fire, from liability for the negligence of their officers or agents, in which the owners have not directly participated. The proviso to that act, allowing parties to make their own contracts in regard to the liabilities of the owners, refers to express contracts. A local custom that ship-owners shall be liable in such cases for the negligence of their agents, is not a good custom, being directly opposed to the Statute. Walker v. Transportation Co., 3 Wallace, 150. The common-law liability of a common carrier for the safe carriage of goods may be limited and qualified by special contract with the owner,. provided such special contract do not attempt to cover losses by negligence or misconduct. Thus, where a contract for the transportation of cotton from Memphis to Boston was in the form of a bill of lading, containing a clause exempting the carrier from liability for losses by fire, and the cotton was destroyed by fire, the exemption was held sufficient to protect the carrier, the fire not having been occasioned by any want of due care on his part. Where a deposition is taken upon a commission, the general rule is, that all objections to it of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination or upon motion to suppress the deposition. It is too late to raise such objections for the first time at the trial. York Co. v. Centr. Railw., 3 Wall. 107. See also cases in 12 Gray, 174, 423, 180, 393, 388. NOTE III. TO § 169, ante, p. 141. A passenger, who, having a free pass over a railroad for himself, buys a ticket for his wife, and delivers her trunk to the railroad corporation without informing them that it is not his, may maintain an action against them for a loss of the trunk during the carriage. There is no presumption of law that a passenger on a railroad has read a notice limiting the liability of the railroad corporation for baggage printed upon the back of a check delivered to him, having on its face the words "look on the back," and also printed on a placard posted in the cars, and containing other notices, which he has read. Malone v. Boston & Worcester Railroad Corporation, 12 Gray, 388. Where a bill of lading, signed by a master, shows that a voyage to a particular place named on it is but part of a longer transit which it is understood is to be made by the cargo shipped, and that the cargo is to be carried forward in a continuous way on its further voyage, the master must be presumed to have contracted in reference to the course of trade connected with getting the cargo forward. In such a case, if any obstacle should intervene, which by the regular course of the trade is liable to occur and for a short time retard the forwarding, the master cannot, from a mere inability to find storage at the entrepot, turn about, and taking the cargo to some near port, store it there, inform the consignees, and depart. He should wait. If there is easy telegraphic communication with the consignees, he should notify to them his difficulty, that they may send him, if they please, instructions. The Convoy's Wheat, 3 Wallace, 225. NOTE IV. TO § 179, ante, p. 206. An indictment against a common carrier of passengers for the loss by his negligence of the life of a passenger on the St. of 1840, c. 80, which gives the fine to the use of the passenger's executor or administrator, for the benefit of his widow and heirs, must allege that administration has been taken out in this commonwealth. Commonwealth v. Sanford, 12 Gray, 174. *CHAPTER XXV. TELEGRAPH COMPANIES. THEIR RIGHTS, DUTIES, AND RESPONSI BILITIES. 1. The ordinary corporate rights and duties of n. 8. Discussion of the question how far 2. The chief inquiry, as to third parties, is, 14. 3. Telegraphic communications must be proved 15 4. Questions will arise whether the message 16. is the original. 7. Where both parties agree to communicate n 4. Discussion of the question of making con- 21. telegraph companies are common carriers. Case in Kentucky, holding the company responsible only for care and skill in unrepeated messages. and n. 10. Discussion of the question of responsibility for messages passing over different lines. Statement of some suggested difficulties in establishing a proper rule of damages in such cases. All that is required to render the business The ordinary rule of damages applicable and n. 15. Party on discovering mis- Rule of damages adopted in some unreported cases. 8. Illustration of the question of resemblance 9. If one employ a special operator, he assumes 23. 10. Both parties may be entitled to maintain 11. Notice that company will not be responsible for mistakes in unrepeated messages binding. 12. The American courts adopt the same view. Company always responsible for ordinary neglect. 13. Companies can only be regarded as insurers of the accuracy of repeated messages. 24. penalty is the contracting party. The duty to serve all, without discrimination or preference. Disclosing secrets of office. Several miscellaneous points decided by the cases. 1. Placing poles in the highway, without legislative authority, creates a nui sance. 2. And telegraph companies, having legislative powers, must see that their works do not obstruct the highway, to the injury of ordinary travellers. 3. Shipmasters are bound to know of the existence and situation of submarine cables, and not to injure them. |