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like of a waterman or Gravesend boat, which carries both men and goods."

So in the leading case of Dwight v. Brewster,5 the defendants, who were the proprietors of a satge-coach, contended that they were not liable as common carriers, their business being the conveyance of passengers and their luggage; that the taking small packages was an affair of the drivers, who received the compensation, and who were answerable for negligence only, and that the proprietors were not responsible, though it appeared that less wages were paid to the drivers, in consequence of the opportunity they had of earning small sums of money in this way; whereas large packages were usually entered on the waybill, and the proprietors received the compensation for the transportation. The court, however, held them liable as common. carriers of goods. Chief Justice Parker said: "On the second count, which charges the defendants as common carriers, we think the facts proved are sufficient to constitute them such. Packages were usually taken in the stage-coach for transportation; large packages were entered in the book kept for the proprietors, and compensation taken for their use. That the principal business was to carry the mail and passengers is no reason why the proprietors should not be common carriers of merchandise, etc. A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him from place to place. This may be carried on at the same time with other business. The instruction of the judge in this particular, that the practice of taking parcels for hire, to be conveyed in the stage-coach, constituted the defendants common carriers, we think was right."

51 Pick. (Mass.) 50, 11 Am. Dec. 133 (1822).

6 Delaware.-McHenry v. Phil., W. & B. R. Co., 4 Harr. (Del.) 448 (1846).

Iowa. Frinke v. Coe, 4 G. Greene, 555 (1854); Sales v. Western Stage Co., 4 Iowa, 547 (1857).

Massachusetts.—Dwight v. Brewster, 1 Pick. 501 (1822).

New Hampshire.-Bennett v. Dutton, 10 N. H. 481, B. & W. 105 (1839).

$187. Hackmen.

The necessity of regulating the business of hackmen upon the principles of public service law has been apparent for centuries. Unless there is positive law requiring that all be served for reasonable rates there will be in this business oppression and extortion. The necessity of such regulation is sufficient proof of its propriety. At times those that are hindered by the enforcement of these rules complain that they are unreasonable. In Atlantic City v. Fansler, for instance, it was contended that the ordinance of the city that required every hackman to take anyone who applied at the established rates unless the sign "engaged " was displayed in good faith was unjustifiable.

But Mr. Justice Garretson said, upon certiorari to dispose of a conviction under this ordinance: "We are unable to see that any of the regulations imposed by this ordinance are unreasonable. There is nothing unreasonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public street, to carry all persons applying to him for passage and legally tendering the fare, as common carriers are required to do; and a further regulation, such as is made in this ordinance, which provides for a convenient notification to intending passengers that the vehicle is already in actual use, which provision seems to be as well for the convenience of the driver, has nothing unreasonable in it.'

188. Street railways.

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A street railway company is obviously a common carrier of passengers. But, like a stage-coach, a street railway car may be

New York.-Hollister v. Nowlen, 19 Wend. 234 (1838); Cole v. Goodwin, 19 Wend. 251 (1838); Blanchard v. Isaacs, 3 Barb. 388 (1848). Pennsylvania.-Beckman v. Shouse, 5 Rawle, 179 (1835).

South Carolina.-Peixotti v. McLaughlin, 1 Strob. 468 (1847).
Tennessee.-Walker v. Skipwith, Meigs, 502 (1822).
England.-Butler v. Basing, 2 Car. & P. 613 (1827).
7(N. J.) 56 Atl. 119 (1903).

8 Bonce v. Dubuque, etc., Co., 53 Iowa, 278 (1880).

used for the transportation of goods as well as of passengers. This is now commonly true of the long inter-urban lines; but it may equally be true of the ordinary street railways, which are primarily intended merely for carrying passengers through the streets of a city. Thus in the case of Levi v. Lynn & Boston Railroad it appeared to be the custom of the street railway to carry small parcels for hire on the front platform. The court held that this evidence was sufficient to warrant the jury in finding that the railway was a common carrier.

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The cases which establish that the street railways are common carriers are again innumerable. And it is established beyond all question that they must serve all that apply with adequate facilities for reasonable compensation without discrimination. A few well-considered cases are subjoined.10

$189. Passenger elevators.

A passenger elevator is plainly not a common carrier, as it does not purport to carry all who apply for transportation at a reasonable rate. But in maintaining and operating, an elevator for passengers, the owner is, according to the majority of the under a duty to exercise the same measure of care as is re

cases,

9 11 Allen (Mass.), 300, 87 Am. Dec. 713, B. & W. 11 (1865).

10 United States.-Van der Venter v. Chicago City R. Co., 26 Fed. 32 (1885); Milwaukee Electric Ry. v. Milwaukee, 87 Fed. 577, B. & W. 336 (1898).

Alabama.-Mobile St. Ry. v. Walters, 135 Ala. 227, 33 So. 42 (1902). California.-Barrett v. Market St. Ry., 81 Cal. 296, 22 Pac. 859 (1889). Indiana.-Citizens' Ry. Co. v. Twiname, 111 Ind. 587 (1887). Illinois.-Dean v. Chicago General R. Co., 64 Ill. App. 165 (1896). Massachusetts.-Levi v. Lynn & Boston R. R. Co., 11 Allen, 300, B. & W. 11 (1865).

Nebraska. Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 20 L. R. A. 316, 55 N. W. 270, 38 Am. St. Rep. 753 (1893); Pray v. Omaha St. R. Co., 44 Neb. 167, 62 N. W. 447, 48 Am. St. Rep. 717 (1895); East Omaha St. R. Co. v. Godola, 50 Neb. 906, 70 N. W. 491 (1897); Lincoln F. Co. v. Heller, 100 N. W. 197 (1904).

New York.-Barker v. Central Pk. N. & E. Ry., 151 N. Y. 237, 45 N. E. 550, 56 Am. St. Rep. 626, 35 L. R.. A. 489 (1896).

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quired of a public carrier of passengers, the highest degree of care which human foresight can suggest.11 But certain cases refuse to go to this extent, holding that as the owner of the elevator is not engaged in a public calling, there is no occasion for imposing the extraordinary liability. Few courts, indeed, regard the owner of the elevator as a common carrier for all purposes in the sense that he is engaged in a public calling and obliged to serve all without discrimination. In the matter of exercising care his position is analogous to that of the common carrier of passengers, but beyond this the analogy ceases. The extraordinary liability of the carrier of passengers does not arise out of the nature of the calling, but rather out of the high regard for human life. Due care is care commensurate with the circumstances. One of the determining circumstances is that human life and safety are involved, and when such is the case, more diligence and circumspection is exacted than in other situations.

$190. Pleasure railways.

There are certain enterprises whereby people are moved about, like "merry-go-rounds," ""scenic railways," "shootingthe-chutes," ""ferris wheels," and the like, which are obviously not common carriers, however willing their proprietors may be

11 Marker v. Mitchell, 54 Fed. 637 (1893), affirmed in 62 Fed. 139, 10 C. C. A. 306, 22 U. S. App. 325 (1894); Treadwell v. Taylor, 80 Calif. 574, 5 L. R. A. 498, 13 Am. St. Rep. 175 (1889); Goodsell v. Taylor, 41 Minn. 207, 4 L. R. A. 673, 16 Am. St. Rep. 700 (1889); Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 N. E. 178, 64 Am. St. Rep. 35 (1898); Edwards v. Burke, 78 Pac. (Wash.) 610 (1904); Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010 (1895); Southern, etc., Assn. v. Lawson, 97 Tenn. 367, 37 S. W. 86, 56 Am. St. Rep. 804 (1896); Wise v. Ackerman, 76 Md. 375 (1896); Lee v. Knapp, 55 Mo. App. 391 (1893), (reasonable or ordinary care).

12 The following cases point out that the passenger elevators are really not common carriers. Sevier v. Bradley, 179 Mass. 329, 60 N. E. 395 (1901); Griffin v. Manice, 166 N. Y. 188, 59 N. E. 925 (1901); Edwards v. Manufacturers' Building Co. (R. I.), 61 Atl. 646 (1905).

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to take all that will pay. This point is well discussed in a New York case13 involving the propriety of granting eminent domain for the Niagara Gorge trolley line, where Mr. Justice Andrews said, in part: "Whatever rule, founded on the adjudged cases, may be formulated on this subject, it cannot, we think, be framed so as to include the present case. The fact that the road of the petitioner may enable the portion of the public who visit Niagara Falls more easily or more fully to gratify their curiosity, or that the road will be public in the sense that all who desire will be entitled to be carried upon it, is not sufficient, we think, in view of the other necessary limitations, to make the enterprise a public one so as to justify condemnation proceedings. The case does not, we think, differ in principle from an attempt on the part of a private corporation, under color of an Act of the Legislature, to condemn lands for an inclined railway, or for a circular railway, or for an observatory, to promote the enjoyment or convenience of those who may visit the Falls."

13 Matter of the Niagara Falls & W. Railway, 108 N. Y. 375, 15 N. E. 429.

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