Art. 5. Innkeepers.

or the statute complied with to relieve the landlord from liability. Such liability is not limited to property of any particular kind or value, but embraces all the personal property of the guest brought into the inn. Kellogg v. Sweeney, 1 Lans. 397.

In Becker v. Warner, 90 Hun, 187, 35 N. Y. Supp. 739, it is said that negligence on the part of a guest in leaving his window on the ground floor of a city hotel open, and his property exposed, will defeat a recovery by him for its loss.

An innkeeper has power to waive the benefit of the statutory provisions relieving innkeepers from responsibility for the loss of money and jewels owned by guests and not deposited in the safe. Friedman v. Breslin, 51 App. Div. 268, 65 N. Y. Supp. 5, affirmed, 169 N. Y. 574.

In Converse v. Walker, 30 Hun, 596, appeal dismissed, 99 N. Y. 606, it was held, citing Sweeney v. Old Colony & Newport R. R. Co., 10 Allen, 368; Nicholson v. Erie Ry. Co., 41 N. Y. 525, that "no duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who go there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon the grounds for the purpose for which the premises are appropriated and occupied, by some preparation or adaptation of the place for use by customers or passengers which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon," distinguishing Camp v. Wood, 76 N. Y. 92, which holds that an innkeeper by letting a hall for public purposes held out to the public that the hall was safe, and was bound to exercise care to provide safe arrangements for the entrance and departure of people who came there upon his invitation.

An innkeeper is not bound as such to furnish accommodations to enable a person to carry on trade or business; and, where he does so, as to property brought upon his premises for the purposes of such trade or business, the utmost limit of his liability is that of bailee for hire. Mowers v. Fethers, 61 N. Y. 34.

An innkeeper is liable to a person who having taken his money to a room which he occupies with a disreputable woman, afterward when she has gone comes down stairs, asks a clerk to keep his money, and, upon the refusal of the clerk to do so, returns with it to his room, from which it is stolen during subsequent

Art. 6. Carriers.

occupation. Lucia v. Omel, 46 App. Div. 200, 61 N. Y. Supp. 659.

To enforce the strict common-law liability of an inn-keeper the technical relation of guest and innkeeper must be established. In Hancock v. Rand, 94 N. Y. 1, very full consideration is had of the question as to what facts justify a finding that the relation is that of innkeeper and guest.

ARTICLE VI.

CARRIERS.

SUBDIVISION 1. Liability of carriers generally considered.. 2. Carrier of goods

PAGE.

67

69

74

74

77

At common law and under the authorities in this country and England there is a plain distinction between the liability of carriers of goods and of passengers. The duty of a carrier of goods is said to be independent of contract, and he is regarded as an insurer. The liability of a carrier of passengers arises out of a duty implied by law, but he does not warrant safety to passengers at all events, but only so far as human care and foresight can reasonably be required of him. While carriers of goods are insurers against all casualties, except those which arise from the act of God, the public enemy, the fault of the shipper, or the inherent quality of the property inself. Ray on Imposed Duties (freight carriers), § 2; (passenger carriers), §§ 3, 4.

A carrier of passengers is not as to the passenger a bailee. In this respect the law of passengers is not a part of the subject of bailments. Those who hold themselves out as engaged in the business of carrying passengers for hire are regarded as undertaking a public duty. They are classed as carriers; moreover, public carriers of passengers are deemed common carriers as to the baggage received by them for transportation, as part of the business of transporting passengers. 6 Cyc. of Law and Procedure, 364.

Art. 6. Carriers.

A carrier of goods is to be distinguished from a carrier of passengers not only as to the extent of his liability but from the nature of his contract. The liability of a carrier of goods arises out of the contract. The liability of a carrier for injuries to passengers depends upon his negligence, which is said to arise out of a public duty to carry safely which is imposed by law. In case of a carrier of passengers, who also carries the baggage of the passenger, the liability of the carrier for injury to the passenger depends upon his negligence; for injury to goods he is liable for all injuries not caused by the act of God or the public enemy. 5 Am. & Eng. Encyc. of Law (2d ed.), 480.

The common carrier, whether by land or water, is held responsible to the owner for all loss and damage of the property intrusted to his care, whether it arises from his own negligence or that of his servants, or of third persons; or whether it be done by the tortious acts of himself or of others, who are not the public enemies; or whether it be by unavoidable accident, not caused by the immediate act of God. Against all such losses the carrier is an insurer, and he must make them good, whatever may be their extent; and it is no answer to the claim of the owner, that he has done the best he could. 2 Wait's Actions and Defenses, 24, citing Orange County Bank v. Brown, 9 Wend. 85; Kiff v. Old Colony, etc., Ry. Co., 117 Mass. 591; Railroad Co. v. Reeves, 10 Wall. 176, 189.

The reason for the distinction between carriers of persons and carriers of goods has been said to be that the passengers are capable of taking care of themselves and of exercising vigilance and foresight, which the owners of goods who have intrusted them to others cannot do. The carrier of passengers is required to take every possible precaution against danger, and to use the utmost care which is consistent with the nature and extent of the business in which he is engaged. Wait's Actions and Defenses, 63, citing Ingalls v. Bills, 9 Metc. 1; Simmons v. New Bedford Steamboat Co., 97 Mass. 361.

Bishop says (8 74), that because a common carrier, whether of goods or of passengers, is a sort of public servant, the law imposes its duties upon him, the breach whereof is a tort even though there is also a contract which is violated by the same act.

In Hannibal Railroad v. Swift, 12 Wall. 262, it is said that the obligations and liabilities of a common carrier are not dependent

Art. 6. Carriers.

upon contract, though they may be modified and limited by contract. They are imposed by the law from the public nature of the employment.

The refusal of a common carrier to accept a passenger must be; and the wrongful eviction of a passenger with or without unnecessary force may be, the subject of an action in tort rather than on contract. Shearman & Redfield, § 486.

The liability of a common carrier for the nondelivery of goods intrusted him for carriage may be enforced by an action in either of the forms formerly known as assumpsit or tort at the option of the pleader. Catlin v. Adirondack Co. (Court of Appeals, 1880), 11 Abb. N. C. 377, reversing 20 Hun, 19.

The gravamen of the action for injury to a passenger is the breach of the duty imposed by law upon the carrier of passengers, to carry safely, so far as human skill and foresight can go, all persons it undertakes to carry. This duty exists independently of contract, although there is no duty in a legal sense between the parties. The law raises the duty out of regard for human life, and for the purpose of securing the utmost vigilance by carriers in protecting those who have committed themselves to their hands. Carroll v. Staten Island R. R. Co., 58 N. Y. 126 (134), citing Bretherton v. Wood, 3 Brod. & Bing. 54.

SUBDIVISION 2.

Carrier of Goods.

A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him, and every one who undertakes to carry for compensation the goods of all persons indifferently is, as to liability, to be deemed a common carrier. Jackson Iron Works v. Hurlburt, 158 N. Y. 34 (38).

A common carrier of property is responsible for all loss or damage except that which is caused by the act of God or the public enemy. Elliott v. Rossell, 10 Johns. 1; Kemp v. Coughtry, 11 Johns. 107; Ladue v. Griffeth, 25 N. Y. 364; Merritt v. Earle, 29 N. Y. 115.

By the act of God is meant something which operates without any aid or interference from man. When the loss is occasioned,

Art. 6. Carriers.

or is the result in any degree of human aid or interference, the case does not fall within the exceptions of the carrier's liability. Merritt v. Earle, 29 N. Y. 115.

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The liability of a common carrier, as such, begins when goods are delivered to him, at the place appointed or provided for their reception, in a fit and proper condition and ready for immediate transportation. It is the duty of a railroad company to load freight delivered to it for transportation into its cars, and it is held that it may not devolve this duty, by any regulation, upon the shipper, and it cannot legally, as a condition of transportation generally, exact from the shipper a contract to place the freight upon its cars. L. & L. F. Ins. Co. v. R., W. & O. R. R. Co., 144 N. Y. 200.

As a general rule, when goods are delivered to a carrier for transportation, and before the goods are shipped, a bill of lading or receipt is delivered by him to the shipper; the latter is bound to examine it and ascertain its contents, and if he accepts it without objection, he is bound by its terms; he cannot set up ignorance of its contents, and resort cannot be had to prior parol negotiations to vary them. To take a case out of this general rule, it must appear that before the delivery of the bill of lading the goods have been shipped, so that the shipper could not have reclaimed them had he objected to the contents of the bill of lading. Germania Fire Ins. Co. v. Memphis & Charleston R. R. Co., 72 N. Y. 90; Guillaume v. General Transportation Co., 100 N. Y. 491 (498).

In the absence of evidence to the contrary, it is to be assumed that goods accepted by a carrier for transportation are taken under the responsibility cast upon the carrier by the common law, save as modified by the statute. If the goods are lost under circumstances which render the carrier liable by the general rule of law, he must respond unless he can show that there was a special acceptance, equivalent to a contract, which exempts him from the ordinary liability of common carriers in the particular case. Park v. Preston, 108 N. Y. 434.

Limitation of the common-law liability of the carrier is dependent upon language in the contract fairly requiring such construction without the aid of implication. The provisions to the effect that the defendant would not be responsible for delay in the transit of the property did not have the effect to relieve it from