The fact that the road is not yet fully completed and formally opened for business will not relieve the company, where it has actually undertaken to carry in the usual way.72 And a private individual operating the road is a common carrier, the same as a corporation would be.73 But, as has been seen, a railroad company is not liable as a common carrier where, by special agreement, it undertakes to carry something which it is not its business to carry,74 or where it departs from the usual method of doing business.75 Sec. 77. (§ 67a.) Railroad receivers, trustees, etc., are common carriers. So where the railroad has passed out of the control of the company and has come under the custody and management of some official representative, as a receiver, or a trustee for bondholders, who operates and controls it, such receiver or trustee77 is liable as a common carrier. Sec. 78. (§ 67b.) Street railways are common carriers.— Street railways are common carriers of passengers. 78 They are also chargeable as common carriers of goods and merchandise where they have also assumed the business of transporting goods for hire.79 Sec. 79. ($67c.) Sleeping and parlor-car companies not common carriers.-As will be seen in later sections, sleeping 77. Faulkner v. Hart, 44 N. Y. Superior Ct. 471; Sprague V. Smith, 29 Vt. 421; Rogers v. Wheeler, 2 Lans. 486; 43 N. Y. 598. 78. Citizens Ry. Co. V. Twiname, 111 Ind. 587; Spellman v. Transit Co., 36 Neb. 890, 55 N. W. Rep. 270, 38 Am. St. Rep. 753, 20 L. R. A. 316; Pray v. Railroad Co., 44 Neb. 167, 62 N. W. Rep. 447, 48 Am. St. Rep. 717; Railway Co. v. Godola, 50 Neb. 906, 70 N. W. Rep. 491. 79. Levi v. Railroad Co., 11 Allen, 300. and parlor-car companies are not liable as common carriers or as inn-keepers.so For the purpose, however, of the Interstate Commerce Act, as amended June 29, 1906, sleeping and parlor-car companies are defined as common carriers. Sec. 80. (§ 68.) Express companies are common carriers.— With equal unanimity, it has been held that express companies are common carriers of such goods and parcels as they, in their line of business, undertake to carry. "There are considerations," said the court in Stadhecker v. Combs,81 justifying a strict application of the law of common carriers to express companies. They profess to employ trusty agents, who are charged with the safe custody and speedy transit and delivery of all packages put in their charge. The effect of these inducements is in some measure to supersede the forwarding merchant, and to limit the liability of railroad and steamboat companies, who may be as faithful, and are certainly as responsible, agents. If they shall, by the promise of decided advantages over the usual modes of transportation, secure most of the business generally intrusted to common carriers, the public is concerned that they should be held to a rigid fulfillment of the promise. They cannot attain a greater speed than the railroad or steamboat which conveys them, and there is no proof that they are, in other respects, more trustworthy. The only advantage which in truth they can offer is the safer custody and more certain delivery of goods to the consignee without storage. These temptations may induce the public to employ them at an increased rate, and they have no reason to complain of an exact application of the rule of law which enforces the responsibility which they voluntarily assume. We should be regardless of the great interests daily committed by the public to the express companies, with a confidence induced by their tempting offers, if their liability for the safe carriage and delivery is not rigorously enforced."82 80. See post, § 1130, et seq. 9 Rich. (L. R.) 193. 81. 82. And see to the same effect, Southern Express Co. v. Crook, 44 Sec. 81. (69.) Same subject-Peculiarities of their business.-Express companies, however, conduct their business in a manner somewhat different from that pursued by other carriers. Instead of providing their own conveyances, they, except for the purpose of local delivery, employ the conveyances of other carriers, such as steamboats and railroads, for the carriage of their freight, and, when they employ the agency of railways in their traffic, they forward their parcels, not by the ordinary freight trains of such roads, but by those used for more expeditious transit, which constitutes one of the principal advantages offered by them. Expedition, promptness, and the greater security they are thought to afford, from the fact that the goods intrusted to them are supposed to be under the watchful care and direct supervision of their agents from the moment of their reception until their final delivery, are the great inducements to their employment. They are, moreover, as we shall hereafter see, bound to a personal delivery of the goods intrusted to them for carriage, a requirement which is not now exacted of any of the other principal carriers of goods. Sec. 82. ($ 70.) Same subject-Attempts to secure exemption. Because of this peculiarity in the employment of the means of conveyance afforded by others, the contention has been made by these companies that they were not common carriers, but transacted their business in the character of for Ala. 468; Gulliver v. The Adams Ex. Co., 38 Ill. 503; Southern Ex. Co. v. Newby, 36 Ga. 635; Southern Ex. Co. v. Womack, 1 Heisk. 256; U. S. Ex. Co. v. Backman, 28 Ohio St. 144; Grogan v. Adams Ex. Co., 114 Pa. St. 523; Southern Ex. Co. v. Glenn, 16 Lea, 472; Bardwell v. American Ex. Co., 35 Minn. 344; Bennett v. Northern Ex. Co., 12 Ore. 49; Overland Ex. Co. v. Carroll, 7 Col. 43; Mather v. American Ex. Co., 138 Mass. 55; Pacific Ex. Co. v. Darnell, 62 Tex. 639; Galt v. Adams Ex. Co., 4 MacA. 124; Bernstine v. Union Ex. Co., 40 Ohio St. 451; Wells v. American Ex. Co., 55 Wis. 23; United States v. Pacific Ex. Co., 15 Fed. Rep. 867; United States Ex. Co. v. Root, 47 Mich. 231; Adams Ex. Co. v. McConnell, 27 Kans. 238; Hadd v. United States Ex. Co., 52 Vt. 335; Southern Ex. Co. v. Van Meter, 17 Fla. 783; Boscowitz v. Adams Ex. Co., 93 Ill. 523; American Ex. Co. v. Smith, 33 Ohio St. 511. warders and were not therefore liable for losses occurring from the negligence of those whom they thus employed. But this claim to exemption from the ordinary liabilities of common carriers has not been sustained by the courts. These subsidiary means of transportation are held to be the mere agencies employed by such companies, for whose acts they are strictly responsible; and the carrier whose vehicle is thus used be 1. This argument was thus disposed of in Buckland v. The Adams Ex. Co., 97 Mass. 124: "The name or style under which they assume to carry is wholly immaterial. The real nature of their occupation and of the legal duties and obligations which it imposes on them is to be ascertained from a consideration of the kind of service which they hold themselves out to the public as ready to render to those who may have occasion to employ them. Upon this point there is no room for doubt. They exercise the employment of receiving, carrying and delivering goods, wares and merchandise for hire on behalf of all persons who may see fit to require their services. this capacity they take property from the custody of the owner, assume entire control of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. . . In "But it is urged on behalf of the defendants that they ought not to be held to the strict liability of a common carrier, for the reason that the contract of carriage is essentially modified by the peculiar mode in which defendants undertake the perform ance of the service. The main ground on which this argument rests is that persons exercising the employment of express carriers or messengers over railroads and by steamboats cannot, from the very nature of the case, exercise any care or control over the means of transportation which they are obliged to adopt; that the carriages and boats in which the merchandise intrusted to them is placed, and the agents or servants by whom they are selected, are not managed by them nor subject to their direction or supervision; and that the rules of the common law regulating the duties and liabilities of carriers, having been adapted to a different mode of conducting business, by which the carrier was enabled to select his own servants and vehicles and to exercise a personal care and oversight over them, are wholly inapplicable to a contract of carriage by which it is understood between the parties that the service is to be performed in part, at least, by means of agencies over which the carrier can exercise no management or control whatever. But this argument, though specious, is unsound. Its fallacy consists in the assumption that, at common law, in the absence of express stipulation, the contract with an owner or consignor of goods delivered to a carrier for transportation necessarily But implies that they are to be carried by the party with whom the contract is made, or by the servants or agents under his immediate direction and control. such is not the undertaking of the carrier. The essence of the contract is that the goods are to be carried to their destination, unless the fulfillment of this undertaking is prevented by the act of God or the public enemy. This, indeed, is the whole contract, whether the goods are to be carried by land or water, by the carrier himself or by agents employed by him. The contract does not imply a personal trust which can be executed only by the contracting party himself, or under his supervision by agents and means of transportation directly and absolutely within his control. Long before the discovery of steam power, a carrier who undertook to convey merchandise from one point to another was authorized to perform the service through agents exercising an independent employment, which they carried on by the use of their own vehicles and under the exclusive care of their own servants. It certainly never was supposed that a person who agreed to carry goods from one place to another, by means of wagons or stages, could escape liability for the safe carriage of the property over any part of the designated route by showing that the loss had happened at a time when the goods were placed by him in vehicles which he did not own, or which were under the charge of agents whom he did not select or control. The truth is that the particular mode or agency by which the serv ice is to be performed does not enter into the contract of carriage with the owner or consignor." The same question was involved and settled in the same way in the case of The Bank of Kentucky v. The Adams Express Co., 3 Otto (93 U. S. R.), 174. In this case, however, the question was decided the other way in the circuit court by Ballard, J. (Cen. Law Journal 1874, p. 436). But his judgment was reversed on error. So in Hersfield v. Adams, 19 Barb. 577, this argument for the express carrier prevailed with the court, and it was held that, having no vehicles of his own by which the transportation could be effected, and this being known to the sender of the goods, the employment of the means of other carriers relieved the carrier who had undertaken the forwarding of the goods from responsibility as a common carrier to their owner. But this is inconsistent with the holding of the same court in Russell v. Livingston, 19 Barb. 346, and was rightly denied to be the law in Place v. The Union Express Co., 2 Hilton, 27. And see U. S. Express Co. v. Backman, supra; Transportation Co. v. Bloch, 86 Tenn. 392. An express company, undertak ing to carry live stock in cars furnished by it, and which employs a railroad company for the purpose of transporting the cars, becomes responsible for the negligence of the subsidiary agencies employed. American Express Co. v. Ogles (Tex. Civ. App.), 81 S. W. Rep. 1023, citing Hutchinson on Carr. |