sation for the increased risk and care thereby occasioned, a reasonable percentage upon the excess of the value so declared above the respective sums limited in the act: and such per-centage or increased rate of charge shall be notified in the manner prescribed in the Carriers' Act (sect. 2), and shall be binding upon the company as therein mentioned: provided also, that "the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation" for the loss or injury sustained. Further, no "special contract" between a railway or canal company and any person respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things, will be valid and binding unless signed by him or by the person delivering the animals or things for carriage.

The above enactment does not alter or affect the rights, privileges, or liabilities of any railway or canal company with respect to articles such as mentioned in sect. 1 of the Carriers' Act; and as regards cattle, horses, and other goods, not within the previous statute, a contract between the company and a customer, if just and reasonable, and signed as required, will be efficacious to relieve the company from an undue degree of liability (d).

The course of legislation in regard to carriers such as we have been considering, terminates for the present with * an important provision con[* 236] tained in the 31 & 32 Vict. c. 119, which enacts, that where a company by through-booking contracts to carry any animals, luggage, or goods from place to place, partly by railway and canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage of such animals, luggage, or goods by sea, from "the act of God, the king's enemies, fire, accidents from machinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navigation of what nature and kind soever," shall, if published conspicuously in the office where such through-booking is effected, and if legibly printed on the receipt or freight note given by the company for the animals, luggage, or goods, be valid as part of the contract between the consignor and the company, in like manner as if the company had signed and delivered to the consignor a bill of lading containing such condition (f). And where a railway company works steam vessels in connection with its land traffic, the provisions of the stat. 17 & 18 Vict. c. 31, so far as applicable, have been, by the above more recent enactment, extended to such steamers and the traffic carried on thereby; and some special regulations for securing equality of treatment of passengers using such steamers have been promulgated (g).

A carrier's liability in respect of goods committed to his charge ordinarily continues until the delivery of the goods either is completed or has been waived by the owner. As soon as the goods have reached their destination, and no further duty remains to be discharged by the carrier in reference to them, his liability as such ceases (h). He may, however, thereupon assume

(d) The leading case upon this enactment is Peck v. North Staffordshire R. C., 10 H. L. Cas. 473. There the effect of a condition which was contained in a contract between the company and their customer, would, if valid and operative, have been to exempt the company from responsibility for damage done to the customers' goods, however caused, ex. gr. if caused by gross negligence, by fraud, or dishonesty on the part of the servants of

the company; this condition was held to be neither just nor reasonable.

See also M'Manus's Case, 4 H. & N. 327; Lord v. Midland R. C., L. R. 2 C. P. 339; Rooth v. North Eastern R. C., L. R. 2 Ex. 173. (f) 31 & 32 Vict. c. 119, s. 14. (g) 31 & 32 Vict. c. 119, s. 16. (h) See Chitty and Temple on the Law of Carriers, p. 86; Shepherd v. Bristol and Exeter R. C., L. R. 3 Ex. 189.

another character, and with it another liability. A carrier, when the transit [*237] of the goods is ended, may, for instance, * warehouseman, and then it may be matter of much nicety (supposing assume the character of the goods entrusted to him to be lost or damaged) to decide in which character the bailee is to be held answerable for them: and this question is one of importance, forasmuch as damages may on one view of the case be recoverable, which would not be so on the other. Thus, a common carrier is liable for loss by fire, unless caused by the act of God, whereas a warehouseman is not liable for loss by fire unless he has been guilty of negligence (i).

Again, a carrier, in consideration of the compensation paid to him as such, may undertake to act also as warehouseman for a reasonable time, should the goods for so long be allowed to remain in his custody. On this state of facts, the remuneration for carrying is meant to cover the risk of warehousing; also, if the goods be negligently lost whilst warehoused, the liability of the carrier and warehouseman will be that which attaches to a bailee for hire, not that which attaches to a gratuitous bailee (k). The liability of a warehouseman ordinarily begins as soon as the goods arrive at the warehouse and the crane is applied to raise them into it. It ends when the goods are delivered to the owner or his order (1).

Inasmuch as a railway company sometimes establishes a line of steamers plying in connection with its trains, a loss of goods delivered to the company for conveyance might occur whilst such goods were in the hands of the company as wharfingers, not as carriers or as warehousemen. The liability of a wharfinger is that of a depositary for hire; he must extend ordinary or reasonable diligence to the thing bailed: and the principal difficulty here may be in determining when the custody of the goods by the company in the capacity of wharfingers begins and when it terminates. Goods are often in a wharfinger's [* 238] * possession with a view to being put on board ship for exportation, and in this case a delivery of the goods into the possession, actual or constructive, of the owners of the ship will discharge the wharfinger from liability (m). And even where the goods sustained damage whilst actually in the custody of the wharfinger and by his negligence, he may possibly succeed in showing that they were then in his custody gratuitously, and that he has not been guilty of gross negligence, in respect of which alone a gratuitous bailee is answerable (n).

Land carriers of passengers.

The old customary law of England which applies to bona et catalla, is not altogether applicable to the persons of passengers conveyed by a land carrier, nor do the statutory provisions which have latterly been under our notice apply to them. received his ticket at the booking office (0) of a railway company for conveyWhen a passenger has paid for and ance from one terminus to another, this ticket indicates in some sort the journey which the passenger is to take; so that we have thus presented to us the essential elements of a contract, executed on the one side by payment of the fare, and executory on the other between the passenger and the company. We have the consideration in the shape of money moving from the passenger,

(i) Garside v. Trent and Mersey Navigation, 4 T. R. 581.

(k) Cairns v. Robins, 8 M. & W. 258. (7) Story, Bailments, 5th ed., p. 466. (m) Story, Bailments, 5th ed., 474.

(n) White v. Humphery, 11 Q. B. 43.

(0) In which the fares payable for tickets there issued must be posted up, 31 & 32 Vict. c. 119, s. 15.

and an undertaking by the company to convey him, of which the extent and limits are set forth more or less precisely on the ticket. When this contract has been entered into, the company do not, as does a common carrier of goods, insure against all injuries unless caused by the act of God or by public enemies; they undertake merely that they and their agents are possessed of competent skill, and that they will use all due care and diligence in the performance of their duty. A carrier of passengers is only liable for negligence (p), and the duty cast upon him will consequently be to carry safely those whom he receives as passengers so far as human care and foresight will avail (g).

[* 239]

But although a carrier of passengers does not insure their safety, it may be almost superfluous to observe that for negligence causing personal hurt to a passenger, whether in transitu, at the terminus, or at a roadside station, a railway company will, in the absence of misconduct or contributory negligence by the passenger himself, be clearly responsible (r). A passenger carrier, moreover, holding himself out as such, seems bound to carry, so far as his means of accommodation may avail, any person being in a fit state to associate with his fellows and duly tendering his money for conveyance (s). And an obligation is imposed on a railway company, by the issue of a passenger ticket for a certain train, to forward the passenger by that particular train without undue delay or retardation. Circumstances may doubtless qualify this obligation, for although on the one hand the company could not exonerate themselves from it by arbitrarily limiting the number of carriages composing the train in question, yet on the other hand, out of regard to safety, they might well be justified in declining to attach additional carriages to the engine, or to run extra trains for the accommodation of those who had bought tickets; though in this case the passage-money received might have to be refunded by the company on demand.

In order, also, to charge a company such as spoken of* for dam[*240] age caused by the unpunctuality of a train, evidence must be given of some undertaking or representation by the company or their servant that the train in question is to arrive within a given time at the station named. The mere expression of an opinion to that effect by an agent of the company would not suffice (t). And as regards passenger trains, we must remember that railway companies almost invariably protect themselves against the consequences of any irregularity in their departure and arrival by inserting notices in their time-tables that they do not warrant that the trains will arrive and depart at the precise times indicated (u). The liability of the company may further be modified by their special act and bye-laws (x).

A passenger who has conformed to the regulations of a railway company

(p) Crofts v. Waterhouse, 3 Bing. 319, 321. (2) As to the duty of a railway company in providing a roadworthy carriage for pas sengers, see Redhead v. Midland R. C., L. R. 2 Q. B. 412.

(r) See, as exemplifying the text, Martin v. Great Northern R. C., 16 C. B. 179; Siner v. Great Western R. C., L. R. 4 Ex. 117; Great Northern R. C. v. Harrison, 10 Exch. 376; Toomey v. London, Brighton, and South Coast R. C., 3 C. B. N. S. 146; Cornman v. Eastern Counties R. C., 4 H. & N. 781.

(8) Denton v. Great Northern R. C., 5 E. & B. 860; Briddon v. Great Northern R. C., 28 L. J. Ex. 51.

(t) Hurst v. Great Western R. C., 19 C. B. N. S. 310.

(u) Lord v. Midland R. C., L. R. 2 C. P. 339, 345.

(x) See Jennings v. Gt. Northern R. C., L. R. 1 Q. B. 7. Dearden, app., Townsend, resp., Id. 10.

concerning luggage (y), by paying for it, if required, and duly placing it in their custody, may sue the company for its loss, or for damage done to it, unless disentitled to do so by his own fraud (z). Further, although in general an action against a carrier for loss of goods may be founded indifferently in contract, or in tort for negligence and breach of duty, this proposition must not be lost sight of, that an action ex contractu needs privity to support it, [*241] whereas a duty may be owing to one with *whom no privity exists (a). In such an action, if rightly brought, damage legally and naturally flowing from the breach of contract or of duty is recoverable (b).

Where, as now frequently happens, a railway company possesses at its principal termini and stations hotels for the accommodation of passengers, liabilities may attach to such a company in the character of innkeepers differing essentially from those which attach to them as carriers. (557)

(y) Luggage may be said to include such articles of necessity or convenience as usually accompany passengers for their personal use, not merchandise or valuables designed for sale. See Phelps v. London and North Western R C., 19 C. B. N. S. 321. Story, Bailments, 5th ed., 527.

(2) A common form of fraud or attempted imposition upon a railway company is the putting of merchandise into the luggage of the passenger, with a view to avoiding payment of the fare which might be demanded

for it. Rumsey v. North Eastern R. C., 14 C. B. N. S. 641. Under such circumstances no undertaking or contract arises by the company in regard to the merchandise, so as to enable the passenger to sue for loss of it. Belfast and Ballymena R. C. v. Keys, 9 H. L. Cas. 556. (a) Martin v. Great Indian Penins. R. C., L. R. 3 Ex. 9.

(b) Hadley v. Baxendale, 9 Exch. 341; Woodger v. Gt. Western R. C., L. R. 2 C. P. 318.

(557) Common carriers. Common carriers include all persons whose business it is to carry goods for a reward. Such are railway companies, masters of vessels, bargemen, ferrymen, truckmen, expressmen, porters, carters, etc. See Alexander v. Greene, 7 Hill, 544; Kimball v. Rutland & Burlington R. R., 26 Vt. 247; Buckland v. Adams Express Co., 97 Mass. 124; Slimmer v. Merry, 23 Iowa, 90; 2 Kent's Com. 598, 599. And it has been held that a person who undertakes, though only pro hac vice, to carry by river, for hire, without special contract, incurs the responsibility of a common carrier. Moss v. Bettis, 4 Heisk. (Tenn.) 661. And see Favor v. Philbrick, 5 N. H. 358. But see Fish v. Chapman, 2 Ga. 349; Samms v. Stewart, 20 Ohio, 69; Satterlee v. Groat, 1 Wend. 272. A carrier by land and by water has the same liabilities. Pardee v. Drew, 25 Wend. 459; Powell v. Myers, 26 id. 591; Stokes v. Saltonstall, 13 Pet. (U. S.) 181; Hall v. Connecticut Steamboat Co., 13 Conn. 319; King v. Shepherd, 3 Story, 356. A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or reward. Pennewill v. Cullen, 5 Harr. (Del.) 238. See Fish v. Clark, 49 N. Y. (4 Sick.) 122.

The responsibility incurred by a private carrier is that of an ordinary bailee for hire. Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 33. But a common carrier is not only responsible for negligence, but is an insurer against any loss not occasioned by act of God, the public enemies, or the fault of the party suffering the loss. Kohannan v. Hammond, 42 Cal. 227; Chase v. Washington Ins. Co., 12 Barb. 595; Friend v. Woods, 6 Gratt. (Va.) 189; Steele v. Franklin Ins. Co., 17 Penn. St. 290; Lea v, Stroud, 2 Binn. (Penn.) 74; Ewart v. Street, 2 Bailey (S. C.), 157; Richards v. Gilbert, 5 Day (Conn.), 415; Daggett v. Shaw, 3 Mo. 264; New Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697. If the proximate cause of the loss is the act of God or the public enemy, the carrier is not liable, although his own negligence or laches contributed as a remote cause. Railroad Co. v. Reeves, 10 Wall. (U. S.) 176. The expression, "act of God," denotes natural accidents, such as lightning, earthquake, and tempest, and not accidents arising from the fault or negligence of man. See McArthur v. Sears, 21 Wend. 190; Colt v. M Mechen, 6 Johns. 160; Walpole v. Bridges, 5 Blackf. (Ind.) 222; Robertson v. Kennedy, 2 Dana (Ky.), 430; Harpell v. Owens, 1 Dev. & Bat. (N. C.) 273. So, losses arising simply from natural causes, however violent, would not, if they might have been avoided, be losses by the “act of God." See M'Call v. Brock, 5 Strobh. (S. C.) 119 ; Richards v. Gilbert, 5 Day (Conn.), 415; Klauber v. American Express Co., 21 Wis. 21; Mer

An innkeeper is at common law bound to receive a guest, and to find for him reasonable and proper accommodation (c). He is bound, also, to take due care of the goods and baggage of his guest deposited in his house, and to

(c) Fell v. Knight, 8 M. & W. 269, 276.

shon v. Hobensack, 2 Zabr. (N. J.) 372; Plaisted v. B. & K Steam Nav. Co., 27 Me. 132; Hays v. Kenedy, 41 Penn. St. 378; Redpath v. Vaughan, 52 Barb. 498; Merritt v. Earle, 29 N. Y. (2 Tiff.) 115; Wolf v. American Express Co., 43 Mo. 422; Price v. Hartshorn, 44 N. Y. (5 Hand) 94. As to the meaning of the term, "public enemy," see Philadelphia, etc., R. R. Co. v. Harper, 29 Md. 330; Lewis v. Ludwick, 6 Coldw. (Tenn.) 368; Porcher v. North Eastern R. R. Co., 14 Rich. (S. C.) 184.

A carrier is bound to provide vehicles suitable for the purposes of carriage (Hawkins v. Great Western R. R. Co., 17 Mich. 57; Empire Transp. Co. v. Wamsutta Oil Co., 63 Penn. St. 14); and he must proceed without deviation, and by the usual route, to guard against all dangers. See Powers v. Davenport, 7 Blackf. (Ind.) 497; Wibert v. N. Y. & E. R. R., 19 Barb. 36. So, he must obey the direction of the owners with regard to the goods (Maghee v. Camden & A. R. Co., 45 N. Y. [6 Hand] 514; Clark v. Spence, 10 Watts [Penn.], 336; Hastings v. Pepper, 11 Pick. [Mass.] 41); and must carry them to their destination without unreasonable delay. Rome R. R. Co. v. Sullivan, 14 Ga. 277; Illinois Central R. R. Co. v. Owens, 53 Ill. 391; Grund v. Pendergast, 58 Barb. 216.

A common carrier is not liable until there has been a delivery of the goods to him, or his authorized servants or agents, actually or constructively. Blanchard v. Isaacs, 3 Barb. 388; Tower v. The U. & S. R. R. Co., 7 Hill, 47; Merriam v. Hartford, etc., R. R. Co., 20 Conn. 354; Rogers v. Wheeler, 52 N. Y. (7 Sick.) 262; Reed v. Phila., etc., R. R. Co., 3 Houst. (Del.) 176. But as soon as the goods are fairly delivered, and the duty of immediate transportation arises, the responsibility of the common carrier attaches to them, even before they are on the journey. Barron v. Eldredge, 100 Mass. 455; S. C., 1 Am. Rep. 126; Watts v. Boston & L. R. Co., 106 Mass. 466; 2 Story on Cont., § 937. See Rogers v. Wheeler, 52 N. Y. (7 Sick.) 262; Illinois Central R. R. Co. v. McClellan, 54 Ill. 58; Lakeman v. Grinnell, 5 Bosw. 625.

The carrier's risk is held to terminate when the goods are deposited at their proper place of destination (see Smith v. Nashua & Lowell R. R., 7 Fost. [N. H.] 86); or as soon as the owner has had a reasonable time to remove them. Jeffersonville R. R. Co. v. Cleveland, 2 Bush (Ky.), 473; Mills v. Michigan C. R. R., 45 N. Y. (6 Hand) 622. Common carriers by land are ordinarily bound to deliver or tender the goods to the consignee at his residence or place of business; but when the consignee cannot be found with reasonable diligence the carrier may relieve himself from liability by depositing the property in a suitable place for the owner. Witbeck v. Holland, 45 N. Y. (6 Hand) 13; S. C., 6 Am. Rep. 23. In the absence of usage or special contract, carriers by vessels, boats, and railways, are exempt from the duty of personal delivery. Id.; Thomas v. Boston R. R. Co., 10 Metc. (Mass.) 472; Vincent v. Chicago & A. R. R., 49 Ill. 33. See Farmers' & M. Bank v. Champlain T. Co., 23 Vt. 186, 211; Chicago & A. R. R. v. Scott, 42 Ill. 132; Bansemer v. Toledo & W. R. R. Co., 25 Ind. 434. In some States the liability of the carrier is held to remain until the consignee has had notice that the goods have arrived. See Hermann v. Goodrich, 21 Wis. 536; Stephenson v. U.S. Express Co., id. 405; Michigan C. R. R. v. Ward, 2 Mich. 538; Shenk v. Phila. St. Co., 60 Penn. St. 109, 115; Russell Manuf. Co. v. N. H. Steamboat Co., 50 N. Y. (5 Sick.) 121; S. C., 52 id. 657; Hedges v. H. R. R. R. Co., 49 id. 223; McAndrew v. Whitlock, 52 id. 40. It is thought that express companies are bound to make personal delivery. Witbeck v. Holland, 45 N. Y. (6 Hand) 13.

As to the American rule of liability, beyond the carrier's own line, consult the following authorities: Hood v. N. Y. & N. H. R. R. Co., 22 Conn. 1; Skinner v. Hall, 60 Me. 477; · Green v. N. Y. Cent. R. R. Co., 4 Daly, 553; Railroad Co. v. Manuf. Co., 16 Wall. (U. S.) 318; Gray v. Jackson, 51 N. H. 9; Burroughs v. Norwich & W. R. R. Co., 100 Mass. 26.

Carriers of passengers are held responsible for injuries and losses arising from even the slightest negligence, and they are bound to exercise the utmost care and diligence. See Taylor v. Grand Trunk Railway Co., 48 N. H. 304; Derwort v. Loomer, 21 Conn. 245; Saw