Sec. 64. (§ 58.) Kind of vessel or vehicle and distance immaterial.—So it is wholly immaterial in what kind of vessel or vehicle or for what distance the carrying is done. Thus

Sec. 65. (§ 58a.) Hoymen, bargemen, lightermen, canalboatmen, etc., are common carriers.-Hoymen, bargemen, lightermen, and, in short, boatmen of every description upon rivers, canals, lakes or the sea, come within the denomination of common carriers if they engage in the business of carrying or transporting goods indifferently for all who may employ them.32

Sec. 66. (58b.) Ferrymen are common carriers when.So ferrymen are common carriers as to the baggage of their passengers and as to all goods or chattels which they make it their business to transport; or if they hold themselves out to the public as engaged in the business of ferrying goods or property, either generally or of a particular kind.33 But the nature of a ferry depends in a great measure upon the character of the road of which it forms a part. If the road is a footpath, the ferry may be for foot passengers only. If it be an ordinary highroad, the ferry will be not merely for foot passengers and their baggage, but for horses and carriages

32. Canal-boatmen are common carriers under ordinary circumstances. Bowman V. Teall, 23 Wend. 309; Parsons v. Hardy, 14 Wend. 215; De Mott v. Laraway, 14 Wend. 225; Humphreys v. Reed, 6 Whart. 435; Fuller v. Bradley, 25 Penn. St. 120. But not where they are not public carriers. Fish v. Clark, 49 N. Y. 122; Beckwith v. Frisbie, 32 Vt. 559; Spann v. Transportation Co., 11 Misc. Rep. 680, 33 N. Y. Supp. 566.

33. Lewis v. Smith, 107 Mass. 334; White v. Winnissimmet, 7 Cush. 156; Sanders v. Young, 1 Head, 219; Fisher v. Clisbee, 12 Ill. 344; Wilson v. Hamilton, 4 Ohio St. 722; Harvey v. Rose, 26

Ark. 3; Powell v. Mills, 37 Miss. 691; Griffith v. Cave, 22 Cal. 535; Hall v. Renfro, 3 Met. (Ky.) 51; Self v. Dunn, 42 Ga. 528; Cook v. Gourdin, 2 Nott & McC. 19; Rutherford v. McGowen, 1 id. 17; May v. Hanson, 5 Cal. 360; Whitmore v. Bowman, 4 Greene (Iowa), 148; Babcock v. Herbert, 3 Ala. 392; Miller v. Pendleton, 8 Gray, 547; Claypool บ. McAllister, 20 Ill. 504; Albright v. Penn, 14 Tex. 290; Smith v. Seward, 3 Barr, 342; Pomeroy v. Donaldson, 5 Mo. 36; Cohen v. Hume, 1 McCord, 439; Littlejohn v. Jones, 2 McMullan, 365; Clark v. Union Ferry Co., 35 N. Y. 485; Le Barron v. Ferry Co., 11 Allen, 312.

and all goods which may be carried upon the road.34 And one who keeps a ferry, not for public accommodation, but simply for the convenience of the customers of his mill, and charges no ferriage, is not a common carrier, no matter what advantage he may derive from it incidentally;35 and even though compensation may sometimes be made, not as a charge, but as a gratuity.3 36

Sec. 67. Whether ferrymen are common carriers of goods retained in the custody of passenger.-While the cases uniformly concede that a ferryman who holds himself out as being ready and willing to carry or transport for hire the goods of all who may wish to employ him is, as to the goods in his custody, a common carrier, the courts have differed in their views as to the extent of the liability assumed in those cases where the owner of the goods accompanies them and continues to retain them under his control. On the one hand it is held that as soon as the goods are placed upon the ferryman's vehicle for the purpose of being transported, they are in the custody of the ferryman as a common carrier, and that the fact that the owner retains them under his control merely places him in the position of an agent of the ferryman.37 On the other hand it is said that such a rule rests upon no just principle, and that in such cases the ferryman does not assume toward the goods the responsibility of a common car

34. Willoughby v. Horridge, 16 brings with him, whether inaniEng. L. & Eq. 437.

35. Self v. Dunn, 42 Ga. 528. 36. Littlejohn v. Jones, 2 McMullan, 366.

37. While none of the cases deny that a ferryman who carries for hire is a common carrier, there is considerable diversity of opinion as to the extent of the liability assumed by him. In some of the cases it is held that as soon as the passenger comes with his property upon the ferryman's boat, the property which he

mate or live stock, is put ipso facto absolutely into the custody of the ferryman, and if the owner continues his control over it to any extent, he does so as the agent of the ferryman, and the absolute responsibility of the ferryman as a common carrier at once commences. Fisher v. Clisbee, 12 III. 344; Powell v. Mills, 37 Miss. 691; Wilson v. Hamilton, 4 Ohio St. 722.

In others it is said that the presumption is, that the property

rier 38 The latter rule would seem to be more in accord with the principles which govern the carrier's common law liability. In order to impose upon one who undertakes the transportation of goods the stringent responsibility of a common carrier,

If

goes into the ferryman's custody son of the nature of the franchise as a common carrier, and that they exercise and the character the burden is upon him of show- of the services they render to the ing that he did not have such con- public, are held to extreme dilitrol over it as invested him with gence and care and to a stringent the character of common carrier liability for any neglect or omis in respect to it, and that a prima sion of duty, they do not assume facie case is established against all the responsibilities of common him if it be shown that the ferry carriers. Property carried upon was a public one and that the a ferryboat in the custody and property was put upon the boat. control of the owner, a passenger, 38. Wyckoff v. Ferry Co., 52 is not at the sole risk of either N. Y. 32. In this case the owner the ferryman or the owner. of a horse and wagon drove upon lost or damaged by the act or a ferryboat, and, remaining in neglect of the ferryman, he must the wagon, kept control of the respond to the owner. The ordivehicle and horse until the acci- nary rules governing in actions dent happened. The law as to for negligence apply; and a plainthe liability of the ferryman as tiff cannot recover if he is guilty a common carrier was thus qual- of negligence on his part, conified by Allen, J.: "A ferryman," tributing to the loss. The liasaid he, "is not a common carrier bility of a common carrier, in all of the property retained by a pas- its extent, only attaches when senger in his own custody and there is an actual bailment, and under his own control, and liable the party sought to be charged as such for all losses and injuries has the exclusive custody and except those caused by the act control of property for carriage. of God or the public enemies. A ferryman does not undertake The cases which go the length absolutely for the safety of goods of holding that the ferryman is carried with and under the conchargeable as a common carrier trol of the owner; but he does for the absolute safety of prop- undertake for their safety as erty thus carried, and that the against the defects and insuffiowner, in taking care of the prop- ciencies of his boat and other aperty during the passage of the pliances for the performance of boat, may be regarded as agent the service, and for the neglect of the ferryman, do not stand up- or want of skill of himself and on any just principle, and are his servants. At the same time, not within the reasons of public the owner of the property, retainpolicy upon which the extreme ing the custody of it, is bound to liability of common carriers rests. use ordinary care and diligence to While ferrymen, by rea- prevent loss or injury." Fisher

it is essential, as will be seen in a later section,39 that he have exclusive control of the goods. With this essential element lacking when the owner himself retains control of the goods, the liability of the ferryman as a common carrier should be qualified; and when the goods are lost or injured, his liability should be governed by the ordinary rules in actions for negli gence.

41

Sec. 68. (§ 59.) Proprietors of land vehicles like stagecoaches, omnibuses, carts, wagons, etc., are common carriers when. The proprietors of land vehicles of every kind, such as stage and hackney coaches, 10 omnibuses, cabs, drays, carts, wagons, sleds,4 42 and street cars, 43 who make it a business to carry for hire the goods of such as choose to employ them, even though it may be within the limits of the same town or city, are reckoned as common carriers and held liable as such. Stage-coaches are employed principally for the carrying of passengers, and were formerly very extensively used for that

v. Clisbee; Powell v. Mills; and Wilson v. Hamilton, supra, were disapproved.

See also, Tower v. The Utica Railroad, 7 Hill, 47; Richards v. The Railway, 7 Com. B. 839; Midland Railroad v. Bromley, 17 C. B. (N. S.) 372; Brind v. Dale, 8 Car. & P. 207; East India Co. v. Pullen, 2 Strange, 690.

The same view of the liability of the ferryman was taken by Dewey, J., in White v. Winnissimmet Co., 7 Cush. 155; see as to delivery to ferryman, post, § 128.

39. See post, § 119.

40. As to hackney coaches, Bonce v. Dubuque, etc., Co., 53 Iowa, 278; Budd v. Carriage Co., 25 Or. 314, 35 Pac. Rep. 660, 27 L. R. A. 279.

41. As to omnibuses, Parmelee v. Lowitz, 74 Ill. 116; Dibble v.

Brown, 12 Ga. 217; Parmelee v. McNulty, 19 Ill. 556. In the last case, it was said that "the court was authorized to take notice that the owner of an omnibus line is a common carrier just as much as the owner of a railroad or a line of steamboats. The court will take notice of the general meaning of words, and we know that an omnibus line means a line of coaches for the carriage of passengers and their baggage."

The owner of a "licensed bus" is not necessarily a common carrier, and proof of that fact will not be sufficient to hold him as such. Atlantic City v. Dehn, 69 N. J. Law, 233, 54 Atl. Rep. 220. 42. See post, § 70.

43. As to street cars, Levi v. R. R. Co., 11 Allen, 300.

purpose. The carriage of goods, except the luggage of passengers, is not strictly their business; but in practice they generally combine the carriage of light packages with their passenger traffic, and there is no doubt but that whenever they are so in the habit of carrying goods for hire or are so advertised or held out, their proprietors are common carriers as to such goods. But where no such usage exists, and the proprietor holds himself out to the public as engaged only in the carriage of passengers, he cannot be held liable as a common carrier, although it may have been the practice of the driver of the coach, without the knowledge of the proprietor, to carry parcels for a compensation. But if such practice is known, and is submitted to by the proprietor as a part of the compensation of the driver, the rule would be different, unless the owner of the package, being informed of the fact that it was not a part of the customary business of the coach to carry packages, contracts with the driver, trusting solely to his responsibility.45 And it has been held that where the confidence, under such circumstances, is reposed in the driver alone, he cannot be held to the responsibility of a common carrier, but only to that of an ordinary bailee for hire.46 Stage pro

44. Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251; Walker v. Skipwith, Meigs, 502; Peixotti v. McLaugh lin, 1 Strob. 468; Dwight v. Brewster, 1 Pick. 50; McHenry v. The Railroad Co., 4 Har. (Del.) 448; Frink v. Coe, 4 G. Greene, 555; Sales v. Western Stage Co., 4 Iowa, 547. Prima facie, the proprietors of stage-coaches, used for carrying the mails, passengers and their baggage, are not to be considered common carriers as to articles not strictly within their line of business, in the technical sense of that term. They may, however, make themselves such by special contract in

45. Dwight v. Brewster, supra; Beckman v. Shouse, 5 Rawle, 179; Butler v. Basing, 2 Car. & P. 613; Blanchard v. Isaacs, 3 Barb. 388. See, also, § 91.

46. Bean v. Sturtevant, 8 N. H. 146. In Sheldon v. Robinson, 7 N. H. 157, it appeared that the defendant was in the employment of a stage company as a driver, and that the drivers of the stagecoaches were generally in the habit of carrying packages of money for an insignificant compensation, being the same, whether the package contained more or