property, had it been their own; and whether such care was used, under the circumstances, is to be determined in every case as a question of fact by a jury, under instructions from the court as to the particular degree of negligence necessary to impose liability upon the bailee. Sec. 38. (§ 38.) Same subject-Illustrations.-Illustrations of the application of the law in cases of private carriers may be found in the case of Beck v. Evans,35 where the defendant's wagoner was intrusted with a cask of brandy to be carried for hire. Upon the way, the wagoner was informed that the cask was leaking, but took no steps to ascertain whether the information was correct or to stop the leak. Several hours, however, after he had been told of it, he took the cask out of the wagon and saved what remained of the brandy. It was left to the jury to say whether the loss arose from the negligence of the wagoner in not examining the cask as soon as he was told of its leaky condition; and they having found a verdict for the plaintiff, a rule to set it aside was refused in the Court of King's Bench, on the ground that the defendant had misconducted himself in not performing a duty which, by his servant, he was bound to perform. In a much older cases the defendant was declared against, "for that the plaintiff did undertake reasonably to content him for the carriage," in consideration whereof he undertook to carry safely a sum certain of money to an inn and there deliver it to the plaintiff, and that he had not done so; and it was held that the defendant who had accepted the money to be carried was liable, although he was not a common carrier, and although no certain sum had been promised to him as the price of the carriage. In Brind v. Dale,37 the plaintiff hired the carriage of his goods by one of the defendant's carts, and they were lost. Lord Abinger, in his instructions to the jury, said: "I take it that if a man agrees to carry goods for hire, although not a common carrier, he thereby agrees to make good the losses arising from the negligence of his own servants, although he would not be liable for losses by thieves, or by any taking by force, or if 35. 16 East, 244. 36. Rogers v. Head, Cro. Jac. 262. 37. 8 Car. & P. 207. the owner accompanies the goods to take care of them and was himself guilty of negligence; for it is a rule of law that a party cannot recover if his own negligence was as much the cause of the loss as that of the defendant.''38 Sec. 39. (§ 39.) Liability for loss by theft or robbery.-Although it is said that the private carrier is not to be held liable for a theft or robbery by which the goods are lost, if the jury should be of the opinion that he has not been guilty of that degree of negligence which is a condition to his liability, a distinction is, it seems, to be drawn between a robbery or taking by force and a theft which is accomplished secretly and by cunning, in this, that in the case of a theft the presumption more readily arises that the carrier was not in the exercise of that diligence which was his duty than in the case of a robbery or forcible capture of the property, especially if it be done. openly and not in secret or under the cover of darkness.39 Indeed, by the civil law, theft ordinarily constitutes no excuse to the bailee for hire, because, it is said, it can scarcely arise without his negligence. It is therefore, in that law, presumptive evidence of negligence of itself, but may be shown to have occurred without the bailee's fault, and then he will be excused.40 But, by our law, there is nothing in the case of theft, independently of the circumstances under which it was committed, from which we have a right to infer that there must have been negligence. In other words, the mere fact of theft raises no presumption of neglect in the bailee, nor, on the c1her hand, does it per se exempt him from responsibility. But whether there has or has not been a due degree of care must be decided upon all the circumstances of each case. 41 Sec. 40. ($40.) Liability may be regulated by contract.Negligence being in the nature of an omission simply of that degree of care which, under all the circumstances, is the 38. Cailiff v. Danvers, 1 Peake, N. P. 114; Robinson v. Dunmore, 2 Bos. & P. 416; Whalley v. Wray, 3 Esp. 74; Bowman v. Teall, 23 Wend. 306. 39. Hodgson บ. Fullarton, 4 Taunt. 787; Montagu v. Janverin, 3 Taunt. 442. 40. Story on Bail. § 239 bailee's duty, without any criminality of purpose, and being, at least when within a certain degree, entirely consistent with good faith, the private carrier may, by contract with his employer, exonerate himself from liability on account of his inattention or want of diligence or skill in the execution of the trust. He may stipulate that he shall in no event be liable except for fraud or its equivalent. 42 So he may by special contract increase his liability beyond that which the law would have otherwise imposed; as where the owner of the goods found fault with some of the appliances of the carrier which he was about to use in moving the goods, and the latter replied, "I will warrant the goods shall go safe," and the owner upon this assurance permitted him to go on with them, and the goods were in fact injured from the very defect of which the owner had complained, it was held that the carrier could be held upon his special undertaking, and that the words used by him to the owner of the goods amounted to a warranty that the goods should go safely.43 Said the court, per Chambre, J., "the defendant is not a common carrier by trade, but has put himself into the situation of a common carrier by his particular warranty." So in Coggs v. Bernard, it was considered, notwithstanding Lord Coke's opinion to the contrary in Southcote's Case,44 that in a gratuitous bailment, the promise of the defendant to lay the goods down safely introduced a special term into his contract which increased his liability. But even an express undertaking by a private carrier to carry goods safely and securely is but an undertaking to carry them safely and securely, free from any negligence of himself or his servants. In other words, it is a mere contract for the observance of due care, and does not insure the safety of the goods against losses by thieves, by robbery or by unavoidable accidents;45 and does not give rise to that extraordi 42. Wells v. Steam Nav. Co., 2 Coms. 204; Alexander v. Green, 3 Hill, 9. 43. Robinson v. Dunmore, 2 Bos. & P. 416. 44. 4 Rep. 84. 45. Story on Bail. § 457; Oakley v. Packet Co., 11 Exch. 618; Collett v. The Railway Co., 16 Q. B. 984. "An express provision in a nary liability which belongs to the common carrier. The private carrier may, however, by express terms warrant the safety of the goods and thus become liable to the same extent as the common carrier, as every bailee to whom goods are intrusted may undoubtedly for a consideration insure their safety. But an express warranty as to a particular risk will not be extended to a different one; as where the carrier expressly assumes the risk of breakage, he will not be liable for a loss by accidental fire.46 Nor will an express exclusion of a certain risk be construed as an assumption of all risks not excluded.47 Essex Bank, 17 Mass. 501. In that case Chief Justice Parker, in remarking upon the agreement to keep the money deposited safely, as imposing no greater duty than the exercise of ordinary care, says: 'Anything more than this would amount to an insurance of the goods, which cannot be presumed to be intended, unless there be an express agreement and an adequate consideration therefor."" Hubbard, J., in Ames v. Belden, 17 Barb. (N. Y.) 517. See, also, Jaminet v. Moving Co., 109 Mo. App. 257, 84 S. W. Rep. 128, citing Hutchinson on Carr. 46. Scaife v. Farrant, L. R. 10 Exc. 358; Ames v. Belden, 17 Barb. 513. 47. United States v. Power, 6 Mont. 271. In this case a private carrier had undertaken to carry supplies for the government, and the contract contained these words: "All rail to Missouri river; during navigation, on Missouri river. No river risk on the part of the contractor for unavoidable accidents. Land haul only when ground is frozen." While certain of the goods were being transported by steamer up the Missouri river, they and the steamer were burned by an accidental fire. It was admitted that the carrier used "the best care and precautions," but it was sought to hold him as an insurer. It was contended by the attorney for the United States that the language used excluding river risks was equivalent to saying "unavoidable accidents on account of river risks excepted," and that such unavoidable accidents as arose from river risks being alone excepted, all other unavoidable accidents were included; and that thus the respondent was liable for a loss by fire occurring on the But all the contracts, either to increase or lessen the responsibility of the bailee, must be clear and explicit; for extraordinary liabilities will not be imposed upon him, nor will he be released from his legal and reasonable obligations to the preju, dice of the bailor, by mere inference. So his liability may be modified by the previous course of dealing between the parties, or by the usages of the carrier in his business; but customs and usages, to be available for the exoneration of the carrier, must have existed for such a length of time as to have become known and established.48 Sec. 41. (§ 41.) Liability for injury to goods subsequently lost by accident.-If the goods are injured by the negligence of the bailee, he will be responsible to the owner to the extent of the damage, notwithstanding a subsequent destruction of them while in the bailee's possession by an accident for which he was not responsible. This was held where goods were deposited in a warehouse for custody, and while there were injured through the carelessness of the warehouseman; but before they were taken away by the owner they were destroyed by a sudden freshet, which caused the water of the river near which the warehouse stood to rise and overflow the 100m in which the goods were deposited. Every exertion possible had been made by the warehouseman and his servants to save them, and he was therefore clearly not liable for their loss; but it was held that their destruction did not release him from liability for the previous injury which they had sustained through his negligence. The cause of action, it was said, existed before and at the time of their destruction, and there was no principle which would enable the defendant to plead the flood or the consequent destruction of the goods in bar to an action for his previous wrong. 49 Sec. 42. (§ 42.) Test of private carrier's liability. The test of the proper performance of his duty by the private car. river though it was entirely unavoidable. The court, however, held the carrier not liable. 48. Story on Bail. § 543. 49. Powers v. Mitchel, 3 Hill, 545; Story on Bail. § 414. |