Wabash Railway Company,18 the railway company, by virtue of a special contract, undertook to transport a circus and menagerie with all its horses, wild animals, tents and other paraphernalia, upon cars owned and specially fitted for the purpose by the circus proprietors, and which were loaded and regulated by the proprietors' employees. The contract expressly stipulated that the undertaking was not made by the company as a common carrier, and that the company should not be responsible for damages arising from want of care in running of cars or otherwise. The cars were made up into two trains, which collided and caused injury. In an action against the company it was urged that the undertaking was that of a common carrier and that the provisions for exemption from liability were therefore inoperative.

Said Campbell, J.: "Unless this undertaking was one en-. tered into by the defendant as a common carrier, there is very little room for controversy. The price was shown to be only ten per cent. of the rates charged for carriage, and the whole arrangement was peculiar. If it was not a contract of common carriage, we need not consider how far in that character contracts of exemption from liability may extend. In our view, it was in no sense a common carrier's contract, if it involved any principle.of the law of carriers at all.

The business of common carriage, while it prevents any right to refuse carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by the carrier and running on their own time. It is never the duty of a carrier, as such, to make up special trains on demand, or to drive such trains. made up entirely by other persons or by their cars. It is not important now to consider how far, except as to owners of goods in the cars forwarded, the reception of cars loaded or unloaded involves the responsibility of carriers as to the owners of the cars as such. The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws and not by the common law. But it is not incumbent on com

18. 56 Mich. 111.

panies in their duty as common carriers to move such cars except in their own routine. They are not obliged to accept and run them at all times and seasons and not in the ordinary course of business.”

Sec. 89. (§ 76.)

Owners of canal and ferry-boats may show that they are not common carriers. So, as we have seen,1 19 the owner of a canal-boat may show, when he is sued for the loss of the goods, that he is not a common carrier, but was employed as a private carrier for hire and that he is not therefore liable for the loss.20 And the ferry-man may show that his ferry was not intended or used for public accommodation, but merely for convenience of access to his mill, and that he received no compensation for the ferriage except in the increase of his business as a miller, which, though a benefit incidentally accruing, does not constitute hire for the service nor give rise to an obligation to pay for it.

Sec. 90. (§ 77.) No carrier required to carry every kind of goods. Innumerable kinds of goods may be intrusted to carriers; and no carrier can adapt his means of conveyance to every kind whion may be offered. No one is, therefore, to be understood to be engaged in the business universally, in this sense.21 The demands of commerce and business have in this, as in all other vocations, required a division of labor, and the character and particular nature of the business of the common carrier sometimes become of the greatest importance in deciding upon the question of his liability. The heaviest and bulkiest freights as well as the lightest parcels, from the product of the stone-quarry to the most delicate fabric of the factory, seek transportation by the common carrier; and the different degrees of care, labor and watchfulness, as well as the different modes of conveyance required for them, make it impossible for him to adapt his business to them all. And hence, it by no means follows, from the fact that the carrier is a common

19.

See ante, $ 65.

20. Fisk v. Clark, 49 N. Y. 122; Beckwith t. Frisbie, 32 Vt. 559.

21. See ante, § 59.

carrier, that he can be required to carry all kinds of goods. The word "goods," when used in defining his business, must be interpreted to mean such things as, from usage and cus. tom, his mode of conveyance, his public professions, the char acter of his particular trade or the manner of conducting it, he is to be fairly understood as holding himself out to the public as ready to carry for hire.

Sec. 91. ($ 78.) Same subject-Illustrations. A ferryman, whose ordinary employment is merely to carry passengers and their baggage across streams, would not be liable for the loss of money intrusted to his servants for carriage without his knowledge. And so of the owners of stage-coaches, whose business is limited to the transportation of passengers and their baggage; and of the owners of wagons, engaged as carriers of such goods as they are in the habit of carrying; or of steamboats, employed in the business of carrying passengers and merchandise; unless it be shown that the usage of such carriers has been to accept money or the like for carriage. "In all these cases the nature and extent of the employment or business which is authorized by the owners, on their own account and at their own risk, and which, either expressly or impliedly, they hold themselves out as undertaking, furnish the true limits of their rights, obligations, duties and liabilities. The question, therefore, in all cases of this sort, is, What are the true nature and extent of the employment and business in which the owners hold themselves out to the public as engaged?" 22

So a railroad company which does not undertake to carry dogs cannot be held liable as a common carrier to one whose dog was carried in violation of the rule and by virtue of a special agreement with the baggage-master.23 And a railroad company is not liable as a common carrier to a person whose

22. Per Story, J., in Citizens' where dogs are permitted to be Bank v. The Nantucket S. B. Co., carried as "baggageman's per2 Story, 33. quisites." Cantling v. Railroad Co., 54 Mo. 385.

23. Honeyman v. Railroad, 13 Oreg. 352. But company is liable

letter has been lost in the mail which the company had undertaken to carry by contract with the government.24

Sec. 92. (§79.) How when possession of goods not taken -Towing boats.-The goods must also be delivered into the actual custody of the carrier; and if they be of such a character that the service which he is employed to perform in respect to them does not require their actual possession and no such actual possession is taken, there is no such bailment as is necessary to make him a common carrier. Thus, the owners of a steamboat employed in the towing of other boats or vessels do not incur the responsibility of common carriers as to the tow. The exercise of reasonable care and skill in conducting the business of the towage to its destination is the extent of their obligation.25 "It is a misnomer," said Bronson, J., in Wells v. The Steam Navigation Company, 26 "to call the defendants common carriers, or carriers of any kind, in relation to the business of towing boats. Nor are they bailees of any description; for the property towed is not delivered to them, nor placed within their exclusive custody or control. It remains in the possession, and, for most purposes, in the exclusive care, of the owners or their servants. There is no bailment within any definition of that term to be found in the books. But, whether a bailment or not, it is clear that those who tow boats and vessels are not common carriers of the things towed. "27 But if the proprietor of a towboat, on cer

24. Central Railroad v. Lamp. numerous and uniform to the efley, 76 Ala. 357.

25. The Mayor, Aldermen and Burgesses of the Borough of Preston v. Biornstad et al., L. R. (1898) App. Cas. 513.

26. 2 Coms. 208.

27. The weight of authority is very decidedly in favor of the law as thus stated. There are, however, cases in which a different view is taken of the character of the towing vessel. In Pennsylvania and New York, the cases are

fect that towing vessels are not common carriers as to the tow, but incur only the responsibility of ordinary bailees for hire. Hayes v. Millar, 77 Penn. St. 238; Brown v. Clegg, 63 id. 51; Leonard v. Henrickson, 18 id. 40; Hayes v. Paul, 51 id. 134; Merrick v. Brainard, 38 Barb. 574; The Arctic Fire Ins. Co. v. Austin, 54 id. 559; Alexander v. Green, 3 Hill, 9; 7 id. 533; Caton v. Rumney, 13 Wend. 387; Wells v. Steam Nav.

Wabash Railway Company,18 the railway company, by virtue of a special contract, undertook to transport a circus and menagerie with all its horses, wild animals, tents and other paraphernalia, upon cars owned and specially fitted for the purpose by the circus proprietors, and which were loaded and regulated by the proprietors' employees. The contract expressly stipulated that the undertaking was not made by the company as a common carrier, and that the company should not be responsible for damages arising from want of care in. running of cars or otherwise. The cars were made up into two trains, which collided and caused injury. In an action against the company it was urged that the undertaking was that of a common carrier and that the provisions for exemption from liability were therefore inoperative.

Said Campbell, J.: "Unless this undertaking was one entered into by the defendant as a common carrier, there is very little room for controversy. The price was shown to be only ten per cent. of the rates charged for carriage, and the whole arrangement was peculiar. If it was not a contract of common carriage, we need not consider how far in that character contracts of exemption from liability may extend. In our view, it was in no sense a common carrier's contract, if it involved any principle.of the law of carriers at all.

The business of common carriage, while it prevents any right to refuse carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by the carrier and running on their own time. It is never the duty of a carrier, as such, to make up special trains on demand, or to drive such trains made up entirely by other persons or by their cars. It is not important now to consider how far, except as to owners of goods in the cars forwarded, the reception of cars loaded or unloaded involves the responsibility of carriers as to the owners of the cars as such. The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws and not by the common law. But it is not incumbent on com18. 56 Mich. 111.