« ForrigeFortsett »
their respective characters as common carriers and to the whole extent of inland carriers, except so far as they may be exempted by the exceptions in the contracts of charter party and bill of lading, or by statute. They are bound to indemnify, in cases in which they are liable as common carriers, according to the value at the place of destination where they contracted to deliver the goods.* There is no distinction between a land and a water carrier; and so it was declared by Lord Mansfield, and the other judges of the K. B., in the case of The Proprietors of the Trent Na»igation v. Wood ;b and the carrier is equally liable for the acts of his servants or agents and for his own. The maxim of respondet superior applies".0
The proprietors of a stage coach do not warrant the safety of passengers in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care.d Slight fault, unskilfulness, or negligence, either as to the competence of the carriage, or the act of driving
wharfinger; they are, like warehousemen, bound only to ordinary care. Supra, p. 591.
» Watkinson v. Laughton, 8 Johns. Rep. 164. Amory v. M'Gregor, 15 Ibid. 24. Oakey v. Russell, 18 Martin's Louis. Rep. 62. M'Gregor S. Kilgore, 6 Ohio Rep. 358. Sedgwick on Damages, p. 370.
t. 3 Esp. N. P. Rep. 127. 4 Douglas, 287, S. C.
< Cavenagh v. Such, 1 Price's Ezch. Rep. 328. Ellis S. Turner, 8 Term Rep. 531.
d Aston v. Heaven, 2 Esp. N. P. Rep. 533. Christie v. Griggs, 2 Campb. Rep. 79. Crofts v. Waterhouse, 3 Bing. Rep. 321. In Boice S. Anderson, 2 Peters' U. S. Rep. 150, it was decided, that the law regulating the responsibility of common carriers did not apply to the case of carrying human beings, such as negro slaves, unless the loss was occasioned by the negligence and unskilfulness of the carrier or his agents. It was decided in Talmago v. Zancsville & M. R. Co., II Ohio Rep. 197, that if a coach be upset by the negligence of the driver, an injured passenger may recover his damages from the proprietors. But the coach proprietors cannot recover an indemnity over against the R. R. Co. for their negligence in not keeping the road in repair. The proprietors in both cases were wrongdoers by their negligence, and the proprietor of the coach can. only recover his direct damages for the injury done to his coach by the bad road of the company.
it, may render the owner responsible in damages for an injury to *the passengers; they are to be *601 transported as safely as human foresight and care will permit.11 It was held also, by Lord Holt, that the owners were not answerable as carriers for the baggage of the passengers, unless a distinct price was paid for the baggage; and that it was not usual to charge for baggage, unless it exceeded a certain amount in weight or quantity.1" But the custody of the baggage is an accessary to the principal contract; and the modern doctrine and the tendency of the modern cases seem to be, to place coach proprietors, in respect to baggage, upon the ordinary footing of common carriers.0 Whenever the owner of the
» Wordsworth v. Willan, 5 Esp. N. P. Rep. 273. Mayhew v. Boyce, 1 Starkie's Rep. 323. Jones v. Boyce, Ibid. 493. Jackson v. Tollett, 2 Ibid. 37. Dudley v. Smith, 1 Campb. Rep. 167. Israel v. Clark &. Clinch, 4 Esp. N. P. Rep. 259. Sharp v. Grey, 9 Bing. Rep. 457. If a carriage be upset and a passenger injured, it is incumbent on the part of the owner to relieve himself from damages to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business, and that he acted on the occasion with reasonable skill, and with the utmost prudence and caution. Stokes v. Saltonstall, 13 Peters, 181. M'Kinney v. Neil, 1 M'Lean's Rep. 540. Peck v. Neill, U. S. C. C. Ohio, July, 1842. Manny v. Talmadge, 2 M'Lean's Rep. 157. This question as to the responsibility of the proprietors of stage coaches for accidents to passengers, was ably and learnedly discussed in the case of Ingalls v. Bills, 9 Metcalf's Rep. 1, and it was adjudged thai the proprietors were answerable for injuries to a passenger resulting from a defect in a coach which might have been discovered by the most careful and thorough examination, but not from injuries resulting from defects not so discoverable. This appears to be a reasonable and sound distinction. The case went further and held that the proprietors were liable for an injury to a passenger in leaping from the coach, provided it was an act under the circumstances of " reasonable precaution."
i, Middleton v. Fowler, 1 Salk. Rep. 282. Upshare v. Aidee, Comyn's Rep. 25.
» Brooke v. Pickwick, 4 Bing. Rep. 218. 1 Bell's Com. 475. Story's Com. 324, 325. Hollister v. Nowlen, 19 Wendell, 234. Hawkins v. Hoffman, 6 Hill N. Y. Rep. 586. In the case of the Orange County Bank v. Brown, 9 Wendell's Rep. 85, it was held, after a very full discussion, that a common carrier, as in the case of the owner of a steamboat, who carries passengers and their baggage, is responsible for the baggage, if lost, although no distinct price be paid for its transportation. But where tha coach becomes answerable as a carrier for the safety of the baggage, he is not discharged in consequence of any particular care over his baggage which the passenger rnay have voluntarily assumed.11 The responsibility of the proprietors of post coaches is now usually so limited, by means of special notice,b as probably to render this point quite unimportant. The coach, or steamboat or rail road car proprietor, is not at liberty to turn away passengers, if he has sufficient room and accommodation. He is bound to provide competent vehicles, suitably and safely equipped, and with careful and skilful persons to manage them.0 He is bound to give all reasonable faci
baggage consists of an ordinary travelling trunk, in which there is a large sum of money, exceeding an amount ordinarily carried for travelling expenses, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. So, if a trunk containing valuable merchandise, was deposited as baggage and lost, the carrier was held not liable. Pardee v. Drew, 25 Wendell, 459. Hawkins v. Hoffman, 6 Hill N. Y. Rep. 586, S. P. The act of congress of March 2, 1819, ah. 170, regulates the conveyance of passengers in American vessels from foreign countries to the United States, as to numbers and their subsistence. The substance of the English statute regulations respecting passengers, is given in Abbott on Shipping, 5th Am. edit. Boston, 1846, ch. 8. p. 282. An English statute of 8 & 9 Victoria, enables canal companies to become common carriers of goods.
* Chambre, J., in Robinson v. Dunmore, 2 Bos. <$- Pu22.416.
b Clarke v. Grey, 6 East's Rep. 564. But in Hollister v. Nowlen, («A. sap.) Cole v. Goodwin, 19 Wendell, 251, and Camden Rail-road Company v. Belknap, 21 Ib. 354, it was held, that a carrier could not restrict his common law liability by a general notice that the baggage of passengers was at the risk of the owners, even though that notice be brought home to the knowledge of the owner. The restriction can only be by express contract.
= Bretherton v. Wood, 3 Brod. $ Bing. Rep. 54. Israel v. Clark i. Clinch, 4 Esp. N. P. Rep. 259. Aston v. Heaven, 2 Ibid. 533. Crofts v. Waterhouse, 3 Bing. Rep. 319. Christie v. Griggs, 2 Campb. N. P. Rep. 79. Jackson v. Tollett, 2 Starkie's Rep. 37. 1 Bell's Com. 462. Jencks v. Coleman, 2 Sumner's Rep. 221. 224. Sharp v. Grey, 9 Bingham, 457. Ansell v. Waterhouse, 2 Chitty's Rep. 1. Mersiter v. Cooper, 4 Esp. Rep. 260. 1 Bell's Com. 462. Story on Bailments, 375, 2d edit. In the case of Jencks v. Coleman, it was held, that the proprietor was not bound to receive passengers who would not comply with the reasonable regulations lities for the reception and comfort of the passengers, and to use all precautions, *as far as human *602 care and foresight will go, for their safety on the road. He is answerable for the smallest negligence in himself or his servants.*
The books abound with strong cases of recovery against common carriers, without any fault on their part and we cannot but admire the steady and firm support which the English courts of justice have uniformly and inflexibly given to the salutary rules of law on this subject, without bending to popular sympathies, or yielding to the hardships of a particular case. In Morse v. Slue,1 1 armed persons had entered on board the vessel, in the night time, in the river Thames, under pretence of impressing seamen, and plundered the vessel; and in Forward v. Pittard,0 the common carrier lost a parcel of hops by a fire, which, in the night, originated within one hundred yards of the place where he had deposited the hops, and raging with irresistible violence, reached and destroyed them. The loss in both those cases was by inevitable misfortune, without the least shadow of neglect or fault imputable to the carrier; and yet Sir Matthew Hale, in the one case, and Lord Mansfield in the other, delivered the unanimous opinion of the K. B. in favour of a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation, in succeeding generations. The rule makes the common carrier in the nature of an insurer, and answerable for every loss not to be attributed to the
of the boat or vehicle, or were guilty of gross and vulgar habits of conduct, or who were disorderly, or whose characters were unequivocally bad, or whose object was clearly for hostile or injurious purposes. Story on Bailments, 375, 2d edit.
» Aston v. Heaven, 2 Esp. N. P. Rep. 533. Christie v. Griggs, 2 Campb. N. P. Rep. 79. Story's Comm. 379. Stokes v. Saltonstall, 13 Peters' Rep. 181. 192.
b Supra, p. 599.
« 1 Term Rep. 27.
act of God, or public enemies. According to Lord Holt, it was "a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliged them to trust these sorts of persons;" and it was introduced to prevent the necessity of going into circumstances impossible to be unravelled. The
law presumed against the public carrier, unless he *603 could show it was done *by public enemies, or
such acts as could not happen by the intervention of man, as lightning and tempests. If it were not for such a rule, the carrier might contrive, by means not to be detected, to be robbed of his goods in order to share the spoil.» Sheriffs and gaolers, in respect to debtors in custody, have been placed under the same responsibility as common carriers. »
The common carrier is responsible for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance.0 But the rule is
» Jones on Bailment, 79—85. Lord Holt, in Coggs v. Bernard, 2 Ld Raym. 909. Barclay v. Hygena, cited in I Term Rep. 33. Trent Navigation Co. v. Wood, 3 Esp. N. P. Rep. 127. Hyde S. Trent and Mereey Navigation Co, 5 Term Rep. 389. If a vessel be lost by means of the shifting of a buoy in the channel, the common carrier is still responsible. It was not an unavoidable peril. Reaves v. Waterman, 2 Speer's S. C. Rep. 197.
'Elliott v. Duke of Norfolk, 4 Term Rep. 789. Alsept v. Eylee, 2 H. Blacks. Rep. 108. Green v. Hern, 2 Penn. Rep. by P. 4> W. 167. Ch. J. Gibson, in this last case, vindicates with great force the stern policy of the rule of the common law, in its application to sheriffs and gaolers. The Code Napoleon, and the Cieil Code of Louisiana, have declared, in the same words, that carriers and watermen were subject to the like obligations and duties as lavcrnkeepers, and that they were responsible for goods entrusted to them, against loss and damage by theft or otherwise, unless they could show that the loss proceeded from force majenre, or uncontrollable events. Code Napoleon, art. 1929. 1953, 1954. 1782, 1784. Cieil Code of Louisiana, art. 2722. 2725. 2910. 2939.
• Titchburne v. White, 1 Str. Rep. 145. Phillips v. Earle. 8 Pick. Rep. 182. Malpica v. M'Kown, 1 Miller's Louis. Rep. 248. The latter ease speaks of the principle as doubtful; but concludes it to be the better opinion