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on the case for non-delivery of goods, the terminus a quo is not material.1
§ 210. Proof that defendant is common carrier proves contract. If the defendant is alleged and proved to be a common carrier, the law itself supplies the proof of the contract, so far as regards the extent or degree of his liability. But if he is not a common carrier, the terms of his undertaking must be proved by the plaintiff. And in either case, where there is an express contract, that alone must be relied on, and no other can be implied. If it appears that the goods were delivered by the owner to one common carrier, and that he, without the owner's knowledge or authority, delivered them over to another, to be carried, this evidence will support an action brought directly against the latter, with whom the contract will be deemed to have been made through the agency of the former, ratified by bringing the action. (a)
1 Woodward v. Booth, 7 B. & C. 301.
8 Sanderson v. Lamberton, 6 Binn. 129. The declaration against a common carrier is as follows: “For that whereas the said (defendant), on - was a common carrier of goods and chattels for hire, from to -; and being such carrier, the plaintiff then, at the request of the said (defendant), caused to be delivered to him certain goods of the plaintiff, to wit (here describe them), of the value of — to be taken care of and safely and securely conveyed by the said (defendant), as such carrier, from said to said there to be safely and securely delivered by said (defendant) to the plaintiff
the case is so), for a certain reward to be paid to the said (defendant); in consideration whereof the said (defendant), as such carrier, then received said goods accordingly, and became bound by law, and undertook and promised the plaintiff to take care of said goods, and safely and securely to carry and convey the same from said
and there to deliver the same safely and securely to the plaintiff (or, to -), as aforesaid. Yet the said (defendant), did not take care of said goods, nor safely and securely carry and convey and deliver the same as aforesaid; but, on the contrary, the said (defendant) so negligently conducted and so misbehaved in regard to said goods in his said calling of common carrier, that by reason thereof the said goods became and were wholly lost to the plaintiff.”
Against a private carrier, charged with the loss of goods by negligence, the declaration in assumpsit is as follows:
" For that on -, in consideration that the plaintiff, at the request of the said (defendant), had delivered to him certain goods and chattels, to wit [here describe them), of the value of to be safely conveyed by him from to
for a certain reward to be paid to the said (defendant), he the said (defendant) promised the plaintiff to take good care of said goods, while he had charge of the same, and with due care to convey the same from to aforesaid, and there safely to deliver the same to the plaintiff (or, to as the case may be). Yet the said (defendant) did not take due care of said goods while he had charge of the same as aforesaid, nor did he
(a) The English cases hold that the v. Collins, 7 H. L. 194. Scothorn v. S. shipper of goods can sue only that carrier Staffordshire R. Co., 8 Ex. 341; Crouch with whom he makes the contract and to v. Great Western R. Co., 2 H. & N. 491; whom he delivers the goods, on the ground Lawson, Carriers, p. 351
et seq. But cf. that there is a want of privity of contract Hall v. N. E. R. Co., L. R. 10 Q. B. 437. between the shipper and any connecting In the United States, however, the rule company. Coxon v. Great Western R. Co., is different. It has been held that a rail5 H. & N. 274; Bristol & Exeter R. R. Co. road company receiving goods for transpor
$ 211. Who is common carrier. The defendant is proved to be a common carrier, by evidence that he undertakes to carry for per
with due care convey and deliver the same as aforesaid; but on the contrary, so carelessly and improperly conducted in regard to said goods, that by reason thereof they became and were wholly lost to the plaintiff.”
In England, it has been held that when a railway company takes into its care a parcel directed to a particular place, and does not by a positive agreement limit its liability to a part only of the distance, it is prima facie evidence of an undertaking to carry the parcel to the place to which it is directed, although that place be beyond the limits within which the company, in general, professes to carry on its business as a carrier. Muschamp v. Lancaster & P. J. Railway, 8 M. & W. 421. This decision was followed in Watson v. Ambergate, N. & B. Railway, 3 Eng. Law & Eq. 497. See also Scothorn v. S. Staffordshire R. Co., 18 Id. 553. But see cases in 1 Gray, 6 Hill, 18 Vt., and 22 Conn., supra.
Where it is the general custom of a carrier to forward by sailing-vessels all goods destined for points beyond the end of his line, he is not liable for not forwarding a particular article by a steam-vessel, unless the direction to do so is clear and unambiguous. Simkins v. Norwich, &c. Steamboat Co. 11 Cush. 102.
A railroad company, as a common carrier of merchandise, is responsible as a common carrier, until the goods are removed from the cars at the place of delivery, and placed on the platform. If for any reason they cannot then be delivered, or if, for any reason, the consignee is not there ready to receive them, it is the duty of the company to store them and preserve them safely under the charge of competent and faithful servants, ready to be delivered, and actually to deliver them, when duly called for by the parties authorized to receive them. For the performance of these duties, after the goods are delivered from the cars, the company is liable as a warehouseman, or as a keeper of goods for hire. Thomas v. Boston & Prov. R. R., 10 Met. 472; Norway Plains Co. v. Boston & M. R. R., 1 Gray, 263; Gibson v. Culver, 17 Wend. 305; Miller 7. Steam, &c. Co., 13 Barb. 361. See also Garside v. Trent & Mers. Nav., 4 T. R. 581; Hyde v. Same, 5 Id. 389; Webb's Case, 8 Taunt. 443. (a)
(a) As to the termination of a carrier's Liv., N. Y., & Phila. St. Co., 46 N. Y. responsibility as insurer, the cases differ, 578; Moses v. B. & M. R. R. Co., 32 some holding, as above, that the removal N. H. 523 ; Winslow v. Vt. & Mass. of the goods from the car or landing-place, R. R. Co., 42 Vt. 700; Graves v. Hart. at their destination, discharges him from & N. Y. St. Co., 38 Conn. 143. Custom responsibility as a carrier, and changes may modify the liability. McMaster v. his liability to that of a warehouseman. Pa. R. R. Čo., 69 Penn. St. 374. Where Shepherd v. Bristol & Ex. R. R. Co., L. R. the carrier is to deliver to a connecting 3 Exch. 189; Bryan v. Paducah R. R. Co., line, his responsibility as carrier holds till 11 Bush (Ky.), 597 ; Shenk v. Phila. St. the delivery; and a provision in the charProp., 60 Penn. St. 109. See also 2 Am. ter, limiting their liability to that of wareLaw Rev. 426. And this without notice housemen, after deposit in their warehouse, to the consignees. Norway Plains Co. v. was held to refer only to goods which Boston & M. R. R., 1 Gray (Mass.), 263. had reached their destination. Mich. Cen. But see Michigan Cent. Ř. R. v. Ward, R. R. v. Min. Spr. Manuf. Co., 16 Wall. 2 Mich. 538; Goold v. Chapin, 10 Barb. (U. S.) 318. If the delivery is to be “on (N. Y.) 612; 13 Id. 361. Others, how- board,” the carrier is liable as carrier if ever, hold that the carrier's liability con- the goods are burnt in his warehouses betinues till the consignee has notice and a fore delivered on board. Moore v. Michi. reasonable time to remove.
Redmond v. gan Cent. R. R., 3 Mich. 23.
tation to a place situated beyond the line time, to the other railroad. Nutting v. of its own road on another road which Conn. River R. R., 1 Gray (Mass.), 502. connects with its own, (with which it has See also Van Santvoord v. Št. John, 6 Hill no connection in business) but taking pay (N. Y.), 157, reversing the decision of for the transportation over its own road the Supreme Court in St. John v. Van only, is not liable, in the absence of any Santvoord, 25 Wend. 660, and explainspecial contract, for the loss of the goods ing Weed v. Saratoga & S. R. R., 19 after their delivery, within a reasonable Wend. 534; Hood v. New York & N. H.
sons generally, exercising it as a public employment, and holding himself out as ready to engage in the transportation of money or goods for hire, as a business, and not as a casual occupation." (a)
1 Story on Bailm. 495.
R. R. Co., 22 Conn. 1; Elmore v. Nauga- H. & N. 987; Van Buskirk v. Roberts, 31 tuck R. Ř. Co., 23 Id. 457; Farmers' & N. Y. 661. The company which loses Mech. Bank v. Champlain Transportation baggage checked through is liable for the ('0., 16 Vt. 52, 18 ld. 140, 23 Id. 209, loss of the baggage. C., H., &c. R. R. Co. 214, and note by Redfield, J. The gene- v. Fahey, 52 III. 81. And so also is the ral rule in the United States is in accord company which issues the check. Burwith these decisions, and is that when a rell v. N. Y. Cen. R. R. Co., 45 N. Y. carrier receives goods marked for a par. 184. ticular destination, beyond the route for If an arrangement is made between seywhich he professes to carry, and beyond eralconnecting railroad companies, by which the terminus of his road, he is only bound goods to be carried over the whole route shall to transport and deliver them to the next be delivered by each to the next succeeding carrier according to the established usage company, and such company so receiving of his business, and is not liable for losses them shall pay to its predecessor the beyond his own line. Clyde v. Hubbard, amount already due for the carriage, and 88 Pa. St. 358; Detroit, &c. R. Co. v. Mc- the last one collect the whole from the Kenzie, 43 Mich. 609; McCarthy v. Terre consignee, a reception of such goods by Haute, &c. R. Co., 9 Mo. Ap. 159; Railroad the last company, and a payment by it of Co. v. Pratt, 22 Wall. (U. Š.) 123; Stewart the charge of its predecessors, will not v. Terre Haute, &c. R. Co., 1 McCr. C. Ct. render it liable for an injury done to the 312; Camden, &c. R. R. v. Forsyth, 61 Pa. goods before it received them. Darling 0. St. 81; Packard v. Taylor, 35 Ark. 402; B. & W. R. R. Co., 11 Allen (Mass.), 295. Burroughs v. Norwich, &c. R. Co., 100 (a) Fuller v. Bradley, 25 Penn. St. 120; Mass. 26; Converse v. Norwich R. Co., 33 Russell v. Livingston, 19 Barb. (N. Y.) 346. Conn. 166; Lawson, Carriers, p. 351 et seq. In an action against a street-railway cor.
In some states, however, he is held liable poration to recover for the loss of a box for any loss whether on his line or on a of merchandise delivered to them to be connecting line. Mobile v. Girard R. Co., carried for hire on the front platform of 63 Ala. 219; Erie R. Co. v. Wilcox, 84 III. one of their cars, the plaintiff, for the pur239; Illinois, &c. R.R. Co. v. Frankenborg, pose of showing them to be common car54 IIl. 88; Mulligan v. Illinois, &c.R.R. Co., riers of goods, may prove that other persons 36 Iowa, 181; Cutts v. Brainerd, 42 Vt. 566. had paid money to their conductors, with But if there is evidence in the contract or the knowledge of their superintendent, for agreement of an intention on the part of the carriage of merchandise by them; and the carrier to enlarge this liability, the evidence that two other persons had paid American cases hold that the first carrier money at other times to the defendants' will be liable for all. Philadelphia, &c. R.R. conductors for the transportation of merCo. v. Ramsey, 89 Pa. St. 474. This inten- chandise, with the knowledge of the suption may be shown by receiving pay for erintendent of the road, in the absence of the whole transportation. Detroit, &c. R. anything to control or contradict it, would Co. v. McKenzie, 43 Mich. 609; Clyde v. be sufficient to warrant the jury in finding Hubbard, 88 Pa. St. 358. But compare that the defendants had assumed to be and Hadd v. U. S., &c. Express, 52 Vt. 335. were common carriers. Levi v. Lynn & So where the first company gave a ticket, Boston R. Company, 11 Allen (Mass.), 300. and took pay through, it has been held to Whether the persons engaged in towing be responsible throughout the entire route. boats are considered common carriers, and Weed v. Saratoga, &c. R. R. Co., 19 Wend. should be held responsible as such for the 534. See Noyes v. Rutland & B. R. R. boats towed and cargo, quære. Ashmore v. Co., 27 Vt. 110. But it has also been Penn. S. T. & Trans. Co., 4 Dutch. (N. J.) held that where a carrier, the first of 180. Proprietors of hacks are common several connecting lines, sells a through carriers and bound to exercise the greatest ticket with coupons, the seller is not re- diligence. Bonce v. Dubuque Street R.R. sponsible for injuries happening at a point Co., 53 Iowa, 278. beyond its own line. Railroad Co. v. A keeper of a public-house in the Sprayberry, Sup. Ct. Tenn. 1874. But neighborhood of a railway station gave see Great Western R. R. Co. v. Blake, 7 public notice that he would furnish a free
This description includes both carriers by land and by water; namely, proprietors of stage wagons, coaches, and railroad cars, truckmen, wagoners, teamsters, cartmen, and porters; as well as owners and masters of ships and steamboats, carrying on general freight, and lightermen, hoymen, barge-owners, ferry-men, canalboatmen, and others, employed in like manner. But hackneycoachmen, and others, whose employment is solely to carry passengers, are not regarded as common carriers in respect of the persons of the passengers, but only as to their baggage, and the parcels which they are in the practice of conveying. Nor is evidence that the defendant kept a booking-office for a considerable number of coaches and wagons sufficient of itself to prove him a common carrier.3
§ 212. Contract must be between plaintiff and defendant. The contract must also appear to have been made with the plaintiff and by the defendant. If, therefore, the goods were sent by the vendor to the vendee, at the risk of the latter, the contract of the carrier is with the vendee, whose agent he becomes by receiving the goods, and who alone is entitled to sue; unless the vendor expressly contracted with the carrier, in his own behalf, for the payment of the freight; or the property was not to pass to the vendee until the goods reached his hands; in which case the vendor is the proper plaintiff.(a) If goods are ordered by the vendee, but no order at all is given in regard to sending them; and yet the vendor sends them by a common carrier, by whom they are lost; the carrier in such case is the agent of the vendor alone, and the action for the loss is maintainable by him only.? So, where the goods were obtained of the vendor by a pretended purchase, by a swindler, who got possession of them by the negligence of the carrier; as no property had legally passed to the consignee, the carrier's implied contract was held to be with the vendor alone. If the transaction was had with the mere servant of the carrier, such as a driver or porter, the contract is legally made with the master; unless the servant expressly undertook to carry the parcel on his own account; in which case he is liable.* (6) And it is sufficient if the goods were delivered to a person, and at a house where parcels were in the habit of being left for the carrier. (©)
1 Story on Bailm. $$ 496, 497.
2 Story on Bailm. 88 498, 499, 590–604.
conveyance to and from the cars to all pas- from place to place, in conveyances owned sengers, with their baggage, travelling by others, are not liable as common car. thereby, who should come to his house as riers, but as bailees for hire to forward guests, and for this purpose employed the goods by the ordinary modes of convey. proprietors of certain carriages to take all Hersfield v. Adams, 19 Barb. (N. Y.) such passengers free of charge to them, 577. And a sleeping-car company has been and to convey them and their baggage to held not to be a common carrier. Blum v. his house. A traveller by the cars, to S. Pullman Palace Car Co., 1 Flip. C. Ct. whom this arrangement was known, em- 500; Pullman Palace Car Co. v. Smith, 73 ployed one of the carriages thus provided Ill. 360. to take him and his baggage to such pub- Although it has been intimated (Mclic-house, and his baggage was lost or Andrews v. Electric Tel. Co., 17 C. B. 3), stolen on the way, through a want of due and even expressly held, that telegraph care or skill on the part of the proprietor companies are liable to the same extent as of the carriage or his driver, and the common carriers (Parks v. At. & Cal. Tel. keeper of the house was held liable there. Co., 13 (-:. 422), it seems to be now gen. for, either as an innkeeper or as a common erally agreed that such is not the law; carrier, it being immaterial which. Dickin- some cases holding them liable only for son v. Winchester, 4 Cush. (Mass.) 114. So reasonable diligence and skill (Leonard v. when a railroad company allowed shippers N. Y. A. & B. Tel. Co., 41 N. Y. 544; of cattle to travel on a free pass, to take Rittenhouse v. Tel. Co., 44 N. Y. 263; care of the cattle, for which freight was paid, Ellis v. Am. Tel. Co., 13 Allen (Mass.), the coinpany was held liable as a carrier. 226; West. Un. Tel. Co. v. Carew, 15 Maslin v. Baltimore, &c. R. R. Co., 14 W. Mich. 525); and others holding them liaVa. 180. But this liability may be avoided ble for the greatest diligence and skill (N. by a stipnlation in the pass that the trav. Y. & Mob. Tel. Co. v. Dryburg, 35 Penn. elling is at the risk of the passenger. Mc- St 298; Stevenson v. Montreal Tel. Co., Cawley 0. Furness R. Co., L. R. 8 Q. 16 U. C. 530). And they may limit their B. 57; Sutherland v. Great West. R. Co., responsibility by any reasonable conditions. 7 Up. Can. C. P. 409; Alexander v. To Wolf v. West. Un. Tel. Co., 62 Penn. St. ronto R. Co., 35 Up. Can. Q. B. 453. 83. See Hutchinson on Carriers, § 47 et Expressmen who forward goods for hire seq., and Lawson, Carriers, $ 1.
i Dawes v. Peck, 8 T. R. 330, 332; Hart v. Sattley, 3 Campb. 528; Moore v. Wilson, 1 T. R. 659; Davis v. James, 5 Burr, 2680; Sargent v. Morris, 3 B. & Ald. 277.
2 Coats v. Chaplin, 3 Ad. & El. N. s. 483. And see Freeman v. Birch, Id. 491, n. 8 Duff v. Budd, 3 B. & B. 177; Stephenson v. Hart, 4 Bing. 476. 4 Williams v. Cranston, 2 Stark. 82. 5 Burrell v. North, 2 C. & K. 681.
(a) A carrier may presume, in the ab- Co., 35 Me. 55. A servant travelling sence of some notice to the contrary, that with his master on a railway may have an the consignee is the owner. Sweet v. action in his own name against the railway Barney, 23 N. Y. 335. And in an action company for the loss of his luggage, al. by the consignor for non-delivery to the though the master took and paid for his consignee, the complaint was held bad on ticket. Marshall v. York, &c. Railway demurrer, because there was no allegation Co., 7 Eng. Law & Eq. 519 ; Burrell v. that the ownership of the goods was still North, 2 Č. & K. 681. in the consignor, and that the carrier (c) To render the carrier liable when knew it. Pennsylvania Co. v. Holderman, the delivery is to a servant, such servant 69 Ind. 18.
must have authority to accept the goods; The bill of lading or receipt of the car. but this authority may be implied from rier is enough to establish such a prima the circumstances as well as expressed, i. e. facie case of ownership, as will enable a his employment, his care of certain kinds party to sustain an action. Arbuckle v. of goods, his position on the premises of Thompson, 37 Penn. St. 170.
the carrier. Grover, &c. Co. v. Missouri (6) Where the bailee of property de. P.R.R. Co., 70 Mo. 672; Mayall v. Boston, livers it to a common carrier for transpor. &c. R. R., 19 N. H. 122.' So, if he is tation, either the bailee or the bailor may handling baggage, a passenger may deliver maintain an action against the carrier for his baggage to him. Ouimet v. Henshaw, its loss. Elkins v. Boston & Maine R. R., 35 Vt. 605. A deck-hand on a ship is not 19 N. H. 337 ; Moran v. Portland, &c. necessarily authorized to receive baggage