prietors, however, who carry passengers are liable as common carriers for their baggage, as we shall hereafter see.

Sec. 69. ($60.) Vehicles carrying passengers usually liable as common carriers only as to baggage.-As hacks, omnibuses, cabs, street cars and the like vehicles are employed almost exclusively for the conveyance of passengers in a city or its vicinity, a case which would make their proprietors liable as common carriers, except for the baggage of their passengers, would be exceptional; but such cases may and undoubtedly do occur. As to such baggage they are unquestionably liable as common carriers, in common with all other passenger carriers, though this was long since disputed, unless a price distinct from the fare of the passenger was paid for its carriage.47 But this authority has been disregarded, and the rule may be said to be now settled that all kinds of passenger carriers by receiving, in their vehicles or upon their vessels, passengers and their baggage, subject themselves to the responsibility of common carriers of goods in general as to such baggage; and they become to this extent common carriers, although only the ordinary fare for the trip has been paid by the passenger, and

he ever held himself out as ready to engage in the transportation of whatever was requested, notwithstanding it may have been unusual for him and other drivers (to refuse) to carry it. This was not his general employment, and there is nothing to show that he would have been liable had he refused to take this money, especially as he was in the service of another, and, as such servant, might have had duties to perform inconsistent with the duty of a common carrier."

less. This compensation was re- matter of convenience; or that ceived by the drivers to their own use. It did not appear that defendant had ever advertised or in any way held himself out as ready to carry, farther than by this habit of receiving what was offered for carriage. Parker, J., said: "This does not show him to have exercised the business of carrying packages as a public employment, because his public employment was that of a driver of a stage-coach, in the employ of others. It does not show that he ever undertook to carry goods or money for persons generally, although he may, in fact, have taken all that was offered, as a

47. Middleton v. Fowler, 1 Salk. 282; Upshare v. Aidee, 1 Comyns, 25.

even, indeed, when no fare is shown to have been paid, the passenger being liable therefor if not paid.4

48

Sec. 70. (§ 61.) Proprietors of local land vehicles are common carriers. On the other hand, the proprietors of land vehicles which are not employed upon any regular line of transportation, but are used exclusively for the carriage of the goods of others for hire to places in the same town, city or neighborhood to which the owners of such goods may desire them to be conveyed, and who may be said to engage in a sort of jobbing business as carriers, such as drays, carts, express or delivery wagons, sleds and trucks, are according to a number of authorities in this country, strictly common carriers as to such goods.49 Thus city express companies, engaged in carrying the baggage of travelers from one depot to another, or to hotels, are, as to such baggage, common carriers, 50 and where the defendant, in the course of his employment, had undertaken to haul upon a sled, drawn by oxen, a hogshead of sugar from the river landing to the store of the plaintiffs, and the hogshead rolled from the sled into the river and was damaged, he was held liable as a common carrier. "Every one," said the court, "who pursues the business of transporting goods for hire for the public generally, is a common carrier. Draymen, cartmen and porters, who undertake to carry goods for hire as a common employment from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is im

48. McGill v. Rowand, 3 Barr, v. Pool's Assignee, 108 Ky. 124, 451; Hollister บ. Nowlen, 19 55 S. W. Rep. 887, 94 Am. St. Rep. Wend. 234; Cole v. Goodwin, id. 348, 49 L. R. A. 251. 251; Bomar v. Maxwell, 9 Humph. 621; Hawkins v. Hoffman, 6 Hill, 586; Brooke v. Pickwick, 4 Bing. 218.

49. Story on Bail. § 496; 2 Kent's Com. 598, n; Jackson, etc., Iron Works v. Hurlburt, 158 N. Y. 34, 52 N. E. Rep. 665, 70 Am. St. Rep. 432, affirming s. c. 36 N. Y. Supp. 808, 15 Misc. 93; Cayo

50. Richards V. Westcott, 2 Bosw. 589; Verner v. Sweitzer, 32 Penn. St. 208. Draymen, cartmen, etc., are. Robertson v. Kennedy, 2 Dana, 431; Powers บ. Davenport, 7 Blackf. 497; McHenry v. Railroad Co., 4 Harr. 448; Hebard v. Riegel, 67 Ill. App. 584, citing Hutchinson on Carr.

material. ''51 So where the defendant was a lighterman, who carried goods between wharves and ships for any person who chose to employ him, he was held liable as a common carrier.52 And where a drayman, whose occupation was such as to bring him within the definition of a common carrier, entered into a contract to carry certain goods to a point beyond the territorial limits within which his business was usually confined, it was held that his liability as a common carrier continued until the contract was performed; his liability in such a case being similar to that of a common carrier by railroad which had contracted to carry goods to a point beyond its own line.53 But where the defendant was engaged in the business of trucking goods from a railroad depot to different stores within a city, but for particular customers, and at a price in each case

51. Robertson v. Kennedy, 2 Dana, 430.

a common carrier. Of this case Judge Story remarks: "What substantial distinction is there in the case of parties who ply for hire in the carriage of goods for all persons indifferently, whether the goods are carried from one town to another, or from one place to another in the same town? Is there any substantial difference whether the parties have fixed termini of their business or not, if they hold themselves out as ready and willing to carry goods for any persons whatsoever, to or from any places in the same town or in different towns?" Story on Bail. § 496, n. But see what is said on this subject by Perley, J., in Moses v. The Railroad, 24 N. H. 71, who treats the question as doubtful, upon principle.

52. Ingate v. Christie, 3 Car. & Kir. 61. But in Brind v. Dale, 8 Car. & P. 207, it appeared that the defendant was the owner of a number of carts which were kept ready to be hired by any person who chose to employ them, either by the hour, day or job, defendant being what was called a town carman. One of these carts was employed by the plaintiff to carry certain packages a short distance. The cart was driven by the defendant, plaintiff agreeing to go along with it and keep watch upon the goods. At the end of the trip it was found that one of the packages was missing. Lord Abinger instructed the jury that, in his opinion, the defendant, who was sued for the lost package, was not, in performing the service of carriage under the circumstances, A. 383.

53. Farley v. Lavary, 107 Ky. 523, 54 S. W. Rep. 840, 47 L. R.

fixed by special contract, it was held that he was not a common carrier,54

Sec. 71. (§ 62.) Warehousemen, wharfingers and forwarders of freight, when common carriers.-Warehousemen, wharfingers and forwarders of freight, so long as they confine themselves to the business which their names import, cannot be held liable as common carriers. If goods are deposited with them merely as the initiatory step towards starting them in itinere, they having undertaken to do no more than to safely keep them and forward them when the opportunity offers, and being in no wise interested in their carriage after delivery to the carrier, it would be contrary to the well-settled principles of the law to hold them to the responsibilities of common carriers. And although a wharfinger may accept goods for the purpose of being transported, if the goods so accepted are those only of his own wharf customers, the goods of strangers not being received, he is not, as to such goods, a common carrier and cannot be held liable as such.55 But where warehousemen, wharfingers, or forwarders of freight combine the two characters, treating the deposit with them as being merely for the convenience of further carriage or to encourage or promote their business as common carriers, they will be held to a strict liability as such from the time of the delivery to them. In such cases the deposit is a mere accessory to the carriage, and for the purpose of facilitating it, and the liability as carrier begins with the receipt of the goods.56

54. Faucher v. Wilson, 68 N. H. 338, 38 Atl. Rep. 1002, 39 L. R. A. 431.

55. Chattock & Co. v. Bellamy & Co. (1895), 64 L. J. Q. B. 250. 56. Story on Bail. § 536; Forward v. Pittard, 1 T. R. 27; Schloss v. Wood, 11 Colo. 287. In this case the court cite this section with approval, and say: "Whether a person is a common carrier depends wholly upon

whether he holds himself out to the world as such, and he can hold himself out as a common carrier by engaging in the business generally, or by announcing or proclaiming it by cards, advertisements, or by any other means that would let the public know that he intended to be a common or general carrier for the public. Railway Co. v. Nichols, 9 Kans. 252, 253. Were the appellees act

Sec. 72. (§ 63.) Same subject-When liability begins. But if a person who is at the same time both a warehouseman and a forwarding merchant receive goods on deposit to be forwarded by his line according to the future orders of the owner, or if anything is still to be done by the owner to put them in readiness for shipment, he is not chargeable as a carrier, but merely as a warehouseman, until such orders are given or until they are put in condition for carriage; as where the goods are deposited without instructions as to their place of destination, either by marks or otherwise, or to await orders,57 or until the charges for the transportation are paid, if that is required by the carrier; or if anything remains to be done or any expense to be incurred to put them in a condition to bear transportation.58 And if the carrier should require the prepayment of freight charges as a condition to his assuming any obligation in respect to transporting the goods, and they are placed in cars standing on a spur track from which place it is necessary to move them to a freight depot to be weighed in order to compute the proper charges, the delivery of the goods for transportation will be treated as having been made at the freight depot, and the carrier's liability, until the goods are weighed and the charges paid, will be that of a warehouseman.59 If the warehouseman is also to be the carrier or is interested in the carriage, as soon as the orders are given to forward the goods, or other conditions performed

Eldridge, 100 Mass. 455; Murray v. Steamship Co., 170 Mass. 166, 48 N. E. Rep. 1093, 64 Am. St. Rep. 290; Railway v. Beard (Tex. Civ. App.), 78 S. W. Rep. 253; Schmidt v. Railway Co., 90 Wis. 504, 63 N. W. Rep. 1057. See also § 112.

58. Wade v. Wheeler, 3 Lans. 201.

59. Dixon v. Railway, 110 Ga. 173, 35 S. E. Rep. 369, citing Hutchinson on Carr.