UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LECTURE AMERICAN CORRESPONDENCE SCHOOL OF LAW THE LAW OF COMMON CARRIERS BY F. A. WILLIAMS III Associate Justice, Supreme Court of Texas AMERICAN CORRESPONDENCE SCHOOL OF LAW CHICAGO, U. S. A. ISOS Copyright 1908 BY American Correspondence School of Law Chicago u. Ass. Justice Stipreme Courts Texas Biographical Sketch OF HON. F. A. WILLIAMS. Hon. F. A. Williams, Associate Justice of the Supreme Court of Texas, was born in Macon, Miss., Oct. 6th, 1851. He was educated in the schools of his native city, and at the age of eighteen began the study of law. He emigrated to Texas in 18T1, pursuing the study of law in the office of D. A. Nunn, one of the most prominent lawyers of Texas. In 1872, at the age of twenty, he was admitted to the bar and immediately formed a partnership with his preceptor, Mr. Nunn — which well-known firm continued in active practice until 1884, when he was appointed and afterwards elected to the office of District Judge. Judge Williams held this position until 1892, when, upon the creation of the Court of Civil Appeals, he was appointed and served as Associate Justice of that Court for the First or Gal- veston District. He continued in this office until May, 1899, when he was called from this place of honor and made a Justice of the Supreme Court of Texas, which position he now fills. For almost twenty-five continuous years Justice Williams has graced the bench and has rendered many of the opinions and decisions which go to make up the laws of Texas. His wide knowledge and extensive experience makes his lecture on "Com- iiu;n Carriers" (one of the most important branches of the law) e(iuival( lit to almost an authority. The Law of Common Carriers. The common carrier is classed by writers as a bailee, and when entrusted with the custody of property he is a bailee, but of a kind differing widely from priviate car- riers and other ordinary bailees. So he may be subjected to liabilities to those who seek his services although he has not become a bailee. These differences result from the character of the business which he voluntarily under- takes. He holds himself out to the public as ready in- discriminately to receive and transport persons, or prop- erty, or both, and is therefore regarded as a sort of pub- lic servant upon whom the law, as a consequence, im- poses many duties and restrictions. The obligations of the ordinary bailee result from his voluntary assumption of the relation, the law leaving him free to enter into it or not as he may choose. The vol- untary action of a common carrier is taken by engaging in the business, and when he has done so, the law itself, while it does not entirely take away his power of contract- ing, imposes upon him duties and liabilities which are in- dependent of, and sometimes in opposition to, his agree- ments. When proper application is made for the services ten- dered the law holds him to the public duty undertaken and requires him to perform it. If he refuse he is sub- ject to an action for damages, or to the processes of the law to compel him. If he accept, 'he may enter into such agreements with the shipper as are regarded as consistent with his duties and, therefore, reasonable, but is not al- lowed to make others inconsistent with those duties and, therefore, contrary to jniblic policy. He is not permit- ted to charge unreasonable prices for his services, nor to discriminate unjustly between shippers, nor to fix a 6 American Correspondence School of Law standard of the care to be devoted to the safe keeping, carriage and delivery of goods and persons inferior to that which the law itself fixes, nor to contract for many other things detrimental to the rights of the public. Besides the principles of the common law upon the sub- ject, many federal and state statutes will be found further regulating the businesses and enforcing the duties of some classes of common carriers, which have been demanded, in the interest of the public, by the importance of trans- portation and the increasing magnitude and power of transportation companies. A full understanding of the law of common carriers, therefore, is to be had, not from the law of bailments and the principles of contracts only, but from these in con- nection with the rules peculiar to the subject established by the common law and by statute. The federal statutes are those enacted in the exercise of the power to regu- late that kind of transportation wMch constitutes a part of interstate and foreign commerce. Of the state stat- utes, some are held to apply, as police regulations, to carriers engaged in the kind of commerce just mentioned, as not conflicting with the exclusive power of Congress to regulate that subject. Others are restricted in their operation to transportation entirely within the state. A discussion of this legislation is beyond the scope of this paper, the references to it being intended merely to in- dicate the sources of the law upon this sul)ject. The pur- pose of this paper is to give elemeiitniy doctrines of the law such as are needed by the beginner, with illustra- tions to make them better understood. CARRIERS OF GOODS. The slntns of a common carrier is fixed, in law, by his holding liiniself out to tlie world as sucli a carrier of ^oods. P('i-s()i)s and ('(»j-))()rnti()iis wliose action signifies to tli(» world lli;il IIic.n' jicc r(';i(l>- lo icccive and transport tlic piopciiy of pcdplc ncncr.'illy tor i'<'\vard arc coininon The Law oj Co?nmon Carriers 7 carriers of goods. Owners of railroads, steamboats, canal boatij, ferries, and the like, who operate under franchises from the sovereign, generally become common carriers by force of their charters or of the laws under which their franchises are granted, when their instrumentalities have been put in readiness for the business. Such instrumen- talities, however, may be owned and used in businesses purely private, and, if their owners are not holders of franchises obligating them to carry for the j^ublic and if they do not hold themselves out as doing so, they are not common carriers merely because of such ownership and use. Owners of saw mills, for instance, may use railroads as incidents of their milling businesses without undertak- ing to haul for the public, and other similar illustrations might be given. It is not the character of the instrumen- tality, therefore, but that of the business which the owner assumes or is required by law to do that controls in de- termining whether or not he is a coimmon carrier. But the scope of the business, i. e., the character and kind of goods which a common carrier undertakes to transport and which he is therefore bound to transport, may, to a great extent, be indicated by the means he employs. Transportation by railroad would necessarily include many things which a wagoner or a stage coachman would never undertake to carry ; but, on the other hand, railroad companies and express companies both use rail- road cars in which to carry goods, and yet the former may be required to carry many things which the latter may lawfully refuse to carry. This is because of the differ- ences between the businesses which they hold themselves out as doing. To the character of the common carrier the element of reward is essential. He must hold himself out as engag- ing to render the service for hire. It is hardly to be sup- posed that any one would undertake to carr^^ gratuitously for all the pul)lic, Init one who is generally a com- mon carrier sometimes undertakes a particular transpor- 8 American Correspondence School of Law tation without reward. It is often laid down in the author- ities that, notwithstanding his general public charac- ter, he is not in the particular instance a common caiTier. This proposition is not admitted everywhere. The relation of a sliipper and carrier is established by the delivery and acceptance of goods for shipment.. To make it the duty of the carrier to accept the goods, the delivery, or tender, must be made at such a time and place and in such manner as, by his reasonable regulations, or course of business, he has required. He may, however, bind himself by accepting goods otherwise offered. When goods are properly offered for shipment it is the carrier ''s duty to receive and to transport them with- out unjust discrimination between shippers, and his re- fusal to do so subjects him to an action for damages, or, under proper circumstances, to legal proceedings to compel the performance of the duty. Statutes often give penalties for refusals to perform this or other duties pre- scribed by law. It must not be understood, however, that every carrier is bound to receive every kind of goods that may be offered. Some property may not be fit for trans- portation at all, or goods, unobjectionable in themselves, may be of a kind that are not within the scope of the business of a particular carrier as indicated by his hokl- ing out. It is a general rule that the carrier is only bound to receive such goods as he undertakes to transport. In this respect the undertakings of some carriers are much broader tlian those of others. Railroad companies, for exami)le, cari-y almost every kind of property that is fit for transportation, and their duties in this regard may Ixi determined either from their course of business, or from their charters and the laws under which they exist. And this is true of other carriers that might be named. Carriers may I'ofnse to acco])t goods tendered in a con- dition imfit foi- sliipmciil, as wIkmi they arc not ]iroi)crly ])afk('d, or \wv too datigcroiis oi- offcTisive. (Conditions airainst wiii'-ii the roi-csii;iit of a can'ici- could not have The Law of Common Carriers 9 provided may alsO' arise under wliicli lie is excused from accepting property offered. An unusual and unforeseen rush of business may have caused such an accumulation of matter as to have put it temporarily beyond his power properly to care for further consignments ; and there may be dangers, as from mobs, or other sources, which threaten the destruction of goods. The carrier may show such things in justification of a refusal to accept, when they are such that reasonably prudent carriers would not, or could not, have received and carried them under like conditions. The carrier is not bound to accept goods in such way as to obligate himself to carry them beyond tiis own line of transportation ; but when his connections are 'such that he may deliver to a connecting carrier without leaving his own line, and his practice is to do so, it is his duty to accej^t for such delivery. He is not bound to assume responsibility for the conduct of the connecting carrier, but he may agree to transport to and deliver at destina- tion, though this may require the emplojonent of other carriers, in which case his agreement makes him respon- sible throughout the transit. And if one caiTier holds himself out as carr^dng over the lines of others, he may be required to do so, the other lines employed being re- garded as part of his own. But, by merely receiving goods destined to a point beyond his line, the carrier does not become responsible for the conduct of other carriers occurring after the property has left his hands. He may contract for or ag-ainst such liabilities. As to liability of the common carrier for non-delivery or loss of, or damage to property in his hands for trans- portation, the common law exempts him from liability to the owner for those losses only that are due to the act of God, the act of the public enemy, the act 'Of the public authority, the act or fault 'of the owner or shipper, or the inherent nature of the goods. The statement in the books that the carrier is an insurer of the goods means 10 American Correspondence School of Law no more tliaii this. For the non-delivery, loss, or destruc- tion cf, or damage to, the property itself, resulting from other causes than those stated, the carrier is liable. One definition of the phrase, "Act of God," is, "Any accident due to natural causes directly and exclusively, without human intervention; such as could not liave been prevented by any amount of foresight and pains and care reasonably to have been expected." Other phrases, such as, "vis major," and "inevitable or unavoidable acci- dent, ' ' have been employed as legal equivalents of ' ' Act of God." When used to express this limitation upon the liability of common carriers they must be understood as meaning only those happenings 'Which result immediately from natural causes, without the intervention of man, and wliicli could not have been prevented by the exercise of i:>i'udence. In some connections these phrases include other things which would furnish no excuse to the carrier, as when the superior force is that of human beings, not the public enemy, or the inevitable 'or unavoidable acci- dent is one resulting, not wholly from the forces of na- ture, but w^iolly or j^artly from human agency. The ex- amples given in the Cyclopedia of causes which are and of others which are not acts of God fairly illustrate this subject. It is to be understod, however, that the causes mentioned must be such that the carrier in organizing and conducting his business, could not reasonably have foreseen and i)rovided against them. Not every flood, or frost, or snow, or the like occurrence, is of the character that relieves. Tlie carrier must foresee that some such things will occur, and must provide against such as may, with proper skill and prudence be foreseen and avoided. It is ()iil> lliosc natural causes the effects of which can- not thus l)(' avoided that constitute acts of God. It must be n'Tiicnibcicd rurilicr that the carrier is not res})onsible for (Ictcr-iofjitlon lo which goods, because of their quali- ties, are suhject in trans))ortali()n ; and that the fact that conditions of the weather may hasten such deterioration, The Law of Common Carriers 11 merely, without tlie carrier's fault, does not make him liable. The carrier will not be protected from liability for a loss if his own negligence proximately contributed to it. Such negligence may consist in tlie exposure of the goods to the natural forces when there was opportunity to fore- see and avoid them, or in the failure to' adopt prudent measures to save them, or to diminish the loss, when by reasonable diligence that could have been done. The act of God must liave been the sole i^roximate cause of the loss. There may, however, have been negligence of the carrier in some particular which did not, in the legal sense, proximately contribute to the loss, in which ease the natural cause is regarded as the only one, and the car- rier is exempted. There may have been negligent delay in forwarding the goods, in consequence whereof they were brought within the Influence of a storm, or flood, or the like, constituting an act of God, which they would have escaped had proper dispatch been used. Courts diifer about such cases, some holding that the negligent delay was a proximate contributing cause of the loss because it would not have occurred but for the delay, and others holding differently, for the reason that damages reeov- erable for delay are such only as may be foreseen as likely to result therefrom and do not include those which re- sult from the happening of convulsions of nature which ordinarily are not to be calculated upon or anticipated. The latter is believed to be the correct view. ''The public enemy," are those at open war with the carrier's own country whether war has been formally declared or not. It includes hostile Indian tribes, when so engaged, pirates and privateers. It does not include thieves, robbers, mobs, rioters, or strikers. Nor does it include mere insurgents; but an insurrection may grow into a civil war, in which the parties become belligerents, in which case those on the side opposed to that of the carrier would be considered as the public enemy. 12 American Correspondence School or Law To avail himself of this protection the carrier must have been guilty of no negligence proximately contrib- uting to the loss. The carrier must submit to the paramount authority of the place where he conducts his business and therefore another excuse for not delivering arises when the prop- erty is taken from him or destroyed by such authority. Goods may sometimes be lawfully taken from him in the enforcement of the police regulations of the government, and he is protected if the power is lawfully exerted. But, as the carrier is not relieved by the acts of mere tress- passers, a seizure by an officer without any lawful author- ity will not protect him. So he may, with the same qualification, lawfully yield possession of property to an officer holding jDrocess against the owner, authorizing the seizure. And if the person in whose behalf the property is seized be the real owner, this, in itself, constitutes a defense against the shipper ; but the carrier must establish the fact of owner- ship unless the seizure was made under process fair and legal on its face authorizing the seizure. Excuses arising from the fault of the owner or shipper and from the exercise of the right of stoppage in transitu may be passed without further discussion. The liability thus far considered for the loss or destruc- tion of or damage to the property itself from any cause, except those mentioned, is absolute and does not depend uj)on negligence in the transportation and delivery, while neglii^ence contributing to the loss may cause liability though some of the excepted causes also operate. But tliero are some losses to the shipper for which the liabil- ity dT the cai-i'ici' (le])ends upon negligence. The carrier (Iocs not nccessai'ily undci'take and the law does not re- (juiic lii?n to carry and deliver within any g'iven time. IFc nia\, by contract, fix a time, and, when he does, he is }>ound as any oilici- ] tarty to a contract stipulating for tlif ))f)Toniianc(' of service within a fixed time would be The Law of Common Carriers 13 bound. Without such an agreement, the duty is to exer- cise 1 easonable diligence to carry within the proper time and the failure to exercise it is negligence. The character of this duty and of the cor-relative right of the ship- per, therefore, is such that only negligence constitutes a breach and is essential to a cause of action for damages for delay. Damages from delay may result variously. Though i^roperty be delivered at destination in perfect condition, -markets may have declined and the property be less valuable than if earlier delivered. Liability for such damage is not visited by law absolutely on the car- rier, since it does not result from loss of or injury to the property itself or from failure to deliver it. The carrier is liable only in case he has failed in his duty of diligence. But how is it if the condition of the property itself de- terioi-ate during the delay % If there be no negligence and the deterioration be due to the inherent nature of the l^roperty, the loss falls on the owner, because the car- rier, if he finally deliver, does not violate his duty in re- spect of the time of delivery. But if the delay result from want of proper diligence there is liability for any in- creased deterioration due to such negligence. The difficulties and obstacles carriers encounter in transportation are greater at some times than at others, and, with perfect diligence, one trip may take more time than another. The ciuestion as to the carrier's negli- gence must therefore be determined by considering all the circumstances which properly affected his action in the particular case, and hence it is that, in deter- mining liability for delay, obstacles such as the acts of strikers, mobs, and others, which are not the acts of G-od, or of the public enemy, are allowed to excuse delay where they would not exempt from liability for direct injury to, or failure to deliver, the property. The rule as to the diligence required of the carrier in the transportation is that it mnst be done with all con- venient dispatch and within reasonable time. He must 14 American Correspondence School of Law use such care and diligence as carriers of ordinary pru- dence in the same line of business would exercise under like circumstances. The delay may be so unusual as to show a prima facie case o'f negligence and throw upon the carrier the burden of showing tiliat it could not have been avoided by care of the kind stated. The diligence to be used by the carrier includes the pro- viding himself with all instrumentalities and facilities necessarily or reasonably required for the proper carry- ing on of the line of business in which he engages and the handling of the various kinds of freight which the nature of his business requires him to carry. He must forward the goods of all impartially, giving preference, however, to those, like fruits, vegetables, etc., which are likely to perisli by delay, providing for each consignment the kind of transportation demanded by its character. In the railroad business much of the freight is carried in carload lots over lines of more than one road, and rail- road companies are generally required to receive cars coming over other lines with which they have suitable connections and to carry them on to destination, or so far as their lines may go. It is often the duty of railroad companies, arising from the course of their business or from statutes so requir- i.ng, to fuiTiish to shippers, upon prox>er notice and de- mand, cars to be loaded at points designated for the pur- pose. To perform this duty they are required to exer- cise ordinary care and diligence, in the absence of con- tract or statute fixing a time. The liability as an insurer is th'at fixed by law in the absence of contract between tire carrier and shipper. By tlie common law the carrier is allowed by contract to re- lieve himself of tlic lialHlily of an insurer, so called, and to liniil Ills ;u'('onnl;il)ilI1y to sncli losses as occur through the negligence of liiniself or liis employes. Some author- ities bold tlinl he may exempt himself from liability for The Law of Common Carriers 15 the negligence of liis agents and servants, and from all liability except that whicili results from gross negligence, but this is believed not to be sound nor supported by the weight of authority. The law determines the standard of care and diligence to be used and will not permit com- mon carriers by contract to free themselves from the duty to it. Under the common law a carrier may agree with the shii^per upon a valuation of goods beyond which he is not to be liable as for mere value. He may also provide for notice of claims for losses to be given within a specified reasonable time after their occurrence, in order that he may have fair opportunity to investigate. Some stipula- tions of this kind have justly been held void by the courts, as allowing too short a time, or as being too in- definite, or as imposing unreasonable restrictions upon the claimants. And it may be stated generally that courts will not enforce stipulations in such contracts which ap- pear to be unreasonable impositions upon shippers, for the reason that the position of the carrier gives him the power, in a large measure, to dictate his terms. Statutes have been adopted in some states restricting the right of the carrier to limit his liability, some of them taking away his power to change it from that fixed by the common law. Mere published or posted conditions not agreed to by the shipper will not bind him as limitations upon the carrier's liability. And sometimes instruments properly signed by the shipper, containing stipulations which might be legal if fairly agreed to, have been held not binding when provisions differing from oral agree- ments previously made have been inserted without the knowledge of the shipper and under circmnstances pre- venting him from examining and understanding them. All such agreements must be plainly expressed and, if written or printed, must be so that they are easily read and understood. . They are strictly construed against the carrier. 16 American Correspondence School of Law The rules wliicli govern the carrier in making a de- livery effectual to relieve it of further liability, as such, the kinds of deliveries the different carriers must make under their various undertakings, as well as the things that will excuse non-delivery are so fully stated in the Cyclopedia that further treatment in this paper would be largely repetition. Further study of the subject will reveal to the student conflicts of decision upon some of the questions involved, but the results of the authorities are believed to be correctly stated in the text book. For example, a question early arose as to the time at which and the circumstances under which the liability of com- mon carrier ended and that of warehouseman was substi- tuted, in cases where personal delivery to the shipper was rot undertaken, as in transportation by rail, and one view expressed was that the change occurs as soon as the goods are removed from the cars and put in the carrier's proper place of delivery. The other view, which is un- derstood to be that of the text book and the correct one, is that the liability as carrier continues until the con- signee has had reasonable time after arrival to receive and remove the goods. The modified liability of the carrier of livestock is be- lieved to fall under the general principle that excuses from loss attributable to vice or imperfection in the thing carried. Animals may necessarily suffer and deteriorate in undergoing the handling inseparable from transporta- tion, and, besides, have propensities which sometimes cause them, when confined, to injure themselves or each oilier. For damages thus occasioned the carrier, unless guilty of negligence, is not responsible; otherwise its ac- counta])ility is that which arises in the transportation of otlier property. Tbc can-icr's special property in goods held for car- riage,, and tiie rights inci(l<'nt thereto and his lien for his (•barges need no further treatment than that given in {lie ( "ycIojxMlin. The Law of Co7nmon Carriers 17 CARRIERS OF PASSENGERS. A person or corporation becomes a common carrier of passengers in the same way as do carriers of goods by voluntarily undertaking to carry for liire any and all persons who may apply for transportation. But his liability differs greatly from that of carriers of goods. In the transportation of goiods, the custody and care of the carrier ordinarily is substituted for that of the owner, the goods being out of the sight and control of the lat- ter. Because of the abuse wliich the carrier might, by collusion with others, or by other means, make of his power over the goods to appropriate or injure them, or to shield himself from accountability for losses, the law has deemed it unwise to permit him to make excuses other than those discussed which are supposed to be of such a character as in themselves to repel any imputation of mis- conduct. These considerations do not apply in the car- riage of human beings, for the twofold reason that the carrier can have no such custody and control of their per- sons as he has of goods, and that they have, to a great extent, the capacity and opportunity of caring for their own safety. The carrier is therefore not held to insure the safety of the passenger, but his duty is one of diligence. As he controls his vehicles, premises and servants, as well as the transportation, itself, he is held to the exercise of great care and diligence to protect the passengers against the dangers of transportation. The language of the authorities defining the care required is various, but the differing expressions, as actually applied, are believed to require the highest degree of care and skill which very pnident and competent carriers in the same line of busi- ness would exercise. It may sometimes appear, in review- ing an accident after it has happened, that it would have been averted had a particular precaution been taken, but this does not necessarily make the carrier liable, as some of the phrases used by writers, literally applied, would in- 18 American Correspondence School of Law dicate. The occurrence must have been such that by the foresight, care and skill required, applied beforehand, it would have been prevented. The precautions used must always be proportioned to the dangers to be avoided, and tlie pains to be taken necessarily vary with the object to which they are directed, but the legal standard by which the conduct of a carrier is to be tested is believed, notwithstanding seme differences of oi)inion, to be the same in all situations. While the carrier is bound generally to receive and transport without discrimination such persons as apply, the law recognizes causes for which some may be ex- cluded. The rights of other passengers may require that he reject such as, by reason of disorderly or indecent conduct, would be obnoxious to them; which considera- tion may require the exclusion of one so intoxicated as to be unfit to be carried. Persions suffering from dangerous contagious diseases may also be rejected. Nor is the car- rier bound to receive for carriage passengers on all of his vehicles. He usually carries passengers and freight in different conveyances, A railroad company, for instance, may forbid the carriage of passengers on its freight trains, construction trains, engines and the like, not used to carry passengers. It may also have local and tlirough passenger trains, the latter not stopping at all way stations to take on and put off passengers. It is not required to receive upon through trains ]>assengers bound for [)oints at which such trains do not stop, if it provide reasonable service to those points hy other trains. It is however, re(juired to stop enough of its trains at all sta- tions regularly establislied for receiving and discharging passengers to afford reasona])le accommodations to per- sons going 1o Of from sucli places. Tin diit>- of ilic caii'ier- to use the care al)Ove defined for jiu' safety of I lie passenger Ix'gins wlienevo?' the rc- lalior of carrici- ;in(I |)assengei' is establislied and lasts so loriji- as ilial i-elatIoti coiilimies. (Jeiiei'allv il is not dif- The Law of Common Carriers 19 ficult to determine in cases arising whether or not the relation existed, but sometimes it is. The question is important, since ui:)on it depends the existence of the pe- culiar duty of the carrier. That duty certainly arises, as stated in the Cyclopedia, whenever a person is received for carriage in any vehicle used by the carrier for the carriage of passengers, but it often arises before. It as certainly arises when the passenger has paid his fare and has been accepted as such, whether he is in the convey- ance, or entering it, or awaiting its arrival, and it may arise even earlier than that. Carriers usually have sta- tions, waiting rooms, and their appurtenant approaches for the accommodation of persons seeking transporta- tion, and it is believed, though there is conflict of author- ity uj)on the question, that, in keej^ing these properly fitted up for the purpose, the carrier owes the care which has been defined to all who at the proper time enter them with the bona fide intention of taking passage and of doing whatever is essential to that end. But persons u^^on, or about, such premises, or even upon the convey- ances, for other purposes are not passengers. The own- ers of such premises or conveyances may owe duties to persons thus situated but they are not the duties peculiar to common carriers. It is said that there must be an ac- ceptance of the i^assenger by the carrier, and, theoret- ically, this may be true ; but it is not often of importance in the deteiTuination of controversies. When one has done the things incumbent on him to entitle him to be carried, it becomes the duty of the carrier to accept him and the acceptance is generally implied. Wliile waiting to pay his fare, purchase a ticket, or comply with other regulations, such a person is entitled to the care defined whether he has been accepted or not. AYhile the relation may thus be established, knowledge of the presence of the passenger and of the existence of the relation, may be essential to charge the carrier with the duty to do par- ticular things for the passenger. To illustrate, knowl- 20 American Correspondence School of Law edge 01 the presence of any jDassenger is not essential to tlie keeping of tlie premises and vehicles properly fitted up, smce that duty exists to all who may properly seek transportation, but a particular passenger may be pecu- liarl} situated so as to need attention called for by that situation alone, such as protection against injurj^ or in- sult from others than the carrier or his employes. The duty to do such things may depend upon the question "whetiier or not the carrier knew or ought to have known of the necessity for them, the test being whether or not the circumstances called for them to be done to constitute the care exacted. The relation may exist without payment of fare. Drov- ers and others, though carried upon passes called free, but issued as part of the contract for transportation of property, are entitled to the protection given to passen- gers. The question whether or not express messengers, postal clerks, and the like, carried by special arrange- ments differing from those made with passengers gen- erally, are to be regarded as passengers is one upon which opinions conflict. A person carried as other passengers, but without charge, is, by the weight of authority, held to be a passenger in the absence of contract providing differently. The relation of carrier and passenger may be defeated by the conduct of the latter of various kinds. His dis- orderly conduct, drunkenness, refusing to procure, or to exhibit, a ticket, where that is required by reasonable regulations of the carrier, may authorize the carrier to eject him from his premises or conveyances. This must be done in a prudent and careful manner with no unneces- sary force 01- insulting conduct on the part of the car- rier, or his em))loyes. The passenger must conduct himself as a person of ordijian^ prudence aiid submit to the carrier's reasonable rnh's ;ind i-cgulnlioiis which are or should Ix' kiiown to liiiii. If lie be guilts of iioii:lig(!nce in fnilint'' to do anv The Law of Common Carriers 21 of these things which proximately contributes to his in- juries the carrier is not liable. The carrier must transport the passenger with safety and dispatch so far as is practicable with the care re- quired. The carrier and his employes must refrain from rudeness or insulting conduct towards the passenger, the undertaking being, not only for transportation, but for good treatment ; and, in respect of this duty, the car- rier is responsible for misconduct towards the passen- ger of those employed in the management of the con- veyances, stations, waiting rooms, etc. All such employes so far represent the employer that he is responsible for the disregard by any of them of his duty to the passen- ger. Another duty is to exercise the care defined to protect the passenger from assaults, insults, and the like, from others. Such things, however, are not ordinarily ex pected to happen, and, to put the carrier in default with respect to them, he must have had the opportunity to know of or to anticipate their happening in time to have prevented or checked them. The relation of the carrier to the passenger ends when the journey is ended and the passenger has had reason- able time and opportunity to safely leave the conveyance and the station or other place of discharge. As the liability of the carrier is only for negligence, or other wrong doing, the law does not permit him to con- tract against it. Some authorities have held that he may so provide against the negligence of his employes and against anything less than gross negligence, but this is not the prevailing nor the sound view. The authorities differ upon the question whether or not the carrier can limit its liability to persons carried free. BAGGAGE. No extended treatment of this subject is practicable within the limits assigned to this paper. Only what are thought to be the leading principles will be stated. 22 American Cerrespondence School of Law I. The obligation to carry baggage is implied from that to carry its owner. It exists by implication only with resjDect to that which the law determines to be baggage, though it may be enlarged by acceptance for transporta- tion as baggage of that which would not otherwise be such. II. For baggage taken into the exclusive custody of the carrier, he is responsible as a common carrier of goods. III. As to baggage retained in the custody of the pas- senger the duty of the carrier is one of diligence to pro- tect it from damage, loss, or destruction and to safely carry and deliver it, his liability not being that of an in- surer. IV. Since the carriage of baggage is incidental to the carriage of the owner, the carrier is ordinarily expected to deliver it to the owner at the end of his journey within a reasonable time after his arrival, and, while it need not necessarily be carried on the train or other convey- ance on which the passenger travels, there may be liabil- ity for delay in delivering such as would not arise in the ordinary carriage of other goods. On the other hand, if the passenger do not apply for the baggage within a reasonable time after its arrival at destination (and usually he must do so without delay), the relation of car- rier is converted into that of warehouseman whose duty is to store and keep it with reasonable care. V. The authorities generally admit the impracticabil- ity of defining the term, baggage, so as to include all that is and exclude all that is not such. The definition and illustrations in the Cyclopedia will give the student a fair idea of the import of the term. It may be said, sliortly, that, as the carrier does not ordinarily know what articles the passenger has, the implied obligation exists with reference only to such things as })assengei-s in the stailon in life of Ihe one in question might reasonably be expected to carry for ]iersonal use as an incident of such a journey as that undertaken. Cjaulord i PAMPHLET BINDER Syracuse, N. Y. Stockton, Calif. ■ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 852 091 8