rier for hire is, in almost every case, the extent of the diligence and care which have been exercised by him; and the question of his liability, when the loss has not arisen from his malfeasance, turns upon the inquiry whether or not he has been guilty of negligence, in the omission of care and diligence, to that degree which the law denominates gross or ordinary. But, as we have seen, in dealing with the subject of the liability of the public or common carrier, when it has not been limited by his contract, questions of diligence and negligence are generally impertinent, because they are regarded as insurers of the safety of the goods against all losses except such as arise from the acts of God or of the public enemy. But since the law has been modified, as it has been universally, so that they may limit their liability almost to the same extent as private carriers for hire, the common-law liability is rarely assumed by the more important and extensively employed public carriers; and when they have limited or qualified it, as they are now permitted to do, the question of their liability when the goods have been lost or injured is generally purely one of negligence, as it is in the case of the private carrier. For, when it has been agreed by the parties to the contract of affreightment that the carrier shall not be held liable for losses occurring from certain accidents or causes, it may still be shown that, notwithstanding the loss or injury arose from one of the excepted causes, it would not have occurred but for the negligence of the carrier or his servants, or might have been avoided by the use of proper diligence; which, if successfully proven, will deprive the carrier of all the benefit of his contract in that regard.50 If, for instance, it be agreed that the carrier shall not be held liable for losses by fire, the construction put upon the contract will be that only fire which was not attributable to his fault or negligence was contemplated or intended, and if it can be shown that the fire which caused the loss originated from his carelessness, or that he could have escaped. from it without the loss by the use of diligence, he will be 50. Parrill v. Railway Co., 23 Ind. App. 638, 55 N. E. Rep. 1026, citing Hutchinson on Carr. held responsible to the same extent as if he had been a carrier without any contract whatever as to his liability. Sec. 43. (§ 43.) How compares with liability of common carriers. Thus the common carrier in many instances has come to stand upon the same footing as the private carrier for hire, the liability of both very often depending upon questions of diligence and negligence, which in their application to the two classes of carriers mean the same thing, that being diligence or its opposite in the case of private carriers for hire which is so as to the common carrier. A great part of the law which affects the public carrier, therefore, as it is now understood and applied, is equally applicable in cases which arise as to the liability of those who carry privately for reward; and it will be found that most of the questions which can occur in reference to the duties and obligations of the latter can be solved upon the principles which now form perhaps the most important portion of the law relating to common carriers. Much of the law, therefore, which will hereafter be stated in reference to the responsibility of the common carrier for his negligence will be equally applicable to the case of the private carrier for hire. Sec. 44. (§ 44.) Common carrier cannot become private carrier by contract. It is, however, by no means to be understood that the common carrier can by his contract or in other mode become, as to the carriage of particular goods, merely a private carrier for hire whilst he is in fact a common carrier of such goods generally. If he could do this, he could, of course, provide by contract against liability for losses occurring from the negligence of himself or his servants, which, as we have seen, it is competent for the private carrier to do. But according to the weight of authority, at least in this country, as we shall hereafter see,51 common carriers will not be permitted, under any circumstances or in any manner, to protect themselves against the consequences of their own negligence in the carriage of either goods or passengers. They may become the carriers of goods gratuitously, and the law will then 51. See post, § 418. hold them liable only as mandataries; that is, only for losses occurring through gross negligence. But so long as they are compensated for the carriage they are common carriers, contract or no contract. 52 A common carrier may, however, undoubtedly become a private carrier or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry.53 The relation in such a case is changed from that of a common carrier to that of a private carrier, and where this is the effect of the special arrangement, the carrier is not liable as a common carrier and cannot be proceeded against as such.54 But it has been held that even though the carrier enters into a special undertaking with a particular shipper to operate each day a special train for such shipper's accommodation, and further agrees that he will not receive for carriage on the train so provided the goods of other shippers which are of like character to those offered by the shipper with whom he has contracted, if he proceeds to accept for transportation thereon other classes of goods tendered by other shippers, his contract will be of no avail in divesting him of his character as a common carrier as to such train, and he may not lawfully refuse for carriage thereon the goods of other shippers, although they be of like kind to those offered by the shipper with whom he has contracted.55 52. Davidson v. Graham, 2 Ohio St. 140; Railroad Co. v. Lockwood, 17 Wall. 357; Hooper v. Wells, Fargo & Co., 27 Cal. 11; Christenson v. The Am. Ex. Co., 15 Minn. 270; Bank of Kentucky v. The Adams Ex. Co., 3 Otto, 180; Kirby v. Adams Ex. Co., 2 St. Louis Ct. of App. 369; Parrill v. Railway Co., 23 Ind. App. 638, 55 N. E. Rep. 1026, citing Hutchinson on Carr.; Mears v. Railroad Co., 75 Conn. 171, 52 Atl. Rep. 610, 96 Am. St. Rep. 192, 56 L. R. A. 884. 53. Railroad Co. v. Lockwood, 17 Wall. 357; Honeyman v. Rail road Co., 13 Oreg. 352; Central R. Co. v. Lampley, 76 Ala. 357; Memphis News Publishing Co. v. Railway Co., 110 Tenn. 684, 75 S. W. Rep. 941, 63 L. R. A. 150, citing Hutchinson on Carr. 54. Kimball v. Railroad Co., 26 Vt. 249; Honeyman v. Railroad Co., supra; Railroad Co. v. Wallace, 24 U. S. App. 589, 66 Fed. Rep. 506, 30 L. R. A. 161, 14 C. C. A. 257, citing Hutchinson on Carr. 55. Memphis News Publishing Co. v. Railway, supra. Sec. 45. (§ 45.) Private carrier cannot become common carrier by contract.-Nor can the private carrier become a common carrier by contract with his employer. He may assume liabilities to his bailor co-extensive with those of the public carrier at common law, and may undertake to carry upon terms which may be agreed upon. He may become an insurer against all possible hazards, and he may say that he will answer for nothing but a loss happening through his own fraud or want of good faith.56 He may warrant the safety of his charge, and thereby put himself in the "situation" of a common carrier as to the party who has intrusted him with the goods. But still, he does not carry in a public capacity, and does not subject himself to liability to actions for refusal to carry nor for preferences as to those whom he will serve. Ile is a carrier exactly according to his contract and no further, and may carry when and as he pleases and for whom he pleases, being responsible only to those for whom he undertakes; and in actions against him for loss or damage to the goods, he must be declared against as a private and not as a common carrier.57 Sec. 46. (§ 46.) Lien of private carrier on goods. It seems not to be well settled whether a private carrier for hire has a lien upon the goods in respect to which he performs the service or not. There would seem to be no very satisfactory reason why he should not have the same right to retain the goods until his charges for their carriage are paid, as the warehouseman, the wharfinger or the artisan, who, by his labor and skill, has added to their value.58 The general rule certainly is that, 56. Wells v. Steam Nav. Co., 2 public carrier." Jones on Liens, Comstock, 204. § 276. But see Riddle v. Railroad Co., 1 Inter. St. Com. Rep. 604. 57. Kimball v. The Railroad, 26 Vt. 247; Robinson v. Dunmore, 2 Bos. & P. 416. 58. "Upon general principles, there seems to be no reason why a private carrier should not have a lien for performing services similar to those rendered by a where the bailee of a chattel has increased its value by his labor, he has a specific lien upon it for his compensation, which means no more than the right to retain it until his charges for the particular service are paid, but not for a general balance of account. Upon similar grounds it has been held that wharfingers and warehousemen who have rendered service in respect to the particular goods for the owner's benefit have such a lien, although their services may have added nothing to their intrinsic value;59 and it would seem that for the same, and even for stronger reasons, the same right should be conceded to the private carrier for hire. But it seems to have been held otherwise in at least one case in this country.60 lowing a lien to a private carrier." 59. Story on Bail. 453, 453a. 60. Fuller v. Bradley, 25 Penn. St. 120. |