CJornfU Slaui i^rlynol Sjibrary KF2288.R3Tl872""'""''-"'"'^ The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019313802 LEADING AMERICAN RAILWAY CASES. ON COMMON CARRIERS OF GOODS AND PASSENGERS; CONSTITU- TIONAL QUESTIONS AND RAILWAY SECURITIES. BY ISAAC F. REDFIELD, LL.D. BEING A SUPPLEMENT TO THE ATJTHOK'S WOKK ON RAILWAYS, AND AKBANGED IN THE SAME MANNEK. VOL. II. BOSTON: LITTLE, BEOWN, AND COMPANY. 1872. ^#;/ Entered according to Act of Congress, in the year 1872, by ISAAC F. BEDFIELD, In the Office »! the Librarian of Congress, at Washington. A31 CAMBKIDGE ; PKESS OF JOHN WILSOH AND SON PREFACE. In adding another volume to the Leading American Rail- way Cases, it has been the purpose of the author to carry into effect his original plan, not only to arrange the cases according to the topics treated in the principal work, but at the same time to make as. complWe a treatise upon each topic as practicable, by giving olie or more cases upon each point, with notes, more or less extended, according as the deficiencies left might require. The least change in the former volume has been made Avhich was consistent with the plan of the work. But as this volume is mainly devoted to the important topics of Common Carriers of Goods and Passengers, the very few cases on these topics in the first volume were of necessity transferred to this volume, in order to preserve the degree of symmetry indis- ' pensable to the plan of the work. The cases are not all leading ones, in the sense of being first decided upon the topics of which they treat ; but rather in the sense of giving a more complete view of the subject, in all its bearings, and of the direct and analogous decisions upon the questions discussed, than any others readily found in the American Eeports. The volume has been prepared in the same manner indicated in the preface to the first volume ; and we believe it will be found both useful and IV PREFACE. acceptable to the profession. For we conceive that there is no more satisfactory mode of educating students, as well as those more advanced in the knowledge of the principles of the law, than by the proper arrangement of leading cases, with suitable notes and comments. There is nothing, it may be truly said, which illustrates more perfectly the principles of the law, than the well digested opinions of the great masters of jurisprudence, prepared and authoritatively delivered in the seat of justice. For whatever may be said in favor of law readings, or lectures, and they are no doubt useful in many ways, there is all the difference between them and a hona fide judgment declared from the bench which there must always be between a moot court and a real forensic encounter. I. F. R. Boston, November 1, 1872. ANALYSIS OF CONTENTS. PAET I. COMMON CARRIERS OF GOODS. I. "WHO ARE COMMON CARRIERS : THEIR DUTIES AND EpSPON- SIBILITIES. : Hale V. Ttw New Jersey Steam Navigation Company, 15 Connecticut Reports, 539. 1843. p. 3-10. 1. Common carriers are such as carry the goods of all persons, indifferently, from place to place, for hire or reward. 2. Courts should maintain the old rule of the utmost responsibility of common car- riers for all losses arising from any agency not beyond human control, or from the public enemy. 3. As against all other agencies the carrier warrants the safe delivery of the goods. He is in the nature of an insurer, and is responsible for loss by fire upon the high seas, unless within the exceptions above stated. The rule embraces carriers by steamboat. 4. Common carriers are responsible according to the law of the state where the con- tract is made. 5. By the law of the State of New York, where the contract was made [in 1843], com- mon carriers could not limit or qualify their common-law responsibility by general notice to that effect. Qtiosre. As to the effect of such a limitation in a bill of lading, by the law of New Yorlj [at that date]. 6. By statute, in Connecticut, the courts take judicial notice of the reported deci- sions of the highest judicial tribunals in other American states. Note. p. 10, 11. II. HOW THE EXCEPTION, TO THE RESPONSIBILITY OF COMMON CARRIERS, OF LOSSES CAUSED BY THE ACT OF GOD, IS TO BE CONSTRUED. MeArthurv. Sears, 21 WendelVs Reports, 190. 1839. p. 11-19. 1. The responsibility of common carriers extends to all modes of transportation, whether by land or water, without regard to the nature of the perils encoun- tered. 2. Quatre. How far common carriers may qualify their responsibility, by showing a general custom or usage to that effect. 3. Where the vessel of a common carrier by water is stranded, or rendered other- wise unmanageable, by an occurrence for which the carrier is not responsible, it is justifiable to throw the goods overboard, where that is the only mode of escape. VI ANALYSIS OF CONTENTS. 4. But where the peril results from the acts of others, over which the carrier has no control, and for which he is not responsible, he himself being guilty of no neg- lect, he is, nevertheless, liable for the loss, since it does not, in such case, result from w'liat the law regards as the act of God. 5. The act of God is natural necessity, and inevitably such, as winds, storms, &c,, which are in no sense caused, nor can be hindered or controlled, by any human agency. 6. A fire, however accidental, unless caused by lightning, is not regarded as the act of God. 7. Where the bill of lading excuses the carrier for losses by the perils of the sea, that will embrace many losses not strictly by the act of God. 8. If the act proceed from human agency, however inevitable it may be, on the part of the carrier, it is, nevertheless, not the act of God, Note. p. 19, 20. III. THE CARRIER NOT RESPONSIBLE FOR THE REMOTE AND INCIDENTAL CONSEQUENCES OF HIS NEGLIGENCE. CAUSA PROXIMA, NON REMOTA SPECTATUR Morrison v. Davis, 20 Fenn. St. Reports, 171. 1852. p. 20-24. 1. Common carriers are not responsible for the occurrence of injury resulting directly from an inevitable accident or casualty, even where the goods are brought within the operation of such inevitable accident by the remote fault of the carrier. 2. Thus where goods carried in a canal boat are injured, by the wrecking of the boat by reason of an extraordinary flood, and it appears that delay in the trans- portation had been caused by reason of the carrier having a lame horse at the time of starting, and but for that the boat would have passed the point where the acci- dent occurred before the flood came and thus have safely reached its destina- tion : it was held the carrier was not responsible for the loss. Note. p. 24, 25. IV. WHAT PERSONS ARE RESPONSIBLE AS COMMON CARRIERS. Mliott V. Rossell, 10 Johns. Reports, 1. 1813. p. 25-80. 1. Those who undertake to carry goods for hire, from port to port, in ships and boats, or vessels of any kind, and indiflerently for all who apply, whether within or without the state, are to be regarded as common carriers. 2. Their responsibility as such extends to the entire period of the goods being under their custody or protection. 8. The act of God is held to embrace losses by lightning, or by such winds and storms as could not fairly have been expected to occur. • V. WHERE THE CARRIER ACCEPTS OF GOODS TO BE SOLD IN THE MARKET AND 'THE PRICE RETURNED. Kemp V. Covghtry, 11 Johns. Reports, 107., 1824. p. 30, 31. Where a common carrier accepts goods for transportation to market and assumes the responsibility of returning the price, he will be held responsible for all losses occurring throughout the transportation of the goods and for the return of the price, unless resulting from inevitable accident or the act of the public enemy. ANALYSIS OP CONTENTS. 7U VI. THE DISTINCTION BETWEEN PUBLIC AND PKIVATE CAR- RIERS. Allen V. Sachrider, 37 New York Reports, 341. 1867. p. 31-33. One who carries goods under a special employment for the particular seryice, and who is not accustomed to carry goods upon that route except under special em- ployment for the service, is not responsible as a common carrier, but only as an ordinary bailee for hire. NoTis. p. 33, 34. VII. THE CARRYING OF PARCELS. I. The Extent op the Responsibility oe Common Carriers, for Parcels CARRIED BT ExPRESS COMPANIES, THROUGH THEIR AGENCIES. New Jersey Steam Navigation Gom'pany v. The Merchants' Bank, Boston, 6 Howard's U. S. Reports, 344. 1847. p. 34r-42. 1. In contracts between express companies and common carriers, the owner of the goods may regard the express company as acting on his behalf, and as his agent, and he may maintain any action, in his own name, against the common carrier, which the express company might have had, provided the contract is not under seal. 2. But in claiming this right he will be bound to submit to all the legal conditions and limitations upon his responsibility, which the carrier may have validly imposed ae between himself and the express company. 3. Wliere such restriction provided that the expressman or company should " alone be responsible for the loss or injury of any articles or property committed to his care," and that no risk is assumed or can be attached to the common carrier, transporting the goods for and on behalf of the expressman or company, it was held that this did not exempt the carrier iirom responsibility for any loss or injury occurring through the want of ordinary care on the part of the carrier. Note. p. 42, 43. II. The Extent of the Responsibility, op Express Carriers, and how PAR THEY MUST BE REGARDED AS CoMMON CARRIERS. Buchland v. Adams Express Company, 97 Mass. Reports, 124. 1867. p. 43-47. 1. Any person, natural or corporate, who assumes to transport goods for hire, for all who desire it, from one portion of the country to another, either within or with, out the state, and to deliver such goods to the consignees, or to other companies or persons employed in the same mode of transportation in the direction of the ultimate- destination of the goods, must be regarded as a common carrier, and will be held responsible as such, without regard to the name which may be given to such transportation in the announcements and advertisements of such per- son or company. 2. Express companies caUing themselves " forwarders," will not any the less make themselves responsible as common carriers so long as their business is of that character. Courts will judge of the extent of the responsibility of such com- panies rather from the nature of the business and the manner it is conducted than from the precise form in which such companies may choose to define their own responsibility. Tin ANALYSIS OP CONTENTS. 3. Common carriers may relieve themselres from such portion of their common-law responsibility as their employers may freely consent to waive. But a mere gen- eral notice to the effect that they will not be responsible for the transportation, except under certain contingencies, will not be held binding upon the owners of the goods committed to them for transportation, unless clear proof is made that such notice came to the knowledge of the owners, and was freely assented to by them. III. To WHAT Extent Common Carrieks and Express Cakribks mat QUALIFY THEIK COMMON-LAW RESPONSIBILITY BY NOTICES OK SPECIAL CON- TRACTS. Judson V. Tlie Western Railroad Corporation, 6 Allen's Reports, 486. 1863, p. 47-52. 1. Common carriers owe the public a duty which they cannot decline to perform, and to the performance of which they have no right to annex any but reasonable con- ditions, and which shall have the voluntary assent of those who employ them. 2. The owner of goods, who desires them to be carried by common carriers, is not obliged to submit to any limitation of the common-law responsibility of the car- rier, and it must be shown, by satisfactory evidence, that he did so freely and understandingly, in order to qualify his right to demand such common-law re- sponsibility. 3. Discussion of the just grounds of inference and presumption in such cases by Bigdow, C. J. Note. Farmers and Mechanics' Bank v. The Champlain Transportation Co., 23 Ver- mont Reports, 186. p. 52-62. IV. How FAR Railways and other Common Carriers are justified in GIVING ONE Express Company the Exclusive Privilege of carrying Express Matter upon their Lines. 2few England Express Company v. Maine Central Railway Company, 9 Am. Law Reg. N. S. 728; s. c. 67 Maine Reports, 188. 1870. p. 62-70. Neither under the statutes of Maine or by the common law can a railway company give one express company the exclusive right to carry express matter upon its line, a"nd refuse to accord the same privilege to other express companies. Note. p. 70-72. V. The Duty of Express Companies to make Personal Delivery of THEIR Parcels, and the Effect of Entries or the Omission of such Entries upox their Delivery-Books considered. Baldwin v. The American Express Company, 23 Illinois Reports, 197 ; s. 0. 26 id. 504. 1859, 1861. p. 72-76. 1. It is the duty of express companies to make delivery of goods intrusted to them, according to their usual custom, which commonly requires personal delivery to the consignee, or to his agent at his place of business, within reasonable business hours, or at least while some one is in readiness to receive them ; and notice to the consignee or his agent, that the parcel is at tlie express office, ready for de- livery, will not dispense with the duty of personal delivery. ANALYSIS OP CONTENTS. IX 2. The effect of the delivery not appearing upon the delivery-book of the company is matter of evidence, and its weight will depend upon the uniformity of the prac- tice of entering all deliveries made upon the book. 3. It is no answer to a claim for goods lost by an express or other common carrier, that they had been securely locked in a safe, provided the key was so left that a burglar readily found it. These facts would not excuse an ordinary bailee, since they amount to gross negligence. Note. p. 76, 77. yi. The Duty of Express Companies and Foewardeks to forward, WITH THE Goods, which they accept for Transportation by thkm- SELVES OR others, THE INSTRUCTIONS IN REGARD TO THE TRANSPORTA- TION AND Delivery. The Damages Kbcovbrable for Breach of such Duty. 1. Hutchins v. Ladd, 16 Michigan Reports, 493. 1868. p. 77-81. 1. Where goods are left with the clerk of a forwarder with special directions as to the mode of transportation and delivery, it becomes the duty of the forwarder to forward the goods together with the directions. 2. Any custom of the particular place where the business is transacted, to the effect that forwarders' clerks will not forward special directions, if not known to the owner of the goods, will not affect him. 3. The duty of forwarders and carriers will be controlled by the course of the busi- ness and the exigencies attending it. And as these change so must they con- form to such changes. 4. Where goods are left with the forwarder to be sent through two or more lines of express or common carriers, and ultimately to be delivered to the consignee, only upon the payment of a certain sum of money, part of the price of the goods, and the goods are accepted without objecting to forward the instructions, it is the duty of the forwarder to see that the instructions go forward with the goods, and if the goods are forwarded without the instructions, the forwarder is respon- sible fqi any loss in consequence. 5. The damages may fairly embrace the amount due upon the goods, provided that cannot be recovered of the debtor, without regard to the possibility of its loss even if the defendant had performed his duty. Note. p. 81-86. 2. Blossom V. Dodd, 43 N. Y. 264. p. 86-92. 1. That common carriers, embracing express carriers of baggage, cannot restrict and limit their responsibility below that imposed upon them by the general law of the country by merely giving notice to that effect ; but it may be limited by express contract. 2. It is not the duty of those who employ such carriers to inquire, or in any way inform theniselves, of the particular terms upon which they will or will not carry baggage or other goods. 3. Those who employ such carriers have a right to presume and to expect that they will carry upon the ordinary terms imposed upon them by law, unless and until informed by them to the contrary. 4. If such carriers desire or expect to relieve themselves of any portion of their com- mon-law responsibility, they must see to it that such claihi is brought fully to the - comprehension of those who employ them before accepting the employment. 5. Unless this is done in any particular case, the carrier will be held liable to the full extent of his common law responsibility. X ANALYSIS OP CONTENTS. 6. The burden of proof rests upon the carrier to show this in all cases where the point is contested, 7. Those principles discussed with reference to the particular case. Note. p. 92, 93. Vin. THE RESPONSIBILITY OF PASSENGER CARRIERS FOR BAG- GAGE. I. The Form op the Remedy and the Extent of the Tekm " Bag- gage; " WHAT Particular Articles are or are not embraced UNDER IT. Hawkins v. Hoffman, 6 Hill's Reports, 586, 1844, p. 93-96, 1. Trover will only lie against the carrier where the goods are lost by some act of his, or where they are delivered to the wrong person by mistake, as upon a forged order. Per Branson, J. 2. Where the goods are injured or lost through the mere negligence or omission of the carrier, the proper remedy is by an action of assumpsit counting on the contract, express or implied, or by an action on the case counting on the breach of duty. 8. The carrier of passengers is bound by the contract to carry a reasonable amount of personal baggage at the same time with the passenger, and to deliver it to him at the end of the route, although not mentioned ; and if it is lost, even without his fault, the carrier will be responsible. 4. The term "baggage" embraces not only such articles of daily personal use and convenience, as every traveller finds it comfortable to have about him, such as wearing apparel, brushes, razors, writing apparatus, and the like ; but if one has books for his instruction or amusement by the way, or carries his gun or fishing tackle, they would undoubtedly fall within the term "baggage," because they are usually carried as such. Per Branson, J. 5. But a trunk filled with samples of goods, which a commercial traveller carries with him to make sales, cannot be embraced under the term " baggage," and the carrier is not responsible for its safe delivery when carried as such. Note. p. 96. II. To WHAT Extent Common Carriers of Passengers are Kesponsiblb FOR their Baggage, and how such Primary Responsibility may be restricted, either by Special Contract or General Notices brought home to the Passenger, or by the customary Usage or Practice of the Carrier. 1. HoUister \. Nowlen, I9l WendelFs Reports, 234k. May,183S. p. 96-110. 1. Common carriers of passengers are responsible for the safe transportation and delivery of their baggage to the same extent as common carriers of goods, i.e., unless for losses resulting from inevitable accident or the public enemy. 2. It is not competent for such carriers to restrict their responsibility by general notices that they will not assume such responsibility, even where such notices may, presumably, have come to the knowleilge of passengers. So long as they continue the business the courts are justified in holding them responsible for baggage to the full extent, unless where there is a special acceptance of the ANALYSIS OP CONTENTS. XI baggage by the carrier, and an express assent on the part of the owner that it may be carried under some less degree of responsibility. 2. Cole V. Goodwin, 19 Wendell's Reports, 251. May, 1838. p. 110-132. 1. Common carriers of passengers are responsible for their baggage to the same ex- tent as such carriers are for goods, i.e., unless lost by inevitable accident or through the acts of the public enemy. 2. Arguendo. But they are not responsible for losses caused through any fault of the owner, or by a fraudulent misrepresentation as to the value of the same, thus causing less watchfulness than would have been exercised had the truth been known ; or where such misrepresentation is made to evade the payment of a reasonable premium required for insuring the same. It is the duty of passen- ger carriers to take such precautions on their own part as will secure the safe arrival of baggage and its delivery or safe keeping at the eVid of the route inde- pendent of any care or watchfulness on the part of the owner. 8. It is not competent for passenger carriers, in such cases, to protect themselves from responsibility for loss of baggage, by faUing back upon any usage of their own, that passengers, at stations where the coaches are changed, must look after their own baggage. 4. But by the chief justice, it was held that where the passenger in a stage-coach left the route, it was his duty to inform the carrier that he had baggage and what it was, that it might be left for him at some appointed or convenient place. 5. The owner of the baggage accompanying it will not excuse the carelessness of the carrier, unless when the owner assumes the entire custody and care of the same. 6. By CowEN, J., usage of carriers to be obligatory upon their employers must he made known to them, or of such notoriety as presumably to be understood by them. 7. It is not competent for the carrier to throw off all responsibility by notice to that effect. 8. He is bound to carry all who offer to the extent of his means, for reasonable reward and upon reasonable conditions. 9. He cannot even by special contract exonerate himself from the consequences of his own gross neglect. 10. But by the English law he may provide, it would seem, against responsibility for losses, by accident or ordinary neglect, certainly for such as occur without his fault, as many may, and still not come within the exception of inevitable acci- dent or public force. 11. But a notice by the carrier, that he will not hold himself responsible for certain articles of great value, unless particularly specified and a special premium of insurance paid on their account, is reasonable and binding upon the parties, and no responsibility attaches unless it is complied with or unless resulting from culpable negligence. 12. The carrier being in the nature of an insurer may justly demand of the owner of the baggage, where any thing specially valuable is embraced in it, that he be correctly informed of it, that he may be enabled to exercise a proportionate de- gree of watchfulness. [As to the construction of such notice, see Hopkins «. Wescott, 7 Am. Law Eeg. N. S. 533.] 13. Notices of carriers calculated and designed to exonerate them from all just respon- sibility have been by the courts denounced as " unreasonable and monstrous." 14. But the English courts seem to hold that carriers may protect themselves from all losses happening without any fault on the part of themselves or their servants, by special contract, or what is the same, special notices to that effect brought home to and acquiesced in by their employer at the time of the employment. 15. There is no proper distinction between a special contract and a notice on the part Xll ANALYSIS OP CONTENTS. of the carrier brought home to the employer and acquiesced in by him. The latter is only one mode of creating the former. 16. But by CowEN, J., the carrier cannot restrict his responsibility either by special contract with or notice to his employers, because any such restriction is in con- flict with sound policy and therefore illegal. 17. The chief justice dissented from the opinion of the court, holding it to hare been the duty of the passenger to look after his baggage at the end of his route. Note. p. 132. in. The Dott of Passenger Carriers in regard to Baggage, either as TO ITS Delivery to the Owner or Safe Custody after its Arrival. Powell V. Myers, 26 WendeWs Eepmis, 591. 1841. p. 133-145. The plaintiflC's minor son became a passenger upon the defendant's steamboat from West Point to New York. The boat usually arrived in New York about nine o'clock in the erening, and passengers were allowed to remain on board the boat until morning. The plaintifT left the boat on her arriral in the city and returned the next morning for his trunk, which had been placed in tlie defendant's custody on taking the boat and arrived safely in New York, but had been delivered to gome other person during the night, upon a forged order. Held, the defendant was responsible for the loss. Note. p. 136-142. IX. THE CARRIER'S RESPONSIBILITY ORDINARILY BEGINS AFTER AN ACTUAL OR CONSTRUCTIVE DELIVERY OF THE GOODS FOR IMMEDIATE TRANSPORTATION. I. . Constbtjottve Delivery, what is required to constitute. Merriam v. Hartford and New Haven Railroad Company, 20 Conn. 354. July, 1850. p. 142-145. 1. Ordinarily, to constitute a constructive delivery of goods for transportation, they must be placed upon the premises of the carrier, or at some other place agreed by the parties, and express notice given to the carrier or his agent for that pur- pose. 2. But where the carrier, either by general notice or uniform practice and usage, consents to accept all goods for transportation which are deposited in a certain enclosure kept for that purpose, and properly marked, without any special no- tice, except to the workmen employed about the premises, that will be all that is requisite in order to charge the carrier, and if the goods are thereafter lost or damaged he will be responsible. Note. p. 145, 146. n. When the Duty of Common Carriers attaches upon Delivery and WHEN NOT. p. 147-150. Where goods are received at the warehouse of the carrier, with general directions to carry, or, what is the same thing, to carry immediately, the responsibility of the carrier attaches presently. And it will make no difference that the next regular ANALYSIS OP CONTENTS. xiii time of departure does not occur immediately. But if directions are not to carry until some future time named, or until further instructions, the responsibility of the carrier, as such, will not attach until the event named in the directions, and, in the mean time, he will only be responsible as a warehouseman. Moses v. Boston & Maine Railw., 4 Foster, 71. And where the defendants are both warehouse- men and carriers, and the goods are left for immediate transportation, the respon- sibility of carrier attaches at once. Clarke v. Needles, 25 Penn. St. 338 ; Stewart V. Bremer, 63 id, 268. This part of the subject, and also the proper construc- tion of contracts for transporting goods and the purpose and extent of the ad- mission of extrinsic evidence, is very fairly and ably illustrated by the opinions delivered in the case of Blossom v. Griffin, 13 N. Y. 569. III. Common Carriers, when created by Act of Incorporation, and by Charter restricted to a Particular Line, may contract for Carry- ing before Goods reach the Link, p. 160, 151. It may be proper to name here, that common carriers, even those created by way of private corporations, like railways and steamboat companies, have the capacity to contract for receiving goods for transportation at any point designated in tlie con- tract, however remote from the line of the company. This was decided in Noyes V. The Rutland & Burlington Railway, 27 Vt. 110, and we here adopt the opinion of the court as expressive of the grounds of that decision. X.. THE TERMINATION OF THE CARRIER'S RESPONSIBILITY. I. The Carrier's Responsibility in regard to Goods to be trans- ported WHOLLY upon THE LiNE WHERE FIRST DELIVERED, AND HOW FAR Actual Notice or Delivery to the Consignee is required. Norway Plains Co. v. Boston S^ Maine Railroad Go., 1 Gray's Seports, 263. 1854. p. 152-161. 1. Railway companies which become common carriers of goods are not bound to make delivery to the consignee, or give notice of the arrival of such goods. 2. After the arrival of such goods at their destination, and their deposit in the ware- house of the company, their responsibility as common carriers ceases, and they are only responsible thereafter as warehousemen. II. How far the Mode of Delivery by Carriers is controlled by Usage and Custom. McMaster v. Pennsylvania Railroad Company, 28 Philadelphia Re- ports, 397. 1871. s. c. 69 Penn. St. p. 161-164. 1. The liabilities of common carriers are subject to modification by usage or custom. 2. A custom so long persisted in as to be known and practised by a community be- comes the law of the particular business in the community in which it exists, from which the presumption will arise, that it is in the view of the parties who contract about the subject-matter of it ; but such custom must be reasonable, continued, and peaceably acquiesced in by all acting within the scope of its operation. XIV ANALYSIS OP CONTENTS. 3. Upon proof of a custom on the part of a railway company to deliver goods at a way-station on their platform, without warehousing or giving notice of their arrival to the consignee, such delivery held suflScient and an exoneration of the carrier from damages for their subsequent loss. m. The more acceptabi-b Yiew of the Law would seem to be, that THE Owner of the Goods must have a Eeasoxable Ofportuxity to REMOVE them AFTER THEIR ARRIVAL AT THE PlACB OF DESTINATION, before the Carrier's Responsibiuty as such terminates. 1. Moses V. Boston S? Maine Railw. Co., 32 N. H. 523. 1856. p. 165-174. Where carriers by railway have deposited the goods in their warehouse, after their arrival at the place of their destination, but before the consignee has a reasona- ble opportunity to take them away, they are destroyed by fire, the carriers are responsible. 2. Elumerdhal Y. Brainerd, 38 Vermont Beports, 402. 1866. p. 175-182. 1. A general notice by common carriers that they will not hold themselves respon- sible for certain risks arising in their business, in order to be binding upon those who employ them, must be shown to have come to their knowledge and been assented to by them. 2. If the notice is not reasonable in its character, and such as reasonable men em- ploying them ought to assent to, or may, without extraordinary proof, be pre- sumed to have assented to, it will not be considered that they did assent to it ; surely not, except upon the most irrefragable evidence of such assent. 3. Any notice by common carriers, that they will not hold themselves responsible for due diligence and faithfulness in the discharge of their duties, both on the part of themselves and their agents and employes, is unreasonable and against good policy ; and if expressly assented to by the owners of goods committed to them for transportation, and thus made the basis of a special contract, could not be regarded by the courts as of binding duty or obligation on the part of such owner. Common carriers are responsible, as such, for the safe transportation and delivery of goods at the place of destination. 4. It is the duty of the owner of the goods to take notice of the course of Ihe busi- ness and probable time of arrival of the trains in which his goods are embarked, and to be ready to receive them, as soon as conveniently may be, after their arrival. 5. It is the duty of the carrier to keep the goods safely a reasonable time after their arrival, to allow the owner by the exercise of due diligence to remove them ; and if the goods are destroyed or injured before that, he is responsible, unless caused by inevitable accident or the public enemy. But if the goods are not removed by the owner in a reasonable time, the duty of the common carrier, as such, ter- minates, and he is thereafter only responsible for keeping the goods, as a ware- houseman, with ordinary care and diligence. Note. i). 182-184. ANALYSIS OF CONTENTS. XV XI. HOW FAR AND UNDER WHAT CIRCUMSTANCES THE CARRIER MAY DEMAND FREIGHT, p. 184. I. How TAK THE CARRIER IS ENTITLED TO DEMAND FREIGHT, EITHER IN ■WHOLE OR IN PART, FOR A PARTIAL PERFORMANCE OP THE CARRIAGE ; AND WHETHER THE OwNER OP THE GOODS MAY DEMAND THE RESTORA- TION OP THE Goods, apter they have been accepted for Trans- portation, AND BEFORE THE SaME IS COMPLETED, AND WHAT FkEIGHT HE IS BOUND TO PAY IN SUCH CaSES. 1. Palmer v. Lorillard, 15 Johns. 14 ; s. c. 16 Johnson's Reports, 348. 1819. p. 185-201. 1. Where the carrier has accepted goods for transportation, and actually entered upon the voyage, and is hindered from completing it by the public enemy, he is entitled to wait until he can complete the voyage in safety. And under such circumstances he is not obliged to surrender the goods to the owner, unless full freight is paid. And if the goods are thereafter under such circumstances de- stroyed, without any fault or negligence on the part of the carrier or his agents, but by inevitable accident, he is not responsible. 2. The facts in this case were that the defendant executed a bill of lading for the transportation of tobacco from Richmond to New York by schooner, during the war of 1812. Upon his arrival at Hampton Roads he found the Chesapeake blockaded by a hostile squadron, and that it would be impossible to complete the voyage at that time with safety. He delayed for a time at Norfolk, and finally returned to Richmond, and more than six months after the date of the bill of lading the plaintiff demanded the goods, which the defendant refused to surrender unless he were paid half freight ; and a few days thereafter, in conse- quence of a violent storm and freshet, the vessel was sunk and the cargo rendered worthless. The Supreme Court held, that the owner was entitled to receive the goods back without paying any freight, since it was only upon the completing of the voyage that the carrier was entitled to freight. 16 Johns. 14. Note. p. 201-203. 2. RoUnson v. Marine Insurance Company, 2 Johns. Reports, 323. 1807. p. 208-206. 1. The vessel in this case was compelled by stress of weather to put into an interme- diate port, and the voyage was thus broken up by the perils of the sea without the fault of the carrier, and the goods were removed by the owners at the inter- mediate port, and it was held by the court that freight pro rata was due the car- riei;. 2. The mode of ascertaining freight pro rata, discussed by Kent, C. J. 3. Scott V. Libby, 2 Johns. Reports, 336. 1807. p. 206. Where the voyage is broken up by means of blockade of the port of destination, and the delivery of the freight according to the charter-party becomes impossi- ble, the latter is thereby dissolved and no freight is due for any efforts at, or for any actual part performance of the transportation. XVI ANALYSIS OP CONTENTS. 4. Rossiter v. Chester, 1 Douglass {Michigan), 154. 1843. p. 207-210. Where the voyage is abandoned by the carrier upon grounds sufficient in law to jus- tify such abandonment, after having been partly performed, and the owner voluntarily accepts his goods, at an intermediate point, the law will imply a promise to pay freight pro rata, unless there is something to show a different un- derstanding. Note. p. 211, 212. n. No Freight is earned by the Carrier transporting the Goods by Contract with a Tort Feasor ; or unless it is done by Contract, EXPRESS OR implied, WITH THE OWNBR, OR SOME OnE AUTHORIZED TO ACT ON HIS Behalf. Rohinson v. Baker, 5 Gushing, 137. 1849. p. 212-216. A carrier who accepts goods for transportation from one not entitled to control them, has no lien upon the goods for his freight, as against the owner ; and it will make no difference that the carrier acted in good faith and was not in fault. Note. p. 216-219. in. The Custom and Course of Business in regard to the Transpor- tation OF Goods by Carriers, and the Extent to which the Carriers are accustomed to be allowed a Lien iJpon the Goods for Back Charges of Freight and Warehouse Charges will have A Controlling Effect upon the Character and Extent of such Lien. Lee V. Salter, Supplement to Hill ^ Denio, 163. 1843. p. 219-221. The custom of forwarding-merchants and warehousemen, to advance the back charges upon goods coming into their hands for freight and warehousing and other charges attending the transportation, and then collect the same of the owner, at the end of the route, gives them a valid lien therefor upon the goods ; and if the final carrier delivers the goods without exacting payment of these charges, they being noted upon the bill of lading, and the carrier directed to collect them, this will leave a valid cause of action against tlie owner to enforce the payment of the same, in fevor of the party making the advances. Note. p. 221-223. Xn. THE EFFECT OF RESTRICTIVE NOTICES, SPECIAL CONTRACTS, AND EXONERATING CONDITIONS IN BILLS OF LADING, UPON THE RESPONSIBILITIES OF COMMON CARRIERS, p. 223-227. 1. Dorr V. New Jersey Steam Navigation Company, 11 N. T. 485. 1854. p. 227-230. 1. That general notice from the carrier that he will not assume certain specified re- sponsibilities in his business, although brought to the knowledge of those who ANALYSIS OF CONTENTS. XvU employ him, before the time of the employment, is not sufficient to raise any implication of a special contract between the parties to carry upon the terms specified in the notice. 2. But that a special contract specified in tlie bill of lading, to the effect that the company are only to be held responsible for ordinary care and diligence in the transportation of the goods, is binding between the parties. Note. p. 230, 231. 2. Hays V. Kennedy, 41 Perm. St. 378. 1861. p. 231-239. 1. The exception in a bill of lading of "the unavoidable dangers of the river-naviga- tion and fire," held to extend to all the dangers of navigation which were una- voidable by the carriers, as where the boat was run into and sunlc and the goods lost, witliout fault on the part of the master and crew. 2. But where the carrier claims an exemption on this ground, it is incumbent on him to sliow that there was no default on his part, and that the loss occurred by agencies within the exception. Discussion of the import of the terms " act of God," " inevitable accidents," " unavoidable dangers of the river-navigation," &c. 1 3. Farnham v. The Camden S^ Amboy Railw., 7 Am. Law Reg. N, S., 172 ; s. c. 55 Penn. St. 53. 1867. p. 239-244. 1. A common carrier may restrict his responsibility for the safe transportation and delivery of the goods, so far as it depends upon matters beyond his own agency and control. But he cannot exempt himself from the duty of exercising care and watclifulness in the discharge of the undertaking. 2. But in order to maintain an action against the carrier under such a contract, for loss or damage of the goods, the burden of proving that it occurred through the negligence of the carrier would rest upon the plaintiff. Woodward, C. J., dis- senting. 8. Where a bill of lading is made subject to conditions upon the bacl< of the same, such conditions thereby become part of the contract, and are as binding as any other part of it. 4. The form of the condition written upon the back of the bill of lading was as fol- lows : " The responsibility of the company, as carriers of the within named goods, is liereby limited, so as not to exceed $100 for every 100 lbs. weight thereof, and at that rate for a greater or less quantity, the shipper declining to pay for any higher risk. Tlie company will insure to any amount if desired." The goods in this case were safely landed upon the wharf, at the port of destination, and were destroyed by an accidental fire before the owners had notice of their arri- val or any opportunity to remove them. The defendants were held not respon- sible beyond the rate specified in the condition upon the bill of lading. Note. Model Bill of Lading, p. 244-247. Hooper v. Wells, Fargo ^ Co., 5 Am. Law Reg. N. S. 16. 1865. p. 247-261. 1. The liabilities of common carriers and forwarders, independent of any express stipulation in the contract, are entirely different. 2. The common carrier who undertakes to carry goods for hire is an Insurer of the property intrusted to him, and is legally responsible for acta against wliich he h XVIU ANALYSIS OP CONTENTS. cannot proTide, from whatever cause arising ; the acts of God and the puhlic enemy alone excepted. 3. Forwarders are not insurers, but they are responsible for all injuries to property, while in their charge, resulting from negligence or misfeasance of themselves, their agents or employes. 4. Bestrictions upon the common-law liability of a common carrier, for his benefit, inserted in a receipt drawn up by himself and signed by him alone, for goods in- trusted to him for transportation, are to be construed most strongly against the common carrier. 5. If a common carrier who undertakes to transport goods, for hire, from one place to another, " and deliver to address," inserts a clause in a receipt signed by him alone, and given to the person intrusting him with the goods, stating that the carrier is " not to be responsible except as forwarder," this Restrictive clause does not exempt the carrier from liability for loss of the goods, occasioned by the carelessness or negligence of the employ^ on a steamboat owned and controlled by other parties than the carrier, but ordinarily used by him, in his business of carrier, as a means of conveyance. The managers and employes of the steam- boat are, in legal contemplation, for the purpose of the transportation of such goods, tlie managers and employes of the carrier. 6. A receipt signed by a common carrier for goods intrusted to him for transporta- tion for hire, which restricts his liability, wiU not be construed as exempting him from liability for loss occasioned by negligence in the agencies he employs, unless the intention to thus exonerate him is expressed in the instrument in plain and unequivocal terms. 7. Under our Practice Act a complaint cannot be amended in this court so as to make it correspond with the verdict. The District Court in a proper case, be- fore judgment, may durect the complaint to be so amended. Note. Soger v. Portsmouth S. §• P. and E. Railw., 31 Me. 228 ; Camden ^ Ambay R. T. Baldauf, 16 Penn. St. 67 ; Lawrence v. N. Y., Providence ^ B. RaOw., 36 Conn. Reports, 63. p. 261-273. Xin. RESPONSIBILITY BEYOND THE LINE OF THE FIRST CARRIER. How FAR IT IS COMPETENT FOR CORPORATE CARRIERS TO CONTRACT FOE TkaNSPORTATIOX BEYOND THE LuUTS OF THEIR OWN LiNE. 1. Hood V. New York ^ New Haven Railway, 22 Connecticut Reports, 502. 1853. p. 273-277. 1. Railway corporations have no power to contract for transportation of goods or passengers beyond their own line. 2. The fact that the directors constantly assume to enter into such contracts on the part of the corporation will not estop the company Irom setting up their want of power to enter into such contracts, when sued for failure to perform the same. Note. Wheeler v. San Francisco Sf Alameda Railw., 31 Col. 46. p. 277-290. 2. Nashua Lock Company v. Worcester and Nashua Railway, 10 Am. Law Reg. N. S. 224; s. c. 48 N. H. Reports, 339. 1871. p. 290-316. Where several common carriers are associated in a continuous line of transportation, and in the course of the business, goods are carried through the connected line for one price, under an agreement by which the freight-money is divided among ANALYSIS OP CONTENTS. XIX the associated carriers, in proportions fixed by the agreement ; if the carrier at one end of the line receives goods to be transported through, marked for a con- signee at the other end of the line, and on delivery of the goods takes pay for transportation through, the carrier, who so receives the goods, is bound to carry them, or see that they are carried, to their final destination, and is liable for an accidental loss happening in any part of the connected line. Note. p. 316-321. 3. Burroughs Y. Norwich ^ Worcester Railway, 100 Massachusetts He- ports, 26. 1868. p. 321-324. Note. p. 324. 4. McGluer v. Manchester 4" Lawrence Railroad, 13 Gray, 124. 1859. • p. 324-329. 1. A railway corporation chartered in one state may lawfully accept the lease of a connecting railway in another state, and enter into binding contracts for the transportation of goods, not only across their own road, but also across such connecting road. 2. The binding obligation of such contracts may be shown by oral proof that such corporation is and has been constantly holding itself out and acting as a common carrier over both roads. 8. Under such circumstances it is not competent for the lessee of such connecting road, who is in possession of and operating the same, to screen itself from respon- sibility for the safe transportation of goods delivered at a station upon such leased road by showing that the lease was executed without any act of the legis- lature authorizing the same, and is therefore void. Note. p. 329. XIV. AUTHORITY OF AGENTS AND SERVANTS OF RAILWAYS AND OTHER TRANSPORTATION COMPANIES. The Dieectoks' of Coeporations and Joint-Stock Companies have Power to bind the Companies in All Matters of Business to the Full Extent of the Powers of the Company, unless thbee is SOME Constitutional Ebstriction upon their Powers. Philadelphia, Wilmington S} Baltimore Railway v. Quigley, 21 Howard's U. S. Reports, 202. 1858. p. 330-336. 1. A railway, like any other corporation, is responsible for the acts and omissions of its agents, within the scope of their employment. 2. Any form of action may be maintained against the company for the act or omission of its agents, which would be appropriate in the case of natural persons. 3. These points illustrated in their application to railways, under a charge of libel committed, as alleged, by its officers and agents. Note. Whitwell v. Warner, 20 Vermont Reports, 425. p. 387-345. XX ANALYSIS OF CONTENTS. XV. THE EFFECT OF BILLS OF LADING. RESPONSIBILITY OF CARRIERS FOR INJURY TO THE GOODS DURING THE TRANS- PORTATION, OR WHICH EXISTS AT ITS TERMINATION. IM- PROPER PACKAGE, STOWAGE, INTERNAL DECAY, &c. Nelson V. Woodruff, 1 BlacTc, U. S. Reports, 156. 1861. p. 345-356. 1. Where the bill of lading describes the goods as being received in good order, this prima facie imposes upon the carrier the duty of delivering them in like good order at the end of the transit, and, if not, of showing that whatever defect then appears, in fact existed when he received the goods or occurred during the passage, from causes for which he is not responsible. 2. If lard is stowed in wooden casks for a southern voyage, when, from its inherent quality, under the influence of warm climates,' it escapes, the carrier is not responsible for the loss. 3. The owner of goods sent by carrier must see that they are so packed as not to sufier unavoidable damage in the passage, or the loss will fall upon him. 4. The carrier has a right to presume the owner has done his duty in this respect, and is not responsible for damages occurring, through defective package, without his fault. Note. Howard v. Wissrmn, 18 Bern. U. S. 231. p. 356-360. XVI. THE CARRIER IS NOT HELD RESPONSIBLE FOR ANY INJURY ACCRUING TO LIVE STOCK, TRANSPORTED BY HIM, BY REA- SON OF THE TEMPER AND DISPOSITION OF THE ANIMALS, AND WHICH THE UTMOST CARE AND WATCHFULNESS COULD NOT AVOID. 1. Clarke v. The Rochester and Syracuse Railroad Company, 14 N. T. Reports, 570. 1856. p. 360-364. 1. The fact that the owner of live stock is allowed to pass upon the same train, in order to keep some lookout for its safety, will not lessen the responsibility of the carrier. 2. The carrier is not bound absolutely for the safe delivery of such freight at the end of the transit, as in case of inanimate freight. 3. His responsibility is modified, so far as absolute safety is rendered impracticable by reason of the temper, habits, and disposition of the animals ; but when dam- age accrues from other causes the carrier is responsible as in other cases. 4. And he is bound to exercise the utmost vigilance to guard against loss or damage from all causes. Note. p. 364. 2. Powell V. Pennsylvania Railroad Co., 7 Law Reg. 348 ; s. c. 32 Penn. St. HA:. .1859. p. 364-367. 1. Common carriers are bound to know how live animals transported by them should be loaded, and to require that they should be so loaded as to arrive at their des- tination with the least peril. ANALYSIS OP CONTENTS. XXI They are not at liberty to excuse themselves from such responsibility by consent of the owner and thereby suffer any act, amounting to positive negligence, to occur, either in the loading or transportation of such animals ; and the express contract of the owner even will not excuse them for so doing. Where the carrier permits the owner of such animals to put dry straw in the car where they are carried, the same being exposed to ignite from the sparks thrown off by the engine, and the same is thus ignited, and the animals tliereby injured, it is negligenee, and the carrier is responsible, even where the shipper had signed a release to the carrier from all claims for damage to such animals, while in the company's cars. 3. Harris v. Northern Indiana Railroad Company, 20 New York Reports, 232. 1859. p. 368-373. 1. Where the owner of live stock offered for transportation by railway is shown differ- ent kinds of carriages and makes his own selection, the carrier is not responsible for any damage accruing, in tlie course of the transportation, through any defect of construction, or fitting up of the carriages, which was known to the owner at the time of the selection. 2. In such case the owner is presumed to know such defects as are obvious, but he is not bound to enter the cars and make thorough examination. It is the duty of the carrier to point out to the owner all such peculiarities or defects as exist in the carriages, and which are not apparent to a mere casual external observa- tion, and if he fail to do so he wiU be held responsible for all damage accruing from such defects. 3. The freighter will be justified in expecting the transportation wiU be accomplished in the ordinary time, and when damage accrues by reason of extraordinary delay upon the passage, the carrier will be responsible, notwithstanding the visible defects in the carriages were the means of effecting such damage, provided it would not have occurred but for the detention. 4. The carrier is responsible for injury to cattle from want of food and water upon the passage ; and those whom the owner sends along with the cattle to overlook and provide for their safety are not bound to persist in removing the cattle from the cars, either to give them food or water, or for greater security during such extraordinary delaj-, provided the agents of the carrier object, and insist there may not be sufficient time for such operations before the train will start. Note. p. 873. XVII. THE EIGHT TO STOP GOODS IN TRANSITU. 1. Buckley V. Furniss, 15 Wendell, 137. 1836. p. 374^379. Where goods are ordered to be forwarded to an intermediate place, between the residence or place of business of the vendor and vendee, and there come into the possession of a carrier employed by the vendee to transport them to him, and are taken possession of by the vendor on the passage from such intermediate place to the vendee, the right of stoppage in transitu, still subsists, the goods not having reached their ultimate destination. Mere delay in the transportation will not defeat the right of stoppage in transitu, unless the goods have come to the actual or constructive possession of the vendee. XXU ANALYSIS OF CONTENTS. 3. Nor will an attachment of the goods by the creditors of the vendee have that effect. 4. But this right does not exist where the vendor at the time of the sale knew the purchaser to be insolvent. 2. Oovett V. Hitchcock, 23 Wendell, 611, 1840, in the Court of Errors ; s. c. 20 Wendell, 167. p. 380-382. The right of stoppage in transitu is not defeated by the goods having reached the hands of a warehouseman, at an intermediate place in the transit, although there were no public carriers beyond that point, and the goods would there remain until ordered forward by the vendee either by his own or some other private conveyance. 3. Sawyer v. Joslin, 20 Vermont Beports, 172. 1848. p. 382-388. 1. Where goods have reached their destination, so that they will go no fiirther until some new impulse is given them by the vendee, the vendor's right of stoppage in transitu is gone. 2. The goods have then come into the constructive possession of the vendee, or at all events the transit is at an end. Note. Guilford v. Smith, p. 388-393. XVni. THE RUXE OF DAMAGES AGAINST CARRIERS OF GOODS AND WHEN LIABLE FOR SPECIAL DAMAGES RESULTING FROM THEIR DEFAULTS. Deming v. Grand Trunk Railway, 48 New Hampshire Reports, 4.5.5. 1869. p. 393-401. 1. Where the carrier knows that goods committed to him for transportation to the place of consignment are sold at a given price on condition of being delivered at a particular time, and accepts them under the assurance that he will deliver them in due time and fails to do so, he will be held responsible for the difference between the contract price and the value of the goods when delivered. 2. The station agent of a railway company, intrusted to receive and despatch freight, will bind the company by any special contract he makes as to the time of deliv- ery of freight at the place of consignment, notwithstanding he may have no control over the motive-power of the road or the time of the departure and arrival of the trains. 8. If the carrier contract to carry freight at a particular time, he cannot excuse his failure to do so by showing an unusual and unexpected pressure of business at the time. Note. p. 401, 402. ANALYSIS OP CONTENTS. XXIU PAET II. COMMON CARRIERS OF PASSENGERS. I. DEGREE OF CARE REQUIRED, p. 405-430. 1. Ingalh v. Bills;'2 Metcalfs Reports, 1. 1845. 406-414. 1. Common carriers of passengers are bound to exercise the greatest care and skill in tlie discharge of their duties, both as to the carriages used in the transportation and the management and conduct of the business ; but they are not responsible for damages resulting from a defect in the iron axletree of a stage-coach, by reason of a very small flaw entirely surroijnded by sound iron one-fourth of an inch thick and which could not be detected by the most careful external examination. 2. Where a passenger in a stage-coach is placed in such apparent imminent peril, by reason of some accident for which the carrier is responsible, as to render his leaping from the carriage a reasonably proper and prudent act, and in doing so suffers the fracture of a limb, the carrier will be held responsible, although it turns out that if the passenger had remained quietly in the carriage he would have escaped all harm. 2. Hegeman v. The Western Railroad Corporation, \^ N. T. Reports, 9, 1855. p. 414-418. 1. The degree of care and diligence required in passenger transportation will vary in proportion to the known perils to be encountered in different modes. 2. Therefore a rule adopted in regard to passenger transportation by stage-coach will not be held binding with regard to such transportation by railway. 3. The responsibility of carriers of passengers in the latter mode extends to all the apparatus of transportation and requires every precaution to be used, as well by the manufacturers as the carriers ; and, if through defect of such pre- caution damage accrues to the passenger, the carrier will be held responsible. 4. Where a passenger upon a railway Buffered damage by reason of the breaking of an axletree, through latent defects, which could not be discovered by the most careful external examination, but might have been discovered and remedied in the course of manufacture, the company were held responsible. 5. It is a question for the jury to determine, under proper instructions, how far a pas- senger carrier is guilty of negligence in not ascertaining the utility of and adopt- ing an improvement to protect passengers from injuries by accidents to which the cars are liable, and against the effects of which such improvement affords protection. 6. It will not excuse the carrier of passengers by railway, that he procures his cars and all the apparatus of transportation from the most experienced and the best reputed manufacturers ; he will be responsible to the same extent as if he were himself the manufacturer. 3. Alden v. The N. T. Central Railway, 26iV.Z 102. 1862. p. 418-420. 1. Common carriers of passengers are bound absolutely to provide road-worthy car- riages ; and if they fail to do so, they are responsible for all injuries to their pas- sengers in consequence, regardless of any question of negligence on their part. XXIV ANALYSIS OP CONTENTS. 2. Held accordingly that a railway company was responsible for injuries to its passen- gers by reason of a crack in the iron axletree of a car, although it could not have been discovered by any practicable mode of examination, except during the manufacture. Note. p. 420-430. II. HOW FAR PASSENGER CARRIERS ARE REQUIRED TO ADOPT THE MOST APPROVED PRECAUTIONS AGAINST ACCIDENTS, IF GENERALLY KNOWN AND IN COMMON USE. Le Baron v. E(ut Boston Ferry Company, 1 1 AUen, 312. 1865. p. 430-434. 1. A ferry company, being common carriers of passengers, are bound to furnish rea- sonably safe and convenient means for the passage of teams from their boats, and to exercise the utmost care and skill in the use of such means ; but they are not bound to adopt, in addition to such previously possessed means, a new and improved method, because it is safer and better than the one in use by them, if it is not requisite to the reasonable safety and convenience of passengers, and the expense is excessive, for even the cost may be, under circumstances, a suffi- cient excuse for not adopting it. 2. The fact that damage accrues to passengers in the course of transportation is not presumptive evidence of negligence on the part of the carrier, irrespective of the mode in which it occurs ; but that is a circumstance tending to show neg- ligence, to be considered by the jury in determining the question of negligence. 3. Those cases where the happening of an injury to passengers has been held prima facie evidence of negligence on the part of the carrier, and thus imposing the burden of exculpation upon him, are cases where the nature of the accident indicated default on the part of the carrier, as where a rail or wheel or axletree or something else fails, or a collision occurs, or the train funs oflF the track. Per Colt, J. Note. Warren v. Fitchhurg Smlroad Co., 8 AUen, 227. p. 434-487. HI. PASSENGER CARRIERS MAY EXPEL FROM THEIR CARRIAGES ANY PASSENGER REFUSING TO PAY THE LEGAL FARE UPON . PROPER REQUEST. O'Brien v. Boston & Worcester Railroad-Co., 15 Gray's Reports, 20. 1860. p. 438-441. 1. A railway company has the right to eject a passenger from its cars for non-pay- ment of his fare, accordmg to the regulations of the company, or on a, rea- sonable demand being made therefor. 2. Nor can he again enter the same train and require the company to accept him as a passenger upon tender of his fare. 8. The company having the right by law to establish all needful and proper regula- tions concerning passengers who refuse to pay their fares, may prove such regulations as part of their justification. Note. p. 440-441. ANALYSIS OP CONTENTS. XXV A Regulation by Railway Passenger Carkiers requiring Passengers TO GO THROUGH ON THE SaMB TrAIN IS VaLID. State V. Overton, 4 Zahrishie, 435. 18.54. p. 441-447. 1. By paying for a ticket and procuring a passage from one point to anotlier on a railway, the passenger acquires a right to be carried directly from one point to the other without interruption, but not the right to leave the train and resume his seat in another train at any intervening point on the road. 2. The validity of the by-law of a corporation is purely a question of law. Per Green, C. J. 3. Regulations by common carriers of passengers touching the comfort and conven- ience of travellers, or prescribing rules for their conduct to secure the just rights of the company are unlawful when unreasonable, and because unrea- sonable, and the reasonableness or unreasonableness is a question for the jury under proper instructions. Note. p. 447. IV. REQUIRING PASSENGERS TO EXHIBIT THEIR TICKETS ON PAIN OF EXPULSION PROM THE CARS. Hihbard v. N. Y. ^ Erie Railway Go., 15 New York Reports, 455. 1857. p. 447-458. 1. A regulation of a railway company requiring passengers to exhibit their tickets, when requested to do so by the conductor, and in case of refusal authorizing their removal from the cars, is a reasonable and proper regulation, and binding upon the passengers. 2. It seems that a passenger having once forfeited his right to proceed further in the cars by refusing to show his ticket, It is for the company or its agents to say whether he shall be retained upon subsequently showing it. Per Denio, C. 3. 8. If his expulsion, after such subsequent showing of his ticket, is unlawful, it seemi the railway company would not be liable, but only those who committed the tree- pass. Per Comstock, J. [Sed quaere.] 4. If the servants of a railway company, in removing a passenger from the cars, wan- tonly use unnecessary force, they and not the company are responsible for the con- sequences. Per Brown, 3. [Q/usre.'l Note. p. 458. V. THE EFFECT OF COUPON TICKETS FOR PASSENGER TRANSPOR- TATION. SUCCESSIVE PASSENGER CARRIITRS RESPONSIBLE FOR SAFE DELIVERY TO THE NEXT CARRIER. Knight v. P. S. 8f P. Railway, 8 Law Register, N. S. 654 ; s. C. 57 Maine Reports, 202. 1869. p. 458-465. 1. Coupon tickets issued by one of two or more connected roads, forming a continuous line of passenger transportation, should be regarded in all respects the same as distinct passenger tickets by the several roads, and sold by their own employ^ at their own offices. XXVI ANALYSIS OP CONTENTS. » 2. Passenger carriers by railway are " bound to use the best precautions in known practical use for securing the safety and convenience of passengers." [By Chief Justice Erie, in Ford v. L. & S. W. Railw., 2 F. & F. 732.] Where passenger car- riers convey by steam upon railways, " public policy and safety require that they be held to the greatest possible care and diligence." [By Mr. Justice Grier, in Phil. & Reading Railway v. Derby, 14 How. 486.] 3. Where passenger transportation is undertaken, across successive lines, and one ticket, consisting of separate coupons for each line, is given for an entire fare throughout the line, each preceding line will be held responsible for the safe delivery of passengers to each succeeding one. 4. Excess of damages, to form the basis of setting aside the verdict of the jury, must go very much beyond what the court might deem reasonable and proper. 5. So, too, where there is clearly evidence of negligence on the part of the defendants, which it becomes the duty of the court to submit to the jury, and upon which they are properly left at liberty to find either for or against them, it is not com- petent for the court to set aside the verdict upon the ground of misconception of the evidence by the jury, whatever view the court might have entertained in regard to the weight of evidence had the question been proper for their deter- mination in the first instance. Note. p. 465. VI. RESPONSIBILITY WHERE DEATH ENSUES. 1. Pennsylvania Bailroad Co. v. McOloshey, 23 Penn. St. 526. 1854 p. 466-471. 1. A passenger will not deprive his representatives of redress in such a case, because he followed the specific instructions of the conductor in the particular case, although in conflict with what he had been informed were the standing rules of the company. 2. Common carriers cannot, by contract with their employers, escape responsibility for gross neligence. 2. Bailroad Co. v. Barron, 5 Wallace Reports, 90. 1866. p. 471-473. 1. A railway company in carrying passengers is responsible for an injury to such pas- sengers through the default of another company in running ~ train upon the same line by the permission of the first company. 2. When the statute, giving the remedy to the wife or next of kin of a person killed through the default of the railway company, restricts the damages to the pecuni- ary injuries resulting to such surviving relatives from the death, the amount awarded must depend mainly upon the sound sense and deliberate judgment of the jury, or, in other words, upon the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. 3. In such cases the recovery will not depend upon the fact that the party, for whose benefit as next of kin the suit is brought, had a legal claim upon the deceased for support. Note. p. 473. ANALYSIS OP CONTENTS. XXVU VII. WHERE THE PARTY INJURED WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 1. Ishell V. New York 8r New Haven Railway Company, 27 Connecticut Reports, 393. 1858. p. 474-485. The negligence on the part of the plaintiff which will preclude his recovering dam- ages for the negligence of the defendant must be the actual proximate cause, contributing to some extent directly to the injury, and not a mere technical wrong, contributing either incidentally or remotely, or not at all, towards the injury. Note. p. 485-489. 2. Dunn V. Grand Trunk Railway, 10 Am. Law Reg. N. 8. 615 ; s. C. 5% Maine Reports, 1^1 . 1870. p. 490-496. A person who is allowed, by the conductor of a freight train, to pass over the road in the saloon car attached to the train, upon the paj'ment of the same fare as that demanded of a first-class passenger may require of the company the same degree of responsibility for his safety as in a passenger train. [See note at end of case.] Note. p. 497-502. VIII. RULE OP DAMAGES FOR INJURIES TO PASSENGERS. Goddard v. Grand Trunk Railway, 10 Am. Law Reg. N. S. 17. 1871. p. 602-517. 1. A railway company, carrying passengers, is responsible for any misconduct of its servants or employes, in the due course of their employment, whether it be negligent or wilful. 2. A brakeman, who acts as conductor of a passenger-train and as such insults and misuses a passenger, will be regarded as acting in the due course of his employ- ment. 3. A corporation is responsible for exemplary damages for the misconduct of its agents to the same extent as natural persons are. 4. Discussion of the circumstances which will justify the jury in giving exemplary damages, and when such damages will be regarded as excessive. 5. The jury gave a verdict for $4850, and the defendant filed exceptions and moved for a new trial on the ground that the damages were excessive, which was denied. Note. p. 517-520. IX. HOW FAR RAILWAYS AS PASSENGER CARRIERS ARE RESPON- SIBLE, BY WAY OF EXEMPLARY DAMAGES, FOR THE MIS- CONDUCT OF THEIR EMPLOYjfeS. Atlantic Sf Great Western Railway y. Dunn, 19 Ohio, N. 8. 162. 1871. p. 520-525. 1. Railway corporations, acting, as they do, solely through their servants and agents, are responsible for all their acts within the scope of their employment to the XXVIH ANALYSIS OP CONTENTS. same extent and in the same form as are natural persons who perform si mil ar acts, either in person or through the agency of others. 2. Hence such corporations, as passenger carriers, will he held responsible in exem- plary damages in all cases where they are responsible at all, and the facts are such as to call for the infliction of such damages. X. THE DUTY OF PASSENGER CARRIERS IN REGARD TO MAINTAIN- ING THE PLATFORMS ABOUT THE PASSENGER STATIONS IN SAFE CONDITION AND PROPERLY PROTECTED, SO AS TO INSURE THE SAFETY OF PASSENGERS IN ENTERING AND LEAVING THE CARS, Etc. 1 McDonald Sr Wife v. 77ie Chicago S; N. W. Railw., 9 Law Reg. N. S. 10; s. c. 26 7owa, 124. p. 525-532. 1. It is the duty of railway passenger carriers to provide comfortable rooms for the accommodation of passengers while waiting at stations, and to enforce such regulations in regard to smoking therein as to enable passengers to occupy them in reasonable comfort. 2. If this is not done, it will afford reasonable excuse for passeng^ers to enter the cars before they are drawn up in front of the platform, in preparation for immediate departure. 3. And if in so doing a passenger sustains injury through defect in the platform, against or opposite which the cars are standing during a halt for refreshments, the company will be held responsible. 4. Railway passenger carriers have power to make reasonable rules and regulations, in regard to the conduct of passengers, extending to the time and mode of enter- ing the cars ; but such rules and regulations must, in some way, be made known to passengers or they will not be in fault for not conforming to them. Note, p. 532-536. 2. Pennsylvania Railw. v. Zehe ^ Wife, 8 Am. Law Reg. 27 ; s. c. 33 Penn. St. 318. 1859. p. 536-546. 1. It is the duty of passenger carriers by railway to provide a safe and sufficient road and all its equipments, together with sufficient and competent servants to con- duct the business in the safest manner, and to see that all their servants are in the exercise of the utmost watchfulness, care, and diligence during the transit, together with safe means of taking and leaving the carriages. 2. And there is a correlative duty on the part of the passenger to use these provisions in a careful and prudent manner, and not to depart from the known or obvious rules and requirements of the company. 3. Where the passenger fails to do this, as by leaving the carriages on the opposite side from the platform, and thereby loses his life or suffers damage, no recovery can be had against the company. 4. The damages recoverable by parents for the loss of a son through the negligence of passenger carriers extensively discussed by Thompson, J. ANALYSIS OF CONTENTS. XXIX XI. THE DUTY OF PASSENGERS IN RAILWAY TRAINS TO KEEP THEIR PERSONS WITHIN THE CARRIAGE, AND NOT EXPOSE THEM TO THE PERIL OF SUCH OBSTRUCTIONS AS ARE LIABLE CONSTAIJTLY TO OCCUR. Pittshirgh ^ Gonnellsville Railw. v. M'Olurg, 7 Law Reg. N. S., 277; s. c. 56 Penn. St. Reports, 294. 1867. p. 546-552. 1. It is the duty of courts, where there is no controversy in regard to the facts or in regard to whether the conduct of the plaintiff constituted culpable negligence, to decide the question of negligence as one of law. 2. If tlie plaintiff suffer his arm to remain outside the carriage window, and thereby suffer damage, he cannot recover ; and if there is no controversy about the facts, it is the duty of the court so to decide, as matter of law. 8. If there are any special reasons why the carrier should have exercised extraordi- nary watchfulness in regard to a passenger exposing himself, that must be shown as part of the plaintiff's case in order to rebut the general presumption of culpable negligence on his part. Note. Todd v. Old Colony Railw., 3 Allen, 18 ; s. c. 7 Allen, 207. p. 552, 553. XII. QUESTIONS OF NEGLIGENCE ; WHEN TO BE DECIDED BY THE COURT, AS MATTER OF LAW, AND WHEN TO BE REFERRED TO THE JURY AS MATTER OF FACT. 1. Gaynor v. Old Oolony and Newport Railway, 100 Mass. Reports, 208. 1868. p. 554-558. 1. Questions of negligence are always to be submitted to the jury, unless where the facts are undisputed and the result of those facts unquestionable, either as prov- ing or disproving sucll negligence. 2. Where the facts, being conceded, the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not of the judge, which is to be appealed to. • 3. Where the plaintiff, being a passenger upon the defendants' train, stepped from the carriage upon a narrow platform on the opposite side from the station, and in attempting to cross a side track to reach the street in that direction was injured by an engine backing upon him, and the situation and use of the premises were such that according to the general knowledge and experience of mankind it naturally invited passengers desiring to reach the streets on that side of the main track to pass over the side track, as the plaintiff did, it was proper to be submitted to the jury whether the appearances were such as to justify the plaintiff in passing where he did, and whether in doing so he exercised proper care and prudence, and if so, whether the defendants were guilty of negligence in leaving such apparent passage for passengers no more protected, or in the management of the engine at the time of the iryury. Note. p. 558. XXX ANALYSIS OF CONTENTS. 2. Briggs v. Taylor, 28 Vermont Reports, 180. 1855. p. 558-564. 1. Where the facts are not in controversy, and, according to the uniform experience and conduct of reasonable and prudent men, show either negligence or the con- trary, it is the duty of the court to decide the question as matter of law, and it is error to submit it to the jury, unless they decide it as the court should have done. 2. The ordinary distinction of negligence into three degrees, slight, ordinary, and gross, has no clearly defined legal import, and cannot be applied intelligibly to cases before a jury. 3. The true measure of diligence and duty, in all cases of bailment, where the party is only liable in case of negligence, is that which prudent and careful men ex- ercise in the conduct of their own affairs of equal importance. 4. The greater or less degree of diligence required of bailees, under different circum- stances or in different kinds of business, is to be measured by the nature of the affair in hand and the difficulty of securing success, as well as the extent of the calamity in case of failure. Note. — This rule as applied to passenger transportation, it will be seen, must require the most perfect apparatus, as well as the most intense watchfulness and diligence in the performance of the duty. 3. Sullivan v. Philadelphia 8f Reading Railw., 6 Am. Law Reg. 342. 1858 ; s. c. 30 Penn. St. 234. p. 564-568. 1. When passenger carriers by railway in the course of the transportation inflict dam- age or injury upon a passenger, without fault of his, the law implies prima fade, negligence, and throws on liim the onus of showing it did not exist. 2. The passenger is bound to conform to all the reason&ble rules, regulations, and requirements of the carrier ; and unless he do so, he cannot recover for any dam- age he may sustain resulting in any degree from such omission on his part. 3. But the presumption of negligence above stated, being one of fact, can only be made by the jury, as a deduction from all surrounding circumstances. 4. Railway companies, acting as passenger carriers, are boimd to exclude cattle from coming upon their track in such mode as they may deem most eligible ; and if they fail to do so, must respond in damages to their passengers who suffer detri- ment from the intrusion of cattle upon the line. 5. And until measures are adopted to exclude cattle from the line,.and especially at points where it is known that they are accustomed to go upon it, it is the special duty of the company to drive their engines at such moderate speed that no damage will occur from that cause. Note. p. 568. Xin. HOW FAR PASSENGER CARRIERS BY RAILWAY ARE BOUND TO EXCLUDE FROM THEIR CARRIAGES PERSONS OE BAD CHARACTER AND CONDUCT. Pittsburgh, Ft. Wayne Sf Chicago Railw. v. Hinds ^ Wife, 1 Am. Law Reg. N. S. 14. 1867. s. c. 53 Penn. St. 512. p. 568-572. Note. p. 572, 573. ANALYSIS OP CONTENTS. XXXI PART III. CONSTITUTIONAL QUESTIONS. HOW FAR THE LEGISLATURE MAY CONTROL EXISTING CORPORA- TIONS, AND WHAT AMOUNTS TO AN INFRINGEMENT OF THEIR ESSENTIAL FRANCHISES. 1. Boston 8f Lowell Railw. v. Salem S^ Lowell, Boston Sf Maine, and Lowell Sf Lawrence Railways, 2 Gray's Reports, 1. 1854. p. 577-586. 1. An exclusive grant to a corporation by the legislature of one of the states, to build and operate a railway between two cities within its limits for a term of years, is a contract within that provision of the United States Constitution prohibiting the states from passing any law impairing the obligation of contracts. 2. The granting subsequently to one or more corporations the privilege of building railways, so near the same line that by their combination a rival line will be created between the same cities, amounts, when they are so combined, to an in- fringement of the former exclusive grant, and cannot be lawfully maintained in that form. 2. Thorpe v. Rutland and Burlington Railway, 27 Vermont Reports, 140. 1864. p. 587-600. 1. There is nothing in the United States Constitution which abridges or impairs the full power of the state legislatures to impose any burdens or restrictions upon existing corporations within their limits, which may become requisite to the fullest and most complete exercise of the functions of regulating the internal police of the state. 2. Discussion of the proper limitation of the essential franchises of corporations, and how far it is competent for the state legislatures to impose new burdens and restrictions, under their inherent and unimpaired right to regulate and control their internal police. 3. The Richmond, Fredericksburg, Sf Potomac Railw. v. The Louisa Railw. Id Howard's Reports, 11. 1851. p. 600-617. Where the legislature granted the plaintiffs a railway from Richmond through Fred- . ericksburg to the Potomac, and guaranteed to the company for thirty years the exclusive privilege of carrying passengers between Richmond and Washington, and that no other railway should be chartered and built on the same line, or any portion of it, the probable effect of which would be to diminish the number of pas- sengers travelling on the former road between the two cities, it was held that this did not preclude the building of another railway upon the same line, as it might be used exclusively for the transportation of merchandise. Note. p. 617-618. XXXU ANALYSIS OF CONTENTS. PART IV. RAILWAY INVESTMENTS AND SECURITIES. 1. HaU et als., Trustees, v. The Sullivan Railway. Circuit Court of U. S., N. H. Dist., 21 Law Reporter, 138. Decided in 1857. p. 621-631. 1. By the rules of the English law it is well settled, that a corporation, like a rail- way, endowed with important public functions, cannot, without legislative per- mission, assign those functions to other persons, natural or artificial. 2. According to the settled policy of the American states, a corporation cannot assign its vital franchise, or function, of being a corporation to any other person, natural or artificial, unless according to some special legislative provision or permission. 3. The question whether a railway corporation can execute a valid mortgage of its road and accessories in such form as to give the mortgagees the power to fore- close the title of the property and render it available in their hands, without legislative authority, is one where the national courts should follow and not pre- cede the Supreme Court of New Hampshire ; and that court does not seem expressly to have determined it. 4. But as the legislature of that state, by statutes passed after the execution of this mortgage, liave impliedly recognized it as a valid security, this court regard that as equivalent to the grant of an express authority to execute it, and that there can be no longer any question made in regard to its validity on that ground. 6. All mortgages of property conditioned for the payment of the debt thereby secured, at a fixed time, and thereupon to become void, but otherwise to remain in full force, are subject to a strict foreclosure in a court of equity ; and the fact that the mortgage also contains a power of sale will not interfere with the right of strict foreclosure. The two remedies are independent of each other, and either may be exercised at the election of the mortgagee. 6. It is not required that the bondholders be made parties to a bill of foreclosure. 2. Pierce v. Emery, 32 New Hamp. 484. 1856. p. 631-648. 1. It is a general rule of the common law that nothing can be mortgaged that is not in existence, and that does not belong to the mortgagor at the time of the mortgage. 2. Corporations, as a general rule, have power to sell or mortgage their property, real or personal. 3. Hallways are, to some extent, public corporations, being created to answer a public purpose, and are bound to the state for the performance of their public duties, and they can do no act which would amount to a renunciation of their public duty pr would disable them from performing it. 4. But they may contract debts, and we see no reason why they may not execute a valid mortgage of their personal property, not affixed to the road, though used in the operation of it. 5. In the present case, we think the first two mortgages are valid as to the personal property. But they confer no right to the road. The mortgagee must assert his seciaity by removing the personal property. ANALYSIS OF CONTENTS.' XSXIU 6. Although a railway, like any other prirate corporation, may create a valid mort- gage upon its personal property, yet it cannot sell or mortgage the right to manage or control its road, or any other corporate franchise. Such power must come from legislative consent or sanction. 7. Where a railway corporation creates a valid mortgage upon all its property, real and personal, embracing all its franchises, that of acquiring property among them, the subsequently acquired property would pass under the mortgage as incident to the right of acquiring and holding it, and would be vested in the trustees by the mortgage. 8. A railway corporation after the execution of a valid mortgage, as above, stands in the light of trustees of the property, to manage it in the best manner for the interest of all concerned ; and this embraces the right to change the rolling-stock and all other personal property of the company, by selling and buying as occa- sion may require. 9. In order to render railway mortgages available securities for the purpose for which they are created, it seems necessary to so construe them, as far as reasonably practicable, that they shall carry the existing as well as the future acquired prop- erty of the company. Unless this were so, the mortgagees might find, when their right of possession becomes complete, nothing remaining but the road-bed and the franchise of operating a railway. 10. Where, under such a contract of mortgage, iron is purchased for and laid upon the road, with the agreement between the seller and the company, with the consent of the trustees, that the iron may be removed by the seller if the price is not paid according to the contract, such contract is valid as to the parties and trus- tees, and may be enforced according to its terms. 3.^ Shaw and others v. Norfolk County Railway, 5 Gray, 162. 1855. s. c. 16 Gray, 407. 1860. p. 648-658. 1. In a bill to foreclose a railway mortgage, it is not necessary to make the bond- holders under the mortgage, or those holding bonds against the company dated anterior to the mortgage, parties, the trustees representing all interests under the mortgage, on the part of the plaintiff, - and the company, as defendants. Opinion by Bigeloio, J. 2. Such suit will not abate by reason of the death of one of the trustees, but will be postponed until the vacancy is filled. Opinion by Merrick, J. 3. The mortgage of a railway company to secure a debt, extending to all its property and franchises, is good as to the property, both real and personal, without any special grant from the state of power to execute the same, whatever may be the law in regard to the franchise for operating the railway. 4. But the mortgage having been ratified by act of the legislature is valid for all pur- poses, and it containing special provisions for taking possession of the property, and thus paying the debt, will not preclude the mortgagee from seeking an abso- lute foreclosure of the title of the mortgagor. Opinion by Merrick, 3. 4. Ooe V. Columbus, P., ^ Ind. Railw., 10 Ohio N. S. 372. 1859. p. 658-667. A railway corporation, with the ordinary powers to build and operate a railway, cannot mortgage its real estate or its essential franchise of being a corporation, or that of operating the railway, but only its equipment, and this will not carry future acquisitions. VOL. II. C XXXIV ANALYSIS OP CONTENTS. 2. Under legislative authority to borrow money and execute a valid mortgage of its "road, fixtures, and equipments, with all the appurtenances and income there- of," it may mortgage its franchise of operating the railway, but not that of bemg a corporation, or that of taking private property ; Wt this mortgage, although carrying future acquisitions as an incident, will not exempt the property from execution while in the hands of the m(jj|tgagor. [s. p. Coopers v Wolf, 15 Ohio N. S. 523.] The case also conta^s directions as to the mode of sale of a railway and its equipment. 5. Coe, Trustee v. Pennock and the G. Z. <^ C. Railway, 23 How. U. S. Reports, 117 p. (6-74-681); s. c. in Circuit Court, before Mr. Justice McLean of the United States Supreme Court, 6 Am. Law Beg. 27. 1857-1859. p. 667-674. 1. A railway mortgage embracing the road and rolling-stock, with all accessions and acquisitions thereafter made to either, and all the future earnings of the road, with the further agreement to execute, from time to time, such conveyances of the after acquired property as may be demanded, wiU, in equity, create a valid ' lien upon all such property as fast as it shall be acquired. 2. And even the manufacturer of cars for the company, if he make an unconditional delivery of them, will retain no lien upon them for the price. Nor can such manufacturer enforce the payment of any judgment therefor which he may recover against the company, by a levy upon the rolling-stock. 3. A court of equity will adjust the payment of the successive liens upon the prop- erty ; but will, if possible, avoid the appointment of a receiver or the sale of the property. « 1. A railway company to enable themselves to finish and equip their road may borrow money and mortgage all their existing and future acquired property. 2. Such instrument, although only operating at the time of its execution upon such property as the company then possess, will become operative upon future ac- quired property from the time of its acquisition and being placed upon the road. 3. In such case creditors not embraced in the mortgage, although having recovered judgment against the company, cannot be allowed to levy upon the property of the company embraced in the mortgage. Nor can the bondholders under the mortgage levy upon the property, since that would derange the award of pro rata payments which a court of equity will decree. , Williamson, Trustee, v. N'ew Albany and Salem Railway, U. S. Circuit Court, at Chambers, Cincinnati, October 26, 1857, 9 Am. Railway Times, No. 37. p. 682-686. The appointment of a receiver by courts of equity rests in sound legal discretion ; and when made, it is done for the preservation of the rights and interests of all the parties. It will never be done for the mere purpose of enforcing a penalty, as where, in the case of a railway mortgage, it is stipulated, that if the mortgagor shall fail to meet any one of the payments promptly, either of principal or interest, the whole sum secured by the mortgage shall become due and payable immediately there- after, and a failure to meet one Instalfcent of interest has occurred. ANALYSIS OP CONTENTS. XXXV 3. This will never be done, in such case, unless there is an allegation and proof of abuse, or danger of abuse, on the part of the mortgagor, in the management of the property and the application of the net income towards the payment of the debt secured by the mortgage. 4. Where only two semi-annual instalments of interest remain due and unpaid, and this has occurred in consequence of the earnings and resources of the company having been applied to the completion an^ equipment of the road, and this has been done by the advice of the trustee and a large number of the bondholders, and the road thus put in successful operation, and there is no evidence of any abuse in tlie management of the road, a court of equity will not appoint a receiver, or control the management of the road, except to direct the apphcation of the net earnings equally to the payment of the floating debt and the interest due upon the mortgage. 5. If the company fail to comply with this order, or are otherwise guilty of mis- management, a receiver will be appointed at once. 7. Shepley v. Atlantic Sf St. Lawrence 8^ Grand Trunk Railw., 55 Maine Reports, 395. 1868. p. 687-690. 1. Where a railway mortgage is ratified by act of the legislature, it is thereby ren- dered valid from the time of execution, although made without legislative authority. 2. Where such mortgage, among other things, contains a provision that upon failure of the mortgagors to make the payments according to the terms of the deed, both interest and principal, it shall be lawful for the trustees to take possession of the property, and operate the road, and apply the net income to the pay- ment of the same, a court of equity will decree specific performance of such ' provisions. 3. The court here say, that the doctrine that all railway mortgages "executed " with- out the consent of the legislature are illegal and void, because they may operate as a permanent transfer of the railway franchises from the original corporators to another, seems to us to have little to commend it and much to condemn it. Note. p. 690-692. II. HOW FAR CONTRACTS FOR RAILWAY SHARES, TO BE DELIV- ERED AT A FUTURE DAY, ARE LIABLE TO BE AFFECTED BY THE MANAGEMENT OF SUCH RAILWAY, AND THE CONSE- QUENT CHANGE IN THE MARKET VALUE OF SUCH SHARES IN THE MEAN TIME. Faulkner v. Hebard, 26 , Vermont Reports, 452. 1854. p. 692-701. 1. Where one party contracts to sell and deliver shares in a railway company on or before a day named, anJ the other agrees to pay therefor a price agreed, the con- tract is not a mere option, offer, or refusal of the shares at a certain price, but a contract by mutual promises, each forming the entire consideration for the other, and neither is revocable ; but each party may maintain an action against the other upon his part of the contract. 2. In order to do this, he is not bound to show full performance on his part, but only readiness and willingness, and an offer to perform so soon as the other party performs. XXXVl ANALYSIS OP CONTENTS. 3. If the other party positively refuse to perform his part of the contract, there will be no necessity for an offer to perform on the other side, readiness and willing- ness is all that will be then required. 4. The directors of the company, during the time intervening between the date of the contract and the time fixed for its performance, having offered the shares at thirty dollars, the par value being one hundred dollars, and thus greatly reduced their market value, will not release the purchasing party frdhi his contract. 5. If this act of the directors be regarded as legal, it was one of those contingencies which the purchaser was bound to anticipate might occur; and whether ho did or not in fact anticipate it, the hazard, by the terms of the contract, rested upon him, and he cannot therefore claim any exoneration on that ground. 6. But if the act be regarded as illegal he may take his legal redress, after he be- comes a member of the corporation, by completing the purchase. Errata. At the Iiottom of page 486, add Johnson v. Philadelphia & West Chester Rallw. 11 Am. Law K«g. N. S. 159. Page 672, line 13 from the hottom, x>mit "of the country." TABLE OF LEADING CASES REPORTED. PAGE Adams v. Clark, 9 Cush. 215 216 Alden v. The N. Y. Central Kailw., 26 N. Y. 102 418 Allen V. Sackrider, 37 New York, 341 31 Atlantic & Great Western Railvr. V. Dunn, 19 Ohio N. S. 162 520 Baldwin v. The American Express Co., 23 111. 197 72 Blossom V. Dodd, 43 N. Y. 264 86 Blossom V. Griffin, 13 N. Y. 569 147 Blumenthal v. Brainerd, 38 Ver- mont, 402 175 Boston & Lowell Kailw. v. Salem & Lowell, Boston & Maine, and Lowell & Lawrence Railways, 2 Gray, 1 577 Briggs V. Taylor, 28 Vermont, 180 658 Buckland v^ Adams Express Co., 97 Mass. 124 43 Buckley v. Eurniss, 15 Wend. 137 374 Burroughs v. Norwich & Worces- ter Railw., 100 Mass. 26 321 Camden & Amboy Railw. v. Bal- dauf, 16 Penn. St. 67 267 Chicago & N. W. Railw. v. Mer- rill, 48 111. 425 92 Clarke v. The Rochester & Syra- cuse Railroad Co., 14 New York, 670 360 Coe V. Columbus, P. & Ind. Rail- way, 10 Ohio N. S. 372 668 Coe, Trustee v. Pennock and the C. Z. & C. Railw., 23 Howard, U. S. 117 667 Cole V. Goodwin, 19 Wend. 251 110 Covell V. Hitchcock, 23 Wend. 611 380 Dawson V. Kittle, 4 Hill, 107 221 Demine v. Grand Trunk Railw., 48 N. H. 455 _ 393 Dorr V. New Jersey Steam Navi- gation Co., 11 N. Y. 485 227 PAGE Dunn V. Grand Trunk Railw., 68 Me. 187. 490 Elliott V. Rossell, 10 Johns. 1 25 Escopiniche v. Stuart, 2 Conn. 262 211 Farmers & Mechanics' Bank v. The Champlain Transportation Co., 23 Vermont, 186 62 Farnham v. The Camden & Am- boy Railw., 55 Penn. St. 53 239 Faulkner v. Hebard, 26 Vermont, 452 692 Gaynor v. Old Colony & Newport Railw., 100 Mass. 208 654 Goddard v. Grand Trunk Railw., 10 Am. Law Reg. N. S. 17 502 Guilford v. Smith, 80 Vermont, 49 388 Hale V. The New Jersey Steam Navigation Co., 16 Conn. 639 3 Hall et al. v. The Sullivan Railw., 21 Law Reporter, 138 621 Harris v. Northern Indiana Rail- road Co., 20 N. Y. 232 368 Hawkins v. Hoffman, 6 Hill, 586 93 Hays V. Kennedy, 41 Penn. St. 378 231 Hegeman v. Western Railroad Cor- poration, 13 N.Y. 9 414 Hibbard v. N. Y. & Erie Railw. Co., 16 N.Y. 465 447 HoUister v. Nowlen, 19 Wend. 234 96 Hood V. New York & New Haven Railw., 22 Conn. 602 273 Hooper v. Wells, Fargo & Co., 6 Am. Law Reg. N. S. 16 247 Howard v. Wissman, 18 How. U. S. 231 366 Hutchins V. Ladd, 16 Michigan, 493 77 Ingalls V. Bills, 9 Metealf, 1 406 XXXVIU TABLE OP LEADING CASES REPORTED. Isbell V. New York & New Haven Railw. Co., 27 Conn. 393 474 Johnson v. Philadelphia & West Chester Railw., 11 Am. Law Reg. N. S. 159 487 Judson V. The Western Railroad Corp., 6 Allen, 486 47 K. & P. Railw. V. P. & K. Railw., 59 Me. 9 691 Kemp V. Coughtry, 11 Johns. 107 30 Knight V. P. S. & P. Railw., 67 Me. 202. 458 Lawrence v. New York, Provi- dence & Boston Railw., 36 Conn. 63 271 Le Baron v. East Boston Ferry Co., 11 Allen, 312 431 Lee V. Salter, Supplement to Hill & Denio, 163 219 McArthur v. Sears, 21 Wend. 190 11 McCluer v. Manchester & Law- rence Railroad, 13 Gray, 124 324 McDonald & Wife v. Chicago & N. W. Railw., 26 Iowa, 124 525 McMaster v. Pennsylvania Rail- road Co., 28 Phila. 397 161 Merriam v. Hartford and New Ha- ven Railroad Co., 20 Conn. 354 142 Morrison v. Davis, 20 Penn. St. 171 20 Moses V. Boston & Maine Rail- way Co., 32 N. H. 523 166 Nashua Lock Co. v. Worcester & Nashua Railw., 48 N. H. 339 290 Nelson V. Woodruff, 1 Black, U. S. 156 345 New Eng. Express Co. v. Maine Central Railway Co., 57 Me. 188 62 New Jersey Steam Navigation Co. V. The Merchants' Bank, Boston, 6 How. U. S. 344 34 Norway Plains Co. v. Boston & Maine Railroad Co., 1 Gray, 263 162 Noyes v. The Rutland & Burling- ton Railw., 27 Vermont, 110 150 O'Brien o. Boston & Worcester Railw. Co., 15 Gray, 20 438 Palmer v. Lorillard, 15 Johns. 14 185 Pennsylvania Railroad Co. v. Mc- Closkey, 23 Penn. St. 526 466 Pennsylvania Railw. v. Zebe & Wife, 33 Penn. St. 318 536 Philadelphia, Wilmington & Bal- timore Railw. V. Quigley, 21 How. U. S. 202 330 Pierce v. Emery, 32 N. H. 484 631 Pittsburgh & Connellsville Railw. V. M'Clurg, 56 Penn. St. 294 546 Pittsburgh, Fort Wayne & Chicago Railw. V. Hinds & Wife, 63 Penn. St. 572 ' 568 Powell V. Myers, 26 Wend. 591 133 Powell V. Pennsylvania Railw. Co., 32 Penn. St. 414 364 Railroad Co. v. Barron, 5 Wall. 90 _ 471 Richmond, Fredericksburg & Po- tomac Railw. V. The Louisa Rail- way, 13 How. 71 600 Robinson v. Baker, 5 Cush. 137 212 Robinson v. Marine Insurance Co., 2 Johns. 323 203 Rossiter v. Chester, 1 Douglass (Mich.), 154 207 Sager v. Portsmouth S. & P. & E. Railw., 31 Me. 228 263 Sawyer v. Joslin, 20 Vermont, 172 382 Scott V. Libby, 2 Johns. 336 206 Shaw & others v. Norfolk County Railw., 6 Gray, 162 648 Shepley v. Atlantic & St. Law- rence & Grand Trunk Railw., 55 Maine, 395 687 Southern Express Co. v. Moon, 39 Miss. 822 83 State V. Overton, 4 Zabriskie, 435 441 Sullivan v. Philadelphia & Reading Railw., 30 Penn. St. 234 564 Thorpe v. Rutland & Burlington Railw., 27 Vermont, 140 587 Todd V. Old Colony Railw., 3 Al- len, 18 653 Warren v. Fitchburg Railroad Co., 8 Allen, 227, 230 434 Wflrh V. Durand, 36 Conn. 182 517 Wheeler v. San Francisco & Ala- meda Railw., 31 Cal. 46 278 Whitwell V. Warner, 20 Vermont, 425 340 Williamson, Trustee v. New Al- bany & Salem Railw., 9 Ameri- can Railw. Times, No. 37 682 TABLE OF CASES CITED. .Abbott V. Goodwin 684, 670 Ackley v. Kellogg 68, 61 Adams V. Clark 216 Adams Express Company v. Dar- nell 76, 77 Adams Express Company «. Rea- gan _ 86, 278 Ala. & Tenn. Rivers Railw. v. Kidd 183 Alden v. Carver 222 V. The N. Y. Cent. Railw. Co. 421, 428, 480 Aldridge v. Great Western Railw. 10 Alexander v. Cana 650 V. Green 8, 227, 258 Alfred V. Home 122 Allan V. Gripper 390, 891 Allen V. Knight 629, 651 V. Sewall 53 Allyn V. Boston & Albany Railw. 668 Am. Express Co. ». Fletcher 77 Am. Express Co. v. Lesem 92 Amies v. Stevens 17 Angle V. Miss. & M. Railroad Co. 280, 296 Ansell V. Waterhouse 100, 132, 412 Arctic Fire Ins. Co. v. Austin 11 Armington v. Barnet 595 Armroyd et al. v. The Union In- surance Company 211 Armsworth v. S. E. Railway Co. 468 Arthur v. The Commercial & Rail- road Bank 686 Aston V. Heaven 408, 426 Attwood V. Reliance Transporta- tion Company 254 Austin V. The Manchester Railroad 561 Avery v. Merrill 254 Aymar«. Astor 6, 12, 13, 17 B. Backhouse v. Sneed 16 Backman v. Charlestown 401 Bags of Linseed Oil • 219 Baker v. Portland 491 Baldwin v. Payne 696 Balfe V. Lord 627 Balnitt v. Hartley 393 Bait. & Ohio Railw. v. State 437, 473 Baltimore & Philadelphia Steam- boat Company v. Brown 802 Bancroft v. Boston & Worcester Railroad Co. 567 Bank of Middlebury v. Edgerton 663 Barber v. Brace 18 Barclay v. Weaver 24 Bark Edwin, The 146 Barnard v. Poor 518 Barnes v. Ware 635 Barney v. Prentiss 108, 130 Barron v. Eldridge .146 Barry v. Merchants' Exchange Co. 632 Barter v. Wheeler 318 Bartrara v. Farebrother 387 Bartsch v. Atwater 7 Bastard v. Bastard 225 Batson v. Donovan 104, 120, 121, 660 Baxendale v. G. W. R. R. Co. 68 Baylies v. Fettyplace 194 Bean v. Green 123, 265 Beardmore v. Carrington 510 Beck V. Evans 116, 122, 264 Beebe v. Robert 87 Beekman v. Shouse 243 Belger v. Dinsmore 81 Bell V. Drew 140 V. Reed 12, 29 Beman v. Rufford 365, 623 Benner v. Equitable Ins. Co. 202, 203 xl TABLE OP CASES CITED. Benett ». Peninsular Steamboat Co. 71, 426 Bennett v. Button 64, 71 V. Filyaw 57 Benson v. New York City 699 Bernall v. Pim 219 Berries v. Hutcliinson 399 Bever v. Tomlinaon 27 Bickerton v. Burrell 320 Bierce v. Red Bluff Hotel Co. 393 Bigelow V. Heaton 218 Bigge V. Parkinson 425 Bignold V. Waterhouse _ 120, 121 Bilbee o. London, Brighton & South Coast Railway Co. 558 Billon V. Hyde 343 Bingham v. Rogers 240, 267 Bird V. Holbrook 483, 500 Birge V. Gardner 481, 500 ^irkett v. Willan 115, 264 Bissell V. N. Y. Central R. R. 88 Bixotti V. McLaughlin 141 Blake v. G. W. Railroad Co. 461 V. Midland Railway Co. 543 Blanchard v. Ely 396 Bloom V. Noggle 665 Blossom V. Moses Dodd 86 Blumenthal v. Brainerd 223 Bodenlmm v. Bennett 115, 122, 264 Bohtlingk v. Inglis 387 Bomar v. Maxwell 140 Boroughs V. Norwich and Worces- ter Railroad 317 Boston, Concord & Montreal Railw. V. State 618 Boston Water Power Co. v. Boston & Worcester R. R. Co. 629 Bothling V. Ingless 389 Bowman v. Teall 201 Boyce v. Anderson 136, 362, 412 Brackett v. Norton 7, 9 Bradford v. The Railroad Com- pany 298 Bradley v. Waterhouse 117, 121 Brand v. Railroad 605 Brazier ». The Polytechnic Insti- tute 424 Bremner v. Williams 407, 409, 426 Bretherton v. Wood 412 Brewster v. Hough 590 Bridge u. Grand Junction Railw., 3 M. & W. 486 Bridge Co. v. Hoboken Land Co. 618 Bridges v. North London Railw. 686 V. Perry 662, 663 Briggs V. Boston & Lowell Rail- road Co. 82, 216, 222 Brintnall v. Saratoga & Whitehall Railroad Co. 322 Bristol & Exeter Railw. v. Collins 42, 323 Bronson v. Southbury 489 Brooke v. Pickwick 98, 101, 121, 140, 264, 268 Brown v. Clegg H V. E. R. R. Co. 90 V. Harris 202, 203 V. N. Y. Central Railw. 437 Brownell v. Flagler 486, 600 Bubble, case of 649 Buc'kland v. The Adams Express Company 293 Buckley against the Derby Fishing Company 274 Buckley v. Furniss 387, 390 Buckman v. Levi 144 Buckinan v. Shouse 268, 267 Buffington V. Gerish 377 Bulkley v. N. Y. & N. H. Railw. 618 V. Naumkeag Cotton Co. 146 BuUer V. Fisher 17, 18, 27 ' Burgess v. The Great N. W. Rail- way Co. 464 V. R. R. Co. 531 Burns v. Cork & Bandon Railw. Co. _ 428 Burnside v. Grand Trunk Railroad 401 Burroughs v. The Norwich & Worcester Railroad 306 Burt V. Miller 562 Burtis V. B. & S. L. R. 292, 299, 302, 315 Bushforth v. Hadfield 222 Buskirk v. Purin 214 Butcher v. London & S. W. Railw. 141 Butler V. Basing 54 V. Heane 89, 122 Butterfield v. Forrester 484, 493 Byrne v. Schiller 209 Cahill u. London & North West- ern Railw. 139 Callender v. Insurance Company of North America 209 Camden and Amboy Railroad Co. V. Baldauf 240, 267 Camden & Amboy Railway v. Belknap 136, 227 Camden Company v. Burke 98, 266, 412 Campbell v. Morse 16 Candee v. The Penn. Rail. 302 Carey v. The Cleveland and Toledo Railroad 303 Carleton v. Laightor 670 TABLE OP CASES CITED. Xli Carpne v. London and Brighton Railw. 433 Carroll v. N. Y. & N. H. Railw. 486, 494, 500 Carter v. Peck 303 Cass V. B. & L. Railw. V7 Caswell V. Boston & Worcester Railw. 535 Catawissa Railw. v. Armstrong 473, 649, 560, 663 Caterham R. R. Co. v. London R. R. Co. 626 Catlett V Columbia Insurance Company 209 Caton V. Rumney 34 Cayle's case 98 Caze V. Baltimore Insurance Co. 209 C. & Ch. Railw. v. Marcus 402 Center v. American Insurance Co. 209 Central Railroad v. Copland 296 Central Railw. & B. Co. v. Davis 486 «. John- son 295 Chamberlain v. Chandler 507 Champion v. Bostwick 297 Chandler v. Belden 218 Chaplin v. Hawes 483 Chapman «. Warmer 668 V. Weimer & Steinbaoker 679 V. Wiemer 665 Charles River Bridge v. Warren Bridge 684, 692, 596, 606, 617 Chase V. Alliance Ins. Co. 202 Chenango Br. Co. v. Binghampton , Br. Co. 618 Cheney v. Boston & Maine Railw. Co. 447 Ch. & Alt. Railw. ». Grotzner 485, 500 Ch. & Alton Railw. v. Pondrom 486 Chicago &Jjalena Railroad Co. v. Fay 496 Chicago, B. & Q. Railroad Co. v. Hazzard 495 Chicago & N. W. Railw. v. Mer- rill _ 76, 92 Chicago & Rock Island Railw. v. Warren 183 Chickering v. Fowler 59, 61, 74 Choteaux v. Leach 302, 360 Chouteaux v. Leech 240 Christie v. Griggs _ 409, 426 Cin., &c., Railw. v. Pontius 324 Cincinnati H. & D. Railroad v. Speat 299 Citizens' Bank v. Nantucket S. B. Co. 63, 62 Clare v. Maynard 399 Clark V. Barnwell 348, 360 Clark V. Spence 243 Clark V. Washington 636 Clarke v. Faxton 64, 227 V. Gray 121, 131 V. Hutchins 266 V. Needles 147 Clay V. Willan 122 Clayton v. Hunt 122 Cleveland, Columbus & Cincinnati R. R. Co. V. Elliot 480 Cleveland & Pittsburg Railw. v. Sargent 182 Coates V. The City of New York 697 V. Railton 379, 387, 389, 392 V. U. S. Express Co. 324 Cobden v. Bolton 122 Cockle's case 635 Cockle V. London & So. Eastern Railw. 636 Coe V. Wise 535 Coggs V. Barnard 99, 124, 139,. 169, 232, 233 V. Bernard 177, 422 Cohen v. Frost 137 V. Hume 463 Cole V. Goodwin et al. 7, 8, 38, 54, 86, 110, 133, 223, 227, 264, 266, 268 Collard v. South Eastern Railway Company 897 Collins V. Boston & Maine Railw. 139 V. Bristol & Ex. Railway 280, 294 Colt V. M'Mechen 12, 17, 30, 99 Columbus & Ind. Central Railw. V. Arnold 345 Col. & Ind. Central Railw. v. Far- rell 535 Com. V. Hancock Bridge 635 Commonwealth v. Power 440, 441, 452 . V. Worcester 445 Conard v. Atlantic Insurance Co 386 Congreve v. Evetts 665 Converse v. Norwich & N. Y. Transportation Co. 277, 292, 304, 323 Cooku. Jennings 192, 211 Cooper V. Cane 220, 222 Coopers v. Wolf 658 Cope V. Cordova 58, 164 Copper Company v. Copper Min- ing Co. 396 Coppin V. Walker 320 Corby v. Hill 464 Cork & Youghall Railw. Ee 345 Cornman v. R. R. Co. 532 Cornwall v. Wilson 343 Cotton V. Wood 553 Covell V. Hitchcock 385, 386 Covington v. Willan 121 Coxon ti. Great Western Railw. 288, 294 xlii TABLE OP OASES CITED. Grafter v. Metropolitan Railway 533 V. R. R. Co. 632 Craig V. Childress 18 Crawford v. Clark 183 Crawshay v. Eades 387, 392 V. Homfray 218 Creery v. Holly 13 Crofts u.Waterhouse 407, 410, 426, 427 Crosby v. Fitoh 4, 12, 17i Croton Turnpike Co. v. Ryder 629 Crouch V. Great Northern Railw. 402 V. London & N. W. Rail- way 280, 282, 2 5 Curtis V. Auber 6 D. Dale V. Hall 177 Daley v. The Norwich and Worces- ter R. R. Co. 481 Darling o. Boston & Worcester Railway 288, 294, 305, 306, 317, 322 Dartmouth College v. Woodward 688, 696, 600, 617 Davenport v. Backstrow 221 Davies v. Mann 479 V. Vernon 217 Davis V. Cayuga & Susquehannah Railw. 140 V. Reynolds 377 V. Willan 122, 268, 269 Dawson v. Kittle 220, 221 Day V. Woodworth 335, 611 Deane v. Clayton 482, 484 De Mott V. Laraway 146, 183 Demseth v. Wade 266 Denny v. The New York Central Railway Company 24 De Rothschild v. Royal Mail Steam Packet Co. 268 De Silvale v. Kendall 203 Despatch Line of Packets v. Bel- lamy Manuf. Co. 632 Detouchey v. Peck i!03 Detroit and Milwaukee Railroad V. The F. & M. Bank 295 Devereux v. Barclay 94, 134 Dewell V. Moxon 94 Dicas V. Stockley 219 Dickinson v. Winchester 141 Dixon V. Baldwin 379, 380, 385, 388, 389 V. Bell 484 Doane v. Russell 222 Dodson V. Wentworth 386, 386 Doe V. Filliter 509 Donath v. Brownshead 392 Dorr V. N. J. Steam Navigation Co. 88, 240 Down V. Fromont 122 Doyle V. Kinahan 485, 500 V. Kiser 1^0 Duff V. Budd 57, 74, 264, 267, 560 Duffy V. Thompson 140 Dunn V. Grand Trunk Railway 346 Dwight V. Brewster 32, 44, 108, 266 Dyer v. Smith ° E. Eagle V. White 74 East Hartford v. Hartford Bridge Co. 699 Eaton V. Boston & Lowell Railw. 500 V. Whiting 656 Edgerton v. N. Y. & H. Railroad Co. 494 Edwards v. Brewer 381, 387 V. Lord 461 Elkins t). B. & M. 499 Elliot V. Pray 464, 557 Elliott V. Rossell 5, 12, 16, 99 V. Russell 369 Elliott and Stewart v. Rossell 30 Ellis V. Hunt 378, 387, 389 V. Turner 127 Elmore v. The Naugatuck Rail- road 292, 304, 308, 314 Elsee V. Gatward 226 Emblem v. Myers 509 Empire Trans. Co. v. Wamsutta Oil Co. 373 Enfield Bridge v. The Hart. & N. H. R. R. Co. 616, 618 Erie Railroad v. Skinner 366 Erskine v. Townsend 656 Escopiniche v. Stewart 211 Evans V. Gee 336 V. Soule- •• 128 Everett v. Saltus 223 Express Co. v. Kountze 273 Fairchild v. Slocum 281 Farmers & Mechanics' Bank v. Charaplain Transportation Com- pany 11, 50, 52, 150, 163, 179, 223, 280, 292, 298, 321 Farra v. Adams 348 Fawcct V. The York and North Midland Railroad Co. 593 Fenn v. Craig 649 Fenner v. Buffalo & State Line Railw. 184 Ferguson b. Carrington 343 Fisher v. Clisbee 137 TABLE OP CASES CITED. xliii Fitch V. Newberry 214, 216 218 Fitcbburg Railway v. Gage 226 Fitcliburg & Worces. Railroad Co. V. Hanna 280, 281 Fitchburne v. White 118 Fitzsimmons v. Joslyn 270 Fletcher v. Peck 681, 584 Flint V. Transportation Company 607 Foote V. Storrs 34 Ford V. London and Southwestern ■ Railw. 427, 459, 461 Fordham v. London, Brighton & South Coast Railway Co. 557 Forsyth v. B. & A. Railw. 486 Forward v. Pittard 4, 16, 99, 100, 102, 112, 116, 117, 234 Foster v. Franapton 385, 389 Fox V. McGregor 222 V. Sackett 555 Foy V. The Troy & Boston RaU- road 294 French v Buffalo, N. Y. and Erie R. R. Co. 88 Frost V. R. R. Co. 532 Fuller and Wife w. R. R. Co. 628 Fulton I). G. T. Railw. 491 Fulton Bank v. New York Canal Company 267 G. Gahagan v. Boston & Lowell Rail- road 434,^653, 655 Galena & Chicago Union Railway Co. 11. Loorais 599 Garnett v. Willan 74, 121, 264 Garrett et al. v. Handley 221 Garside ». Tr. & M. Nav. Co. 57, 62, 157, 163 Garton u, Bristol & Exeter Rail- way 50, 68, 71 Gass V. N. Y., P. & B. Railway 146, 288, 317, 323, 324 Gavett V. Manchester & Lawrence Railroad 653 Generous, The 236 Gibbon V. Paynton 105, 118, 119, 121, 128 Gibson V. Culver 57, 61, 74, 112, 163 Giles V. Fauntleroy 140 Gilman v. Pike 696 Gilreath «. Allen 511 Girtraan v. Central Railroad 698 Gisbourn v. Hurst 4, 32 Goffj). Clinkard 27 Goldey u. Pennsylvania Railroad Co. 240, 241, 243, 365, 366 Goodall V. Skelton 392 Gooding t). Oliver 631 Gordon v. Appeal Tax Court 691 V. Buchanan 16, 18, 19, 127 V. Little 12 Goss V. The New York, Providence & Boston Railroad 806 Gougher v. Jolly 122 Gould and others v. Hill 38, 228, 265 Grace v. Adams 90 V. Morgan 518 Gracie v. Palmer 218 Grafton, The 184 Gray v. Wain 209 Great Northern Railw. ». Shep- herd 139 Great Western Railw. v. Hawkins 273 Greene v. Hill 8 Griffen v. Colver 396, 397, 899 Griggs V. Austin 202, 203 Grote V. The Chester and Holy- head Railw. Co. 427, 429 Guilford v. Smith 388 H. Hackett w. B. C. & M. Railw. 401 Hadley v. Baxendale, 81, 395, 397, 401 Hadley v. Clarke 194, 401 Hall V. B. & W. Railw. 77 V. Power 452 u. The Sullivan Railroad Co. 663, 688 Hamilton Avenue, Matter of 596 Hannibal Railw. v. Swift 138, 140, 146 Harpell v. Owens 16 Harrington v. Lyles 12 Harris u. Costar 410 V. Packwood, 104, 115, 120, 122, 224, 241, 243 Hart V. Res. & Sar. Railroad Co. 280, 298 Hastings «. Pepper 266, 847 Hatch V. Mann 226 Hatchwell «. Cooke 34 Hathaway ». Barrow 518 Hawthorn v. New Castle & North Shields Railw. Co. 670 Hays «. Miller 11 Hegeman v. The Western Railway Corporation ilS, 430, 431, 432, 437, 595 Hemphill v. Chenie 183 Herrick v. Randolph 691 Hickox V. Naugatuck Railw. Co. 136, 140 Hicks V. Shield 203 Hide u. Proprietors, &c. 101, 102 BUggins V. Senior 37 xliv TABLE OF CASES CITED. Hill Manuf. Co. v. Boston & Low- ell Railway 290, 324 Billiard v. Goold 491 Hindekoper's Lessee v. Douglass 610 Hinton v. Dibbin 264, 266 Hiram, The 192, 19S, 206 Hobson V. Travor 670 Hodgson V. FuUarton 84 V. Loy 379, 387 V. Malcolm 18 Hoe ». Mason 209 Holbrook v. Holbrook 686 V. The Utica & Sch. Railroad Co. 550 HoUister v. Nowlen 7, 38, 39, 54, 133, 223, 227, 265, 268, 412 Holly V. Brown 634 Hood V. Hood et al. 537 V. The N. y. & N. H. Rail- way 278, 280, 292, 303, 461 Nathaniel Hooper, The 201, 202 Hooper b. Lane 660 Hopkins v. At. & St. Lawrence Railroad 515, 525 Hopkins v. Westcott 90, 111, 132 Houldworths v. Evans 344 Hovill V. Park 343 How V. Grey 204 Howe V. Newma:rch 505 Huckle V. Money 608 Hunn V. Bowne 377 Hunt V. Haskell 201 Hunter ». Beal 378 V. Debbin 660 ». Prinsep 186, 189, 192 Hutton ». Bolton 122 V. Bragg 223 Hyde v. Tr. and M. Nav. Co. 57, 74, 130, 147, 166, 157, 164, 300, 802 111. Central Railroad «. Cope- land 294, 802, 303 111. Central Railw. v. Frankenberg 824 „ ,, RR. V. Johnson 294, 302 Illinois Central Railw. v. Read 487 V. Waters 273' Indianapolis, &c., Railw. «. Ker- cheval 618 Indiana, I. & C. Railw. v. Ruther- ford 486 Ind., Pitts., & CI. Railw. Co. v. Allen 86, 273 Ingalls «. Bills 416, 428, 436 Isabella, The 198 Israel v. Clark Izett B. Mountain 407, 408, 426 121 J. J. & C. Railw. V. Rutherford 652 Jackson v. Isaacs 203 V. Nichol 382, 387, 389 V. R. & B. Railroad Co. 593 James v. Griffin 382, 386, 887, 388 Jameson «, Planters and Mer- chants' Bank 696 Jeffersonville Railw. v. Cleveland 184 Jencks v. Coleman 71, 441, 446 Jenkin o. Row 628 Jenkins v. Biddulph 518 Jenner v. Joliffe 376 Johnson v. Friar 18, 19 Johnson v. Hudson River Railroad Co. 558 Johnson v. Midland Railw;. 72 Johnson v. Patterson 482 Jones V. Boyce 414 B. Earl 893 V. N. & N. Y. T. Co. 138 V. Pearle 222 1). Richardson 633 V. Voorhees, 140 Jordan b. Fall River Railw. 96, 138, 161 Judson V. Western Railroad Co. 46, 322 K K. & P. Railw. ». P. & K. Railw. 691 Kay B. Penn. Railroad Co. 487, 489 B. Phil. Railw. 489 Keeney b. Grand Trunk Railw. 273 Keith B. Packham 500 V. Pinkhara 486 Kemp V. Coughtry 12, 99, 220 Kenrig b. Eggleston 105, 117, 118 Kentucky Central Railw. v. Dills 486, 500 Kern v. Deslandes 228 Kerr b. Miller 268 V. Willan 122 Kerwhacker b. Cleveland, Colum- bus & Cincinnati R. R. Co. 480, 484 Ketchum b. Catlin 696, 699 Keyes v. Belfast & B. & L., &c., Railw. 139 Kilgore v. Bulkley 9 Kimball b. Rutland & Burlington Railroad 50, 176 «. Western Railw. 183 Kmg B. London 635 TABLE OF CASES CITED. xlv King V. Passmore 636 V. Richards 214, 216. V. The Severn & Wye Rail- way Co. 635 V. Shepherd 368, 359 Kirkman v. Shaw 182 V. Shawcross 124, 130 Kruger v. Wilcox 219 Kyle V. Laurens Railroad Co. 280, 295 L. L. A. Company v. Johnson 11 Lackawanna Kailw. v. Chenewith 486, 600 Lackawanna & Bloomsburgh Rail- road Co. V. Chenowith 493 Laing v. Calder 267 V. Colder 486, 662 Landreaux v. Bell 507 Lanata v. Grinnell 222 Lancaster Canal Co. v. Parnaby 426 Landon v. Litchfield 691 V. Cotton 100, 125 Lane v. Penniraan 201 Lang V. Calder 240 Langley v. Boston & Maine Rail- road. 328 Langton v. Hasten 679 V. Horton 670 Lapham v. Green 43, 262, 319 Latham v. Rutley 129, 131 Lawrence v. M'Gregor 13, 18 V. New York, Prov. & Boston Railw. 271 Lawrenceburgh & Up. Miss. Rail- road Co. V. Montgomery 492 Le Conteur v. London & South Western Railw. 137 Leeds «. Wright 379, 385, 388 Leeson v. Holt 104, 129 Le Gard v. Hodges 648 Lenox v. United States Ins. Co. 14 Le Ray De Chaumont v. Griffin 877, 382 Leuckart v. Cooper 228 Levi V. Waterhouse 122 Lewis V. Western Railw. 183 Liddard v. Lopes 192, 193, 211 Limburger v. Westcott 90 Lincoln V. Saratoga & Schenec- tady Railway * 518 Little Schuylkill Railroad v. Nor- ton 366 Livingston v. Lynch et al. 161 V. Van Ingen 584 Lock Company v. W. & N. Railw. 319 Logan V. Matthews 662 Longmore v. G. W. Railway Co. 463 464, 683 11. Railroad Co. , 632 Loomis V. Terry 481 Lorent u. Kentring 201 Louisville & Clarksville Railw. v. Siekings 486, 600 Love V. Pares 610 Lovett V. Hobbs ' 226 Low V. Booth 115, 122 Lowell Wire Fence Co. «. Sargent 44 Lubbock ». Inglis " 94 Lucas V. New Bedford & Taunton Railw. 434, 496, 563 Luke V. Lyde 192, 196, 204, 206, 206, 208, 209, 211 Lunn V. Thurston 633 Lyde v. Mynn 648 Lygo V. Newbold 496 Lynch V. Nurdin 481 Lyon V. Mells 126, 127, 264, 266, 428 Lyons v. Mells 267 M. Macklin v. Waterhouse 121 Maclin v. New Jersey Steamboat Co. 141 Macomber b. Parker 670 Macon & W. Railw. v. Davis 486 ». Winn 486 Macrow v. Great Western Railw. 138 Mann v. Railroad 273 Manning v. Eastern Counties Rail- way Co. 692 Marine Insurance Co. v. Lenox 205 V. United Ins. Co. 209 Marine Insnranoe Co. of New York B. The United Insurance Co. 211 Mariott «. The London & South- western Railway Co. 68 Marriott v. Stanley 484 Marsh v. Blyth 18 V. Home 122, 241, 243 Marshall u. The Baltimore & Ohio Railroad Co. 336 Marshall et al. v. Henry Wells et al. 76 Martin B. The Great N. Railway Co. 463 Martin b. Railroad Co. 630, 581 Masterton v. Mayor of Brooklyn 399 Maving V. Todd 104, 129 xlvi TABLE OF CASES CITED. Mayhew h. Eames 122, 265, 210 Maj-o V. Boston & Maine Railw. 568 Mayor, The, of Colchester v. Brooke ■ 484 McAulay i>. Birkhead 611 M'Bride v. Mariue Insurance Co. 192 McArthur v. Sears 5 Mf'CJuer v. M. & L. Railroad 292 M'Clureu. Hammond 29 McCombie v. Davies 94 M'Cormiok v. Hudson River Railw. 140 McDaniel v. Chicago and North- western Railw. 373 McDonaldu. The West em Railroad 298 MrElroy v. Nashua & Lowell Railroad 436, 462 McGill V. Rowand 140 MuHenry v. Philadelphia, Wil- mington & Baltimore Railroad 157 McManus v. Lancashire Railway Co. 263 McMillan v. M. S. & N. I. Railw. 273, 322, 360 McPadden v. K. Y. Cent. Railw. 420, 430 M'Pheteers v. Han. & St. J. Railw. 485, 500 Mechanics and Traders' Bank v. Debolt 590 Meesel v. Lynn & Boston Railroad Co. 665 Meir v. Penn. Railw. 430 Merest v. Harvey 609 Merriam v. The Hartford & New Haven RaiKr. 146 Merrill v. Grinnell, 96 Merritt v. Old Colony & Newport Railway Co. 146 Mersey Docks and Harbor Board V. Penhallow 535 Metcalfe. D. Hetherington 635 Meux V. Maltby 649 Meyer v. The Chicago &f North- western Railw. 82 Michigan Central Railw. v. Hale 270 Mich. So. & N. Ind. Railw. v. McDonough 273 Miles ». Cattle 114 Milliman v. The Oswego & Syra- cuse Railw. 599 Mills V. Ball 387 Minter v. Pacific Railw. 139 Minturn v. Warren Ins. Co. 202, 203 Mississippi, &c. Railway v. Ken- nedy 140 Mitchell V. Winslow 634, 669 Mitford V. Mitford 670 Mobile & Ohio Railw. v. Hopkins 138, 437 Mohawk Bridge Co. v. Utica & Sch. Railw. 618 Moody V. Wright 638, 668 Moor I). Veasie 590 Moore v. Evans 228 V. Railroad 606 V. Sheindine 74 Morgan v. The Insurance Co. of North America 197 Mooris V. Cleasby 320 Morrissy v. Wiggins Ferry Co. 486, 600 Mors V. Slue 422 Morse V. Boston & Maine Railroad 592 V. Brainerd 324 V. Sluce 233 V. Slue 26, 117, 118, 126, 283 Moses V. Boston & Maine Railroad 50, 147, 167, 170, 179, 180, 181 Mote V. Chicasio & N. W. R. 138, 142 Mottram v. Heyer 391, 392 Mulluy V. Backer 204, 211 Munn V. Baker 122, 123 March v. Concord Railroad 440, 463, 498 Murch V. R. R. Co. 532 Murphy v. Staton 106 Muschamp v. The L. & P. R. Co. 67, 160, 278, 280, 281, 288, 290, 292, 294, 295, 316 Muschamp v. The Railway 294, 295, 297 Myer v. Chicago & N. W. Railw. 182 N. National Exchange Co. of Glas- gow V. Drew 333 The Naugatuck Railroad v. The Button Co. 292, 304 Naylor v. Dennie 387 Nelson v. V. & C. Railroad Co. 593 Newborn v. Just 115, 121, 264 Newburgh Turnpike Co. v. Miller 629 New Haven Steamboat and Trans- portation Co. V. Vanderbilt 480 New Jersey v. Wilson 591 New Jersey Railw. v. Kennard 486, 547, 651, 662 New Jersey Steam Navigation Co. V. Merchants' Bank 50, 229, 241, 243, 268, 262 New Orleans, Jacks(Jh & Great Northern Railway Co. v. Bailey 621 New Orleans Railw. v. Moore 402 N. Y. Alb. & Buf. Tel. Co. v. De Rutte 280 Nichols V. Le Fevre 239 TABLE OP CASES CITED. xlvii NichoUs V. Le Feuvre 882 Nicholson v. L. & Y. Railway Co. 463 V. Willan 102, 104, 106, 121, 125, 128 Nieto V. Clark 607 Norris v. Litchfield 484 North Penna. Railroad Co. v. Heil- man 650 Northern Railroad Co. v. Fitch- burg Railroad Co. 82 Northey v. Field 387, 391, 302 Norway Plains Co. v. Boston & Maine Railw. 165, 174, 179, 180 Noyes v. Rut. & Bur. Railroad Co. 280, 285 Nugent V. Riley 656 Nutting u. Connecticut River Rail- way 288, 305, 322 o. O'Brien v. The Phil., Wilmington & Baltimore Railroad Co. 365 O'Donnel v. Alleghany Valley Railroad Co. 493 O'Donnell v. Bailey 591 Ohio & Miss. Railroad Co. v. Mah- ling 495 Ohio (fe-Miss. Railw. v. Schiebe 486 Oppenheim v. Russell 125, 130, 376 Orange Co. Bank v. Brown 33, 56, 95, 98, 105, 112, 118, 123, 140, 229 Osgood «. Groning 192 Ostrander v. Brown 58, 183 Ouimit V. Henshaw 138, 141 Owenson v. Moore 392 Owings V. WicklifFe 336 Owners of Mary Washington v. Ayres 183 P. & C. Railw. V. M'Clurg 486 P., Ft. W. & C. Railroad Co, V. Slusser 523, 626 Packard v. Getman 59, 144, 146 V. Smith 464 Palmer v. Lorillard 201 V. The Grand Junction Railway Cd. 362 Pardee v. Drew 95 Paris u. Vail * 343,344 Parker v. Mayor of New York 226 Parsons v. Hardy 201 V. Monteath 228 Passenger Railway v. Luttler 473 Paxon V. Sweet 446 Peek V. The North Staffordshire Railway Co. 10 Pemberton Co. v. N. Y. Central Railw. 273 Pendergast v. The Adams Express ' Co. 307 Pendleton v. Davis 511 Penninsula & Oriental Steam Navi- gation V. Hon. Farquar Shand 240 Penn. Canal Co. v. Bently 487 Penn. Railroad Co. «. Books 491 V. Henderson 240, 463 V. Kelly 544 V. Ogier 649, 550 V. Zebe 548, 649, 567 Penn. Railway v. Butler 273 ». Mahoney 489, 600 V. McCloskey 486, 600, 644 V. Stutler 473 Penoyer v. Hallett 201 People. The, v. B. & R. Turnpike Co. 662 People V. Supervisors 226 Perkins v. Port., Saco & Ports. Railroad Co. 280, 292, 304, 305, 308, 322, 329 Perry v. Simpson 346 Peter v. Kendal 624 Pettingill v. Evans 634 Phelps V. London & N. W. Railw. 140 Philadelphia and Reading Railroad Co. V. Derby 459, 461 Philadelphia, Wilmington, & Bal- timore Railroad Co. v. Quigley 522 Phillips V. Earle 106, 123, 268 V. Rodie 222 V. Winslow 667 Pickering v. Barkley 17, 27 Pickford v. Grand Junction Rail- way 68, 184 Piddington v. S. E. Railway Co. 69 Pierce v. Emery 624, 662, 667 Pike V. Dilling 612 V. Polytechnic Institute 424 Pingrey v. Washburn 696 Pinto V. Atwater 211 Piscataqua Bridge u. N. H. Bridge 684, 616, 618 Place V. Union Express Co. 81, 83 Planters' Bank v. Sharp 596 Piatt V. Hubbard 562 Pontchartrain Railway v. New Orleans & Car. & Lake P. Railw. 618 Porter v. Rose 216 xlviii TABLE OP OASES OITED. Post & Russell V. Robertson 211 Povey V. Brown 672 Powell et al. v. Mvers 6, 227 V. Wright' 630 Powers V. Mitchell _ 34 Praeger v. Bristol & Exeter Railw. 535 Prentice v. Decker _ 90 Presbyterian, The, Churchyard in their case v. The City of New York 597 President, &c. '». Trenton Bridge Co. ^ 618 Propeller Niagara v. Cordes 358 Providence Bank v. Billings 589, 592 Purcell V. So. Express Co. 273 Q. Quiggin V. Duff 59 Quimby v. Vanderbilt 294, 302, 461 V. The Vermont Central Railroad Co. 692 E. Railroad v. Blocher 607, 616 V. Derby 606 V. Finney 506 V. Hurst 614 V. Schwartzenburg 302 V. Vandiver 506 Railroad Company v. Reeves 19, 24 Railway v. Hinds 506 V. State 437 Raisin v. Mitchell et al. 483 Randall ». Raper ' 400 Readhead v. The Midland Railway Co. 421 Reed v. Deerfield 556 Reeves v. The Del. & Lack. Rail- road Co. 365 Reg. V. The Eastern Counties Rail- way 636 Reg. V. South Wales Railway Co. 636 Relf «. Rapp 268 Reston v. Bacon 226 Rice V. Boston & W. Rail. 184 Rich V. Kneeland 27 v. Lambert 348, 360 Richards v. L. B. & S. C. Railw. 141 Richardson v. Goddard 184 V. Goss 385 V. Mutual Ins. Co. 192 Richmond v. Smith 113 &c., Railroad v. Louisa Railroad 585, 591, 618 Rigg V. Sheffield & L. Railway 633 Riley V. Home 101, 116, 117, 119, 121, 122, 124, 264, 560 Ritz V. Penn. Railroad Co. 366 Roberts v. Mason 521 Roberts v. Turner 100 Robertson v. Kennedy 16 V. New York & Erie Railw. 486 Robinson v. Baker 82, 216, 218 V. Cone 500, 601 V. Dunmore 98, 141 V. Marine Insurance Co. 209, 211 Rock Island & Pacific Railw. v. Eaircloueh 138, 142 Rogers v. Head 225 Rogers v. R. & B. Railroad 292 Root V. G. West Railw. 319 Roskell V. Waterhouse 122 Ross V. Johnson 94 Rossiter v. Chester 201 Rowe V. Pickford 158, 379, 385, 392 Rowley v. Bigelow 388 V. Home 122 V. Rice 634 Rumsey ». North Eastern Railw. 140 Runyon v. Central Railw. 486 Russell V. Robertson 211 Ryan v. New York Central Railw. 26 S. Sager v. P. S. & P. Railway 176, 241, 258, 263 Saltus J). Everett 214 Sandback v. Thomas 618 Sanderson v. Lamberton 37 Sandford v. Railway Co. 69 Sawyer v. Joslin 69 V. Joslyn 388 V. R. R. Co. 532 Schieffelin v. Harvey 29, 258 Schneider v. Evans 217, 317 Schooner Freeman j'. Buckingham 146 Schooner Reeside, The 13, 17 School Dist. V. B. H. & Erie Railw. 273 Schopman v. Boston & Worcester Railroad 436, 460 Schroeder v. Hudson River Rail- road Co. 280, 293, 296, 337 Scott ». Dublin STWicklow Railw. 486 V. Libby 187, 188, 193, 208 V. Pettit 385, 388 Scotthorn v. South Staff. Railway 280, 323, 337 Scrimshire v. Alderton 320 Sears v. Lyon 509 V. Wilis 219 TABLE OP CASES CITED. xlix Sewall V. Allen 63, 62 V. Marston 662 Seymour v. Canandaigua& Niagara Falls Railroad Company 667 Seymour u. Greenwood 506 Sharp V. Grey 266. 407, 410, 411, 419, 425, 426, 429 Shattuck V. Woods 226 Shaw and al. v. The Norfolk County R. K. Co. 628, 631, 688 Shelley's' case 233 Shepherd v. Bristol & Exeter Railw. 184 Shepley v. Atlantic & St. Law- rence Railway 690, 691 Shepperd v. The Midland Railw. 636 Ship Howard v. Wissman 366 Shrewsbury and Birmingham Rail- way Co. V. The London and Northwestern Railway Co. 623 Sims «, Bond 37 V. Jackson 197 Sinclair v. Eldred 518 Siner v. Great Western Railw. 635 Skinner's case 566, 567 Skipp V. Harwood 683 Slade V. Rigg 627, 628 Sleat V. Fagg 115, 121, 264 Small V. Moates 222 Smeed v. Foord 400 Smith V. Atkins 344 V. B. & M. Railw. 139, 169 V. Brush 10 V. Hodson 343 V. Home 102, 115, 116. 119, 121, 264 V. London & South Western Railw. 25 . V. Mead 7 V. Nashua & Lowell Railw. 183 V. The N. Y. Central Rail- road 299 V. New York & Harlem Railw. 437 V. Shepherd 15, 19, 27, 126 V. Wright 14 Smith and another v. Goss 376, 387, 389 Somerset v. Dighton 636 Somes V. The British Empire Ship- ping Co. 222 Southcote's case 64, 107, 240 Southern Express Company v. Everett 360 Southern Express Co. v. Shea 324 Southworth v. Old Colony Railw. 668 South Yorkshire Railway Co. v. Great Northern Railway Co. 623 Sprague v. Smith 460 Squire o. N. Y. Central Railw. 273, 324 Stanley v. Stanley _ 696 State V. Baltimore & Ohio Railw. 600 V. Bosworth " 696 V. Goold 491 V. Noyes 618 V. Overton 440, 441 V. Rives 623 V. Thompson 458 Steamboat New World-u. King 561 Steamboat Virginia v. Kraft 222 Steinweg v. Erie Railw. 360 Stephen v. Smith 439, 440 Stephenson v. Hart et al. 67, 74, 94 Stevens v. Boston & Maine Railw. 183 V. Boston & Worcester Railway 216, 218 ». Lyford 397 Stevenson v. Austin 660 Stewart v. Bremer 147 V. London & North West- ern Railw. 140 St. John V. Van Santvoord 67, 60, 296 Stokes V. The Eastern Counties Railw. Co. 427 V. La Riviere 378, 381, 389 V. Saltonstall , 412, 434 Stout V. L., C. & P. Railw. 489 Streeter v. Horlock 266 Stubbs V. Lynde 387 Sullivan v. The Phil. & Read. R. R. Co. 366, 541, 548 Sullivan v. Thompson 77 Suydam v. Moore 598 Swan V. Williamson 699 Sweet V. Pym 219 Swift V. Stebbins 650 t: Taintor v. Prendergast 37 Talley v. Great W. Railw. 138 Tapfield v. Hillman 633, 679 Tate V. Meek 217 Taylor v. Monnot 140 V. Railway 437 Thomas v. The Boston and Prov. R. R. Co. 68, 62, 155, 167, 179 Thomas v. Dakin 662 V. Day 146 V. Harris 609 Thorogood v. Marsh 121 Thurston v. Martin 464 Tillotson V. Cheetham 612 Tinney v. Ashley 216 Tirrell v. Gage 202 Todd V. Figley 201 TABLE- OF CASES CITED. Todd V. Old Colony & Fall River Railroad 434, 660, 663 Toledo Bank v. Bond 690 Toledo, W. & W. Railw. v. Ham- mond 96, 142 Toledo, &c., Railw. v. Merrimam 324 Tower v. Utica & Sch. Railw. 141 Transportation Co. v. Downer 360 Trent Navigation v. Wood 16 Trow V. The Vermont Central R. R. Co. • 479, 600, 693 Trowbridge v. Chapin 146 Troy & Rutland Railway Co. v. Kerr 623 Tucker v. Humphrey 387, 392 Turney v. Wilson 13, 16, 18 Turnpike Co. v. Railway Co. 596 ». The State of Mary- land 618 Tyler ». Ulmer 662 Tyly V. Morrice 105, 117 Tyron v. Fairclough 683 V. Valpy V. Gibson d al. 389 Van Goll v. The S. E. R. Co. 90 Van Santvoord v. St. John 67, 167, 164, 302 Vaughan v. Menlove 484 Vere ». Lord Cawdor 483 Verner ». Sweitzer 269 Vinton v. Schwab. 667 Wainright ». Webster 696 Waite u. Gilbert 402 Waldron v. The Renssaker & Saratoga R. Co. 599 Warden v. Greer 349 Ware v. Gay 434 Warren v. Fitchburg Railroad Company 434, 655, 668 Washington & Baltimore Tump, Co. V. Bait. & Ohio Railw. 618 Washington Bridge v. State 615, 618 Waters v. Towers 400 Watkinson v. Laughton 29 Watson V. Ambergate, Nat. & Boston Railway 280, 294 Watson V. Duykinck 202, 203 V. Northenn Railway Co. 492 Wayne v. Hanham, 627 Webb, In re 168 Webber v. Nicholas- 518 Weed V. The Railroad 294, 302,. 506 Weed V. Schenect. & Sar. R. R. Co. 67, 61, 140, 150, 280, 292, 298, 299, 301, 321 Welch w. Durand 617 V. Hicks 209 Welfare v. London & Brighton Railw. 20 Wells I). The Steam Navigation Company 228, 257 Wentworth v. Outhwaite 385, 386, 392 West V. Bolton 343 West River Bridge v. Dix 685, 695, 607, 618 Western Transp. Co. v. Downer 20 Wh alley v. Wray 117 Wheeler v. F. F. & A. Railw. 182, 278, 329 V. The Railroad 303 White V. Boulton 408 •B. Winnisimmet Co. 137 White River Turnpike Co. v. Ver- mont Cent. R. Co. 696, 618 Whitefield v. South East. R. R. Co. 334 Whitehead v. Anderson 387, 390 Whitney v. Union Express Co. 93 Whitwell V. Warner 340 Wibert v. The Erie Railroad 298 Wilcox ». Parmelee 292, 293, 301 Wild V. Hobson 661 V. Pickford 243 Willey V. West Cornwall Railway 285 Williams v. Gibbes 631 V. Grant 12, 14, 17 V. Smith 211 V. Smyth 209 Willink V. The Morris Canal & Banking Co. 645, 646 Willis V. Barrett 221 V. Long Island Railroad Co. 557 Wilson V. Brett 661 V. Charlestown 434 V. Freeman 122 V. Hamilton 137 V. Poulter 343 V. Y. N. & B. Railw. 280, 323, ^^ 401 Wmeh ». The Birkenhead Railw. Co. 623 Winchester & Lexington Turnpike R. Co. V. Vimont 636 Wingard v. Banning 218 Winslow V. Merchants' Ins. Co. 633 Withnell v. Giartham 222 Wolf u. Somers 133 Wolfe V. Am. Express Co. 20, 77 Wood V. The A. & R. Railroad Co. 346 J); Crocker 183 Woodbury u., Jonas 400 TABLE OP CASES CITED. li Woodger v. Great Western Railw. 402 Woods V. Devin 137 Woodstock V. Hooker 10 Wright V. Lawes 384 V. Snell 115, 223 V. Wilcox 455 Wyld V. Pickford 264, 265, 266, 660 Yates V. Kailston 217 Yate V. Willan 121 York Co. V. The Central Railroad Co. 240, 241, 270 York V. Grenaugh 213, 214 Young V. Hunter 43 V. Smith 74 Youl V. Harbottle 94 Z. Zump V. W. & M. Railroad Co. 491 PAET I. COMMON CAREIEHS OF GOODS. LAW OF RAILWAYS. LEADING CASES, OPINIONS, AND NOTES. COMMON CAERIERS OF GOODS. I. Who are Common Carriers: their Duties and Responsi- bilities. Hale V. The New Jersey Steam Navigation Oompany, 15 Connecticut Reports, 539. 1843. Common carriers are such as carry the goods of all persons, indifferently, from place to place, for hire or reward. Courts should maintain the old rule of the utmost responsibility of common carriers for all losses arising from any agency not beyond human control, or from the pub- he enemy. , As against all other agencies the carrier warrants the safe delivery of the goods. He is in the nature of an insurer, and is responsible for loss by fire upon the high seas, unless within the exceptions above stated. The rule embraces carriers by steam- boat. , Common carriers are responsible according to the law of the state where the contract is made. By the law of the State of New York, where the contract was made [in 1843], common carriers could not limit or qualify their common-law responsibiUty by general notice to that effect. Qumre. As to the effect of such a limitation in a bill of lading, by the law of New York [at that date] . By statute, in Connecticut, the courts take judicial notice of the reported decisions of the highest judicial tribunals in other American states. The facts in this case will sufficiently appear by the opinion of the court, which was delivered by — Williams, C. J. The suit was brought for two carriages, shipped on board the " Lexington," against the defendants, as common 4 WHO AKE COMMON OAKRIERS : carriers, to be transported in said boat, for hire, from New York to Boston or Providence. Tlie boat and goods were destroyed by fire, in tl>e Sound ; and a verdict being given for the plaintiff, the de- fendants excepted to the charge, and claimed, 1. That they were not common carriers, or subject to the rules that govern common carriers. It was long since settled, that any man, undertaking for hire to carry the goods of all persons indif- ferently, from place to place, is a common carrier. Gisbourn v. Hurst, 1 Salk. 249. Common carriers, says Judge Kent, consist of two distinct classes of men, viz., inland carriers by land or water, and carriers by sea ; and in the aggregate body are included the owners of stage coaches, who carry goods, as well as passengers, for hire — wagoners, teamsters, cartmen, the masters and owners of ships, vessels and all water craft, including steam vessels, and steam tow-boats belonging to internal, as well as coasting and foreign navigation, lightermen and ferrymen. 2 Kent, Com. 598 (2d ed.). And there is no difference between a land and a water carrier. 3 Esp. Ca. 127 ; 10 Johns. 7 ; Story on Bailments, 319, 323. But it is said, the rule established is a harsh one, and ought not to be extended. Chancellor Kent takes a very different view of it. He speaks of it as a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation (2d vol. 602) ; and with similar views, this court has said, we are not dissatisfied with the reasons which originated the re- sponsibility of common carriers, and believe they apply, with pecu- liar force, at this day, and in this country, as it respects carriers by water, more especially upon which element a spirit of dangerous adventure has grown up, which disregards the safety, not of prop- erty merely, but of human life. Crosby v. Fitch, 12 Conn. 419. And while we are not called upon to extend the principle, we cannot yield to the argument that common carriers are not to be responsible, when the loss arises from the producing agent of the propelling power. If the defendants are common carriers, the question must be merely what are the liabilities of common carriers ? The answer is, for all losses, even inevitable accidents, except they arise from the act of God, or the public enemy. 2 T. R. 34 ; 2 Ld. Raym. 918. And by the act of God is meant, something superhuman, or something in opposition to the act of man. Forward v. Pittard, 1 THEIR DUTIES AND RESPONSIBILITIES. 5 T. E. 33. In all cases except of that description, the carriers war- rant the safe delivery of the goods (per Kent, C. J., Elliott v. Rossell, 10 Johns. 7) ; and masters and owners of vessels are liable as common carriers, as well at sea as in port. And the Chief Justice says that the argument is not well supported, that this doctrine of the liability of carriers, is, by the common law of England, to be confined to transportations by water, without the jurisdiction of the realm. All the books and all the cases, which touch the subject, lay down the rule generally, and apjply it, as well to shipments to and from foreign ports, as to internal commerce. It is true, that in Aymar v. Astor, 6 Cowen, 269, the then chief justice, without citing a single authority, in giving the opinion of the court, says, the master of a vessel, I apprehend, is not respon- sible, as a common carrier, for all losses, except they happen by the act of God or the enemies of the country. That case has, it is believed, never been treated as law, in New York or elsewhere. It is, indeed, repugnant to prior decisions, says Judge Story. It is not to be taken for sound law, says Judge Kent. 12 Conn. 414. And in McArthur v. Sears, 21 Wend. 190, this case is treated as a confessed anomaly, and disapproved as contrary to decisions in other states, and even in their own. And in a suit against the owners of a steamboat on Lake Erie, as common carriers, it was held, that nothing would excuse them, except inevitable accident, without the intervention of man, and the act of public enemies. Judge Gowen denies that this case tends to repeal the law of lia- bility of common carriers, and treats it as turning on the exception in the bill of lading. But it is said, there is no case where the liability is extended to fire on the high seas. If the principle covers such cases, then it is to be supposed the reason such cases are not to be found, is, that they have not occurred, or were not contested. If the carrier is subjected for the loss of goods burnt on land, where he was in no fault, we see no reason for exempting the carrier at sea, under similar circumstances. We apprehend a rule of policy, Lord Mansfield says, in the case alluded to, to prevent litigation, collur sion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carriers. He is in the nature of an insurer. Every reason here given applies as well to the owners of a steamboat, as to the wagoner, whose carriage was burnt without his fault, in the barn where he placed it — the same b WHO ABE COMMON CARRIEH8 : danger of collusion, of litigation, and the same difficulty in un- ravelling circumstances. If the policy of the law requires that the one shall be as an insurer, we think the same policy requires that the other should also be so treated. And if it be true, that trade will regulate itself, when the rule is understood, compensation will be made, not only in proportion to the labor, but to the risk. And in a recent case in New York, steamboat owners are treated as other common carriers. Powell et al. v. Myers, 26 Wend. 591. It is stated, that by the laws of Louisiana a different rule pre- vails, in regard to steamboats ; but as the laws of that state are, in a great measure, founded upon the civil law, they can have but little influence here. 2. The defendants claim, in the next place, that they are not liable, because of the public notice which they gave, that they would not be responsible for losses other than what arose from the fault or negligence of their officers or servants ; and they claim, that by the common law, a common carrier may limit his respon- sibility, by express contract, or by public notice given of such in- tended limitation ; in support of which they cite many cases from the English books, where that doctrine, after some diversity of opinion, has been recognized and settled. On the part of the plain- tiff, it is claimed, that these decisions are modern — all since we were separated from that country — after a diversity of opinion in the English courts, and now regretted by eminent judges, and not in accordance with the principles of the common law ; and that they have been rejected in New York, as not sound law ; and that, as this contract was made in New York, its construction must be regulated by that law. It becomes necessary, therefore, to deter- mine by what law this construction of the contract is to be gov- erned. It appears that this boat was in the business of transportation from New York to Providence ; that the plaintiff owned carriages, which he wanted to have transported to Boston ; that the defend- ants received them in New York, to convey them to Boston or Providence ; and that they were lost in the Sound, off Long Island, near Huntington ; and the question is, by what law is this contract to be governed. The rule upon that subject is well settled, and has been often recognized by this court, that contracts are to be construed according to the laws of the state where made, unless it is presumed from their tenor, that they were entered into with a THEIR DUTIES AND EESPONSIBILITIES, 7 view to the laws of some other state: Bartsch v. Atwater, 1 Conn. 409, 416 ; Smith v. Mead, 3 Conn. 255 ; Brackett v. Norton, 4 Conn. 520. There is nothing in this case, either from the location of the parties, or the nature of the contract, which shows that tliey could have had any other law in view than that of the place where it was made. Indeed, as the goods were shipped to be transported to Boston or Providence, there would be the most entire uncer- tainty what was to be the law of the case, if any other rule was to prevail. We have, therefore, no doubt that the law of New York, as to the duties and obligations of common carriers, is to be the law of the case. And while we agree with the defendants, that the modern English cases are as they claim, and authorize the com- mon carrier to limit his responsibility, by notice to that effect ; we are equally clear, that tlie courts in the State of New York have taken a very different view of the subject, and held that the rule of the common law as to the liability of common carriers was a rule founded upon sound principles of policy, to protect the citi- zens from losses, the true cause of which they could seldom detectj and that it ought not, in this way, to be overthrown or evaded. In Hollister v. Nowlen, 19 Wend. 234, the Supreme Court of that state decided, that where a stage proprietor gave notice that all baggage should be at the risk of the owner, no contract could be implied froiU such notice, although it was brought home to the owner. So, also, in the case of Cole v. Goodwin et al., 19 Wend. 251, a similar decision was made ; and no authority or opinion in that state has been adduced to shake or invalidate these decisions. Without, therefore, giving any opinion as to the law of this state, which the case does not require, we cannot doubt that such a notice, by the laws of New York, cannot, in any maimer, affect the liability of these defendants, as common carriers. And these decisions are certainly supported, in a most able manner, by the learned judges who have pronounced them. 3. On the trial below, the defendants also claimed, that a bill of lading was given restricting their liability, and by accepting this, the plaintiffs were precluded from any claim. On this point the judge charged the jury, that by the laws of New York, neither the notice, nor the bill of lading, would change tlie liability of the de- fendants. To the last part of the charge, as well as the first, the defendants object. But as the jury have found there was no bill of lading, in this case, we do not see any necessity for discussing 8 WHO ARE COMMON CARRIERS : that question ; but will barely advert to the cases in the State of New York, which show the ground upon which that opinion was based. In Cole V. Goodwin, notice was given, that all baggage was at the risk of the owners ; of which notice, it was proved, the plaintiff had knowledge. The plaintiff got out of the stage, and left his trunk ; and the carriage went on, and the trunk was lost ; and Branson, J., said, that coach proprietors are answerable as common carriers, for the baggage of passengers ; and that they cannot limit tjieir responsibility, by a general notice, brought home to the em- ployers, are now settled questions, so far as this court is concerned. And the court decided, that upon these facts, the plaintiff could recover. Judge Oowen, in an elaborate argument, held, that the restrictions imposed upon common carriers for great public objects, cannot be removed, by any stipulations of the parties. 19 Wend. 251. It is said, from what fell from Judge Branson (who con- curred in the result), in the former case, that he did not concur in this opinion. In a subsequent case of Alexander v. Green, 3 Hill, 20, Judge Branson says, it is very questionable whether inn- keepers and common carriers can contract for a limited liability. And in a note, the reporter says, the case of Greene v. Hill was not then decided. It was therefore thought, by the judge who tried this cause, better that the jury should pass upon the fact, and leave the question to be examined by tliis court. As it is, we are not called upon to settle the law of New York on the subject ; much less would we intimate an opinion, that it can be considered as the law of this state, though it is supported with great learning and ingenuity. 4. The defendants, however, claim, that the court below, aside from any question arising on the bill of lading, gave an opinion to the juiy, that notwithstanding any stipulations of the parties re- stricting the liability of the carriers, they would be liable in this case. The judge who tried the cause below, had no idea of any question of that kind. No claim was made but what arose from the notice or the bill of lading. And we think, there is nothing upon this motion, which can be fairly referred to any thing else. What are the facts and claims stated in the motion ? The defend- ants claimed, they had given public notice that they would not be liable for losses, except what arose from want of care or negligence on the part of their servants; and that their agents were not THEIR DUTIES AND RESPONSIBILITIES. '9 authorized to receive goods on board, without delivering a bill of lading, containing such restrictions. They further claimed, that the plaintiff knew of the notice given as above, and that they dealt with him upon that understanding. They then complain, that as to the restrictions claimed by these notices in their bills of lading,, they could not, by the laws of New York, limit their liability as common carriers. This charge met all the evidence offered by the defendants ; for the claim of the defendants is founded only upon the notice and the bills of lading. They do, indeed, after setting out their notice, claim, that the plaintiff dealt with them upon that understanding. By this nothing can be meant or intended, but the understanding which is implied from the notice alluded to ; and any implication against the bailor, arising from such knowl- edge or understanding, is explicitly repelled, in the cases alluded to, in the 19th of Wendell. We think, therefore, that the question was fully presented to the jury. They have negatived the fact as to tlie bill of lading ; and the effect of the notice has been settled, by the Supreme Court of the State of New York. We do not, there- fore, see any ground for a new trial. 5. But it is claimed, that though such be the law of New York, as it was not submitted to the jury to determine, the court erred. It would be going very far to send a cause back for trial, when we saw, that upon the facts shown, it appeared that it was cor- rectly decided ; and if, upon the same facts, a jury should decide otherwise, we must grant a new trial. Perhaps, however, this might be necessary, to prevent the judge from usurping the prov- ince of the jury ; and it has been decided by this court, that foreign laws, in which, for this purpose, are included the laws of our sister states, cannot be judicially noticed, but must be proved as other facts. Dyer v. Smith, '12 Conn. 384; Brackett v. Norton, 4 Conn. 521. And the existence of the law being a question of fact, it would certainly seem as if it was the duty of the jury to settle it ; and the court must assist the jury, says Judge Hosjner, in ascer- taining what the law is ; but if he went further, and definitively settled the question, it was erroneous. 4 Conn. .520. In Kilgore V. Bulkley, 14 Conn. 386, there were conflicting decisions in the State of New York ; and the judge left it to the jury to say which was law, with his opinion upon it ; and the court held, that he was correct. Such were the decisions in this state ; but our legisla- ture, not willing to treat our sister states as foreign states, have 10 WHO ARE COMMON CARRIERS: enacted, that the public statutes of the several states in the United States, printed by authority, shall be legal evidence ; and the court shall take judicial notice of them. And now this court notice these statutes as they do our own. Woodstock v. Hooker, 6 Conn. 36 ; Smith V. Brush, 10 Conn. 168. And in 1840, the legislature parsed another act, directing the reports of the judicial decisions of other states and countries to be judicially noticed, by the courts of this state, as evidence of the common law of such state or coun- try, and of the judicial construction of the statutes or other laws thereof. This seems to put the judicial decisions of other states on the ^ame ground as their statutes ; and if we are judicially to no- tice their statutes, it would seem as if, in the absence of all other evidence, we must regard their decisions, when uncontradicted, as sufficient evidence of the law. We think, therefore, that the instructions given to the jury, under the circumstances of this case, were correct ; and that there ought not to be a new trial. » There is no occasion to fortify, or qualify, this opinion upon any other point than the effect of restrictive notices and contracts, by common carriers, as to their common-law responsibility. The rule seems now established, almost every- where, and in the State of New York even, that such restrictions and limitations, whether by notice, brought home to the other party and impliedly assented to, or by special contract, will be held binding upon the parties, within reasonable limits. The precise extent of this qualification it is not easy to define. It seems to be well settled that the carrier cannot exempt himself from the duty of common care and diligence in the performance of his contract. 2 Redf. Railw. 108-112, and cases cited. It is true that in England this rule rests upon statu- tory provisions, 17 & 18 Vic. c. 31, § 7, which provides that those who employ common carriers shall only be bound by such conditions and limitations of respon- sibility, as shall be expressed in writing, signed by the party to be affected by them, and as shall be considered just and reasonable by the court before which the case shall be tried. Peek'i). The North Staffordshire Railw. Co., 9 Jur. N. S. 914 ; s. o. 10 Ho. Lds. Cas. 473 ; Aldridge v. Great Western Railw., 15 C. B. N. S. 682. In the American states, no such statute existing, we have to abide by the result of general principles, as applied to the undertakings of common carriers. But we believe the courts are inchned, of late certainly, to hold common carriers to some reasonable and just degree of responsibility. The case is peculiar, in one respect, and especially since transportation by railway has become so exclusive a monopoly upon most of the inland routes. The public are entirely at the mercy of the carriers, and are compellable to submit to their own demands, both as to the price and other terms of transportation, provided these general notices or the bills of lading, which they choose to execute upon the receipt of the goods, are held binding, in all respects. One point seems well established, that common carriers cannot be allowed to stipulate for exemption from responsibility for EXCEPTION TO RESPONSIBILITY, HOW TO BE CONSTRUED. 11 negligence, as this would be to stipulate for the right to commit a wrong, which would be in conflict with all sound policy. 2 Redf. Railw. 92 et seq., and cases cited. The opinion of the court in Farmers & Mechanics' Bank v. Charaplain Transportation Company, 23 Vt. 186, post, affords a commentary upon the decided cases upon many points in the law of common carriers. It has been decided that a tow-boat is not responsible as a common carrier. Hays v. Miller, 11 Am. Law Reg. 370 ; Arctic Fire Ins. Co. v. Austin, 54 Barb. 559 ; Brown v. Clegg, 63 Penn. St. 61. But see L. A. Company v. Johnson, L. R. 7 Ex. 267 ; s. c. 20 W. R. 633. We shall consider this question more in detail hereafter, under the head of Notices and Special Contracts. II. How THE Exception, to the Eesponsibility op Common Carriers, op Losses caused by the Act op God, is to BE construed. McArthur v. Sears, 21 Wendell's Reports, 190. 1839. The responsibility of common carriers extends to all modes of transportation, whether by land or water, without regard to the nature of the perils encountered. Quasre. How far common carriers may qualify their responsibility, by showing a general custom or usage to that effect. Where the vessel of a common carrier by water is stranded, or rendered othenyise unmanageable, by an occurrence for which the carrier is not responsible, it is jus- tifiable to throw the goods overboard, where that is the only mode of escape. But where the peril results from the acts of others, over which the carrier has no control, and for which he is not responsible, he himself being guilty of no neglect, he is, nevertheless, liable for the loss, since it does not, in such case, result from what the law regards as the act of God. The act of God is natural necessity, and inevitably such, as winds, storms, &c., which are in no sense caused, nor can be hindered or controlled, by any human agency. A fire, however accidental, unless caused by lightning, is not regarded as the act of God. Where the bill of lading excuses the carrier for losses by the perils of the sea, that will embrace many losses not strictly by the act of God. If the act proceed from human agency, however inevitable it may be, on the part of the carrier, it is, nevertheless, not the act of God. The facts are sufi&ciently stated by the judge in giving the opin- ion of the court. CowEN,..J. The matter of the depositions is said to be irrele- vant : 1. Because the defendant, having violated his instructions in the manner of stowing the oysters, forfeited all right to defend himself even on the narrow ground that the loss was by the act of God ; secondly, that the matter does not tend to show the latter excuse. It is an answer to the first that\i portion of the oysters 12 EXCEPTION TO RESPONSIBILITY, HOW TO BE CONSTRUED. were properly stowed, and yet the verdict was for the value of the whole. The second objection involves the inquiry whether the depositions tended in tlie least totally to exculpate the defendant from the charge of neglect, and link the disaster to inevitable causes disconnected with human agency. The defendant was a common carrier ; and it is not denied as a general rule, that, to protect himself from responsibility for the loss, he was bound to prove that it arose from the act of God, or the enemies of the country. To the latter, the proof oSered makes no pretensions ; a,ud it was thrown out in argument that the former part of the rule has no application to carriers navigating the dangerous waters of Lake Erie. No such local exception is known to the law of England or Scotland, whatever the. general dangers of the navigation. 2 Kent, Com. 597, 607, 608 (3d ed.). Nor can it be indulged with safety either in principle or practice. No such exception has been made by any case in this state ; nor am I aware that it has ever been contended for, though there have been several closely litigated suits for losses by carriers upon our great lakes. I do not find that it has been recog- nized by any case in the neighboring states ; and distinctions in favor of carriers by water generally, which have been counte- nanced in one case, Aymar v. Astor, 6 Cowen, 266, by a dictum of the late chief justice of this state, and by two or three cases in Pennsylvania, have been treated as unfounded anomalies, to be disapproved as contrary to decisions in neighboring states, and even in our own. Story on Bailm. 323, § 497 ; 2 Kent, Com. 607, 608 (3d ed.) ; Crosby v. Pitch, 12 Conn. 419. In Elliott v. Rossell, 10 Johns. 1, the rule was applied to the navigation of the river St. Lawrence in scows, late in the season, between Og- densburgh and Montreal, which was known by the shippers to be very dangerous. See also Kemp v. Coughtry, 11 Johns. 107; Colt V. M'Mechen, 6 Johns. 160; Harrington v. Lyles, 2 Nott & M'Cord, 88, 89, and the cases there cited ; Williams v. Grant, 1 Conn. 487, and several cases hereafter cited. Bell v. Reed, 4 Binn. 127, was like the one at bar, a case of navigation on Lake Erie ; and proceeded throughout on the assumption that the de- fendants must, in order to excuse the loss, prove the utmost care in themselves, and convince the jury that the loss arose from the act of God. In Gordon v. Little, 8 Serg. & Rawle, .533, it was held that a general usage, softening the responsibility of carriers on the west- EXCEPTION TO RESPONSIBILITY, HOW TO BE CONSTRUED. 13 ern waters, was admissible in their defence. This was the case of a keel boat sailing from Pittsburgh in Pennsylvania, to Hopkins- ville, Kentucky. But no offer of that kind was made in the case at bar ; and it may be very questionable, since the late cases in this court denying all restriction even by notice, whether such a custom, wliich must arise from the management of carriers, would be sustainable in true policy, owing to the opening which it gives for fraud and collusion, &c. In Aymar v. Astor, before cited, and The Schooner Reeside, 2 Sumn. 560, 567, a general commercial custom enlarging the phrase _pen7s or dangers of the seas, in a bill of lading, so as to comprehend causes of loss beyond their legal import, was denied. Mr. Justice Story, in the last case, very properly expresses a general reluctance to the reception of such proof in cases where it has not heretofore been applied. He finally rejected it, because it worked a contradiction of the written agreement, s. p. Turney v. Wilson, 7 Yerg. 340. But see Creery V. Holly, 14 Wendell, 26, and Barber v. Brace, 3 Conn. 9 ; also Lawrence v. M'Gregor, 1 Wright, 198. Nor have we any offer or intimation by counsel that they intended to go beyond the depositions in order to establish that the loss was by the act of God. The depositions are left to speak for themselves ; and from them alone can we judge whether they were admissible. The utmost they show in respect to natural causes, are a considerable wind, at the close of navigation, and the darkness of the evening heightened by a fall of snow. Under these circumstances an attempt was made to enter the harbor in a narrow channel, for the master's safe conduct through which he knew that he depended on following a certain track by ranging with the beacon lights at the two light-houses. On reaching the point where this range was to be taken, it so happened that the usual blaze at one of the light-houses was for some cause not visible ; and a light in the " North America," a steamboat which lay grounded in consequence of a previous storm, was easily mistaken for that of the farther house, whose light was invisible. Of the disaster to the " North America," the defendant's master could probably have learned nothing, and could not, therefore, have been prepared to suspect the delusion. Indeed, the two experienced seamen who made the depositions in question con- cur to prove that the circumstances were such as to baffle the skill and care of an accomplished master accustomed to sailing 14 EXCEPTION TO RESPONSIBILITY, HOW TO BE CONSTRUED. this water; and the jettison of the oysters, being necessary for the safety of the boat, was lawful, if the stranding arose from a jus- tiaable cause. Story on Bailm. 336, 337, 338, § 525, 527 ; id. 339, 340, § 530, 531, and the cases there cited. And see Lenox v. United States Ins. Co., 3 Johns. Cas. 178, and Smith v. Wright, 1 Caines, 43. The object of the depositions then was to excuse the loss by a mistaken deviation to which the master was led by a concourse of circumstances over which he had no control ; and they strongly tended to free him from all charge of neglect. So far they were material, if the loss had depended wholly on natural causes ; for the least degree of negligence would, notwithstanding, make the carrier liable. Story on Bailm. 332 to 334, § 516, 517 ; Williams v. Grant, 1 Conn. 487. But looking at all the grounds on which the depositions place the mistake, there is, I apprehend, an insurmountable difficulty, in saying that there was not such an admixture of human means as must vitiate the defence. It is insisted that the defendant's vessel was at a proper point of observation, yet no blaze at one of the light-houses was to be seen, and the delusive light in the "North America" was mistaken as one by which to steer. The ab- sence of the first was probably owing to neglect, and the latter must have been lighted and kept burning by a person about the boat to which it belonged. Tins contributed as much towards the mistaken devia- tion by which the defendant's vessel was stranded, as the absence of the usual signal at the light-house. I have sought in vain for any case to excuse the loss of the carrier, where it arises from human action or neglect, or any combination of such action or neglect, except force exerted by a public enemy. No matter what degree of prudence may be exercised by the carrier and his servants ; although the delusion by which it is baffled or the force by which it is over- come be inevitable, yet if it be the result of human means, the car- rier is responsible. A stronger case cannot be put than the common one, plunder by a band of robbers or rioters. Take the case of the riot of 1780, in which Lord Mansfield's house was de- stroyed, and a considerable military force qould not prevent exten- sive and indiscriminate destruction in the city of London. Lord Mansfield has himself, in 1 T. R. 34, put even this as an instance which could not be received to protect a common carrier. With regard to such a change of circumstances unknown to the defend- EXCEPTION TO EESPONSIBILITY, HOW TO BE CONSTRUED. 15 ant, by which he or his servants are led into unavoidable mistake, the leading case is that of Smith v. Shepherd, Abb. on Shipp. part 3, oh. 4, § 1. The loss in that case happened at the entrance of the harbor of Hull. Just before the defendant's vessel had reached the place, a bank there, formerly shelving, had been ren- dered precipitous by a great flood, where a vessel sunk by getting on the bank, having a floating mast tied to her. The defendant's vessel striking the mast, was forced towards the bank, where, owing to change in the bank occasioned by the flood, the loss happened. The natural cause, the act of God in changing the bank, was laid out of question, as not beiiig the immediate cause, and therefore furnishing no excuse. The fastening of the mast, if not the sinking of the ship, to which it was attached, were the only remaining causes, and one, if not both, were obstructions placed there by human agency. Evidence was offered to show that there had been no actual negligence on the side of the defendant ; but it was overruled at the circuit, and a verdict found for the plaintiffs which was sustained by the court. This cause was tried in 1795, and was but following out a previous case, tried ten years before, that of the proprietors of the Trent Navigation v. Wood, 3 Esp. 127. The latter case, though given by a ni&i prius reporter, was, like the former, considered by the king's bench. The defendant's vessel sunk, by driving against a concealed anchor in the river, which belonged to a barge lying near ; but the bargeman did not, as he should have done, place a buoy to apprise others where his anchor lay. Oowper, of counsel, made a point that the defendant could not excuse himself on the conduct or neglect of another, the bargeman. Lord Mansfield said, " The act of God is a natural necessity, and inevitably such, as winds, storms, &c. The case of robbery is certainly very Strong ; but not a natural necessity, and in this case there is an injury by a private man, within the reason of the instance of rob- bery, yet I think the carrier ought to be liable." Ashurst, J., said, " If this sort of negligence were to excuse the carrier, when he finds that an accident has happened to goods from the misconduct of a third person, he would give himself no farther trouble about the recovery of them." BuUer, J., said there was legal negligence, though there might be none in fact. All three of the judges also intimated that there was some slight actual negligence in the defendant, which renders the case of somewhat 16 EXCEPTION. TO RESPONSIBILITY, HOW TO BE CONSTRUED. less force for the point to which I have cited it. In Forward v. Pittard, 1 T. R. 27, a fire broke out one hundred yards from the carrier's booth, where he had placed the goods for safe custody before he started. It burnt with inextinguishable violence, and reaching the booth, consumed the goods. All this was without any actual negligence of the defendant, and was not occasioned by lightning. Lord Mansfield said, the carrier is liable beyond his contract. He is in the nature of an insurer against every event except the act of God, &a. "Now what is the act of God? I consider it to mean something in opposition to the act of man." He adds, that the law presumes against a carrier, until he shows that the loss arose from such an act as " could not happen by the intervention of man, as storms, lightning, and tempests. In this case it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man ; for it is expressly stated not to have happened by light- ning. The carrier, therefore, in this case, is liable, inasmuch as he is liable for inevitable accident." It seems by these cases, that the words inevitable accident, which are preferred by some to " act of God," because more reverent, are not adequate to express the ground of a common carrier's excuse ; for accidents arising from human force or fraud, are sometimes inevitable. I believe it is matter of history that inhabitants of remote coasts, accustomed to plunder wrecked vessels, have sometimes resorted to the expedient of luring benighted mariners by false lights to a rocky shore. Even such a harrowing combination of ffaud and robbery would form no^ excuse. On the authority of Forward v. Pittard, Lord Tenterden lays down the rule thus : " The expression act of Grod denotes natural accidents, such as lightning, earthquake, and tem- pest; and not accidents arising from the fault or negligence of man." And see Story on Bailment, 330, § 511 ; Jeremy's Law of Carriers, 56. To the cases already cited, may be added Campbell V. Morse, 1 Harp. Law Rep. 468 ; Harpell v. Owens, 1 Dev. & Beat. 273 ; Kent, C. J., in Elliott v. Rossell, 10 Johns. 11 ; Robertson v. Kennedy, 2 Dana, 430 ; Qreen, J., in Gordon v. Bu- chanan, 5 Yerg. 82 ; Turney v. Wilson, 7 id. 340. A man hires his vessel to be repaired by a skilful workman, who makes a rud- der apparently sound, but internally rotten, and the loss happens by reason of its breaking. The owner is liable, though he was ignorant of the defect. Backhouse v. Sneed, 1 Murph. 173. 17 The farthest that any of the cases appear to go in favor of the carrier is to excuse him where the loss happens by his vessel being forced by the wind, or other natural and inevitable cause, against some permanent artificial object, as the pier of a bridge erected by another. Amies v. Stevens, 1 Str. 128, cited and approved by Spencer, J., in Colt i). M'Mechen, 6 Johns. 165. There is a considerable class of cases arising upon exceptions in bills of lading, of tjie " perils of the sea," where, in addition to losses from natural causes, those arising from the acts of third persons are sometimes allowed to come within the terms. Such are losses by robbery of pirates, Pickering v. Barkley, Sty. 132, 2 Roll. Abr. 248 ; Buller v. Fisher, Abb. on Ship. pt. 3, c. 4, § 2, and the collision of ships without fault of either party. Story on Bailm. 332, § 514, and cases there cited. But these words are evidently of broader compass than the words " act of God," and although it was supposed by a very learned judge that they were but commensurate, Grould, J., in Williams v. Grant, 1 Conn. 487, 492, and therefore whatever was a peril of the sea would excuse the carrier acting under his general liability, yet it is evident from the cases we have considered, that they are not always so. The distinction was adverted to, but not much examined by Story, J., in The Schooner Reeside, 2 Sumu. 571. The case of Aymar V. Astor, 6 Cowen, 266, was an action on a bill of lading, except- ing the dangers of the seas. The goods were damaged on the voyage by rats ; and it was held that the defeadants having taken every precaution to avoid their depredations, the loss was by a danger of the sea within the policy. This case, we noticed before, has been treated as tending to upset the law extending the im- plied liability of common carriers to the water. Story on Bailm. 323, § 497 ; 2 Kent, Com. 472, 473 (1st ed.) ; id. 608 (3d ed.) ; Crosby v. Fitch, 12 Conn. 419. The case itself has no such ten- dency. There are in the case dicta of the chief justice, which, not being at the moment and in terms confined to the case as it stood on the exception in the bill of lading, were left open • to the construction which has been put upon them by the learned commentators and by the case cited. My own marginal note of the case, I observe, runs into the same error. Cases as to the meaning of the words perils of the sea often arise also upon policies of insurance. See 1 Phil on Ins. 249, 250, and 2 id. 191. For instance, it was held that the loss of a ship by the sudden vnr,. TT. 2 18 EXCEPTION TO RESPONSIBILITY, HOW TO BE CONSTRUED. impressment of sailors sent on shore to fasten it, was a loss within the policy. Hodgson v. Malcolm, 5 Bos. & Pul. 336. Yet it seems clear, on the cases, that such an act could not be re- ceived to exempt a common carrier either as the act of God or the enemies of the state. It may be irresistible. So we have seen of many acts merely human ; still they may be collusively commit- ted. The carrier may collude with a press-gang as well as with robbers or illegal kidnappers. The difficulty returns, therefore ; if we receive the immediate agency of third persons in any shape, we open that very door for collusion which has denied an excuse by reason of theft, robbery, and fire. Marsh v. Blyth, 1 Nott. & M'Oord, 170, which held it a defence that the carrier's vessel was, without his fault, run down by another, is an instance in which the rule in respect to the special exception in a bill of lad- ing has been applied to the carrier's general liability. There may be other cases of the like character, but it seems clearly to me, from authorities I have been able to consult, that the expression perils, or dangers of the sea, or dangers of the river, &c., will be found to allow, in several cases, human agency and other causes to excuse a loss, which cannot be allowed in favor of common car- riers, without giving up the rigorous obligation imposed upon them by the policy of the law. See also Story on Bailm. 330, 331, 332, §§ 512-514; 2 Kent, Com. (3d ed.) 599, 600, 607, 608; 3 id. 215, 217, and the cases cited by those authors, especially Buller v. Fisher, 3 Bsp. 67 ; 1 Phil, on Ins. 250, 251 ; 2 id. 191. On the other hand, in Lawrence v. M'Gregor, 1 Wright, 198, 197, Wright, J., at nisi prius charged that by whatever degree of negligence another boat might run down the carrier's, this formed no excuse. ' Gordon v. Buchanan, 5 Yerg. 71, and Turney v. Wilson, 7 id. 340, take the distinction. In the former, Gf-reen, J., said, " the excep- tion in this bill of lading of the dangers of the river which are unavoidable, narrows down the liability of the owner of the boat. Many of the disasters which would not come within the definition of the act of God, would fall within the exception ; such, for in- stance, as losses occasioned by hidden obstructions in the river newly placed there, and of a character that human skill and fore- sight could not have discovered and avoided." This was repeated and adjudged in Turney v. Wilson. And see Johnson v. Friar, 4 Yerg. 48, and Craig v. Childress, Peck, 270. Mr. Justice Story, seems to suppose that if an obstruction be secretly sunk in the EXCEPTION TO EESPONSIBILITT, HOW TO BE CONSTRUED. 19 stream, and not being known to the carrier, his boat founder, he would be excused. Story on Bailm. 334, 335, § 618, But the cases do not appear to sustain him, unless the obstruction were sunk by the act of God, as by a sudden and extraordinary flood. This may change the position of the shore, raise a sand-bar, or sink obstructions unknown to the approaching navigator. If it arise from ordinary causes, it would be otherwise, for the carrier undertakes against these. Should a navigator, by mjstake, run against a snag in a river where such obstructions are known to abound, as in the river Hatchie, see 4 Yerg. 49, whatever might be his care, he would not be excused without an exception in the bill of lading of dangers of the river. This, I think, is clearly collectable from the cases already cited, of Johnson v. Eriar and Gordon v. Buchanan. In the case at bar there was no exception in the bill of lad- ing. Of course, there is no room to contend that though the loss may not have happened from natural causes incapable of being foreseen, yet it was by a peril of the lake. The defendant stands chargeable as common carrier without qualification. The deposi- tions setting up the fact that the mistaken deviation on entering the harbor arose from the act or negligence of some person, was equivalent to an offer by counsel to prove it, with the additional fact that the defendant's servants who managed the vessel were without fault. This, which we have seen would have been mate- rial, had the real cause of loss proposed to be shown, been such as would in law exculpate a common carrier, was neutralized by the want of such a proposition, indeed by the assertion of a cause which could have no such effect. The judge at the circuit, there- fore, took substantially the same course as was done in Smith v. Shepherd, before cited. Evidence of the utmost care ceased to be relevant, so soon as it was seen that the loss was not caused by the act of God. The depositions could not with propriety be submitted to the jury to prove a case which on its face was una- vailable. The carrier may always excuse himself by showing that the loss resulted from the act of God, as by flood, and need not show affirmatively, in addition, that he was guilty of no negligence. Eailroad Company v. Reeves, 10 Wall. 176. If the plaintiiF claims that the carrier was guilty of negligence also, it is incumbent on him to prove it. lb. If the proximate cause of the loss was the act of God, the carrier will not be held responsible, although his negligence may have con- 20 NOT RESPONSIBLE FOR REMOTE CAUSES OP NEGLIGENCE. tributed, as a remote cause, to the loss. lb. The carrier is only bound to the exercise of ordinary diligence in order to escape or remedy the effects of any overpowering cause of damage. The burden of proof in cases against carriers is extensively discussed in Western Transp. Co. v. Downer, 11 Wall. 129 ; s. C. 10 Am. Law Reg. N. S. 360, and note. See also Welfare v. London & Brighton Railw., L. R., 4 Q. B. 693, where it is held that courts in determining the legal presumption of negligence and the burden of proof are to look at the admitted facts presented in each particular case. And the late well-considered cases all agree that carriers, as well as other bailees, are bound to act with wise ref- erence to the particular emergency. Wolfe v. Am. Express Co., 43 Mo. 421. III. The Carrier not Responsible for the Remote and Inci- dental Consequences of his Negligence. Causa proxima, NON REMOTA, SPECTATUR. Morrison v. Davis, 20 Penn. St. Reports, 171. 1852. Common carriers are not responsible for the occurrence of injury resulting directly from an inevitable accident or casualty, even where the goods are brought within the operation of such inevitable accident by the remote fault of the carrier. Thus where goods carried in a canal boat are injured, by the wrecking of tlie boat by reason of an extraordinary flood, and it appears that delay in the transportation liad been caused by reason of the carrier having a lame horse at the time of starting, and but for that the boat would have passed the point where the accident occurred before the flood came and thus have safely reached its destination : it was held the carrier was not responsible for the loss. The facts are suflSciently stated in the opinion of the court by — Towne, J. This is an action of assumpsit, and the declaration contains several counts, the two first charging the defendants as common carriers, and the others charging them on a special con- tract, substantially amounting to an agreement to carry safely and to insure them against all risks. On the first two counts the evidence offered was admitted, and it appeared, among other things, that the defendants' canal-boat, in which the goods were carried, was wrecked below Piper's dam, by reason of the extraordinary flood in the Juniata division of the Pennsylvania canal in the fall of 1847 ; and further, that the boat started on its voyage with one lame horse, and that, by reason thereof, great delay was occasioned in making the voyage, and that, had it not been for this, the boat would have passed the point where NOT RESPONSIBLE FOR REMOTE CAUSES OP NEGLIGENCE. 21 the accident occurred before the flood came, and would have arrived safely and in time. The plaintiff insisted that inasmucli as the negligence of the de- fendants in using a lame horse for the voyage occasioned the loss, therefore they were liable. But the court refused so to instruct the jury ; and this is one of the principal assignments of error. In answering this question we must assume that the proximate cause of the disaster was the flood, and the fault of having a lame horse was a remote one, which by concurring with the extraordinary flood became fatal. We assume that the immediate cause had the character of an inevitable accident ; but that this cause could not have affected the boat had it not been for the remote fault of start- ing with a lame horse. The question then is, does the law treat this fault and its consequent delay as an element in testing the inevitableness of the disaster at Piper's dam ? We think it does not. In any other than a carrier case, the question would present no difficulty. The general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and as may, on this account, be foreseen by ordinary forecast ; and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature. Thus a blacksmith pricks a horse by careless shoeing ; ordinary foresight might anticipate lameness, and some days or weeks of unfitness for use ; but it could not anticipate that by reason of the lameness the horse would be delayed in passing through a forest until a tree fell and killed him, or injured his rider ; and such in- jury would be no proper measure of the blacksmith's liability. The true measure is indicated by the maxim causa proxima, non remota, speetatur. It is on the same principle that insurers against the perils of the sea are not liable for a loss immediately arising from another cause, though, by the perils of the sea, the ship had sustained an injury without which the loss would not have taken place. 12 East, 648 ; 2 Bing. 205 ; 12 Mass. 230. And, on tiae other hand, the insurers are liable in case of a loss by the perils insured against, though the loss would not have happened had it not been for remote negligence by the master or crew. 3 Sumner, 270; 14 Mees. & W. 476 ; 8 id. 895 ; 11 Peters, 213 ;' 5 Barn. & A. 171 ; 7 Barn. & 0. 214 ; 2 Camp. 149. 22 NOT EESPONSIBLB FOR REMOTE CAUSES OP NEGLIGENCE. The case of a deviation is no exception to this rule ; for there the insurer is not liable because that act makes a different voyage from the one insured. There are often very small faults which are the occasion of the most serious and distressing consequences. Thus, a momentary act of carelessness set fire to a little straw, and that set fire to a house, and, by an extraordinary concurrence of very dry weather and high winds, with this fault, one third of a city (Pittsburgh) was destroyed. Would it be right that this small act of careless- ness should be charged with the whole value of the property cour sumed ? On the other hand, these very small acts are often the cause of incalculable blessings. A bucket of water promptly ap- plied would have saved all that loss ; but the amount saved would have been no proper measure of reward for suph an act. There are thousands of acts of the most beneficial consequence that receive and deserve very little reward, because, in themselves and in their purpose, they have very little merit. Now there is nothing in the policy of the law relating to common carriers that calls for any different rule, as to consequential dam- ages, to be applied io them. They are answerable for the ordinary and proximate consequences of their negligence, and not for those that are remote and extraordinary, and this liability includes all those consequences which may have arisen from the neglect to make provision for those dangers wliich ordinary skill an. Bremer, 68 id. 268. This part of the subject, and also the proper construc- tion of contracts for transporting goods and the purpose and extent of the ad- mission of extrinsic evidence, is very fairly and ably illustrated by the opinions delivered in the case of Blossom v. Griffin, 13 N. T. 569. The facts in the case will sufficiently appear in the opinions, except that the receipt given at the time the goods were delivered to the defendants was in the following terms : " Received, &c., five cases of domestic goods, marked for New York, to be forwarded." Signed by defendant. CoMSTOOK, J. The goods in question were delivered to the defendants on the 3d of July, and during that night were burned without fault or negligence on their part. If at that time they were liable as forwarders only, they are not responsible for the loss. If, on the other hand, their liability as carriers had attached, then they must pay for the goods ; and this is the question to be deter- mined. The defendants were both carriers and warehousemen. In such a case it is well settled that if the deposit of the goods in the warehouse is a mere accessory to the carriage, in other words, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received. Angell on Carriers, § 75, 131. So of an innkeeper who is also a carrier by land ; if he receives goods into his inn to be carried, he is liable as a carrier for any loss which may happen before they are put in transit. Angell on Carriers, § 133; Hyde v Trent and Mersey Nav. Co., 6 T. R. 389. In this case it appears that the plaintiflfs were in the habit of sending their goods from Buffalo to New York, to be sold by their consignees. In the spring before the fire happened they had agreed with the defendants to be their carriers, at a price which included both freight and warehouse charges ; and under this agreement the defendants, from time to time, received goods from the plaintiffs at their storehouse and carried them through to New York. The referee has also found, as matter of fact, that the goods in question were received under 148 WHEN THE CAKRIEE'S RESPONSIBILITY BEGINS. this agreement. They were therefore received for transportation, and within the principle which has been stated, were there nothing else in the case, it would be very plain that the defendants became liable as common carriers. It has been urged, however, that the receipt which the plaintiffs took from the defendants on delivering the goods, declaring that they were received to be forwarded to the consignees, is conclusive against any theory of liability as car- riers. The objection, I think, cannot prevail. It may be granted that the writ- ing is more than a mere receipt ; that it imports an agreement, and is therefore within the rule which excludes parol evidence where contracts are reduced to writing. But the rule itself is not quite so broad as the terms in which it is commonly stated would seem to imply. It only excludes any other evidence of the language used by the parties in making the contract than that which is fur- nished by the instrument itself. 1 Greenl. Ev. 816, 321. It excludes the colloquium or oral negotiation leading to the very contract which the parties con- summate by reducing it to writing ; but it does not reject an antecedent parol agreement of a different character and imposing a very different but not incon- sistent obligation. The defendants, as before stated, were carriers, and as such they were under a parol agreement to carry the plaintiffs' goods generally, and those in question in particular. Their storehouse was the place where they were in the habit of receiving goods for that purpose, and where their liability as car- riers commenced. Now, although we concede that, looking at the receipt only, the goods were taken in to be forwarded in the strict and technical sense of the term, yet the defendants, in virtue of the antecedent agreement, were to take them from the storehouse as carriers and transport them to New York. Keeping in view, then, the rule already stated, their liability as carriers at once attached. Unless it can be shown, therefore, that a forwarder's receipt cancels or in some way swallows up his antecedent agreement to take the same goods as a carrier, whether the latter engagement be by parol or in writing, the defence must fail ; and I think'that cannot be shown. But the receipt itself, in my opinion, admits of a different interpretation from that which has been thus far conceded. In construing this, as every other writ- ing, it is proper to look at all the surrounding circumstances, the pre-existing relation between the parties, and then to see what they mean when they speak. If no facts had been shown outside of the receipt itself, it might and probably would have imported simply an obligation to deliver the goods to some safe and responsible carrier, to be transported to their destination. But calling in the aid of all the circumstances, viewing the defendants also as carriers, and looking at their existing obligation to the plaintiffs, a fair exposition of the language used is that the property was to be " forwarded," not in the exact and technical sense which excludes the idea of transportation, but to be carried forward to its destination, as marked on the goods and expressed in the receipt, by their own line of conveyance, according to their antecedent agreement. There is no rule which requires the words of a contract to be construed in their technical sense. In general the rule is the reverse (1 Greenl. Ev. 317), and there is certainly no necessary meaning of the phrase, " to forward," which excludes the interpreta- tion suggested. There can be no doubt that this was what the parties intended, and I am quite clear that in adopting such a construction, we do no violence to the language in which they expressed themselves. The judgment should be affirmed. WHEN THE carrier's RESPONSIBILITY BEGINS. 149 T. A. Johnson, J. The writing given by the defendants, on receiving the goods in question, on its face, and without any evidence in regard to the busi- ness in which they were engaged, would not, certainly and unequivocally, amount to any thing more than a mere receipt for the goods. The terms, to be for- warded, woiild not in that case necessarily import an undertating, on their part, either to send or carry the goods to any place for the persons who delivered them. It became necessary, therefore, in order to enable the court to deter- mine the true import of these terms in the connection in which they were used, and to ascertain what the parties intended by them, to show in what business they were engaged, and to what subject-matter the writing applied, to prove some extrinsic facts. Had nothing been shown beyond the facts that the plain- tiflfs were manufacturers of goods of that description, for sale in the usual course of trade, and that the defendants were, warehousemen and forwarders, the writ- ing would undoubtedly, in the light of such facts alone, be held to import clearly an undertaking, on the part of the defendants, to deliver the goods at the earliest opportunity to some trusty and responsible carriers, who should engage on the usual terms to carry and deliver them, at the place of destination, to the persons to whom they were addressed or consigned. . In such a case it is clear that the defendants could not be held liable for any damagfi or loss happening in the manner the loss in question is found to have happened. But whenever it becomes necessary for the court, in order to interpret an instrument, to resort to proof of extrinsic facts at all, it ought to hear all the facts and circumstances legiti- mately bearing upon the subject to which the instrument relates. It should then surround itself with all the material facts and circumstances which surround the parties at the time, and occupy, as nearly as possible, their position. Hence proof of the other facts connected with this transaction became not only impor- tant, but absolutely necessary, to enable the court to perform its duty of inter- preting the writing, and determining the true intent and meaning of the terms employed. And when the additional facts came to be established, that this was not an isolated transaction between the same parties, — that the defendants, in addition to being warehousemen and forwarders, were common carriers also, — that in the spring, previous tq the loss in question, they had agreed with the firm of which the plaintiffs are members and assignees to carry their goods to and from New York at a specified price per hundred, and that they had from time to time, before this, received goods of said firm at their warehouse, where the goods in question were delivered, to be carried under the general arrangement, — it became apparent that the writing was not necessarily a distinct and indepen- dent agreement, in reference to this particular parcel of goods, by which the defendants were to act as forwarders merely. In the light of all these facts and circumstances, the terms " to be forwarded," instead of importing an absolute and unqualified undertaking on the part of the defendants to deliver the goods to some carriers who should undertake to transport them, amount merely to an acknowledgment of the purpose for which the goods had been delivered by the owners, that is, to be forwarded or carried by the defendants themselves, under the existing arrangement. Such is the natural and reasonable import of the terms employed, in view of all the surrounding facts and circumstances. The writing is not a new undertaking, changing pre-existing relations, but mere evi- dence that the parties were carrying out and performing the prior agreement. 150 ' WHEN THE carrier's RESPONSIBILITY BEGINS. which embraced all the necessary terms and conditions. The goods having been delivered to the defendants to be forwarded or carried by them under their prior agreement immediately on the first opportunity, without farther orders from the owners, they became responsible, as carriers, the moment the goods came fully into their possession, and are consequently liable for the loss in question. Angell on Carriers, §§ 75, 131, 134 ; Story on Bailments, § 636 ; Edwards on Bailments, 446, 447, 448, 449. The admission of evidence of extrinsic facts upon the trial, and the application of the facts established to the instrument, by way of interpretation, were in no respect in conflict with the rule which forbids the introduction of parol evidence to contradict or vary writtten instruments. in. CoMJioji Carriers, when created by Act of iNCORPORATtoif, and by Charter restricted to a Particular Line, may contract for Carry- ing BEFORE Goods reach the Line. It may be proper to name here, that common carriers, even those created by way of private corporations, like railways and steamboat companies, have the capacity to contract for receiving goods for transportation at any point designated in the con- tract, however remote from the line of the company. This was decided in Noyes V. The Rutland & Burlington Railway, 27 Vt. 110, and we here adopt the opinion of the court as expressive of the grounds of that decision. The facts in the case will sufficiently appear by the opinion of the court, delivered by — Redfield, C.J. It seems to be now well settled, that railway companies, as common carriers, may make valid contracts to carry beyond the limits of their own road, either by land or water, and thus become liable for the acts and neglects of other carriers, in no sense under their control. Muschamp u. L. & P. Junction R. Co., 8 M. & W. 421 ; Weed «. Saratoga & Schenectady R. Co., 19 Wend. 534; Farmers & Mechanics' Bank v. Champ. Trans. Co., 23 Vt. 186, ante, p. 52. It has never been questioned that carriers, whether natural or artificial per- sons, might by usage or contract bind themselves to deliver parcels and mer- chandise beyond the strict limits of their line in town and country ; and in such case could only exonerate themselves by a personal delivery. 28 Vt. 186, and cases there cited. It seems to us, in principle, that these two propositions control the present case ; for if a railway company as carriers may contract for carrying merchandise and parcels beyond the limits of their line, where the carriage is by porters, stages, by steamboats or other water-craft, or by other railways, and this is to be justified upon the ground of usage and convenience, or common understanding and con- sent, the same rule of construction must equally extend to contracts to receive freight at points on the line before it reaches the company entering into the con- tract. It may be true, in one sense, that this is extending the duties and powers of the company beyond the strictest interpretation of the words of their charter. WHEN THE CARBIBB'S EESPONSIBILITY BEGINS. 151 But the time is now past, -when, as between the company and strangers, any such literal interpretation of the charter is attempted to be adhered to. It is true, that such corporations, even as to strangers, are not allowed to assume obligations altogether beyond the general objects of their incorporation, as if they should assume to build steamboal;s, or other railways, perhaps. But within the general business of their creation, a very considerable latitude is allowed in con- tracts with strangers. This is done for the advantage of the company, as well as others, and to avoid embarrassments in the common business of life, which must be constantly liable to occur, upon any such limited construction of the powers of corporations, as is contended for by the defendants. These corporations are now held liable for a nuisance, in obstructing highways; — for damages, in consequence of a departure from the ordinary and safe mode of constructing their embankments, although attempted, in that form, to aid a manufacturing interest, by making the embankment serve the double purpose of a dam, and embankment for the track of the road ; — and in many other cases, where, if the stockholders had interfered, in the first instance, the agents of the company would have been restrained from doing the acts in the name of the company. But if the corporators acquiesce in the extension of the business of the com- pany, even beyond the strict limits of its charter upon the most literal inter- pretation, and strangers are thereby induced to contract, upon the faith of the authority of the agents of such companies, the companies are not at liberty to repudiate the authority of such agents, when their transafctions prove disastrous. This principle is strikingly illustrated by the false issues of stock by the directors of companies, even beyond the limit of their charters, which the courts have attempted generally to maintain, even by the necessary finesse of lessening the nominal value of the other genuine shares, which is certainly carrying the matter to the very extreme of reason and sound logic. But of the soundness of the general principle, to the extent of the present case, we think there is no pos- sible question. If this company can assume to carry freight from Burlington to New York, so they may equally from Highgate to Troy and New York. The case of Jordan v. Fall River R. Co., 5 Cush. 69, is a well-considered case, and precisely in point. Cases like that of Livingston v. Lynch et al., 4 Johns. Ch. 573, and many others which concern the power of the majority to compel the minority to the extension of the business of the company beyond its constitu- tional limits, have no proper bearing upon the present question. The point blanc question here is, whether the company, by its agents, and the consent of its corporators, shall continue to carry on its business in any given mode, not contrary to the general course of business in the vicinity, so long as it prove profitable to the company, and when any disaster occurs, be allowed to shield themselves from liability, by a resort to the most literal construction of their charter powers, which they had themselves extended, by a liberal construction of its terms? It would seem that there could be but one answer; and such is the uniform current of the more recent decisions of the courts upon the subject. Judgment affirmed. 152 TERMINATION OP THE CARRIER'S RESPONSIBILITY. X. The Termination op the Carrier's Responsibility. I. The Carrier's Kesponsibility in regard to Goods to be trans- ported WHOLLY upon THE LiNE WHERE FIRST DELIVERED, AND HOW FAR Actual Notice or Delivery to the Consignee is required. Norway Plains Go. v. Boston Sf Maine Railroad Go., 1 Gray's Reports, 263. 1854 Railway companies which become common carriers of goods are not bound to make delivery to the consignee, or give notice of the arrival of such goods. After the arrival of such goods at their destination, and their deposit in the warehouse of tlie company, their responsibility as common carriers ceases, and they are only responsible thereafter as warehousemen. The facts in the case sufficiently appear in the opinion of the court by — Shaw, C. J. The liability of carriers of goods by railroads, the grounds and precise extent and limits of their responsibility, are coming to be subjects of great interest and importance to the com- munity. It is a new mode of transportation in some respects like the transportation by ships, lighters, and canal-boats on water, and in others like that by wagons on land ; but in some respects it dif- fers from both. Though the practice is new, the law by which the rights and obligations of owners, consignees, and of the carriers themselves, are to be governed, is old and well established. It is one of the great merits and advantages of the common law, tliat, instead of a series of detailed practical rules, established by positive provi- sions, and adapted to the precise circumstances of particular cases which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common con- venience, but still more by judicial exposition ; so that, when in a course of judicial proceeding, by tribunals of the highest authority. TERMINATION OP THE CARRIER'S RESPONSIBILITY. 153 the general rule has been modified, limited, and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances. The effect of this ex- pansive and comprehensive character of the common law is, that whilst it has its foundations in the principles of equity, natural jus- tice, and that general convenience which is public policy ; although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurrence, in the business of an active community ; yet the rules of the common law, so far as cases have arisen and practices actually grown up, are rendered, in a good degree, precise and certain, for practical purposes, by usage and judicial precedent. Another consequence of this expansive character of the common law is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial deci- sion, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new cir- cumstances, by considerations of fitness and propriety, of reason and justice), which grow out of those circumstances. The conse- quence of this state of the law is, that when a new practice or new course of business arises, the rights and duties of parties are not without a law to. govern theni ; the general considerations of reason, justice, and policy, which underlie the particular rules of the com- mon law, will still apply, modified and adapted, by the same con- siderations, to the new circumstances. If these are such as give rise to controversy and litigation, they soon, like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the efifect of precise and practical rules. Therefore although steamboats and railroads are but of yesterday, yet the principles which govern the rights and duties of carriers of passengers, and also those which regulate the rights and duties of carriers of goods, and of the owners of goods carried, have a deep and established foundation in the common law, subject only to such modifications as new circumstances may render necessary and mu- tually beneficial. The present is an action brought to recover the value of two par- cels of merchandise, forwarded by the plaintiffs to Boston, in the cars of the defendants. These goods were described in two receipts of the defendants, dated at Rochester, N. H., the one October ' 31st, 1850, and the other November 2d, 1850. 154 ' TERMINATION OP THE CAREIEB'S RESPONSIBILITY. By the facts agreed it appears, that the goods specified in the first receipt were delivered at Rochester, and received into the cars, and arrived in Boston seasonably on Saturday the 2d of November, and were then taken from the cars, and placed in the depot or ware- house of the defendants ; that no special notice of their arrival was given to tlie plaintiffs or their agent ; but that the fact was known to Ames, a truckman, who was their authorized agent, employed to receive and remove the goods, that they were ready for delivery, at least as early as Monday morning, the 4th of November, and that he might then have received them. The goods specified in the other receipt were forwarded to Boston on Monday, the 4th of November ; the cars arrived late; Ames, the truckman, knew from inspection of the way-bill that the goods were on the train, and waited for them some time, but could not conveniently receive them that afternoon, in season to deliver them at the places to which they were directed, and for that reason did not take them ; in the course of the afternoon they were taken from the cars and placed on the platform within the depot ; at the usual time at that season of the year, the doors were closed. In the course of the night the depot accidentally took fire, and was burned down, and the goods were destroyed. The fire was not caused by lightning ; nor was it attributable to any default, negligence, or want of due care, on the part of the railroad corporation, or their agents or servants. We understand the merchandise depot to be a warehouse, suita- bly enclosed and secured against the weather, thieves, and other like ordinary dangers, with suitable persons to attend it, with doors to be closed and locked during the night, like other warehouses used for the storage of merchandise ; that it is furnished with tFacks on which the loaded cars run directly into the depot, to be un- loaded ; that there are platforms on the sides of the track, on which the goods are first placed ; that if not immediately called for and taken by the consignees, they are separated according to their marks and directions, and placed by themselves in suitable situations within the depot, there to remain a reasonable and convenient time, without additional charge, until called for by parties entitled to receive them. The question is whether, under these circumstances, the defend- ants are liable. That railroad companies are authorized by law to make roads as public highways, to lay down tracks, place cars upon them, and TERMINATION OP THE CARRIER'S RESPONSIBILITY. 155 carry goods for hire, are circumstances wliich bring them within all the rules of the common law, and make them eminently common carriers. Their iron roads, though built, in the first instance, by individual capital, are yet regarded as public roads, required by common convenience and necessity, and their allowance by public authority can be only justified on that ground. The general princi- ple has been uniformly so decided in England and in this country, and the point is, to ascertain the precise limits of their liability. This was done to a certain extent in this court, in a recent case, with which, as far as it goes, we are entirely satisfied. Thomas v. Boston & Providence Railroad, 10 Met. 472. Being liable as common carriers, the rule of the common law at- taches to them, that they are liable for losses occurring from any accident which may befall the goods, during the transit, except those arising from the act of God or a public enemy. It is not necessary now to inquire into the weight of those considerations of reason and policy on which the rule is founded ; nor to consider what cas- ualty may be held to result from an act of God or a public enemy ; because the present case does not turn on any such distinction. It is sufficient therefore to state and afBrm the general rule. In the present case, the loss resulted from a fire, of which there is no ground to suggest that it was an act of God ; and it is equally clear that it did not result from any default or negligence on the part of the company, though the goods remained in their custody. If, at the time of the loss, they were liable as common carriers, they must abide by the loss ; because as common carriers, they were bound as insurers to take the risk of fire, not caused by the act of God, and in such case no question of default or negligence can arise. Proof that it was from a cause for which they, neither by themsQlves nor their servants, were in any degree chargeable, could amount to no defence, and would therefore be inadmissible in evi- dence. If, on the contrary, the transit was at an end, if the defend- ants had ceased to have possession of the goods as common carriers, and held them in another capacity, as warehousemen, then they were responsible only for the care and diligence which the law attaches to that relation ; and this does not extend to a loss by an accidental fire, not caused by the default or negligence of themselves, or of servants, agents, or others for whom they are responsible. The question then is, when and by what act the transit of the goods terminated. It was contended in the present case, that, in 156 TEKMINATION OF THE OAERIEB'S BESPONSIBILITT. the absence of express proof of contract or usage to the contrary, the carrier of goods by land is bound to deliver them to the consignee, and that his obligation as carrier does not cease till such delivery. This rule applies, and may very properly apply, to the case of goods transported by wagons and other vehicles, traversing the com- mon highways and streets, and which therefore can deliver the goods at the houses of the respective consignees. But it cannot apply to railroads whose line of movement and point of termination are locally fixed. The nature of the transportation, though on land, is much more like that by sea, in this respect, that from the very nature of the case, the merchandise can only be transported along one line and delivered at its termination, or at some fixed place by its side, at some intermediate point. The rule in regard to ships is very exactly stated in the opinion of Buller, J., in Hyde V. Trent ro rata was due the carrier. The mode of ascertaining freight pro rata, discussed by Kent, C. J. The facts in the case sufficiently appear by the opinion of the court by — 204 HOW FAB AND UNDER WHAT CIRCUMSTANCES Kent, C. J. The general question in this case is, whether the plaintififs are entitled to recover for a total, or for a partial loss of freight. It is now too late to deny or disregard the rule, that freight 'pro rata itineris is due, when a ship, by reason of perils, goes into a port short of her destination, and is unable to prosecute the voy- age, and the goods are there received, by the owner. An implied assumpsit to pay for the labor performed, and service rendered, is raised by the acceptance of the goods at such intermediate port. The case of Luke v. Lyde, is said to have adopted this rule from the marine law ; but that case was founded expressly upon the decision of Lutwidge and How v. Grey, determined in the House of Lords, in 1733. Abbot, 249 ; 2 Burr. 881. In the case before the lords, the master was allowed his full freight for that part of the cargo which he offered to carry on in another ship, and his ratable freight for that part of the cargo which he would not undertake to carry on, and which the owner had taken into his pos- session. The rule appears to have been too long and authoritatively settled in the English courts to be now shaken ; and in Mulloy v. Backer, 5 Bast, 316, the decision in Luke v. Lyde seemed to be considered, however reluctantly, as a binding authority. After such a sanction of the rule, and the acknowledgment it has , received in this court (2 Caines, 21 ; 1 Johnson, 27), we are not now at liberty to draw it in question. The plaintiffs were, there- fore, entitled, by the acceptance of the cargo at Kingston, to a pro rata freight ; and so far as freight was earned, the same was not lost by the perils of the sea ; for the insurance was, that the plain- tiff should not .;be prevented, by any peril insured against, from havings a right to recover freight. But the great difficulty is to ascertain, by some general and sound rule, the amount of the freight earned. This difficulty would, perhaps, have been sufficient to have excluded altogether the doctrine of pro rata freight, if it was now for the first time to be considered. The intermediate port, at which the goods are received, may, indeed, prove more beneficial to the shipper than the original port of destination ; but it may, also, prove most disadvantageous, and destroy the profit and value of the voyage. The shipper may find with facility other means to carry on the cargo, and without any addition to the original price ; or he may be absolutely incapable of proceed- ing, or not be able to proceed without great delay and expense. THE CARRIER MAT DEMAND FREIGHT. 205 The court, however, cannot enter into these uncertain calcula- tions, and until some better rule of apportionment can be found, we must, for the present, adopt that which prevailed in Luke v. Lyde. Tliis was to calculate how much of the voyage had been performed, when the disaster happened. In the case of the Marine Insurance Company v. Lenox, decided in the court for the correc- tion of errors, in 1801, the rule adopted was to ascertain how much of the voyage had been performed, not when the ship first encountered the peril, and was interrupted in her course, but when the goods had arrived at the intermediate port, because that is the extent of the voyage performed, as it respects the interest of the shipper. This decision arose on a question between the owner and the insurer on the ship, after an abandonment and acceptance, but the principle applies equally to a case between the owner of the vessel and the shipper of goods. The rule appears to be more just than that in Luke v. Lyde, but we cannot adopt it in the present case, because we have no data given by which we might ascertain the difference of a voyage, as it respected the port of destination, between Kingston and ,the place where the vessel was forced out of her course. The geographical distance might, in this case, be a very incorrect rule, for the course of the winds and currents, and the season of the year, will make a very great variation in the duration and expense of voyages over an equal extent of space. We have accordingly, in the present case, ascertained the pro rata freight earned, by the rule adopted in Luke v. Lyde, and by that rule a moiety of the freight has not been lost, and the plain- tiffs are only entitled to recover for a partial loss. In settling the amount of that loss, according to the stipulation in the case, we ought to make the largest deduction in favor of the defendants which the facts will warrant, as the plaintiffs have chosen to resort to the insurer, before they have liquidated the precise amount of their demand against the shipper, and have left us in uncertainty as to what may be the actual extent of such re- covery. We may, therefore, presume that it will be equal to the highest calculation which the case will warrant, as to the different lengths of the voyage. We are then to take 25 days for the ordi- nary voyage from New Orleans to the Cape, and 20 days for the ordinary voyage from the Cape to St. Thomas, where the shipper had a right to go by his charter-party. The plaintiifs, then, will 206 HOW FAR AND UNDER WHAT CIRCUMSTANCES appear to have performed 24-45 parts of the full voyage. A sum in the proportion that 24 bears to 45, is, therefore, to be deducted from the amount of the recovery for a total loss, and the verdict is to stand for the residue. 3. Scott V. Lihhy, 2 Johns. Reports, 336. 1807. Where the voyage Is broken up by means of blockade of the port of destination, and the delivery of the freight according to the charter-party becomes impossible, the latter is thereby dissolved and no freight is due for any efforts at, or for any actual part, performance of the transportation. The facts of the case sufficiently appear by the opinion of the court by — Thompson, J. The claim to freight set up by the defendants cannot be sustained. It appears to be conceded by the counsel on both sides, that by the blockade of the port of discharge the charter-party was dissolved, and all claim to freight under it gone. Abbot, 338. Nor is this a case for pro rata freight. Here was no acceptance of the cargo at an intermediate port. A variety of cases may occur where the owner of the goods may make himself responsible for freight, by an acceptance of his goods, short of the port of destination. But this results from an implied contract, raised by the acceptance of the cargo, and a supposed benefit re- ceived by the owner, from a partial transportation of his goods. But when the cargo, as in the present case, is brought back to the port of lading, no such presumption can arise. No benefit has accrued to the owner, nor has he done any act, from which an implied contract to pay any freight can be raised. The case of The Hiram, decided by Sir "William Scott, 3 Rob. Ad. 180, is an analogous case ; and notwithstanding it is not to be received as an authority, it is entitled to very respectful consideration, as the decision of a learned and eminent jurist on the maritime law of England. In that case, after a part performance of the voyage, and a capture and recapture, the vessel was brought back to the port, or quasi port of her departure. And after a consideration of the foreign authorities, and the case of Luke v. Lyde, it was held that neither under the particular terms of the contract, nor upon general principles and practice, was any freight due. I am, therefore, of opinion, that judgment ought to be rendered for the plaintiff. THE CARRIER MAY DEMAND FREIGHT. 207 4. Rossiter v. Chester, 1 Douglass (^Michigan), 154. 1843. Where the voyage is abandoned by the carrier upon grounds sufficient in law to jus- tify such abandonment, after having been partly performed, and the owner volun- tarily accepts his goods, at an intermediate point, the law will imply a promise to pay freight pro rata, unless there is something to show a different understanding. The facts important to be considered on this point will suffi- ciently appear from that portion of the opinion applicable to this question, by — Whipple, J. I shall now briefly consider the last question raised by the special verdict, and that is, whether the defendants were entitled to a lien for freight pro rata ? There are two cases in which the right to ratable freight arises : 1. When the ship has performed the voyage, and has brought only a part of her cargo to the place of destination. 2. When she has not performed her whole voyage, and the goods have been deliv- ered to the merchant, at a place sh{)rt of the port of delivery. In the case of a general ship, freight is due for what is delivered, the contract being, in its nature, divisible ; but if a ship be char- tered at a specific sum for the voyage, and she loses part of her cargo by a peril of the sea, and conveys the residue, it has been a quesfion, whether the freight could be apportioned. 3 Kent, Com. 227. The weight of authority, says Cliaucellor Kent, is against apportionment of freight in such a case, upon the princi- ple that the contract of affreightment is an entire contract, and it follows that a delivery of the whole cargo is a condition precedent to the recovery of freight. The rule applicable to the present case is thus stated by Lord Tenterden, in his admirable work on ship- ping. The apportionment of freight usually happens when the ship, by reason of any disaster, goes into a port short of the place of destination, and is unable to prosecute and complete the voy- age. In this case, we have already seen that the master may, if he will and can do so, hire another ship to convey the goods, and so entitle himself to the whole freight ; but if he is unable, or if he declines to do this, the general rule of the ancient maritime law is, that freight shall be paid according to the proportion of the voyage performed. The rule as laid down in the law of Oleron is to the following effect : " If a ship depart with a cargo from 208 HOW FAB AND UNDER WHAT CIRCUMSTANCES Bordeaux, or other place, and it happens that the ship is disabled, and as much of the cargo is saTed as possible, the merchants and master enter into a great debate, and the merchants demand to have the goods of the master ; they may have them, upon paying freight for so much of the voyage as the ship has advanced, ratably in proportion if the master pleases ; but if the master will, he may repair his ship, if he can do it speedily, and if not, he may hire another ship to complete the voyage, and shall have his freight of the goods, to be reckoned according to their proportion to the whole cargo." Such is the simple and precise language used in this ancient code in respect to the principle we are considering. The same equitable rule is adopted by other authors on maritime law, and in the French ordinance on this subject. The opinion of Lord Mansfield, in the case of Luke et al. v. Lyde, 2 Burr. 883, seems to have had a controlling influence upon subsequent cases involving the same questions ; and in the note in Abbott on Ship. 329, by Mr. Justice Story, it is said, that " that case seems at first to have been understood to justify the claim of a pro rata freight, whether there was a voluntary or compulsive acceptance of the goods at an intermediate port by the owner." It will be found upon critical examination of that case, that the following rule was established : that if a freighted ship becomes accidentally disabled on her voyage without the fault of the mas- ter, the master has his option either to refit, or to hire "another ship to carry the goods to the port of delivery. If the merchant disagrees to this, and will not let him do so, the master will be entitled to the whole freight of the full voyage. If the ship is so disabled that the master cannot carry the goods in her, or he can- not find a ship to carry them to the port of delivery, he shall still be paid his freight, in proportion, however, only to what he lias performed of the voyage ; but the merchant may abandon all the goods, and then he is excused freight. In the case of Scott v. Libby and others, 2 Johns. 336, ante, p. 206, Mr. Justice Thompson remarked as follows : " Nor is this a case for pro rata freight. Here was no acceptance of the cargo at an in- termediate port. A variety of cases may occur where the owner of goods may make himself responsible for freight by an acceptance of his goods short of the port of destination. But this results from an implied contract, raised hy acceptance of the cargo ; and a supposed benefit received by the owner, from a partial transportation of the THE CARBIEE MAT DEMAND FREIGHT. 209 goods." It is to be noticed here, that much stress is laid upon the fact that there was no acceptance of the cargo at an intermediate port, and therefore no contract to pay freight could be implied. In the case of Williams v. Smyth, 2 Gaines, 13, the same judge says, " We take it to be a well-settled rule, that where a ship, by reason of any disaster, goes into a port short of the place of desti- nation, and is unable to prosecute and complete the voyage, and the goods are there received by the owner, freight must be paid according to the proportion of the voyage performed." The rule thus laid down was fully recognized in the case of Robinson v. Marine Insurance Company, 2 Johns. 323, where Kent, 0. J., uses this strong language : " It is now too late to deny or disregard the rule, that. freight ^m"" fata itineris is due where a ship, by reason of perils, goes into a port short of her destination, and is unable to prosecute the voyage, and the goods are there received by the owner. An implied assumpsit to pay for the labor and service rendered is raised by the acceptance of the goods at the intermediate port." And the chief justice refers to Luke v. Lyde in support of the rule thus laid down. In the case of Marine Insurance Company v. United Insurance Company, 9 Johns. 186, the court held, that " there must be a voluntary and unconditional acceptance of the goods, by the owner, at an intermediate port, to form the basis of a new contract to pay ratable freight." The same doctrine is recognized in Welch V. Hicks, 6 Cow. 504 ; in Center v. American Insurance Company, Cow. 564 ; and in Hoe v. Mason, 1 Wash. 207. The cases of Callender v. Insurance Company of North Amer- ica, 5 Binn. 525, and Gray v. Wain, 2 Serg. & Eawle, 229, sus- tain the rule, that, to justify the claim of a pro rata freight, there must be a voluntary acceptance of the goods at the intermediate port, either by words or actions, so as to leave a fair implication that the further carriage of the goods was intentionally dispensed with. And the principle of these cases has been adopted by the Federal courts. Catlett v. Columbia Insurance Company, 12 Wheat. 383 ; Caze v. Baltimore Insurance Company, 7 Cranch, 358. It only remains to apply these principles which are founded in equity and justice to the facts of this case. 1. Was the boat, by reason of perils, driven into a port short of her destination ? It clearly appears that she was. The special verdict finds that Chi- cago was her port of destination ; that she encountered a severe VOL. II. 14 2l0 HOW PAR AND UNDER WHAT CIRCUMSTANCES gale, and was in danger of perishing from the violence of the wind and the roughness of the waves ; that after long struggling with the tempest and being in great danger of perishing, the master and crew agreed that it was necessary to lighten her, &c. ; and further, that the boat was got back in safety to the port of De- troit. 2. Was she unable to prosecute the voyage ? That she was, appears from the finding in the special verdict, that " the close of navigation was at hand, and the vessel being much injured, the voyage was abandoned." Were the goods accepted by the plaintiffs at Detroit, the inter- mediate port ? A little more difficulty arises in giving an answer to this question, for the reason, that in considering whether there was, or was not, a voluntary acceptance by the owner of goods at an intermediate port, the courts do not seem to understand in the same sense the same principles. In the language of the learned note, from which I have freely quoted, it is said that " a voluntary acceptance may, in some of the cases, have been thought to mean no more than an acceptance of the goods or their proceeds, whether it has resulted from choice in loaiving any farther trans- portation of the goods, or from that moral necessity, which the impossibility of pursuing the voyage, or otherwise preserving the goods, might impose upon the owner." Abb. Ship. 329, note. But whatever obscurity may appear in the reasoning of some judges on this point, we think it very clear that but little doubt can exist in the present case. The plaintiffs were fully advised that the voy- age, in consequence of the dilapidated condition of the boat, and especially in view of the fact that the season had so far advanced as to render its prosecution extremely haza'rdous, was abandoned. This circumstance, taken in connection with the further fact that the plaintiff offered to accept the goods upon payment of the charges for storage, and that the present action was brought to recover the possession of the goods, shows very clearly that there was, both by words and actions, such a voluntary acceptance as to create a fair implication that the further carriage of the goods was intentionally dispensed with. And as there was no default on the part of the master, or refusal, upon demand made by the owner of the goods, to prosecute the voyage at the earliest mo- ment consistent with prudence, we are of opinion that tiiere existed a lien for the payment of freight pro rata. THE CARRIER MAY DEMAND FREIGHT. 211 This principle seems to have been extensively recognized in this country, but not without some very decisive remonstrances. In Escopiniche v. Stewart, 2 Conn. 262, in 1817, the court, after argument and great deliberation, held that freight, pro rata, was due, as a general rule, when the owner of the goods ac- cepted them at an intermediate point upon the voyage, the same having been broken up by inevitable occurrences, called in the law, vis major. But the judge held that the plaintiff could not in such case recover freight as upon a quantum me- ruit, or what the jury might regard as a reasonable compensation ; but only in proportion to the freight which would have been due had the full voyage been performed, comparing the portion of the voyage performed with the whole. And the majority of the court seem to concur in this rule, more on the ground of pre- cedent than of reason or justice. The opinion of Eosmer, J., a judge of great learning and independence of opinion, will illustrate the general views taken by the different judges upon this point. HosMBR, J. The plaintiff received on board the brig Hector a quantity of rice to transport to Bermuda, for a certain stipulated freight. This engage- ment he never performed. The delivery of the rice was a condition precedent to any legal demand for compensation. Cook ». Jennings, 7 Term Rep. 881 ; MuUoy V. Backer, 5 East, 316 ; Post and Russell ». Robertson, 1 Johns. 24 ; The Marine Insurance Company of New York w. The United Insurance Com- pany, 9 Johns. 186, 190.. Notwithstanding the original agreement was broken, it is contended, that the acceptance of the rice at Antigua lays a legal foundation for the recovery of a reasonable freight, on an implied contract, from the place of the reception of the rice to that of its delivery. This principle the court recognized ; and the jury might, and probably did, give the plaintiff the same compensation as they would have done had the rice primarily been destined to that island. This, most obvi- ously, was incorrect. Were the question now to be decided, for the first time, I should be of the opinion, unhesitatingly, that the plaintiff is entitled to nothing. The mere acceptance of the rice at Antigua may have been irreparably injurious to the defendant, beneficial only to the plaintiff, and received merely to rescue the property from future jeopardy. Reason and justice, the foundations of im- plied contract, do not authorize the assumption that the defendant agreed to pay any thing for the property received. But the point has been established by numerous and uniform decisions, that some freight is due. A new contract has been implied from the acceptance of the goods, at a port different from the one to which they were destined, that the freighter shall pay a ratable proportion of the stipulated freight, for so much of the voyage as had been performed, when the disaster, which occasioned a deviation from it, took place. Luke et al. «. Lyde, 2 Burr. 882 ; Pinto v. Atwater, 1 Day, 193 ; Cook ». Jennings, 7 Term Rep. 381; Mull oy u. Backer, 6 East, 316; Williams v. Smith, 2 Caines, 13, 21; Robinsons «. The Marine Insurance Company, 2 Johns. 323; Liddard v. Lopes et al., 10 East, 526 ; Armroyd et al. v. The Union Insurance Company, 3 Binn. 437 ; The Marine Insurance Company of New York v. The United Insurance Company, 9 Johns. 186, 190. I cannot persuade myself that the principle has any warrantable foundation, or that the rule of damages is just, or relative to the case. A conformity, however, to the necessary rule oi stare decisis 212 HOW PAR AND UNDER WHAT CIRCUMSTANCES constrains me to sacrifice my own judgment, and to follow the precedents, so far as they lead. But I shall anxiously resist their extension a single hair's breadth. I am of opinion, that the charge to the jury was erroneous; and would therefore advise a new trial. II. No Febight is marned by the Carrier transporting the Goods bt Contract with a Tort Feasor ; or unless it is done by Contract, express or implied, with the Owner, or Some One authorized to ACT on his BeHAJ,!'. Robinson v. Baker, 5 Gu&hing, 137. 1849. A carrier who accepts goods for transportation from one not entitled to control them, has no lien upon the goods for his freight, as against the owner ; and it will make no difTerence that the carrier acted in good faith and was not in fault. This was a case where the plaintiff shipped the goods from Buffalo to Albany, N. Y., on board a canal-boat, and took the bill of lading of the carriers upon the canal to deliver the goods at East Albany to the agent of the Western Railway for transportation to Boston. The first carriers, upon arriving at Albany, reported to the agent of the Western Railway that the goods were ready for delivery, and he declined to accept them until they could be dis- charged upon the railway in the regular turn of the boats^ which at that season might extend to three days. The first carriers there- upon sent the gbods, being six hundred barrels of flour, by way of New York to Boston, the whole distance by water, where it arrived on the 23d of November, it having reached Albany oh the fifth day of November, and only two days being ordinarily required to trans- port goods by the Western Railway to Boston, the plaintiff having a contract with that road to transport all his flour for the year. The price of flour had fallen, in the mean time, fifty cents or more. The carrier's agent at Boston decided to detain the flour until the freight was paid, which amounted to considerable r»ore than by the line first indicated. The plaintifi" declined to pay the freight, and brought replevin for the flour. The opinion of the court was delivered by — Fletcher, J. [After stating the facts, the instructions re- quested, and the instructions given.] As the ruling of the judge, that the defendant, as a carrier, had a lien for his freieht. was THE CARRIER MAT DEMAND FREIGHT. 213 placed upon grounds wholly independent of any rightful authority in the agents of the Old Clinton line and the Albany and Canal line, to divert the goods from the course in which the plaintiff had directed them to be sent, and to forward them by the defendant's vessel, and wholly independent of the plaintiff's consent, express or implied, the simple question raised in the case is, whether if a common carrier honestly and fairly on his part, without any knowledge or suspicion of any wrong, receives goods from a wrong-doer, without the consent of the owner, express or implied, he may detain them against the true owner, until his freight or hire for carriage is paid ; or, to state the question in other words, whether if goods are stolen and delivered to a common carrier, who receives them honestly and fairly in entire ignorance of the theft, he can detain them against the true owner, until the carriage is paid. It is certainly remarkable, that there is so little to be found in the books of the law, upon a question which would seem likely to be constantly occurring in the ancient and extensive business of the carrier. In the case of York v. Grenaugh, 2 Ld. Ray. 866, the decision was, that, if a horse is put at the stable of an inn by a guest, the innkeeper has a lien on the animal for his keep, whetlier the animal is the property of the guest or of some third party from whom it has been fraudulently taken or stolen. In that case. Lord Chief Justice Sblt cited the case of an Exeter common carrier, where one stole goods and delivered them to the Exeter carrier, to be carried to Exeter ; the right owner, finding the goods in possession of the carrier, demanded them of him ; upon which the carrier refused to deliver them unless he was first paid for the carriage. The owner brought trover, and it was held, that the carrier might justify detaining the goods against the right owner for the carriage ; for when they were brought to him, he was obliged to receive them, and carry them, and therefore since the law compelled him to carry them, it will give him a remedy for the premium due for the carriage. Powell, J., denied the authority of the case of the Exeter carrier, but concurred in the decision as to the inn-keeper. There is no other report of the case of the Exe- ter carrier to be found. Upon the authority of this statement of the case of the Exeter carrier, the law is laid down in some of the elementary treatises to be, that a carrier, who receives goods from a wrong-doer or thief, may detain them against the true owner until the carriage is paid. 214 HOW FAB AND UNDER WHAT CIRCUMSTANCES In the case of King v. Eicliards, 6 Whart. 418, the court, in giving au opinion upon another and entirely different and distinct point, incidentally recognized the doctrine of the case of the Exeter carrier. But until within six or seven years there was no direct adjudication upon this question, except that referred to in York v. Grenaugh of the Exeter carrier. In 1843, there was a direct adju- dication, upon the question now under consideration, in the Supreme Court of Michigan, in the case of Fitch v. Newberry, 1 Doug. 1. The circumstances of that case were very similar to those in the present case. There the goods were diverted from the course authorized by the owner, and came to the hands of the carrier without the consent of the owner, express or implied ; the carrier however was wholly ignorant of that, and supposed they were rightfully delivered to him ; and he claimed the right to detain them until paid for the carriage. The owner refused to pay the freight, and brought an action of replevin for the goods. The de- cision was against the carrier. The general principle settled was, that if a common carrier obtain possession of goods wrongfully or without the consent of the owner, express or implied, and on demand refuse to deliver them to the owner, such owner may bring replevin for the goods or trover for their value. The case appears to have been very fully considered, and the decision is supported by strong reasoning and a very elaborate examination of authorities. A very obvious distinction was supposed to exist between the cases of carriers and innkeepers, though the distinction did not aflfect the determination of the case. This decision is supported by the case of Buskirk v. Purin, 2 Hall, 661. There property was sold on a condition, which the buyer failed to comply with, and shipped the goods on board the defendant's vessel. On the defendant's refusal to deliver the goods to the owner, he brought trover and was allowed to recover the value, although the defendants insisted on their right of lien for the freight. Thus the case stands upon direct and express authorities. How does it stand upon general principles ? In the case of Saltus V. Everett, 20 Wend. 267, 275, it is said : " The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, and con- sequently that even the honest purchaser under a defective title cannot hold against the true proprietor." There is no case to be THE GABBIER MAY DEMAND FREIGHT. 216 found, or any reason or analogy anywhere suggested in tlie books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erro- neously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has only a temporary right to its use by hiring or otherwise, or a qualified possession of it for a specific purpose, as for trans- portation, or for work to be done upon it, the owner can follow and reclaim it in the possession of any person, however innocent. Upon this settled and universal principle, that no man's property can be taken from him without his consent, express or implied, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of others apparently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants, upon a pledge of goods by persons apparently having the right to pledge, but who in fact had not any such right, and the pledgees have been sub- jected to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually ex- posed by the operation of this universal principle, that a man's property cannot be taken from him, without his consent. Why should the carrier be exempt from the operation of tliis universal principle ? Why should not the principle of caveat emptor apply to him ? The reason, and the only reason, given is, tliat he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to receive goods from a wrong-doer. He is bound only to receive goods from one who may rightfully deliver them to him, and he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods, unless the freight or pay for the carriage is first paid to him ; and he may in all cases secure the payment of the carriage in advance. In the case of King ■;;. Richards, 6 Whart. 418, it was decided that a carrier may defend himself from a claim for goods by the person who delivered tliem to him, on the ground that the bailor was not the true owner, and therefore not entitled to the goods. 216 HOW PAR AND UNDER WHAT CIRCUMSTANCES The common carrier is responsible for the wrong delivery of goods, tliough innocently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of determining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the person from whom he receives goods ? Uppn the whole, the court are satisfied, that upon the adjudged cases, as well as on general principles, the ruling in this case cannot be sustained, and that if a carrier receives goods, though innocently, from a wrong- doer, without the consent of the owner, express or implied, he can- not detain them against the true owner until the freight or car- riage is paid. The same court subsequently decided, Stevens v. Boston & Worcester Rail- way, 8 Gray, 262, that where the carrier received the goods from a wrong-doer, he could not assert a lien upon them, as against the. rightful owner, even for back freight paid by him to a carrier who received them from the owner. And in Fitch V. Newberry, 1 Doug. Mich. 1, it is held that in order to create a valid lien for freight, in favor of the carrier, there must exist between him and the owner of the goods the relation of debtor and creditor, so that he could main- tain an action at law to recover the amount. This was where the amount of the freight throughout the transportation had been advanced to the first carrier, at the time of the delivery of the goods ; but the goods coming into the hands of another line at an intermediate point, they carried them through, and delivered them to a warehouseman who advanced them their freight, and claimed to detain the goods till that was paid. The court held, as there was no privity existing between the owner of the goods and the carrier, he could neither recover his freight in an action, nor maintain a lien upon the goods against the owner. But where the goods are sent by the wrong line, in consequence of the proper direc- tions not being carried forward, the owner is held responsible for freight. Brigga V. Boston & Lowell Railw., 6 Allen, 246. The forwarder here acted as the agent of the owners, but not in the case of Robinson v. Baker, supra. Where the goods are detained upon some claim beyond the amount of the freight due, for which a valid lien exists, for which the owner is ready to pay, he is not required to make any formal tender of the amount due for freight. The refusal to delivet the goods until a further sum is paid beyond the freight due dispenses with any necessity for the tender of the amount admitted to be due, and amounts to a conversion of the goods, and the owner may maintain trover. Adams v. Clark, 9 Cush. 215. Metcalf, J. If the defendants illegally withheld the goods from the plain- tiff, he might have brought an action of assumpsit against them, as well as this action of trover. And, in that action, all that it would have been necessary for him to aver and prove would have been his readiness to pay the freight, upon delivery of the goods. 2 Saund. 362, note 8 ; Porter v. Rose, 12 Johns. 209 ; Tinney v. Ashley, 15 Pick. 546. And we are of opinion that all which it was THE CARRIER MAT DEMAND FREIGHT. 217 necessary for the plaintiff to prove, in order to maintain this action, was his readiness to pay freight on the goods, upon their being delivered to him, and the defendants' refusal to deliver them unless something more should be first paid. There was no special contract, so far as these exceptions show, respecting the payment of freight, nor any agreement, between the consignor and the carriers, that the goods should be held to secure payment for the passage of a third party. The payment of the freight and the delivery of the goods were, therefore, con- comitant acts, which neither party was obliged to perform, unless the other was ready to perform the correlative act. Tate v. Meek, 2 Moore, 278, and 8 Taunt. 280; Yates v. Railston, 2 Moore, 294, and 8 Taunt. 293; 3 Chit. Law of Com. and Man. 417 ; Angell on Carriers, § 384. It is said by Chancellor Kent, that if the master of a vessel refuses to deliver goods for other cause than the non-payment of freight, he cannot avail himself of the want of a tender. 3 Kent, Com. (7th ed.) 281. The same law must apply to the owners of a vessel and to their agents. In the present case, the defendants refused to deliver the goods, unless the plaintiff would pay, in addition to the freight, for the passage of the consignor's father, who came in the vessel that brought the goods. And a refusal to give up property, except on a condition which the party holding it has no right to impose, is evidence of a conversion. Davies ». Vernon, 6 Adolph. & Ellis, N. S. 443. On a new trial, the jury should be instructed, that if the plaintiff was ready to pay freight, upon having the goods delivered to him, and the defendants, having no legal claim on the goods for any thing besides the freight, refused to deliver them unless a further sum should be first paid, then the plaintiff was not bound to make any tender to the defendants, and their refusal to deliver the goods was evidence of a conversion of them. The case of Schneider w. Evans, 25 Wis. 241 ; 8. c. 9 Am. Law Reg. 536, takes a different view of some of the questions just adverted to. It is here held that a contract with the first company on a continuous line fixing the through freight only binds that company, and will not prevent the after companies on the line from detaining the goods till the usual freight is paid, and that the freighter's only remedy is to sue the party with whom he made his contract. After having made the express contract with the first carrier to have his goods transported over the whole line for a certain freight, to be, compelled, at the end of the route, to pay more or not obtain his goods, and then to be coolly referred to the first com- pany for redress, is rather calculated to excite surprise in the mind of a plain man. It seems not to be giving him the full benefit of his contract. If he had been told by the first company that such would have been the result, he could not complain. But unless so told he would naturally expect the companies to arrange that among themselves. And it seems to us that we should have preferred such a result, as being both more reasonable and more just. These questions are decided so much upon construction, and are made to depend so much upon the views the court take of the convenience of the parties, in regard to business, that there seems danger, sometimes, lest we should lose sight of all definite rules of law affecting the questions involved. There is some danger, too, we sometimes fear, that in looking so constantly and carefully after the convenience of these extensive railway combinations we might come at last altogether to ignore the interests, the convenience, and ultimately, the rights of 218 HOW PAR AND UNDER WHAT CIRCUMSTANCES i those who have to employ them, by a sort of compulsion, growing out of the necessities of business. It seems to be settled that if the freight is paid through to the first carrier in a line of successive carriers, but the goods are forwarded by another line, and the prepaid freight not credited, and the back freight is, in consequence, advanced by the last carrier in the line, he will have no right to detain the goods until the freight advanced by him is paid. Fitch v. Newberry, 1 Doug. Mich. 1. And this conforms to what is before stated that the carrier who transports goods, at the instance of a wrong-doer, has no lien upon them for the freight earned by himself, or advanced to others. Robinson v. Baker, 5 Cush. 137 ; Stevens v. B. & W. Railw., 8 Gray, 262. And it seems to us that these decisions establish the point that the carrier, both as to his own freight and that which he advances to other carriers, must see to it that the transportation is with the consent and upon the credit of the owner ; and that he cannot turn such owner over to another party for his indemnity. He must see to it, himself, that the transportation is not, in any sense, or to any extent, in conflict with the rights of the owner of the goods. And these rights of the owner must be defined, not only by his powers, as owner of the goods, but by his action in regard to them. His consent to have them carried at all must be shown ; the direction in which the owner consents to have them carried, and the terms of the transportation must all be shown by the consent of the owner, either express or implied. If the owner directed the goods carried to one point, the carrier could not give any right to freight, even to subsequent carriers, by sending them in another direction. Neither could a warehouseman or carrier, with whom goods were left for safe-keeping, give any right to demand freight to carriers who should carry them either without any directions, or by the direction of the ware' houseman of the first carrier. In short, it seems to us, it must be regarded as entirely well settled that the first carrier of goods, in a line consisting of successive carriers, is in no sense the implied agent of the owner of the goods ; but that he is the implied agent of the line of carriers, and his contract will bind them whether made known to them or not. If not made known to them, it is the fault of their own agent, and they cannot visit it upon the other party, unless there is some fraudulent concealment on his part, of which there is no pretence here. It seems to us the first carrier is prima facie competent to bind the other carriers by contracts as to the amount of freight, and that the case was with the plaintiff. It is a familiar rule of law that liens for freight may be waived in the same modes that other liens are waived, as by delivery of the goods, or where security for the freight is accepted on time, or where by the terms of the contract, freight is not payable at the time the goods are due. Crawshay v. Homfray, 4 B. & Aid. 50; Chandler v. Belden, 18 Johns. 157 ; Gracie v. Palmer, 8 Wheat. 605 ; Wingard v. Banning, 39 Gal. 543. But where the delivery of the goods is fraudulently obtained, as by a promise to pay the freight as soon as the delivery is completed, it will not amount to a waiver of the lien, and the possession will be restored by replevin. Bigelow v. Heaton, 6 Hill, 43 ; s. c. 4 Denio, 496, where Beardsley, J., said, " that the plaintiff had a special property in the flour, in virtue of his lien for the freight, and that this continued so long as the flour remained in his possession, was not denied ; nor was it denied that the flour had THE CARRIER MAY DEMAND FREIGHT. 219 been, in fact, delivered to the defendant, to whom it was consigned. The judge seems to have held that the continuance of the lien, after such delivery of the flour, might depend upon the mere intent of the plaintiff's agent, the captain of the boat, by whom the delivery was made ; and that notwithstanding such deliv- ery had been made, the lien would continue if the captain intended it should remain. This, I apprehend, cannot be maintained. An agreement between the parties, that the Hen should continue, notwithstanding the delivery of the prop- erty, would present a different question; but a naked, undivulged intent on the part of the person by whom the flour was delivered into the possession of the consignee, could in no respect qualify that act. A relinquishment of possession by one who has a lien on property, is an abandonment of the lien. This, as a gen- eral rule, is entirely settled. By a transfer of the possession the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner, or other person liable for the charge. Cross, Law of Lien, 4, 31, 36, 38, 268; Sweet v. Pym, 1 East, 4; Kruger v. Wilcox, Amb. 252 ; Dicas v. Stockley, 7 C. & P. 587. But if the party in whose favor the lien exists, is induced to surrender the possession of the property, by fraud or trick, the lien is not thereby divested. Upon this principle it was held, when this case was formerly before the court, that if the flour had been delivered to the defendant in consequence of his false and fraudulent promise to pay the freight as soon as the delivery was complete, such delivery did not amount to a waiver of the lien of the plaintiff, and he might, notwithstanding, maintain replevin against the defendant for the flour. 6 Hill, 43i This was then regarded as the main point in the case ; yet the judge, on the last trial, re- fused to instruct the jury, ' that the carrier, by delivering the property, waived his lien, in the absence of fraud.' This instruction, certainly, should have been given, for the principle stated admits of no doubt. There must be a new trial." But the waiver of the lien will not be avoided by the subsequent insolvency of the owner of the goods. Sears v. Wills, 4 Allen, 212; Bags of Linseed Oil, 1 Black, 108. And the delivery of part of the cargo is no waiver of lien upon the remainder. Bernall». Pim, 1 Gale, 117. III. The Custom and Course of Business in eegaed to the Transpor- tation OP Goods by Carriers, and the Extent to which the Carriers ARE ACCUSTOMED to be allowed a Lien upon the Goods FOR Back Charges of Freight and Warehouse Charges will have A Controlling Effect upon the Character and Extent op such Lien. Lee V. Salter, Supplement to Hill ^ Denio, 163. 1843. The custom of forwarding-merohants and warehousemen, to advance the back charges upon goods coming into their hands for freight and warehousing and other charges attending the transportation, and then collect the same of the owner, at the end of the route, gives them a valid lien therefor upon the goods ; and if the final carrier delivers the goods without exacting payment of these 220 HOW PAR AND UNDER WHAT CIRCUMSTANCES charges, they heing noted upon the bill of lading, and the carrier directed to collect them, this will leave a valid cause of action against the owner to enforce the payment of the same, in favor of the party making the advances. The facts in the case sufficiently appear in the opinion of the court by — Nelson, C. J. 1. The proof of usage, in this case, which was full and to the point, settles the question as to the liability of the defendants. They are to be deemed well acquainted with the usual course of the trade and business in which their vessel was engaged ; and bound to conform to all the duties and obliga- tions imposed thereby, unless otherwise specially provided for. The master should not have delivered the cargo to the consignee, and thus discharged the lien for the back freight and charges, until these had been first satisfied. This duty the course of trade as proved imposed upon him, and, through him, upon the owners, as efiectually as if it had been expressly stipulated for in the bill of lading. Cooper v. Cane, 19 Wend. 368, and cases ; Dawson v. Kittle, 4 Hill, 107, The case of Kemp v. Coughtry, 11 Johns. 107, is very analo- gous to the one in hand, as respects the point in question. There the vessel was employed in the transportation of goods between the cities of Albany and New York ; and, according to the course of trade, it was the business of the master to sell the cargo, if required, and bring back the money to the owners with- out any commission or compensation, except the ordinary freight. Part of the proceeds in this case had been stolen from the cabin of the vessel, and the question was, whether a suit could be sustained against the owners. The court held it might, as the sale of the goods, and return of the proceeds, were a part of the duty attached to the employment, and arising out of the usual and ordinary course of the business, where no special instructions were given. Here, according to the course of the business, the master vir- tually takes an assignment of the lien on the goods, which the forwarder has for his advances, for the purpose of collecting the same of the consignee, and engages to perform the service as part of his duty attached to the employment, and as an inducement to letting him have the freight. 2. The defendants offered to prove that the goods were dam- THE CARRIER MAT DEMAND FREIGHT, 221 aged in the course of the voyage, by ihe act of God, to an amount exceeding the claim of the plaintiffs, which was rejected as irrele- yant and immaterial. It is difficult to perceive what bearing the fact, if proved, could have upon the case. For, granting that the carriers are not respon- sible for the loss, as happening from inevitable accident, it is not pretended but that the goods were still abundant security for the charges, which is |ill that could be important, so far as the rights or interests of the defendants are concerned. If they could have shown that the value of the goods had fallen, by reason of the accident, below the amount of the lien, the proof might have been material as to the amount of the recovery. But no such offei* was made, or fact pretended. 3. It is supposed that the suit should have been brought in the name of the persons composing the firm of Kice, Salters & Co., as the bill of lading delivered to the forwarders mentioned the goods as shipped by this house. It is conceded that the goods were, in fact, shipped by the plaintiffs ; and that the house of Rice, Salters & Co., which was the old firm that had just been dissolved, was inserted by mistake. It also appears, that the bill of lading retained by the master was correct, and described the goods as shipped by the plaintiffs' firm. Taking the two bills together, it is left equivocal which house in fact shipped the goods ; and it seems to me, under the circumstances, it was proper to let in oral proof for the purpose of explaining the ambi- guity and ascertaining the truth of the case. The case of Garrett et al. v. Handley, 4 B. & Cr. 664, goes further than is necessary here. There the firm was allowed to sustain an action upon a guaranty addressed to one of tlie mem- bers, by name, on showing that it was given for the benefit of all. The firm, in fact, advanced the money, to secure the payment of which the guaranty was given. See also Davenport v. Backstrow, 1 Car. & Pay. 89, and Willis v. Barrett, 2 Stark. 29. Judgment affirmed. The proper construction of the customs and usages of trade and business, ■with reference both to written and unwritten contracts, and especially the former, is well illustrated by the opinion of the same learned judge, who delivered the opinion in the last preceding case, in Dawson v. Kittle, 4 Hill, 107, from which we take the following : — " It is quite clear that the receipts given for the grain do not in terms or of 222 THE EFFECT OP EESTEICTIVE NOTICES, ETC., necessity import a sale, but rather t^e contrary. They acknowledge the delivery to have been ' on freight,^ and nothing more. But it is argued that there was full proof of usage in the particular trade, which went to explain the memo- randum and establish an absolute sale of the grain. I do not deny that the receipts were open to explanation by this species of evidence (2 Stark. Ev. 258, 9 Am. ed. 1887 ; Withnell ». Gartham, 6 T. R. 398 ; Bushforth v. Hadfield, 6 East, 519 ; Cooper v. Kane, 19 Wend. 386) ; but it ought to be full and explicit, — so clear as to leave no doubt that the parties contracted in reference to the usage. The contracts in this case, so far as they have been reduced to writing, import a bailment ; and when it is sought to make them mean something more than appears upon their face, by showing the general course and understanding of the trade, there should be no doubt left as to the existence, extent, and meaning of the usage. Imperfect as a memorandum may be, if enough appear upon its face to make out a contract, its terms must prevail, unless modified by clear proof that these have a particular meaning attached to them by the usage of trade, — a usage known to the party at the time of contracting, or which he is presumed to have known and assented to. The testimony in this case is not only loose in respect to the existence of the usage at the particular place where the dealing occurred, but it is left doubtful whether, even if it existed there at all, it afforded any evi- dence of a sale of the grain until the plaintiff ordered it to be sent to market. Such is the import of the usage as testified by some of the witnesses, and the direction to send to market does not appear to have been' given in this case till after the assignment to the defendant. But this part of the case need not be further discussed, as the questions of fact arising out of the evidence of usage were submitted to the jury, to whom they properly belonged, and no question of law is raised upon the charge of the judge." But the lien for freight cannot be extended beyond charges, which are strictly connected with the transportation. Steamboat Virginia v. Kraft, 26 Mo. 76. It will not extend to the expense of keep, even, or other charges connected with the detention, where that is against the will of the owner. Somes v. The British Empire Shipping Co., 8 Ho. Lds. 338 ; 8. c. 6 Jur. N. S. 761. This was the case of a ship detained for non-payment of repairs, and the extra charges claimed were for the use of defendants' dock in which the ship was detained. The lien for freight may be enforced by a warehouseman. Alden v. Carver, 13 Iowa, 253. But the consignee is not bound to pay freight untilTie has an opportunity to in- spect the goods, to determine whether they have all arrived in safe condition. Lanata v. Grinnell, 13 La. An. 24. The party holding a lien upon goods for the expenses of transportation and other charges by the way has no right to enforce the same by sale of the goods, either at public or private sale, but must resort to a court of equity for an adjust- ment of the amount due and a provisional decree for the sale of the goods, unless the payment is made by a day named. Jones v. Pearle, 1 Strange, 566 ; Briggs V. Boston & Lowell Railw., 6 Allen, 246 ; Doane v. Russell, 3 Gray, 382 ; Fox v. McGregor, 11 Barb. 41. An agreement to pay, what is called dead freight, for the portion of a vessel not filled, creates no lien upon the goods actually carried. Phillips i>. Rodie, 15 East, 547. But where there is an express agreement to give a lien for the dead freight, as well as the actual freight earned, the lien will be enforced. Small v. UPON RESPONSIBILITIES OF COMMON CARRIERS. 223 Moates, 9 Bing. 574, where Tindal, C. J., says, "An express contract is the strongest and surest ground upon which the right of lien can in any case be placed." And the lien was here enforced in favor of the owner of the vessel against the goods of the charterer on board, on the ground of the special con- tract, although by the general law the owner will not be able to insist upon a lien for the hire of his vessel under a charter-party, unless he retain the possession of the vessel. Hutton v. Bragg, 7 Taunt. 14. And an express contract to pay lump freight will create a lien upon the goods for the amount. Kern v. Deslandes, 10 C. B. (n. s.) 205. Carriers and others connected with transportation can- not by general notice or custom enforce a lien upon the goods for a general balance of account, or in behalf of other parties concerned with them, beyond what is just and reasonable. Wright v. Snell, 5 B. & Aid, 350 ; Leuckart v. Cooper, 3 Scott, 521 ; s. c. 3 Bing. N". C. 99. And where the person in posses- sion of goods claimed to be the owner it was held he could not afterwards be allowed to defend his right of possession by setting up a lien for freight and other charges ; this claim not having been asserted at the time the property was demanded of him by the plaintiff's agent. Everett «. Saltus, 15 Wend. 474. XII. The Effect op Restrictive Notices, Special Contracts, AND Exonerating Conditions in Bills of Lading, upon the Responsibilities of Common Carriers. We have already inserted some opinions, large portions of which are devoted to the general questions embraced in this portion of our work (Cole v. Goodwin, ante, p. 110 ; Hollister v. Nowlen, ante, p. 96 ; Farmers & Mechanics' Bank v. Champlain Trans- portation Company, ante, p. 52, Blumenthal v. Brainerd, ante, p. 175) ; but we shall here attempt to present the questions which arise under this head in the more precise order in which they are developed in the leading cases upon the subject. 1. There seems to be no question at the present day that com- mon carriers are bound to carry for all who apply, and in the order in which they apply, for reasonable compensation. 2 Redf. Railw. § 176, and cases cited. This reasonable compensation is of the very essence of the distinction between the business of a common carrier or common innkeeper, and other voluntary undertakings in the way of business, where the person acts merely upon his own sense of policy or propriety, and assumes no special duty towards the public, and consequently comes under no implied duty to serve all who come with perfect impartiality. Such an one may select his own customers in his own way ; and there is nothing incon- 224 THE EFFECT OF RESTRICTIVE NOTICES, ETC., sistent with the position of such an one in accommodating his prices to the demands or desires of his different customers. He may well say to all objectors, " Shall I not do what I will with mine own ? " But the case of the common carrier is wholly dif- ferent. He stands much in the position of a public officer, bound to exercise entire impartiality, and to show no favoritism. Unless this were so, the duty of carrying for all would become the merest sham. The moment we allow any thing more than a reasonable discretion to tlie carrier in the matter of accommodating his prices, we render the duty of carrying for all utterly nugatory. Unless the matter of price for transportation is subject to the supervision and control of the courts, we might better abandon the idea of requiring the carrier to exercise any degree of impartiality towards his customers. The price is the very balance-wheel of the whole matter. Unless that is under public control, the public have no rights in the matter. The whole subject of public carriers has been drifting, for many years, in the direction of an entire escape from public duty. When there is free competition in the carrying business, as there began to bo, before the introduction of railways, there seemed no great necessity of holding very closely to the ancient strictness of public duty. But under the present arrangements, where the business of transportation has become an entire and absolute monopoly, there is more need of keeping the business under the control of the courts, as to what shall be regarded a fair and reasonable manner of conducting it, than ever before. The language of Mr. Justice Lawrence, in Harris v. Packwood, 3 Taunt. 272, that a " carrier is bound by law to carry every thing which is brought to liim, for a reasonable sum to be paid to him for the same carriage, and not to extort what he will," has great significance under the present ar- rangement of the transportation of freight and passengers ; and especially the declaration of the learned judge, that the compensa- tion demanded must be reasonable, and not a mere extortion, at the will and caprice of the carrier. The fact that the English Railway and Canal Traffic Act of 1854, 17 & 18 Vic. c. 31, § 7, has undertaken to define what conditions the carrier may be allowed to annex to the contract for carrying, that such conditions shall be expressed in writing and signed by the parties to be bound, and shall then only be binding to the extent that the court or judge before whom the question may arise shall determine to be just and reasonable ; — these facts seem to have im- UPON RESPONSIBILITIES OP COMMON CARRIERS. 225 pressed some in this country with the idea that, at common law and independent of this statute, tlae English courts have not attempted to exercise any control over the prices of carriers. But the de- clarations against carriers and the language of the courts in regard to their duty, from a very early day, all go upon the ground tliat carriers cannot demand what price they choose, but must carry for what the law shall determine to be a reasonable sum. The lan- guage of Lawrence, J., above, and the former portion of the same Sentence, especially, " I would not, however, have it understood that carriers are at liberty bylaw to charge whatever they please," show very clearly the doctrine or rule of the common law on this sub- ject, as entertained in Westminster Hall, forty years before the passage^ of the statute just named. And the language of the court, in Rogers v. Head, Cro. Jac. 262, 263, " A carrier may demand as much as is reasonable," two hundred years before that, indicates the existence of the same view of the law. And although in Lovett V. Hobbs, 2 Shower, 127, and in Bastard v. Bastard, id. 81, the same point is stated in language to indicate that nothing more may be understood than that a carrier may sue upon a quantum meruit, where there is no particular price agreed upon, it is very obvious from the language of Lawrence, 3 .,qyioiQdL before, that it was meant to apply to carriers in particular, because they are always bound' to carry for a " reasonable compensation." But everywhere, all through the English reports, the existence of a distinction between the duty of a common carrier and other employments is clearly recognized, in that the naked undertaking of a common carrier to carry goods is binding, on the ground of the public duty, while such an undertaking of persons in other employments is not binding, unless made upon consideration, or else the performance actually entered upon. Elsee v. Gatward, 5 T. R. 144. The point is here thus stated by Lord Kenyan, 0. J., " This case " [being that of a carpenter] " is very distinguishable from those of common carriers and porters, from whose situations certain duties result ; they are bound by law to carry goods delivered to .them, and are by law en- titled to recompense, but no such duty results from the situation of a carpenter ; he is not bound, as such, to perform all the work that is brought to him." And the opinion of Mr. Justice Ashurst contains the same views. Chancellor Kent, 2 Com. 599, defines the duty of common carriers in similar terms : " are bound to do what is required of them, in the course of their employment, if VOL. II. 15 226 THE EFFECT OP RESTRICTIVE NOTICES, ETC., they have the requisite convenience to carry, and are offered a rea- sonable or customary price." And the same rule is recognized by Merrick, J., in Fitchburg Railway v. Gage, 12 Gray, 393-398, where the language of Lawrence, J., quoted above, is repeated with approbation. The learned judges, or rather the courts here hold that, both under the Massachusetts statute and at common law, the common carrier is bound to carry for all who apply for reasonable compensation, but not necessarily for all for the same compensation. We are surprised to see this last case referred to by some, as one having determined that the carrier is under no duty to treat all who employ him in the same just and reasonable manner. There is nothing in the case to justify any such opinion, but altogether the contrary. 2. It being clearly established, then, that common carriers have public duties which they are bound to discharge with impartiality, we must conclude, that they cannot, either by notices or special contracts, release themselves from the performance of these public duties, even by the consent of those who employ them, — for all ex- tortion is done by the apparent consent of the victim. A public officer or servant, who has a monopoly in his department, has no just right to impose onerous and unreasonable conditions upon those who are compelled to employ him. This is a familiar rule of the common law, applicable to all subjects, and has been repeatedly applied to the business of common carriers. A public officer has no right to stipulate for compensation beyond that fixed by law, even where he performs extra services, such as are not strictly re- quired of him by law. Shattuck v. Woods, 1 Pick. 170, 175 ; Reston V. Bacon, 4 Conn. 471 ; Hatch v. Mann, 15 Wend. 44 ; Parker v. Mayor of New York, 2 Sandf. Sup. Ct. 208 ; People v. Supervisors, 1 Hill, 362. See also other cases referred to in 4 Abbott's N. Y. Dig. tit. Officer, p. 206. There has been considerable discussion upon this question, how far the carrier may, by general notices brought home to those who employ them and impliedly assented to by them, or by special contracts with their customers, which is in fact but a different mode of stating the same thing, exonerate him- self from the common-law responsibility attaching to the employ- ment. And although there will undoubtedly be found some exceptional cases, going beyond the general scope of the decisions, yet, upon the whole, the line seems to be tolerably well defined at the present day. UPON RESPONSIBILITIES OF COMMON CARRIERS. 227 1. That the exemption claimed must be reasonable and just, otherwise it will be regarded as extorted from the owners of the goods by duress of circumstances, and therefore not binding. 2. That every attempt of carriers, by general notice or special contract, to excuse themselves from responsibility for losses or damages, resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and therefore based upon principles and a policy which the law will not uphold. We shall now present some few cases illustrative of the preceding propo- sitions. 1. Dorr V. 2Sew Jersey Steam Navigation Oompany, \l N. T. 485. 1854. We present this case as embodying the law of New York at its date. It has undergone some changes, even in that state, in the intervening period since that case was decided. The points here decided are — That general notice from the carrier that he will not assume certain specified respon- sibilities in his business, although brought to the knowledge of those who employ him, before the time of the employment, is not sufacient to raise any implication of a special contract between the parties to carry upon the terms specified in the notice. But that a special contract specified in the bill of la'ding, to the effect that the com- pany are only to be held responsible for ordinary care and diligence in the trans- portation of the goods, is binding between the parties. The facts in the case will sufficiently appear in the opinion of the court, delivered by — Parker, J. The courts of this state have steadily adhered to the common-law rule, that a common carrier cannot screen himself from liability by notice, whether brought home to the owner or not. Since the very full and learned discussion of that question in Hol- lister V. Nowlen, 19 Wend. 234, and Cole v. Goodwin, id. 251, it has been regarded as settled upon mature deliberation, and the conclusion arrived at in those cases has been uniformly acquiesced in and followed. Camden Co. v. Belknap, 21 Wend. 354 ; Clark V. Paxton, id. 153 ; Alexander v. Greene, 3 Hill, 9 ; 7 id. 533 ; Powell V. Myers, 26 Wend. 594. These decisions rest on the very satisfactory reasons, that the notice was no evidence of assent on 228 THE EFFECT OP RESTRICTIVE NOTICES, ETC., the part of the owner, and that he had a right to repose upon the common-law liability of the carrier, who could not I'clieve himself from such liability by any mere act of his own. But the question here presented is of a very different character. It is, whether it is competent for the carrier and the owner, by an agreement between themselves, to establish conditions of liability, different from those cast by law upon a common carrier. I think this question is distinctly presented by the demurrer to the second plea; and it seems to me also to be involved in the decisions made at the trial of the issue of fact ; for the exceptions to the common law liability, being made in the bill of lading and delivered to the agent of the plaintiffs, must be deemed to have been agreed upon by the parties. If such is not the legal inference, then it was a question of fact for the jury to decide what was the agreement between the parties, and in that case the same question of law would still be presented for decision. The plaintiffs rely upon the case of Gould v. Hill, 2 Hill, 623. It was there broadly decided by a majority of the late Supreme Court, C. J. Nelson dissenting, that common carriers could not limit their liability, or evade the consequences of a breach of their legal duties as such, by an express agreement or special acceptance of the goods to be transported. That- decision rested upon no earlier adjudication* in this state, though the question had been previously discussed and obiter opinions upon it sometimes ex- pressed by judges, in deciding the question whether a carrier could lessen the extent of his liability, by notice. But the case of Gould V. Hill has been deliberately overruled by the present Supreme Court, in two carefully considered cases, viz.. Parsons v. Monteath, 13 Barb. 353, and Moore v. Evans, 14 id. 524. In both those cases the question is examined with much ability, and I think the unsoundness of the conclusion in Gould v. Hill most satisfactorily shown. I am not aware that Gould v. Hill has been followed in any reported case. In Wells v. The Steam Navigation Company, 2 Comst. 209, Branson, J., who seems to have concurred with Judge Cowen in deciding Gould v. Hill, speaks of the question as being still, perhaps, a debatable one. That a carrier may, by express contract, restrict his common- law liability, is now, I think, a well-established rule of law. It is so understood in England (AUeyn, 93 ; 1 Vent. 190, 238 ; Peake's N. P. C. 150 ; 4 Burr. 2301 ; 1 Starkie, 186 ; 2 Taunt. 271 ; 8 UPON EESP0NSIBILIT1E8 OP COMMON CAREIEHS. 229 Mees. & Welsby, 443 ; 4 Co. 84) ; and in Pennsylvania (16 Penn, 67 ; 5 Rawle, 179 ; 6 Watts & Serg. 495). In otiier states, where the question has arisen whether notice would excuse the liability of the carrier, it seems to have been taken for granted that a special acceptance would do so ; and in N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 382, it was so held by the Supreme Court of the United States. For the concurrent opinions of ele- mentary writers in favor of this doctrine, see Story on Bail. § 549 ; Chitty on Cont. 152 ; 2 Kent, Com. 606 ; Angell on Carriers, §§ 59, 220, 221. Upon principle, it seems to me no good reason can be assigned why the parties may not make such a contract as they please. It is not a matter affecting the public interests. No one but the parties can be the losers, and it is only deciding by agree- ment which shall take the risk of the loss. The law, where there is no special acceptance, imposes the risk upon the carrier. If the owner chooses to relieve him and assume the risk himself, who else has a right to complain ? It is supposed that the extent of the risk will be measured by the amount of compensation, and the latter, it will not be denied, may be regulated by agreement. The right to agree upon the compensation cannot, without great incon- sistency, be separated from the right to define and limit the risk. Parties to such contracts are abundantly competent to contract for themselves. They are among the most shrewd and intelligent business men in the community, and have no need of a special guardianship for their protection. It is enough that the law de- clares the liability where the parties have said nothing on the subject. But if the parties will be better satisfied to deal on dif- ferent terms, they ought not to be prevented from doing so. It is true a common carrier exercises a quasi public employ- ment, and has public duties to perform ; that he cannot reject a customer at pleasure, or charge any price that he chooses to de- mand; and that if he refuses to carry goods according to the course of his employment, without a sufficient excuse, he will be liable to an action ; and that he can only demand a reasonable compensation for his risk and services (Bac. Abr. Carriers, [B.] ; 2 Kent, 699 ; Story on Bail. § 328 ; 2 Ld. Raymond, 917 ; Skin. 279 ; 1 Salk. 249 ; 2 Show. 332 ; 8 Mees. & Wels. 372 ; 1 Pick. 60 ; 16 Conn. 539) ; and that an action will lie against him upon a tort, arising ex delicto, for a breach of duty. Orange Co. Bank V. Brown, 3 Wend. 168. In such case, there being no special 230 THE EFFECT OF RESTRICTIVE NOTICES, ETC., contract, the parties are supposed to have acted with a full knowl- edge of their legal rights and liabilities, and there may be, perhaps, good reason for the stringent rule of law, which makes the carrier an insurer against all except the act of God and the public enemy. But when a special contract is made their relations are changed, and the carrier becomes, as to that transaction, an ordinary bailee and private carrier for hire. This neither changes nor interferes with any established rule of law ; it only makes a case to be gov- erned by a different rule. To say the parties have not a right to make their own contract and to limit the precise extent of their own respective risks and liabilities, in a matter in no way affecting the public morals or conflicting with the public interests, would, in my judgment, be an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal right. The judgment of the Supreme Court should be reversed and judgment be given for the defendant on the demurrer, with leave to the plaintiffs to reply on terms, and a new trial should be awarded on the issue of fact. The only point in this opinion where the later decisions have materially de- parted from the rule, as here stated, is in regard to the effect of general notices and conditions indorsed upon bills of lading. There seems never to have been any serious controversy in regard to the effect of a stipulation, on the face of the bill of lading, exempting the carrier from his extraordinary responsibility by way of insuring the safe arrival of the goods. With rare exceptions the cases all agree, that such a stipulation, understandingly and voluntarily entered into, will be held obligatory. But the effect of general notices and of indorsements on the back of bills of lading, from the very nature of such transactions, must naturally be very unequal. Much will, in the first place, depend upon the nature of the exemptions claimed by the carrier. They must of course be rea- sonable, or at least such as are not in conflict with the just policy of the law. They must, too, be brought to the knowledge of the owner of the goods, in such a manner as to raise a reasonable presumption,^ as matter of fact, that they were fully understood by him, at the time of their delivery, and that there was sufficient time and opportunity to consider them. Unless these preliminaries concur there will be slight ground to presume any voluntary and properly considered assent to the demands of the carrier. And where there is no special reason to suspect that the free-will of the consignor was unnaturally or unreasonably under the control of a pressing exigency of circumstances, the fact that the owner or consignor had full knowledge of the demands of the carrier, as to the terms upon which he would consent to carry the goods, and expressed no dissent thereto, will afford very satisfactory grounds of inferring his assent. ^ We have referred to some cases defining the effect of special notices and UPON EESPONSIBILITIES OP COMMON CARRIERS, 231 express contracts by or with carriers exempting them from their common-law responsibility under diflferent heads, ante, pp. 47-62 ; 223-227. It seems to be abundantly settled, both in England and America, that the carrier cannot make any valid contract excusing himself from responsibility for damage or loss in consequence of want of that ordinary care and skill, which all persons properly instructed in the best mode of conducting the business of their employment are always expected to exercise. The English cases are consider- ably numerous and very decisive upon this point. 2 Redfield, Railw. § 178, n. 21, 22, where the cases, both in this country and in England, are extensively eviewed. 2. Hays v. Kennedy, 41 Penn. St. 378. 1861. The exception in a bill of lading of "the unavoidable dangers of the river-navigation and Are," held to extend to all the dangers of navigation which were unavoidable by the carriers, as where the boat was run into and sunk and the goods lost; without fault on the part of the master and crew. But where the carrier claims an exemption on this ground, it is incumbent on him to show that there was no default on his part, and that the loss occurred by agencies within the exception. Discussion of the import of the terms " act of God," " in- evitable accidents," " unavoidable dangers of the river-navigation " &c. The facts in the case sufficiently appear in the opinion of the court by — LowRiE, C. J. By a collision between two steamboats on the Ohio River, orie of them was sunk without any carelessness on its part and by reason of carelessness on the part of the other : are the owners of the sunk boat liable, as carriers, for goods lost by the accident, under a bill of lading that contains the exception of " the unavoidable dangers of the river-navigation " ? The counsel have thought it necessary to discuss the question, whether or not this exception in the contract in any degree varies the liability of the carriers from what it would be at common law, or without the exception ; and they have discussed it with great ability and research. With their assistance, we find that this ques- tion has been often considered, and that it cannot yet be considered as finally settled either way. Courts, judges, and writers on law have, in the following instances, expressed the opinion that the ex- ception of " unavoidable accidents " is exactly equivalent to the exception of the common law, " act of God or of the public ene- mies." Story on Bail. § 25 ; Angell on Carriers, § 167 ; 1 Kent, Com. 826 ; 1 Bell, Com. on Scotch Law, 559 ; 1 Conn. 487 ; 12 232 THE EFFECT OF RESTRICTIVE NOTICES, ETC., id. 410 ; 4 Stew. & Porter, 383 ; 3 id. 135, 172 ; Rice, 107 ; 6 Johns. 168 ; 10 id. 1 ; 8 S. & R. 562 ; 8 Harris, 171 ; 2 Kellog, 349 ; 2 Sm. & Mar. 572 ; 2 Speers, 197 ; 5 Blackf. 222 ; 2 Bailey, 421 ; 1 McOord, 360 ; 1 Nott & McO. 170 ; 4 Strob. 168 ; 6 How. U. S. 381 ; and the following express the contrary opinion : 9 Watts, 88 ; 12 Met. 9 ; 2 Zabriskie, 372 ; 2 Bailey, 167 ; 27 Maine, 133 ; 21 Wend. 190 ; 7 Yerger, 340 ; 4 Doug. 291 ; 3 id. 389 ; 26 Bng. C. L. 857, 358 ; 1 T. R. 27. Wallace, in the American edition of Smith's Leading Cases, vol. 1, p. 315, takes the same side, in a very careful and learned annotation of the case of Coggs V. Bernard. A careful study of these cases exhibits a degree of confusion of thought, in the judicial administration of this class of cases, that must, while it lasts, breed much discord in decisions. Some treat the phrases, inevitable accident, perils of the sea, navigation, or road, as entirely equivalent to the phrase, act of God, as used by lawyers and judges ; and others treat them as expressing different ideas. Again, some treat them as identical terms, for the purpose of making inevitable accident mean act of God, in the sense of a sudden and violent act of nature, as lightning, tempests, &c., while others make them equivalent for the purpose of making act of God mean any accident which the carrier cannot, by proper care, fore- sight, and skill, avoid. And many of them overlook entirely the common custom of merchants, which is the common law in such matters, that all bills of lading, and all the printed forms of them, contain the exception against losses by inevitable accident, perils or dangers of the sea or road, &c. No man expects any other form unless when he specially contracts for it ; and therefore no man is in danger of being caught up by the technical phrase, act of God, unless where he has failed to sign the usual bill of lading. If he signs the bill, he is held according to the usual custom of com- merce ; he ought to be held no otherwise when he fails to sign it. Surely all this ought to lead us to suspect that there has been some mistake of the meaning of the term act of God, since it has led to such a conflict of decisions with each other, and especially with the well-known usages of commerce. We suppose there never was a time when bills of lading did not contain the excep- tion against the inevitable dangers of the sea or road, though the law always implied it. We pick up the evidence of as far back as 1629 and 1670, Palmer, 551, 3 Keble, 73, and doubt not that it may be much more remotely traced. UPON RESPONSIBILITIES OP COMMON CARRIERS. 233 The earliest use of the term, act of God, that we can find in our law books is by Sir Edward Coke, 1 Co. 97 b, in 1581, in Shelley's case, speaking of the death of a man, and he seems to have been fond of it, for he uses it often afterwards ; 5 Co. 87 a, 22 a, 1 Inst. 206 a, also meaning death, and 10 Co. 139 b, where it. is applied to a sudden tempest breaking down sea-walls, and refers to the statute where the term is inevitable dangers or necessity, without any fault of him who is bound to repair. Moreover, Coke used the phrase, the act of God excuses, as equivalent to impotentia excusat legem, and also as equivalent to an accident which is " so inevitable that, by no providence or industry of him who is bound, it can be prevented," or, as in Shelley's case, " which no industry could avoid nor policy prevent." Again, he uses the phrase in 1601, as appli- cable to a sudden storm, 1 Bulst. 280, 1 Roll. Rep. 79 ; and cer- tainly that is one of the many kinds of inevitable accidents that may be so described. The phrase, act of God, is used by other judges in 1629, 1 Jones, 179, Palmer, 548, as applicable to the death of a horse, in deciding that the death of a borrowed horse excuses the return of him; and again, in 1718, it means a tempest, 1 Stra. 128. It is used also by the judges in Coggs v. Bernard, Lord Raym. 909, in 1704 ; but they do not define their meaning in using it, and the. case did not require it, and they give no indication that they attached to it any other than what had been its usual meaning. Holt, C. J., in his opinion, refers to Morse v. Sluce as the leading case on the subject, 8 Keb. 72, 112, 135, 1 Vent. 190, 288, 1 Mod. 49, in 1670 ; and there the court say, 8 Keb. 114, that the carrier is " not liable for inevitable accident, when it is vis cui resisti non potest ; " and Hale, C. J., 1 Vent. 288, classes pirates, storms, &c., as damnum fatale, and says nothing of act of God. Holt argued the case, and does not use the phrase, but much reference is made to the Roman law, and no intimation of its differing from our own. Many other instances in which the phrase is used may be found in Broom's Legal Maxims, 171. So far as we have traced it, the maxim actus Dei nemini facit injuriam does not appear to be dif- ferent from others, such as lex non cogit ad impossibilia, impotentia excusat legem, and the maxims of the Roman law, impossibilium nulla oUigatio est, Dig. 50, 17, 185, and others directly applicable to this subject : impium est easum fortuitum in alieujus detrimentum ad- mitti, Inst. 8, 8, 4 ; propter majorem vine, majoresve casus non tenetur, 234 THE EFFECT OF RESTBIOTIVE NOTICES, ETC., si modo non ipsius culpa is casus intervenit, Inst. 3, 14, 2 ; quce fortuitis casibus accidunt, cum prcevidere non possint, nulla bonce fideijudicio prcestantur. Cod. 4, 24 ; 6 ; Dig. 60, 8, 2, 7. After our separation from England, in 1785, Lord Mansfield, in Forward v. Pittard, 1 T. E. 27, introduced a somewhat different view ; holding that, to be an act of God, it must be such a one " as could not happen by the intervention of man, as storms, lightning, and tempests." He calls this a liability independent of the con- tract, and says it appears in all the cases for the last hundred years ; and yet we confess that we have not been able to discover that this statement has even a general accuracy. And there is no need of a warranty or insurance independent of the contracts, for it is ex- pressed in them in the words safely to carry and to deliver in good order, which are to be found in all carriers' contracts, where they are written ; and which are therefore implied, as within the inten- tion of the parties when the contract is not written. The contract of insurance in these words, is quite absolute ; but it is not reason- able to receive it so, for it is not so intended ; and the difficulty has always been to define the exceptions to it. The usual exception in the contracts is against the perils of the sea, or road or river, or unavoidable accidents and such like, and lawyers have changed these into the general term, act of God ; but they have not altered thereby the terms of contract. Act of God no more excludes human agency, than such terms as Deo volente, Deo Juvante, ex visitatione Dei. Providential dispensation, or the Roman terms, fataliter, divinitus, casus fortuitus, damnum fatale, all of which originally referred to the intervention of the gods, in the sense that the appropriate human agency was powerless. It is only by an arbitrary definition of the term that we depart from the meaning of the contract, and fall into difficulties in adminis- tering rights under it. Unquestionably there is a warranty or insurance in the contract, for it is to carry and deliver safely, and this involves a warranty of exact diligence in the duty, and of the sufficiency of all the means of carriage, and all this is usually written out in all formally drawn charter-parties, and the Romans expressed the idea by the word prcestare. And it is impossible to exclude the intervention of man from those accidents which are called acts of God. When rights depend on the life of a man, they are determined by his death, if it be not caused by him who owed the duty, and this death is called UPON RESPONSIBILITIES OP COMMON CAERIERS. 235 the act of God, whether it proceeds from nature, accident, care- lessness, or suicide. Tliere is the intervention of man in a loss by tempest, for he chooses the route that brings the vessel where the tempest rages, he made the masts and sails and sets the sails that break away in the storm, or drive the vessel under ; he made the ship that is too weak or too small to live in such a tempest. It is by the interven- tion of man that vessels bound to and from England keep so far north as to fall in with icebergs and sometimes be destroyed by them. There is human intervention when a vessel is driven by a storm against a wharf or pier or bridge constructed by men. If a storm drives a vessel from her mooring, by dragging her anchor or parting her cable, it is because the human means of holding her are insufficient. If a death happen by an inevitable accident in the working of mines or other excavations, or in conducting steam works, or by the fall of a house or some fragment of it, there is human intervention, and yet it may very properly be reported as a death ex visitatione Dei. It is impossible, therefore, to define in- evitable accident by excluding the element of intervention of man ; for this element itself needs definition. In all the instances we have given, the accident may be legally inevitable, even though there be the intervention of man having some influence in it. No man warrants, or is ever expected to warrant, that the route he takes is the very best, or that his crew are perfect, or that his vessel is perfectly secure ; he does his duty in all these particulars, if he can bear the test of the ordinary or customary standards. If a man ships his goods on a raft or flat or oyster boat, he does not expect his warranty to make them as secure as they would be in a first-rate East Indiaman or the best Liverpool packet. In the narrow sense that has recently been attributed to the terms, act of God, and inevitable accident, it is no excuse that a vessel strikes upon an unknown snag or bar or rock in the ordinary route of travel, for here is no violent act of nature ; and yet this has often been held a valid excuse, 2 Brev. 178 ; 1 Eice, 107 ; 4 Yerg. 48 ; 5 id. 72 ; 2 Bailey, 421 ; 1 Conn. 487 ; 3 Stew. & Por- ter, 135; 4 id. 482 ;. though there are contrary decisions, misled by the distinction which we have been discussing. Nobody expects a carrier to warrant against such accidents ; this is the business of insurers. Nobody doubts this meaning of perils of the sea and inevitable accidents in insurance contracts. Why should it 'be difiFerent in carriers' contracts ? 236 THE EPFKCT OF RESTRICTITE NOTICES, ETC., We can never administer rights of contract justly by arbitrarily infusing into them terms which are never intended by tlie parties, which are not sanctioned by the actual customs of the people, and which are not involved in the very nature of the relation created by the contract. It is by a proper administration of the remedy that we secure the rights intended to be contracted for ; and the main principle of the remedy is that, from the very nature of the relation, the burden of proof of a loss by inevitable accident is thrown upon the carrier. He must prove not only an accident which the law admits as in- evitable in its character, but also that he was guilty of no fault in falling into the danger, or in his efforts to extricate himself from it. Pertinent to this subject we have some very wise remarks of Sir William Scott, in the case of The Generous, 2 Dods. 323, Broom's Maxims, 181, which we may be allowed to quote : " The law itself and the administration of it must yield to that to which every thing else must bend, necessity ; the law in its most positive and per- emptory injunctions is understood to disclaim, as it does in its general aphorisms, all intention of compelling men to impossibilities, and the administrations of laws must adopt that general exception in the consideration of all particular cases. In the performance of that duty it has three points to which its attention must be directed. In the first place, it must see that the nature of the necessity (or accident) pleaded be such as the law itself would respect, for there may be a necessity that it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which lie then had a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavors to surmount the difficulties which already formed that necessity, and which, on fair trial, he found insurmountable. I do not mean all the endeavors which the wit of man, as it exists in the actual understanding, might suggest ; but such as might reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly, that all this shall appear by a distinct and unsuspected testimony ; for the positive injunctions of the law (or terms of the contract), if proved to be violated, can give way to nothing but the clearest proof of necessity that compelled the violation. Theft from a carrier or robbery of him, while he is within the protection of the state, 3 Keb. 135, is not an excuse that the law UPON RESPONSIBILITIES OP COMMON CARRIERS. 237 respects ; for, by the very nature of his contract, the carrier, by himself or his agents, is bound to be always with the goods during their carriage, and the law presumes, and must in all ordinary cases presume, that, if he is watchful, the ordinary police of the state will be entirely adequate for his protection. It is, therefore, be- cause he is presumed, and almost conclusively presumed, to be in fault in such cases, that he is held liable, and not because he has a remedy over against the wrong-doer, or the township, or hundred. 1 Salk. 143. He is not liable when robbed by pirates on the high seas or by the public enemies, because against these he has no police protection, and there is no presumption of fault on his part. It is important to have a clear idea of this ; the carrier is bound to carry safely, and if he fail to do so, the burden of proof of a valid excuse is cast upon him. If he show a cause which the law admits to be sufficiently serious to be called inevitable, he has merely prepared the way for showing that he used all possible care. At this stage of the case, the law does not presume any fault on his part ; but simply demands that he shall complete his excuse by showing that, in the midst of the danger, he exerted all the skill and care he could to avoid it. If this be made out, then he stands entirely without fault before the law, having performed his whole duty under his contract as it is interpreted by the law, according to the customs of merchants and carriers. Now, if, instead of charging him because his excuse leaves him still in fault, we charge him because he has a remedy over, Owen, 57, Moor, 462, then we should have to inquire of the fact, has he such a remedy as can be of any avail to him ? He has none, of course, in a case of inevitable collision, without fault on either side. He may have none where the other vessel is sunk by the accident. He may have none, if the collision happened off the coast of Africa, or his vessel be seized by order of some foreign government. He can have none that is available, if the opposite parties to the col- lision are irresponsible. Surely we have no evidence in commercial customs that a carrier insures against such accidents and for such a reason. And if such were the reason, then there is no insurance when both colliding vessels are free from fault, for then neither has any remedy. And certainly the law cannot impose such a liability for such a reason; for one state cannot make laws for another state, as it would do by saying that the injured vessel shall have its remedy 238 THE EFFECT OF RESTRICTIVE NOTICES, ETC., against the wrong-doer wherever he may be found. If the law imposes the insurance, " independent of the contract," instead of enforcing the terms that are involved in it, then the insurance can- not reach beyond the state which imposes it, for no state enforces the mere law of another state, while all civilized states do enforce contracts made abroad, according as those contracts were under- stood in the place where they were made. We might easily carry out these views so as to show that the defendants, being without fault in this collision, are not liable ; but we prefer not to do it. We rather wish that what we have said may be useful in leading to an investigation that will expose, iii' a conclusive way, the fundamental mistake which has led to so much discordance as prevails in the decisions of courts, and between many of them and the actual customs of trade. We can decide this case well on other grounds. We are quite satisfied that the weight of authority and of reason shows that the ordinary exceptions in bills of lading of unavoidable accidents have a much larger sphere than that which is attributed to the term, act of God, by the very strict interpretation of some writers and judges ; while, for the present, we think that expression has been unduly narrowed. There are cases where there is no bill of lading, or where the ordinary exception of perils of the sea does not appear, and where the innocent carrier is held liable, 1 Wright, Ohio, 193 ; or where both were innocent and both liable, 2 Zabriskie, 372, 27 Maine, 133. These cases must proceed upon the notion that there is an insurance against collision and other analogous accidents, where at least the usual exceptions are not provided. There are cases where there is the exception of perils of the sea, 1 McCord, ,360, 1 Nott & McC. 170 ; where both were innocent in the collision, and yet were held liable. Those cases must proceed on the notion that there is a warranty against collision, even when the usual exception is expressed. But several cases decide, and almost all careful text-writers agree, that the carrier who is not in fault in the collision is not liable under a bill of lading containing the usual exceptions. Peake Oas. 183 ; 3 Esp. 67 ; 12 Smeades & M. 590 ; Story on Bail. § 614 ; 1 Bell, Com. 659 ; 2 Arnold on Ins. 804 ; 21 Wend. 199 ; 4 Taunt. 126 ; Abbott on Shipping, 240 ; Chitty on Carriers, 171. Whatever may be said, therefore, respecting the meaning of the UPON RESPONSIBILITIES OP COMMON CARRIERS. 239 phrase, act of God, we think it can have no application in a case where the parties have expressly provided a different rule of lia- bility, by expressing themselves in terms that cannot reasonably be interpreted in the narrow sense often attributed to that phrase. When they provide that they shall not be liable for the unavoidable dangers of the navigation, they mean dangers that are unavoidable by tJiem, supposing that they have exercised all the precaution, care, and skill that the law usually demands of common carriers. They mean that they shall not be answerable as insurers against acci- dents which the law respects as inevitable ; but that, if they prove such an accident falling upon them without any previous fault of theirs, and that they had a proper vessel and crew, and did all in their power to extricate themselves from the danger, they shall be as free from liability as they are from fault. We think, therefore, that this case was rightly decided. Judgment afiB.rmed. 3. Farnham v. The Camden ^ Amboy Railw., 7 Am. Law Reg. N. S., 172 ; s. c. 55 Perm. St. 53. 1867. A common carrier may restrict his responsibility for the safe transportation and delivery of the goods, so far as it depends upon matters beyond his own agency and control. But he cannot exempt himself from the duty of exercising care and watchfulness in the discharge of the undertaking. But in order to maintain an action against the carrier under such a contract, for loss or damage of the goods, the burden of proving that it occurred through the negli- gence of the carrier would rest upon the plaintiflF. Woodward, 0. J., dissenting. Wliere a bill of lading is made subject to conditions upon the back of the same, such conditions thereby become part of the contract, and are as binding as any other part of it. The form of the condition written upon the back of the bill of lading was as follows : "The responsibility of the company, as carriers of the within named goods, is hereby limited, so as not to exceed |100 for every 100 lbs. weight thereof, and at that rate for a greater or less quantity, the shipper declining to pay for any higher risk. The company will insure to any amount if desired." The goods in this case were safely landed upon the wharf, at the port of destination, and were destroyed by an accidental fire before the owners had notice of their arrival or any opportunity to remove them. The defendants were held not responsible beyond the rate specified in the condition upon the bill of lading. The other facts in the case will sufficiently appear by the opinion of the court by — Thompson, J. It does not admit of a doubt, that a common carrier may, by a special contract and perhaps by notice, limit his 240 THE EFFECT OP EEBTRICTIVE NOTICES, ETC., liability for loss or injury to goods carried by him, as to every cause of injury excepting that arising from his own or the negli- gence of his servants. A great variety of cases cited in the very able argument of the learned counsel for the defendants, estab- lishes this as the rule in England, from Southcote's Case, 4 Coke, 84, A. D. 1601, down to the Peninsula and Oriental Steam Navi- gation Company v. The Hon. Parquar Shand, 11 Jurist, 771, in 1865. The same rule generally holds in the several states in this country, as will appear in Story on Bailments, § 549, notes (ft) and (6) ; Dorr v. New Jersey Steam Navigation Company, 1 Kern. 484 ; and in the Supreme Court of the United States, York Co. V. The Central Railroad Co., 3 "Wall. 107. Tliis has long been the rule in this state, as is shown by Bingham v. Rogers, 6 W. & S. 495 ; Lang v. Calder, 8 Barr, 479 ; The Camden and Amboy Rail- road Co. V. Baldauf, 4 Harris, 67 ; Chouteaux v. Leech, 6 id. 224 ; Goldey v. Pennsylvania Railroad Co., 6 Casey, 248 ; and Penn- sylvania Railroad Co. v. Henderson, Leg. Int. vol. 28, p. 248, 1866. That there was a special acceptance limiting the defendant's liability to $1 a pound in case of loss or destruction in this case, is among the facts found in the case stated. The bill of lading duly executed and signed by the agent of the defendants containing the limitation, it is agreed, was delivered to the plaintiffs, accepted by them, and remitted to their agent at New York as his authority to receive the goods. These, therefore, were the terms on which the transporters shipped their goods, and on which they were received to be transported. As this was a limitation of the common-law liability, we are to presume, of course, that the charge for trans- portation was in proportion to the risk, an element of charge in all such cases. The condition of shipment on the bill of lading shows this by expressing the limitation to be, because of the " ship- per declining to pay for any higher risk." We have, therefore, a contract to transport goods under a special agreement as to lia- bility, and a consideration based, we must presume, on the under- taking in its limited form. This limitation, we "are warranted in saying, took the case out of the law of common carriers and carried it into one of the numerous classes of bailments, and it henceforth became liable to be governed by the law of the class. The reason will be apparent on a moment's reflection. The common law de- fines the duty and the liability in the one case, in the other the law is set aside by agreement of the parties, and they make a law UPON BE8P0N8IBILITIES OP COMMON CARRIERS. 241 for themselves, and thus they stand on the relation they create and not on the law of common carriers. By the common law the carrier is an insurer of the goods intrusted to him, excepting so far as they are damaged by the act of God or public enemies. By a contract limiting liability, he is an insurer by agreement and according to its terms. If there be a loss, the agreement furnishes the extent of liability, and the bailor is confined to that unless he can show that the loss occurred from the wilfulness or negligence of the carrier. His liability is as a private carrier or bailee, as a consequence of the limitation. This is settled in various forms of expression, in numerous books and cases of authority. In Angell on the Law of Carriers, § 268, it is said : " Therefore, as there has been occasion before to show, that in cases of contract, and by means of notices, common carriers descend to the situation of only private carriers for hire." In York County v. The Central Rail- road Co., supra, this language is found : " By the special agreement, the carrier becomes, with reference to the particular transaction, an ordinary bailee, a private carrier for hire." In Goldey v. The Pennsylvania Railroad Co., 6 Casey, 242, we said the same thing in these words : " The most it [the limitation] can do, is to relieve them from those conclusive presumptions of negligence which arise, when an accident happens that is not inevitable even by the high- est care, and to require that negligence be actually proved against them,'" In the N. J. Steam Nav. Co. v. The Merchants' Bank, 6 How. 384, the principle is thus stated : " The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care, or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such restriction." The same principle appears in Marsh v. Home, 5 B. & C. 243, where the limitation as to the extent in value of liability was held to vary the relation and require proof of negligence against the carriers." So in Harris v. Packwood, 8 Taunt. 264, this rule was applied. See also to this effect, Angell on Carriers, § 276 ; Story on Bailm. § 573 ; 2 Greenl. Bv. § 218 ; and Sager v. The Rail- road Co., 31 Maine, 228. Without pursuing further this line of thought, we must proceed to determine how this case stands af- fected by these principles. The plaintiffs shipped goods on the 8th of July, 1864, by the VOL. II. 16 242 THE EFFECT OP RESTRICTIVE NOTICES, ETC., defendants' line, to New York, under an acceptance of limited lia- bility as well as notice. The goods were safely carried by the defendants to their wharf at New York, and placed under a shed on the wharf ready for delivery, but before the plaintiffs had notice of their arrival or opportunity to remove them, a fire broke out on board a steamer of the defend- ants lying at the wharf, which entirely consumed the boat with her cargo, and also the wharf and shed and the goods therein, includ- ing the goods of the plaintiffs. The origin of the fire remains unknown. Watchmen employed by the defendants were on duty at the time, and the crew of the steamer were on board. These facts all appear in the case stated. It also appears that tlie defend- ants have paid to the plaintiffs the full amount of liability stipulated for and assumed in case of loss in the bill of lading. Are they bound to the extent of the entire loss ? If so, the exception or limitation would amount to nothing ; not, it is true, because the limitation is void, but on a question regarding the burden of proof. Assuming the contract or special acceptance of the goods to be carried by the defendants, to bring them witliin the doctrine ap- plicable to bailments for compensation, the rule seems clearly to be, " that where a demand of the thing loaned is made, the party must return it, or give some account how it was lost. If he shows a loss, the circumstances of which do not lead to any presumption of negligence on his part, then the burden of proof might perhaps belong to the plaintiff to establish it." Story on Bailm. § 278. " But if a suit should be brought against the pawnees for a negli- gent loss of the pawn, then it would be incumbent upon the plaintiff to support the allegations of his declarations by proper proofs, and onus prohandi in respect to negligence would be thrown on him." Id. § 339, and note 4. " With certain exceptions, whicli will here- after be taken notice of (as to innkeepers and common carriers), it would seem that the burden of proof of negligence is on the bailor ; and proof merely of the loss is not sufficient to put the bailee on his defence." Id. § 410. The text is supported by many authori- ties. The common law, consistent with itself in this, as in all other cases, lays the basis of this rule in the presumption that every per- son is presumed to do his duty until the contrary is proved. This is a great modification of tlie Roman law, which held the acts of faithlessness in a bailee as infamous, and compelled him to acquit himself thereof by proof. The French rule as to proof is the same. UPON RESPONSIBILITIES OP COMMON CARRIERS. 243 The rule in England and in many of the states, if not all, is what Story states it to be, supra. See Marsh v. Home, 5 6. & C, and Harris v. Packwood, 3 Taunt., supra; and Wild v. Pickford, 8 M. & W. 460. In Beekman v. Shouse, 5 Rawle, 179, speaking of a case of special acceptance to carry, and of suit againsb the bailee, Rogers, J., says : " Less than positive proof" (why the goods never reached their destination) " would suffice ; but some account should be given from which the jury would be warranted to infer that the goods had either been discharge'd or had been lost by accident, or had gone into other hands than the defendant's or his agents." This case shows that where a bailee accounts for a loss, in a way not to implicate himself in a charge of negligence, this is a suf- ficient defence, unless the plaintiff proves negligence. This is the plaintiff's reply to the plea in excuse of performance. It is an affirmative position, and must be proved by the party alleg- ing it. It is true, the plaintiffs in the first instance, taking the present case in illustration, must have shown, if it had been tried in the ordinary way, that they delivered the goods to the defendants to be carried to New York, that their agent called for them and could not get them ; there they might rest to hear the reply, and that would be proof that the goods were accidentally consumed by a fire breaking out on the steamboat at the wharf, which consumed the boat, the wharf and buildings of the defendants, and the goods in them, including the plaintiffs' ; that the boat had its comple- ment of men on board, and the defendants' four watchmen on the wharf, but from these facts negligence could not be inferred. The plaintiffs' reply would be, " All that may be true ; but the fire originated in your negligence." Is it not perfectly clear that, as that was not inferable from the defendants' own case, the plain- tiffs must prove it ? This is not to be doubted. The same doc- trine with that cited above is also to be found in Clark v. Spence, 10 Watts, 335, in Goldey v. Penn. Railroad Co., 6 Casey, supra, and in N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 384. We think, therefore, that as the contract to carry these goods was as bailees for hire, and not as common carriers, and as they did carry them according to their agreement to the terminus of their line, and they were there destroyed by fire, the defendants are not liable, in the absence of proof of negligence, to respond to the plaintiffs' claim. The doctrine is firmly settled, that a common 244 THE EFFECT OF RESTRICTIVE NOTICES, ETC., carrier cannot limit his liability so as to cover his own or his ser- vants' negligence. Nor do I suppose this possible of any bailee, But it is clear that by contract he may be placed in the position of a limited insurer, excepting negligence, instead of an insurer against every thing but the act of God or public enemies. If he be compensated only for the former risk instead of the latter, at tlie choice of the consignor, it would be contrary to common hon- esty to compel him to make good a risk he is not paid for assum- ing. We think this case was well decided at nisi prius, and the judgment is affirmed. Woodward, C. J., dissented as to the onus probandi. The true limit of special exemptions from responsibility on the part of carriers by means of special contracts, or notices, or conditions, assented to on the part of the owner of the goods, is here placed upon its true basis. " But it is clear that by contract he may be placed in the position of a limited insurer, excepting negligence, instead of an insurer against every thing but the act of God or public enemies." And the true reason is well assigned, that the consignor chooses not to pay for any higher rate of insurance upon the goods. If carriers dealt fairly with those who employ them, and did not attempt to escape all just responsibility, through the enforcement of extreme conditions upon their bills of lading, there would be no difficulty in making the decisions of the courts reach the good sense and justice of cases. But when carriers demand unreasonable exemptions, and the owners of goods have no choice but to employ them, there can be no just rule for the courts to adopt but to pronounce such unreasonable conditions in- operative. We have been furnished with the copy of a bill of lading in use in a neigh- boring province or dominion, which we are induced to insert here, as embodying the neplus ultra of the ingenious devices of the common carrier craft, in finding some mode of escape from all just responsibility. It seems to be a document which might do credit to any age or country, for its exhaustive character in the way of exclusion of all possible responsibility ; and contrasts, not in the most favorable light for its own character for fairness and justice, with the one contained in the case last reported above. All we need say of such studious exclusion of all responsibility whatever on the part of the carrier is, that it is so extreme in its terms of exclu- sion as, at once, to expose its real animus, as being the absolute destruction of all possible responsibility on the part of carriers, 'and not the mere restriction of it withm reasonable limits. It would, therefore, more naturally have this dis- advantage in coming before any court for adjudication, where we may expect the instincts of justice and fair dealing to prevail, that all concerned would read, upon the very face of the contract, an unqualified and unblushing disposition, on the part of the carrier to gain the utmost attainable exemption from all just responsibility, while, at the same time, deriving all the customary benefits of the undertaking. " Sliipped, in good order and condition by in and upon the screw steamship called the whereof is master for the present voyage or UPON RESPONSIBILITIES OP COMMON CARRIERS. 245 whoever else may go as master in the said ship and bound for being marked and numbered as in the margin, and are to be delivered from the ship's deck (where the ship-owner's responsibility shall cease) in the like good order, and well con- ditioned (subject to the exceptions and restrictions of the following and under- mentioned clause) at the port of (the act of God ; the Queen's enemies ; pirates; robbers; thieves; vermin; barratry of masters and mariners ; restraints of princes and rulers, or people ; sweating ; insufficiency of package in size, strength, or otherwise ; leakage ; breakage ; pilferage ; wastage ; rain ; spray ; rust; frost; decay; contact with, or smell, or evaporation from any other goods; inaccuracies in, obliteration, insufficiency or absence of marks, numbers, or ad- dresses, or description of ^oods shipped ; injury to wrappers, however caused ; lighterage to or from the vessel ; transshipment ; jettison ; explosion ; heat ; fire, at any time or in any place ; boilers ; steam ; machinery (including consequence of defect therein or damage thereto) ; collision ; stranding ; straining ; or other perils of the seas, rivers, navigation, or land transit of whatsoever nature or kind. And all damage, loss, or injulry arising from the perils or things above mentioned, and whether such perils or things arise from the negligence, default, or error in judgment of the pilot, master, mariners, engineers, stevedores, or other persons in the service of the ship-owner, always excepted. With liberty to sail with or without pilots, to call at any intermediate port or ports for any purpose, and to tow and assist vessels in all situations. With liberty in the event of the steamer putting back into any port, or otherwise being prevented from any cause from commencing or proceeding in the ordinary course of her voyage, to proceed under sail or in tow of any other vessel, or in any other manner which the ship- owner shall think fit, and to ship or transship the goods by any other vessel) unto or to assigns, freight, and primage payable by at the rate of with average accustomed. " Weight, measure, gauge, quality, condition, quantity, brand, contents, and value unknown, and the ship-owner not accountable for the same. " The owners of the vessel are not answerable for any discrepancies between the shipping-marks as described in the margin hereof and the actual marks on the property ; nor for any differences between the contents of the packages and description of the same in the bill of lading ; nor for any discrepancies between the mill brands of flour as herein described and those actually delivered. " The goods to be received by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed and stored at the sole expense and risk of the consignee, in the warehouse provided for that purpose, or in the public store as the collector of the port of shall direct, and when deposited in the public store to be subject to rent ; and the keys of the warehouse to be deliv- ered to and kept in charge of the officer of customs under the direction of the collector, the collector of the port being hereby authorized to grant a general order for discharging immediately after the entry of the ship. " Not accountable to any extent for bullion, specie, precious metals manufac- tured or unmanufactured, plated articles, glass, china, jewellery, articles used for jewellery, precious stones, trinkets, watches, clocks, timepieces, mosaics, bills, bank notes of any country, orders, notes or securities for payment of money, stamps, maps, letters, writings, title-deeds, paintings, engravings, pictures, statu- ary, silks, furs, lace, or cashmere, manufactured or unmanufactured, made up 246 THE EFFECT OF HEBTRICTIVE NOTICES, ETC., into clothes or otherwise, contained in any package or parcel, whatever may be the value of such articles, nor for any other goods of whatever description above the value of £100 per package, unless the value be therein expressed, and extra freight as may be agreed on be paid. " The ship-owner is not to be liable for any damage to any goods which is capable of being covered by insurance ; nor for any claim, notice of which is not given before the removal of the goods ; nor for claims for damage or detention to goods under through bills of lading, where the damage is done or detention occurs whilst the goods are not in the possession of the ship-owner ; nor in any ease for more than the invoice or declared value of the goods, whichever shall be the least. " Goods of an inflammable, explosive, or otherwise dangerous character, shipped without permission, and without full disclosure of their nature, may be seized and confiscated, or destroyed by the ship-owner, at any time before de- livery, without any compensation to the shipper or consignee. "All fines, expenses, losses, or damage, which the ship-owner, or his agents or servants, or the ship or cargo, may incur or suffer on account of incorrect or insuflicient marking of the packages, or description of their contents, or the dan- gerous nature of such contents, shall be paid by the shipper or consignee as may be required, and the ship-owner shall have a lien upon the goods for the payment thereof " The only condition on which glass will be carried is, that the ship-owner shall not be held liable for any breakage which may occur, whether from negli- gence or any other cause whatever. " Freight, if payable by shippers, is due in full in exchange for bill of lading, or if payable by consignees, on arrival of goods at place of destination, in ex- chance for delivery order, settlement in either case to be made without discount or abatement. Freight payable by shippers to be paid ship lost or not lost. Freight payable by consignee to be paid at the current rate of exchange for bankers' eight bills on London, on the date of the steamer's report at the Custom House. "Freight on goods to order, liquids and brittle or perishable goods, payable by shippers if required. "This bill of lading, duly indorsed, to be given in exchange for delivery order. " In case the whole or any part of the goods specified herein be prevented by any cause from going in said steamer, the ship-owner is only bound to forward them by succeeding steamers of this line. " In accepting this bill of lading, the shipper or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations, excep- tions, and conditions, whether written or printed. " In witness whereof the master or agent of the said ship hath affirmed to bills of lading, all of this tenor and date, the one of which bills being accom- plished the others to stand void. " Dated in 187 for agents." The nature of this bill of lading would seem almost to justify the grounds upon which some of the old cases attempt to vindicate the necessity of holding common carriers responsible for all losses occurring while the good) are in their custody, UPON RESPONSIBILITIES OP COMMON CARRIERS. 247 lest, if any excuse were accepted, they might, by combination with thieves, burglars, and robbers, palm off upon the courts some fabricated defence. We are not unmindful, on the other hand, that the severity of the rule of responsi- bility upon carriers may seem to justify some degree of watchfulness on their part, but we cannot suppose there is any necessity of their attempting to throw all the risks of transportation upon the freighter. It is reasonable and just that the carrier should assume all the risks which properly attach to his portion of the work of transportation, which will embrace all aids and appliances connected with the work. TKere is an important case in California which we consider de- fines the present state of the law upon the point of special contracts restricting the responsibility of common carriers, in a very clear and just light, than which we could present nothing more accept- able to the profession. Hooper V. Wells, Fargo <& Co., 5 Am. Law Beg. N. S. 16. 1865. The liabilities of common carriers and forwarders, independent of any express stipu- lation in the contract, are entirely different. The common carrier who undertakes to carry goods for hire is an insurer of the property intrusted to him, and is legally responsible for acts against which he cannot provide, from whatever cause arising ; the acts of God and the public enemy alone excepted. Forwarders are not insurers, but they are responsible for all injuries to property, while in their charge, resulting from neghgence or misfeasance of themselves, their agents or employ^. Restrictions upon the common-law liability of a common carrier, for his benefit, inserted in a receipt drawn up by himself and signed by him alone, for goods in- trusted to him for transportation, are to be construed most strongly against the common carriel'. If a common carrier who undertakes to transport goods, for hire, from one place to another, " and deliver to address," inserts a clause in a receipt signed by him alone, and given to the person intrusting him with the goods, stating that the car- rier is " not to be responsible except as forwarder," this restrictive clause does not exempt the carrier from liability for loss of the goods, occasioned by the carelessness or negligence of the employes on a steamboat owned and controlled by other par- ties than the carrier, but ordinarily used by him, in his business of carrier, as a means of conveyance. The managers and employ^ of the steamboat are, in legal contemplation, for the purpose of the transportation of such goods, the man- agers and employes of the carrier. A receipt signed by a common carrier for goods intrusted to him for transportation for hire, which restricts his liability, wiU not be construed as exempting him from liability for loss occasioned by negligence in the agencies he employs, unless the intention to thus exonerate him is expressed m the instrument in plain and une- quivocal terms, 248 THE EFFECT OP RESTRICTIVE NOTICES, ETC., Under our Practice Act a complaint cannot be amended in this court so as 'to make it correspond with the verdict. The District Court in a proper case, before judg- ment, may direct the complaint to be so amended. The opinion of the court was delivered by — Sawyer, J. — This is an action to recover the sum of $10,756, the value of a package of gold bullion, delivered to defendants, at Los Angeles, to be transported to San Francisco, and which was lost in consequence of the explosion of the boiler of the steam-Jug Ada Hancock, while being transported in charge of defendants' messenger from the shore, at San Pedro, to the anchorage of the steamer Senator. Tlie plaintiff, to maintain the action on his part, proved that " the defendants were, and are, a company engaged in the public express business ; that is to say, in receiving, forwarding, carrying, and delivering, by sea or by land, for any one who employs them, treasure, goods, and packages for hire, from place to place, within and without this s^ate, in care of their own messengers, in vessels, and conveyances, and steamers, and boats, and vehicles, owned by others, and ordinarily used by the public at large, as the common and public mode of transportation and conveyance. " That said defendants had an agency and an agent at Los An- geles for the purposes of their said public express business ; their principal office and agency for the State of California being at San Francisco. " That the usual modes of public conveyance and transportation between Los Angeles and San Francisco were, at the time herein- after mentioned, and for a long time prior thereto, by a line of stage-coaches the whole way, and also by stage-coach from Los Angeles to San Pedro, and from San Pedro to San Francisco by a steamer called the Senator ; that an agent of the defendant always travelled on said steamer Senator, between San Francisco and San Pedro, who, on arriving at San Pedro, proceeded to Los Angeles by stage-coach, and there received from the Los Angeles agent all express matter that had been left there to be forwarded, carried, and delivered, returned with such express matter to San Pedro in time for the steamer Senator's return voyage, placed and shipped the express matter on board of such steamer, and returned on the steamer with the express matter in his charge to San Fran- cisco, where it was in the first instance delivered at the general UPON RESPONSIBILITIES OP COMMON CARRIERS. 249 agency, and then delivered by such agency to the consignees or owners. " That it was usual and customary for the steamer Senator, and all other coast steamers, on arriving at or approaching San Pedro, to anchor some three miles from shore, there not being sufficient depth of water to enable such vessels to approach the shore. That the usual means and mode of transporting goods and passen- gers -between the shore and steamer was by steam-tug and lighters. " That one of such usual and ordinary means was by a steam tug-boat of about forty-two tons burden, called the Ada Hancock ; that is, it was usual and customary for the defendants' messenger to go from the shore to the steamer with the express treasure in charge on said tug-boat, the heavier express freight being usually transported on lighters. That the express company was charged by the steamer the usual price for the passage of the express mes- senger and freight for all express goods, except treasure, which was carried in an iron box called the treasure-box, and was kept in the special charge of the messenger while on board the steamer and no charge made by the steamer for its transportation. " That as to any and all treasure transported by defendants upon said steam-tug Ada Hancock, or upon said steamer Senator, no bill of lading was ever given, and no written contract of affreightment was ever made therefor, neither was any note or memorandum in writing of the true character or value thereof ever given by the defendants, or by their agents or servants, to the master, or officers, or agent, or owner of said steam-tug, or said steamer Senator. That no freight was ever paid by or charged against defendants or their agents for treasure laden by them on board said steam-tug to or from said steamer Senator. That the defendants used the usual means of public transportation in conducting their business, which was notorious, and known to the plaintiff at the time hereinafter stated. " That on the 21st day of April 1863, the plaintiff delivered at the city of Los Angeles, California, to the agent of the defendants at Los Angeles, a package of gold bullion of the value of $10,755, to be transported to San Francisco in consideration of the sum of 180.65, then and there agreed to be paid to defendants by plain- tiff, and on such delivery received and accepted from said agent a paper, partly printed and partly written, of which the following is a copy, the portion thereof italicized being written, and the portion thereof not italicized being printed, namely : 250 THE EFFECT OF RESTRICTIVE NOTICES, ETC., " 'Wells, Faego & Co.'s Express. " ' Wells, Fargo & Co., " ' Express, " ' Los Angeles. " ' Value, 110,755. April 21, 1863. " ' Eeceived of George F. Hooper, Dugt and Bullion. Package, value ten thousand seven hundred and fifty-five dollars. " ' Address, Q-eo. F. Hooper, which we agree to forward to' San Francisco, and deliver to address. " ' In no event to be liable beyond our route as herein receipted. It is further agreed, and is part of the consideration of this con- tract, that Wells, Fargo & Co. are not to be responsible except as forwarders, nor for any loss or damage arising from the dangers of railroad, ocean, or river navigation, fire, &c., unless specially insured by them, and so specified on this receipt. For the pro- prietors, P. Banning, Agent. " ' Charges Col., 180.65. Per Sanford.' " Said package of gold bullion of the value of ten thousand seven hundred and fifty-five dollars has never been delivered by defendants to plaintiff, or to his address." Defendants' agent, at Los Angeles, delivered said bullion to one Ritchie, the messenger, or travelling agent, of defendants between Los Angeles and San Francisco, who took charge of the same and transported it to San Pedro by public stage-coach. For the pur- pose of placing said bullion and other treasure on board the steamer Senator, which then lay at anchor, as usual, off the shore, for trans- portation to San Francisco, said Ritchie placed it on board the steam-tug Ada Hancock, himself accompanying the bullion and having it in charge. Soon after, said steam-tug having on board said bullion, said Ritchie and several other passengers for San Francisco started from the wharf for the purpose of placing said passengers, bullion, &c., on board said steamer Senator. Before reaching the anchorage of the Senator, the boiler of said steam-tug exploded, whereby the said Ritchie and several other passengers were killed, and said bullion lost. There was evidence tending to prove, that the explosion was caused by the carelessness of the engineer and other officers of the said steam-tug. Defendants had no interest in said steam-tug, and no control over her management or navigation. The agents of defendants at Los Angeles had no UPON RESPONSIBILITIES OP COMMON CARRIERS. 251 authority to insure said bullion. The plaintiff had no option as to insuring, or not insuring the same with defendants at Los Angeles. Insurance could only be effected thereon with said defendants at their office in San Francisco. The court gave the jury the following instructions : — " First. That if defendants be an express company, publicly engaged in transporting freight from one place to another, for hire, they are common carriers, and subject to all the responsibilities of common carriers, except so far as they have modified them by agreement. " Second. That the mere fact, that an express company use their own vessels and steamers, or the vessels or steamers of others, in no way affects their liabilities as common carriers. " Third. That if Wells, Fargo &. Co. shipped the treasure in question on board the steamer Ada Hancock, and there was an explosion of said steamer, by which the treasure was lost, and that explosion was occasioned by the negligence of the parties in charge of the Ada Hancock, then "Wells, Faijgo & Co. are liable for the value of said treasure. " Fourth. An express company which is in the habit of carry- ing, for hire, packages containing coin, dust, and other articles of value, from one place to another, is a common carrier. " Fifth. Express companies which carry packages over routes where they employ other vehicles or means of conveyance than their own, are common carriers. " Sixth. They may, however, by contract, limit their liability as common carriers, and if you find by the evidence that the defend- ants in this case did so limit their liability to the plaintiff, then the court charges you that such limit of responsibility must govern ; but that does not relieve defendants from ordinary care in the dis-. charge of their duties. " Seventh. The special agreement received in evidence cannot , exempt defendants from accountability for losses occasioned by a defect in the vehicle or mode of conveyance used to effect the transportation. " Eighth. If you find, from the evidence, that defendants under- took to forward the gold-dust in question from Los Angeles, and deliver the same to plaintiff, at San Francisco, under a special agreement limiting the liability, defendants must be deemed to have undertaken the same degree of responsibility as that which 252 THE EFFECT OF EESTRICTIVE NOTICES, ETC., attached to a priyato person, and were therefore bound to use ordi- nary care in the custody of the gold-dust, and its delivery, and to provide proper means of conveyance for its transportation. "Tenth. Should you find that the defendants shipped the treasure on board the steamer Ada Hancock, and there was an explosion of said steamer by which the treasure was lost, and that the explosion was occasioned by the negligence of the persons in charge of her, then defendants are liable for the value of the said treasure, by reason that they are responsible for injuries caused by the negligence of the agencies they employ in fulfilling the obliga- tions of their undertaking." The court also refused the following instruction asked on the part of defendants, to which refusal defendants excepted : — " That if the defendants, by their agents, selected the steam-tug Ada Hancock for transportation of the treasure from the wharf to the Senator, and the jury find that at the time of such selection and of placing the treasure on board, the said tug was sufficient for the purpose of such contemplated transportation, then that the defendants are not responsible if the treasure was lost by any subsequent carelessness of the officers of the boat." It is admitted by appellants' counsel that defendants, as to the transportation of said bullion, were acting in the capacity of com- mon carriers ; and such was undoubtedly their legal relation to said bullion at the time of its loss. It is further admitted, — and this proposition also admits of little doubt, — that defendants, under the law applicable to common carriers, are liable for its loss, unless such liability is restricted by the express stipulations of the con- tract between the parties for the conveyance of said bullion. , It is insisted, however, on the part of defendants, that the con- tract contains express stipulations which exonerate them from all liability for the loss under the circumstances disclosed by the rec- ord ; while, on the part of plaintiff, this proposition is controverted. If mistaken on this point, it is further claimed by the plaintiff, that any stipulation in a contract which purports to exonerate a common carrier from loss resulting from the carelessness, negli- gence, or misfeasance of the carrier, or of his servants or agents, is contrary to the policy of the law and void. It is not pretended — and it could not with any show of reason be pretended — that the loss in question is within the meaning of the last clause of the receipt UPON RESPONSIBILITIES OP COMMON CARRIERS. 253 set out in the record relating to the dangers of navigation, &c. The cause relied on by defendants to relieve themselves from responsibil- ity is as follows : " It is further agreed, and it is a part of the consideration of this contract, that Wells, Fargo & Co. are not to be responsible except as forwarders." The liabilities of common carriers and forwarders, independent of any express stipulation in the contract, are entirely different. " The common carrier who undertakes to carry goods for hire is bound to deliver them at all events, unless injured or destroyed by the act of God, or the king's enemies." Bdw. on Bailment, 295. " A common carrier is regarded by the law as an insurer of the property intrusted to him ; or, in other words, he is legally responsible, for acts against which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted. Angell on Carriers, § 67. There are many accidents against which common carriers cannot protect themselves by the exercise of the utmost care and skill on the part of themselves and their employes, for the result of which they are nevertheless responsible. Bdw. on Bail. 454, ef seg., and Angell on Carriers, c. 11, and cases cited. But the liability of " forwarders " is like that of warehousemen and common agents, and is governed by the general rule applicable to other bailees for hire not subject to extraordinary liabilities. They are responsible for ordinary care, skill, and diligence ; that is, such care and diligence as prudent men in similar circumstances usually exercise in the management of their own business. Story on Bail. § 444. They are not, it is true, insurers like common carriers, but they are responsible for all injuries to property while in their charge resulting from neg ligence or misfeasance of themselves, their agents or employes. In view of these principles governing the liabilities of " carriers " and " forwarders," what is the effect of the disputed clause in the contract under consideration upon the rights of the parties, plain- tiff and defendants ? "What is the extent of the restriction upon the common-law liabilities of the defendants ? The language must be taken most strongly against the defendants. Edw. on Bail. 492. The instrument is executed by them alone. It was drawn up with care, iu language selected by themselves, the blank form having been printed in advance ready to be presented to all persons offering property for transportation by their express. The restric- tions were for their benefit. The owners of packages sent by express rarely examine with care, or indeed have an opportunity 254 THE EFFECT OF RESTRICTIVE NOTICES, ETC., to critically consider, the terms of the receipt presented to them ; and geaeral terms, under such circumstances, are apt to mislead. These are some of the reasons for the rule given in the books. In construing a covenant in a charter-party, Mr. Justice Curtis said : " The rule of construction as to exceptions is, that they are to be taken most strongly against the party for whose benefit they are introduced . . . These words of exception being introduced by the covenantor for his own benefit, if they are capable of bearing a more or less extended meaning, the rule requires that meaning to be allowed to them which is least beneficial to the covenantor. Avery v. Merrill, 2 Curtis, 11. And Mr. Chief Justice Q-ibson, in Attwood V. Reliance Transportation Company, 9 Watts, 88, in rela^ tion to a restriction in a contract by a carrier, said : " Though it is perhaps too late to say that a carrier may not accept his charge in special terms, it is not too late to say that the policy which dictated the rule of the common law requires that exceptions to it be strictly interpreted, and that it is his duty to bring his case strictly within them." And such is the well-settled rule of con- struction in such cases. The contract of defendants is not merely to forward the bullion, but to " forward to San Francisco and deliver to address." They are not merely to start it upon the way by some suitable convey- ance, but are to see that it reaches its destination, and are to " deliver to address." They were undoubtedly common carriers, and not forwarders, in the technical sense of the term. But there was an evident intention on the part of defendants to restrict their liability, and, although they were acting in the capacity of carriers, they stipulated that they were " not to be responsible except as forwarders." As we construe this clause, it does not mean that defendants would start the package upon the way by some suitable conveyance, and that thereupon their responsibility should cease, for that would be directly in conflict with the covenant to " deliver to address." It simply means that defendants would not assume the extraordinary responsibilities of a common carrier, and become an insurer of the goods, except as against loss resulting from the act of God or public enemies. There is no express covenant or exception against loss by negligence on the part of defendants, or of those employed by them in the transportation of their express matter. Tlie exception fixes the limit of responsibility by referring to another class of bailees, whose responsibilities are different from UPON RESPONSIBILITIES OP COMMON CARRIERS. 265 those of carriers ; and the meaning, as we construe the restrictive clause, is, that they will be governed in respect to their liabilities by the same principles as those applicable to forwarders. It is manifest that it was not intended by this clause that all responsi- bility should cease as soon as the package was started upon its passage from the office of defendants at Los Angeles ; for the re- ceipt also contains the clause : " In no event to be liable beyond our route as herein receipted." The route as therein receipted extended to San Francisco. The printed form of the instrument used in this case was evidently framed with a view to general use, where the point of destination was beyond as well as within the routes established and used by defendants. Evidently it was con- templated that defendants might be liable for a loss occurring on their " route." If it was intended to release themselves from all responsibility while the package should be in transit, this clause would doubtless have been made to read : " In no event to be lia- ble for any loss arising after leaving our office at Los Angeles," or some other language of equivalent import. The defendants were carriers, and the bullion was lost while in their possession in the character of carriers. It was not received to be stored, or to be started upon its passage merely by the first convenient opportu- nity ; but to be carried and delivered " to address," and for no other purpose. There was no point at which defendants were in fact mere forwarders, in the technical sense of l^he term, or in which they were warehousemen. The goods were never in their possession in such character, but in the character of carriers only. They could not be liable in a character which they never occupied ; and their contract that while they are carriers they shall only be liable " as forwarders," in connection with the other language of the instrument, can only mean that the liability shall be governed by the principles of law applicable to forwarders ; that is, that they shall only be liable for losses arising from a want of ordinary care on the part of themselves, and in the agencies made use of by them in the exercise of their ordinary business of carriers. The word " as," is defined in the last edition of Webster's Dic- tionary as follows : " Like ; similar to ; of the same kind, or in the same manner ; in the manner in which." And this is obviously the ordinary import of the word standing in relations similar to that in the instrument under consideration. Defendant's liability was to be " similar to" that of forwarders — " of the same kind." 256 THE EFFECT OP RESTRICTIVE NOTICES, ETC., They were to be liable " in the same manner " — " in the manner in which " — forwarders are liable. In what manner are forward- ers responsible ? Of what kind is their liability ? They are not insurers, like carriers, but they are liable for losses of goods while in their custody resulting from negligence of themselves and those whom they employ in their business of forwarders. And if a for- warder, or warehouseman, instead of using his own warehouse, and employing his own subordinates, should, for a stipulated sum paid to the owner, use in his business the warehouse of another person, who employs and controls the subordinates, there can be no doubt that he would be liable for a loss of the goods intrusted to his care occurring while in his possession, and resulting from the negligence of such subordinates, although not under his con- trol. If the liability of these defendants under their contract is to be " similar to" that of forwarders — if it is of " the same kind " — if tliey are to be responsible "in the same manner," then they are liable for any loss resulting from the negligence of themselves, or negligence in the agencies' employed by them, while the bullion was in their custody and control ; and that custody, without doubt, continued up to the moment of the loss, and would have continued but for the loss up to the time when it would have reached its destination, and been delivered "to address." The fact that defendants made use of various public conveyances, their messen- ger with the treasure travelling a part of the way by stage, a part by steam-tug and lighters, and a part by ocean steamer, makes no difference as to their liability. For defendants' purposes the man- agers of those various conveyances were their agents and employes. Defendants had the means of holding the proprietors of those va- rious vehicles used in their business of expressmen responsible to them, had they chosen to do so. If they did not take the proper means to secure themselves, it was their own fault. The defendants, although employing public conveyances, were still carriers having the actual custody and management of the treasure during the transit, as well as while it remained at the of3&ce of defendants at the extremities of their route. Ritchie, the messen- ger of tlie defendants, was in the actual custody of the treasure during the transit. Suppose, by the carelessness of Ritchie in transferring the treasure from the steam-tug to the Senator, it had been dropped into the ocean and lost, can it be pretended that the defendants would have been exempt from liability under the UPON RESPONSIBILITIES OP COMMON CARRIERS. 257 restrictive clause of their contract under consideration ? Would it be claimed, in such case, that the liability of defendants ceased as soon as the treasure left their oiBce at Los Angeles ? We do not think any such construction would be claimed for the stipula- tion. If the defendants would not be protected by the exception against loss from the negligence of one of their servants, why should it protect them against the negligence of another, who a's to the same matter is in law their servant or agent ? Both are, in contemplation of law, the agents or employes of defendants, and the acts of both are the acts of defendants, and the language of the restrictive clause under consideration no more excludes the liability resulting from the negligence of one than from that of the other. The defendants were common carriers, but under the contract they were carriers with limited responsibilities. There is an ample margin for the operation of the clause restricting the defendants' liability in the numerous accidents and losses not arising out of negligence, or malfeasance, and not^ven comprehended in the exception, " damages arising from the dangers of railroad, ocean, or river navigation, fire," &c., against which the carrier is an in- surer, and from which forwarders are exempt. Much stronger language has been held not to exempt bailees from losses arising from negligence. To justify the conclusion that such exemption is contemplated, the language should be un- equivocal, and susceptible of no other reasonable interpretation. In Wells et al. v. Steam Navigation Company, 8 N. Y. (4 Seld.) 375, the contract for towing a vessel from New York to Albany contained the clause " at the risk of the master and owners thereof." Although persons engaged in towing vessels have, in New York, been held not to be common carriers, the defendants in that case were still held to be liable for damages resulting from the carelessness of those engaged in towing the vessel, notwith- standing this restriction in their contract. Mr. Justice Mason said : " I cannot think the expression contained in it, ' at the risk of the master and owners thereof,' was understood by the parties as a protection against all kinds of negligence. It would be an extra- ordinary contract, which should in express terms give such a lati- tude in performing a kind of service of so important a character as the one under consideration ; and to permit a contract to have so unreasonable an effect as it would imply, the intention of the VOL. II. . 17 258 THE EFFECT OF RESTRICTIVE NOTICES, ETC., parties should be clearly and unequivocally expressed, so as to leave no room for doubt or misconstruction. 6 John. 180 ; 7 Hill, 647. In this contract nothing is said about negligence." (Page 379.) In the same case Mr. Justice Qardiner, referring to Alex- ander V. Green, 7 Hill, 544, said (page 382) : " "We held then if a party vested with a temporary control of another's property for a special purpose of this sort would shield himself from responsi- bility, on account of the gross negligence of himself and servants, he must show his immunity on the face of his agreement; and that a stipulation so extraordinary, so contrary to the general custom and the understanding of men of business, would not be implied from a general expression, to which effect might otherwise be given," — and that he saw no reason now for changing this rule. So also in Schieffelin v. Harvey, where goods shipped to England were " returned to the shippers at their own risk," and were purloined from the ship, the owner of the ship was held lia- ble. The court say : " It is undoubtedly true that the general operation of law may be cofitroUed by the agreement of the parties. But such agreement ought to be clear, and capable of but one con- struction, unequivocally and necessarily evincing that such was the intention of both the parties. 6 John. 180. A similar rule is stated in Buckman v. Shouse, 5 Rawle, 189. As further instances of the application of the rule to restrictive clauses in the contracts of carriers, see Sager v. P. S. & P. E. Railroad Co., 31 Maine, 238, 239 ; De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734. So also in the case of The New Jersey Steam Navigation Co. v. Merchants' Bank, in the Supreme Court of the United States, 6 How. 344. The contract provided that " the following conditions are stipulated and agreed to as part of this contract, to wit : the said crate, with its contents, is to be at all times exclusively at the risk of the said William P. Harnden ; and the New Jersey Steam Navigation Company will not, in any event, be responsible either to him or his employers, for the loss of any goods, wares, merchan- dise, money, notes, bills, evidences of debt, or property of any or every description, to be conveyed or transported by him in said crate or otherwise, in any manner, in the boats of the said com- pany. Further, that the said Harnden is to attach to his adver- tisements, to be inserted in the public prints, as a common carrier, exclusively responsible for his acts and doings, the follov*^ing no- tice, which he is also to attach to his receipts or bills of lading, to UPON RESPONSIBILITIES OF COMMON CARRIERS. 259 be given in all cases for goods, wares, and merchandise, and other property committed to his charge, to be transported in said crate or otherwise : — " ' Take Nol^ice — William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care ; nor is any risk assumed by, nor can any be attached to, the pro- prietors of the steamboats in which his crate may be and is trans- ported, in respect to it or its contents, at any time.' " Mr. Justice Nelson, in construing this contract, says (p. 383) : " The language is general and broad, and might very well compre- hend every description of risk incident to the shipment. But we think it would be going further than the intent of the parties upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for wilful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands. ... If it is competent at all for the carrier to stipulate for the gross negligence of himself, and his servants or agents, in the transportation of the goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties." To apply these principles to the case in hand, we think it cannot be said that the contract in question in clear and unequivocal terms necessarily evinces an intention on the part of both parties, or of either party, that defendants shall be exonerated from any loss resulting from negligence in the agencies employed by them in the transportation of treasure committed to their care. If such had been the intention, it certainly could, and doubtless would, have been expressed in language about which there could be no misapprehension by either party. Nothing is said about negli- gence. The language used is not such as necessarily expresses, or as men would ordinarily employ to express the idea now claimed for it, and if so used, it would be likely to mislead a party to whom it is tendered ready executed upon the receipt of his prop- erty for transportation. That plaintiff could not have understood the contract in the sense claimed for it by the defendants, seems in the highest degree probable, for it can scarcely be credited, that a man of ordinary capacity and intelligence would commit so valua- ble a package to others to be transported a long distance, without supposing that somebody would be responsible to him for at least 260 THE EFFECT OP RESTRICTIVE NOTICES, ETC., good faith and ordinary care during the transit. But if the con- struction claimed for the stipulation in question is to prevail, the defendants were neither r.esponsible themselves for ordinary care, after the treasure left their office at Los Angeles, nor bound to take the measures prescribed by the statute to make the owners of the vessels used by them as a means of transportation, responsible. The language of the stipulation under consideration, at least, admits of the construction which we have given it ; and to hold that the exception includes losses arising from negligence would, in our judgment, be to adopt a strained construction in favor of defendants, and to depart from its obvious import, while, as we have seen the rule to be, the construction must be most strictly against the defendants. Holding, as we do, that the exception in the contract, for the reasons stated, does not exempt the defendants from losses result- ing from the negligence of those in charge of the steam-tug, it becomes uimecessary to determine' the more difficult question, in the present state of the authorities, as to the power of common carriers by special contract to exonerate themselves from liabilities arising from the negligence of those employed by them in their business of carriers. The instructions of the court, considered in connection with the instrument in evidence, are substantially in accordance with the views here expressed. We therefore find no eri'or in them, or in refusing the instruction asked by defendants. The damages alleged in the complaint are flO,755, and judg- ment is asked for that amount only. Tlie verdict and judgment are for $11,740.87. This exceeds the amount embraced within the issues. There is no provision in our Practice Act authorizing this court to allow an amendment to tlie complaint making it corre- spond with the verdict. The court below, before judgment, might have permitted an amendment so as to make the complaint corre- spond with the verdict, but this was not dorje. Upon consent of the respondent the judgment may be so modified as to reduce the recovery to tlie amount claimed in the complaint. Ordered, that respondent have fifteen days within which to file his consent in writing, that the judgment be modified so as to re- duce the amount to the sum of |10,755, and upon filing such con- sent in writing the judgment will be modified in pursuance thereof. In default of filing such written consent, it is ordered that judg- UPON RESPONSIBILITIES OP COMMON CARRIERS. 261 ment be entered reversing the judgment of the district court and granting a new trial. It is further ordered, that appellants recover their costs of appeal. The foregoing case we regard as one of great interest. The amount involved and the peculiar character of the case would naturally have led to the most care- ful scrutiny, both of court and counsel ; and we feel the utmost confidence in giving our full assent to each and all the propositions so carefully and so ably maintained by the learned judge. 1. The first question 'stated in the syllabus, which admits of any controversy, is that in regard to the restrictions contained in the carrier's receipt. The propo- sition that such restrictions are to be construed most strongly against the carrier, is only the common rule of construction in all analogous cases, that, in pleadings or contracts, the words, in a precise equipoise of intendment or import, shall be taken against the person using the words. We believe the decisions upon this point, stated in 2 Redf. Kailw. § 177-179, would have justified the learned judge in stating the proposition somewhat more strongly against the carrier. We understand the courts, as requiring satisfactory evidence, that the owner, at the time he left the goods for transportation, either did understand the nature of the conditions upon which the carrier claimed to accept them, or else that he would have so understood them, but for his own want of ordinary care. 2 Redf. Railw. ib. 2. The proposition that such a restrictive clause, to the extent that the express company are only to be responsible as " forwarders," could not be construed as exempting the carrier from responsibility for loss caused by the negligence of the employes on a steamboat, owned and controlled by other parties than the carrier, but ordinarily used by him, in his business of carrier, as a means of transportation ; and that in such case the employes of the steamboat are, in legal contemplation, the servants of the carrier, seems noi susceptible of much question. The clause of exemption from responsibility, that the carriers shall not be " re- sponsible except as forwarders,'' in its precise terms does not seem to have any just application to that portion of the transportation which was performed under the express supervision of their own agent. It would seem to have been inserted with reference to such cases as required transportation beyond the defendant's line. They were certainly not "forwarders" upon their own route and while the goods were in charge of their own "servants, as was the fact when the loss occurred in this case. We think, therefore, that the court might, with perfect propriety, have held that the words had no application to transportation upon their own line, and consequently did not touch the present case. 3. But if they were susceptible of the application given them by the court, in favor of the carrier, as intended to reduce his responsibility as an insurer to that of an ordinary agent, general or special, which seems to us a far too liberal a con- struction of the carrier's own words, by which he now claims to secure his own exemption from the extreme common-law responsibility, when other terms were far more natural and more effective for any such purpose ; but, admitting this construction is allowable, still, we think, it cannot relieve the defendants, since 262 THE EFFECT OP EE8TRICTITE NOTICES, ETC., it leaves them still responsible for ordinary care, diligence, and skill in the con- duct of the business of transportation. And this must extend, not only to them- selves and their particular servants, but to all the agencies employed by them, both animate and inanimate. And the owners might have looked directly to these servants of the carrier and brought their action against the steamboat company, as in the case of New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. U. S. 344, ante, p. 34. 4. Still they were not obliged to do so. This company were employed by the carriers, as their servants, and they are responsible for their faithfulness and good conduct as such, and there is nothing in the contract to throw this upon the owner of the goods, or to shift his claim for indemnity upon them. It is at the election of the owners whether they will pass over their immediate employes and call upon the general carrier for indemnity. The English courts, as we have before shown, ante, pp. 42, 43, will not allow the owner of the goods to maintain an action against any carrier connected with the transportation, except those with whom his immediate contract is made. But the American rule gives the owner an election to call upon any one connected with the transportation for indemnity, to the extent of the loss or damage sustained through his particular default. Ante, pp. 42, 43. And we think this the more just and reasonable rule. 5. So that upon every ground, it would seem, the owners of the goods might claim to recover, for a loss sustained through the want of ordinary care in those independent carriers employed by the express company with whom they con- tracted, since if the restriction was not properly applicable to such independent carriers, they would be responsible to the full extent as insurers, and the express company having assumed to overlook the transportation personally, and to accept the whole price of transportation themselves, must be responsible to the owners for all defaults of independent carriers employed by them, and will in turn have a remedy over against such carriers. This may imply that the ultimate carriers will, in some cases, be liable to actions from mora than one party for the same default. But this is true in all cases, where business is transacted through the agency of others. The action may always be brought in the name of the agent, in whose name the contract is made, or of the principal. And in the latter case the defendant will have the same right of set-off and other defences as if the suit were brought in the name of the agent with whom he contracted. Lapham v. Green, 9 Vt. 407. And if, on the other hand, the ultimate carriers are regarded as coming within the fair construction of the restrictive clause in the receipt, then it will not avail the defendants, for the reason that it cannot properly be so con- strued as to cover defaults resulting from neglect of duty in regard to proper care. New Jersey Steam Navigation Co. v. Merchants' Bank, supra. 6. The same remark is true of the proposition of the leai-ned judge, that a re- strictive clause in the bill of lading or receipt, given by the carrier, will not be construed to exempt him from responsibility for loss occasioned by negligence in the agencies employed by him, unless such intention is very clearly expressed in such instrument; it comes short of the true rule of law upon the subject. The better opinion, we think now is, that no person, natural or corporate, shall be allowed to stipulate for exemption from responsibility for his own negligence, because that removes one of the most direct and effective motives for faithful con- duct, and such a contract would, therefore, be against sound policy : it is equiva- DPON RESPONSIBILITIES OP COMMON CAERIEHS. 263 lent to allowing one to contract for license to do an immoral or an unlawful act. The license is void, and revocable at any time, and the promised reward being the price of an act contra bonos mores, is not enforceable in a court of justice. 2 Redf. Railw. § 178, pp. 98 et seq. ; McManus v. Lancashire Railway Co., 2 H. & N. 693 ; s. c, 4 id. 327. In this latter hearing, before tlife Exchequer Chamber, the opinion of the Court of Exchequer was reversed, and all such contracts as professed to excuse the carrier for the neglect of duty by his servants, were held to be unreasonable and void under the English statute, 17 & 18 Vict. c. 31, § 7. See also 2 Redf. Railw. § 178, notes 9-17, and §§ 178, 179, and notes, where these questions are very extensively considered. In conclusion, we must repeat, that we have been gratified with the careful and unexceptionable manner in which the last preceding case is studied and reasoned out in all its bearings ; and, although we have felt compelled to declare our opinion, that the propositions stated in the opinion of the court fall short of the ultimate truth upon those points, they clearly cover the case, and that is. all the court could decide. We do not like to make invidious comparisons between the' opinions of courts in different sections, but we must say. if lawyers look at the decisions beyond their own state, they should not overlook California. The subject is very clearly and fairly presented in an opinion by Chief Justice ShepUy, in Sager v. Portsmouth, S. & P. & E. Railw., 31 Me. 228 ; s. c. 1 Am. Railw. Cases, 171, and we could not probably find any more instructive commen- tary upon the oases prior to that date (1860) than is afforded by portions of this opinion. The language of the contract in this case was, that the owner t' agreed to exonerate " the company " from all damages that may happen to any horses, oxen, or other live stock that we send or may send," &c., "meaning by this that we take the risk upon ourselves," &c., " and that we will not call upon said rail- road company or any of its agents for any damages whatever." It is scarcely possible to conceive language more unqualified. The court below instructed the jury that the contract was bipding and valid, but that it did not excuse the de- fendants " for their own malfeasance, misfeasance, or negligence," but that it shifted the burden of proof upon the plaintiff to show that the loss resulted from the de- fendants' " misconduct ;" -that if the plaintiff gave special directions as to the mode of transporting, the defendants were bound to follow them, in order to enable themselves to take advantage of the exemptions in the contract, or at all events it would impose upon them the burden of showing that the departure from such direc- tions did not tend to produce the injury or that the loss was suffered without then- fault. The case was argued by eminent counsel, the late Senator Fessenden and the present Mr. Justice Shepley being of the number. Shepley, C.J. "By the common law they were liable for all losses not occa- sioned by the act of God or the public enemy. They could not refuse to carry a package, and when its contents were not made known to them, they were often subjected to heavy damages without receiving any adequate compensation for the risk incurred. To obtain relief by a limitation of their liability, it became a very general practice to give notice, that they would not be answerable for the loss or damage of goods above the value of five pounds, unless the nature and value were specified and entered, and a premium paid accordingly. The effect of notices of this description was soon presented for judicial determination. »' The conclusion, to which the courts ultimately came, was, that they could have 264 THE EFFECT OB EE8TBICTITB NOTICES, ETC., no effect, unless brought to the knowledge of the owner of the goods, before he had intrusted them to the care of the carrier. That in such case they would have the effect to prevent a recovery of damages, for a loss not occasioned by the misconduct or negligence of the carrier or his servants, when the owner had not complied with the terms of the notice. " This conclusion appears to have been formed by a consideration, that a person informed of the notice, who intrusted goods to their care without making known their nature and value, consented that they should be carried upon the terms pro- posed in the notice, and that a contract to that effect was thus made between the parties, by a proposal for their carriage upon certain terms stated, and by an acceptance of them. Lyon v. Mells, 5 East, 428. " The notices were usually given in terms so general, that a literal construc- tion of the contract thus arising out of them would have exonerated the carriers from liability for their own misfeasance or negligence and from that of their ser- vants. Yet the well-established construction of them, has been, that they were not thereby relieved from their liability to make compensation for losses thus occasioned. Beck v. Evans, 16 East, 244 ; Smith v. Home, 8 Taunt. 144 ; New- born V. Just, 2 C. & p. 76 ; Birkett v. Willan, 2 B. & A. 356 ; Garnett v. Willan, 5 B. & A. 63 ; Sleat v. Flagg, 5 B. & A. 342 ; Duffs. Budd, 3 Brod. & Bing. 177 ; Brooke v. Pickwick, 4 Bing. 218 ; Eiley v. Home, 6 Bing. 217 ; Bodenham V. Bennet, 4 Price, 34 ; Story on Bailm. (4th ed.) § 670, where it is said, ' it is clear, that such notices will not exempt the carrier from losses by the misfeas- ance or gross negligence of himself or servants,' ' for the terms are uniformly construed not to exempt him from such losses.' Kent also states, ' it is per- fectly well settled, that the carrier, notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage result- ing from gross negligence or misfeasance in him or his servants.' 2 Kent, Com. 607. Mr. Justice Oowen, in the case of Cole v. Goodwin, while speaking of the decisions in Westminster Hall, respecting the liability of a common carrier, says, ' it is equally well settled, that he cannot either capriciously, by a single instance, or by public notice, seen and read by his customer, nor even by special agree- ment, exonerate himself from the consequences of gross neglect.' " In.many of the cases, the words ' gross neglect,' were used without any defi- nite explanation of their meaning, and for some time it was considered to be doubtful whether the carrier was not exonerated from losses occasioned by negli- gence or a want of that ordinary care, for which bailees are responsible. This doubt was removed by the decisions made in Wyld v. Pickford, 8 Mee. & W^lsb. 443, and Hinton v. Dibbin, 2 Ad. & El. N. S. 646. In the former case, Baron Parke, speaking of a carrier who had given notice, says, ' he still undertakes to carry for hire, and is therefore bound to use ordinary care in the custody of goods and their conveyance to and delivery at their places of destination, and in providing proper vehicles for their carriage. It is enough to prove an act of ordinary negligence.' In the latter case. Lord Denman observes, ' again, when we find " gross negligence " made the criterion to determine the liability of a car- rier, who has given the usual notice, it might perhaps have been reasonably expected, that something like a definite meaning should have been given to the expression. It is believed, however, that in none of the numerous cases upon this subject is any such attempt made ; and it may well be doubted, whether UPON RESPONSIBILITIES OF COMMON CARRIERS. 265 between gross negligence and negligence any intelligible distinction exists.' In his first edition of the treatise on Bailments, the law was regarded by Story to be uncertain whether a carrier would be liable without proof at least of gross negligence. After the case of Wyld v. Pickford was decided, he says in the fourth edition, § 671, ' the question may however be now considered at rest by an adjudication entirely satisfactory in its reasoning, and turning upon the very point, in which it was held, that in cases of such notice the carrier is liable for losses and injuries occasioned, not only by gross negligeilce, but by ordinary negligence ; or, in other words, is bound to ordinary diligence.' " The cases of Clarke v. Hutchins, 14 East, 475, and of Mayhew v. Eames, 3 B. & C. 601, cited by the counsel for the defendants, did not turn upon the ques- tion of negligence ; and, upon the ground on which the nonsuits were ordered, they are opposed to the general current of the authorities. " 4- change was made in the law of England, as thus established, by the statute, 11 G. IV., and 1 W. IV., chap. 68. The first section of this statute relieved carriers from their responsibility for the loss or damage of certain enumerated valuable goods, contained in packages or parcels of the value of more than ten pounds, unless their nature and value were at the time of their delivery made known to the carrier, and his increased charge paid or agreed to be paid. The fourth sec- tion provided that no public notice should exempt a carrier from his liability at common law for the loss or injury of goods not enumerated in the first section. By the construction of this statute, adopted in the case of Hinton v. Dibbin, a carrier is not liable for a loss of valuable goods exceeding ten pounds, occasioned by the gross negligence of his servants, unless their nature and value are made known according to the provisions of the statute. "Although the doctrines established before the enactment of this statute were received in the State of New York, her courts appear since to have denied that the responsibility of a common carrier can be restricted by any notice or agree- ment. Hollister v. Nowlen, 19 Wend. 234; Cole ». Goodwin, id. 251; Gould ». Hill, 2 Hill, 623. Some of the considerations leading to such a conclusion appear to have been, that many of the English judges and jurists doubted the propriety of the admission of a restriction by notice, and lamented its introduc- tion ; that it had been removed and the rule of the common law restored by the statute, with certain exceptions introduced by it ; that the decisions respecting the effect of notices rested upon the unsound foundation, that the carrier could and had divested himself of his public character, and assumed that of a bailee for hire ; and that he was not obliged to receive goods for carriage, except upon terms prescribed by himself. "However strongly such and other considerations might have operated, had they been presented to this court at an earlier time, it is not now at liberty to entertain them, without overruling a former decision (Bean v. Green, 3 Eairf. 422), in which it is said, that the attempt on the part of common carriers to limit and qualify the liability imposed on them by the common law, although sus- tained, is not to be favored or extended. To admit them to be exonerated from liability for losses occasioned by negligence, would be to extend the limitation of it. " Another form of notice, often given by the proprietors of railways and stage- coaches, ' all baggage at the risk of owners,' has, when made known to them. 266 THE EFFECT OP EESTRICTIVE NOTICES, ETC., been construed not to exempt the proprietors from losses occasioned by negli- gence. In the case of the Camden and Amboy Railroad v. Burke, 13 Wend. 611, Savage, C. J., says, ' Where notice is given, that all baggage is at the risk of the owners, such notice excuses them from losses happening by theft or rob- bery,' — 'but not from losses arising from actual negligence.' In the case of Dwight V. Brewster, 1 Pick. 50, Parker, C. J., says, when speaking of a similar notice, ' It was intended to guard the proprietors from liability in case the trunks, &c., should be stolen.' " Nor do such notices prevent the proprietors from being liable for losses occa- sioned by neglect to provide suflScient and. suitable vehicles and machinery. Lyon V. Mells, 5 East, 428 ; Shai-p v. Grey, 9 Bing. 457 ; Wyld v. Pickford, 8 M. & W. 661 ; Cam. & Am. Railroad v. Burke, 13 Wend. 611 ; Story on Bailm. (4th ed.) § 557, where it is said, ' but at all events such notices will not exempt the carriers from responsibility for losses occasioned by a defect in the vehicle or machinery used for the transportation.' " A carrier will be liable for disobedience of directions given and assented to respecting the mode of conveyance. Streeter v. Horlock, 1 Bing. 34 ; Hastings V. Pepper, 11 Pick. 41 ; Demseth v. Wade, 2 Scam. 285 ; Story on Bailm. § 509. " If a literal construction of the agreement signed by the plaintiff would exon- erate the defendants from losses occasioned by the negligence of their servants, it will be perceived, that it could not be permitted to have that effect without a violation of established rules of construction and without a disregard of the declared intention of this court not to extend the restriction of the liability of common carriers. The very great danger to be anticipated, by permitting them to enter into contracts to be exempt from losses occasioned by misconduct or negligence, can scarcely be over-estimated. It would remove the principal safe- guard for the preservation of life and property in such conveyances. " It however requires no forced construction of that agreement, to regard it as effectual to place the defendants in the position of bailees for hire, and as not exonerating them from liability for losses occasioned by misfeasance or negli- gence. The latter clause, ' we will not call upon the railroad company or any of their agents for any damages whatsoever,' considered without reference to the preceding language, would be sufficiently broad to excuse them from making compensation for losses occasioned by wilful misconduct. It is most obvious, that such could not have been the intention ; and that the true meaning and inten- tion was, that they would not call upon them for any damages whatsoever, ' that may happen to any horses, oxen, or other live stock, that we send or may send over said company's railroad.' The intention of the parties, by the use of the language contained in this last clause, is then attempted to be explained as fol- lows : ' meaning by this, that we will take the risk upon ourselves of all and any damages that may happen to our horses, cattle,' &c. The meaning of damages happening to live animals is to be sought. " The word happen is defined by the words, ' to come by chance,' ' to fall out,' ' to befall,' ' to come unexpectedly.' An accident, or that which happens or comes by chance, is an event which occurs from an unknojyn cause, or it is the unusual effect of a known cause. This will exclude an event produced by misconduct or negligence, for one so produced is ordinarily to be expected from a known cause. Misconduct or negligence under silch circumstances would usually be UPON RESPONSIBILITIES OP COMMON CABRIERS. 267 productive of such an event. Lord Ellenborough, in the case of Lyons «. Mells, speaking of what 'may or may not happen,' explains it as 'that which may arise from accident and depends on chance.' An injury occasioned by negligence is the effect ordinarily to be expected as the consequence of that negligence, with- out reference to any accident or chance. A correct construction of the agree- ment will not, therefore, relieve the defendants from their liability for losses occasioned by the misfeasance or negligence of their servants. "It will have the effect to change the burden of proof, and to require that the owner shall prove that the loss was thus occasioned. " The instructions respecting the liability of the defendants for losses were therefore correct. " It is alleged, that those respecting the directions given by the plaintiff, for the conveyance of his horse, were erroneous. " If the only instruction had been, that ' it was enough if such order was given to any agent of the company, there acting for them, whatever may have been the particular duty of such agent,' there might have been just cause for complaint. The true rule would seem to be, that an order should be given to some servant or agent, who is acting upon the subject-matter, or whose duty it is to act upon it, or to communicate to some one, whose duty it is to act upon it. Fulton Bank 0. New York Canal Company, 4 Paige, 127. But the instructions also stated, ' that the plaintiff was bound to bring the knowledge of the special directions home to the company.' If this was done through a servant whose duty did not require him to act upon, or to communicate the directions, the company would become sufficiently informed of them ; and it could not have been aggrieved by the instructions. " The testimony appears to have been sufficient to authorize the jury to find, that the officers of the company, especially charged with the transportation of freight, were informed of those directions ; and that is all that could have been intended by the instruction, that a knowledge of them should be brought home to the company." The language of Mr. Justice Rogers, in Camden & Amboy Railway v. Bal- dauf, 16 Penn. St. 67, defines the rule in that great commercial state, in a manner which must commend itself to all right-minded persons, and which has not, we think, been essentially qualified by the later decisions in that state. ' ' The general rule, according to the well-settled principles of the common law, is, that a common carrier is an insurer against every thing but the act of God or the public enemy. In Pennsylvania, however, it is ruled, not without great reluctance, that his common-law responsibility may be limited or abridged by the special terms of the acceptance of the goods. It is decided, it may be limited by a general notice, that the baggage of a passenger is at the risk of the owner, provided the terms of the notice are clear and explicit, not liable to the charge of ambiguity or doubt ; and provided further, which is indispensable, the notice is brought home to the employer. These principles are distinctly recognized in Buckman v. Shouse, 6 Kawle, 189 ; in Bingham v. Rogei-s, 6 W. & S. 500 ; and Laing v. Calder, 8 Barr, 484. On the ticket given to the plaintiff, as is found by the special verdict, notice is given that all baggage is at the risk of the owner, the proprietors binding themselves to no charge or care of the same whatever, either express or implied. It is truly said by Burrough, J., in Duff 268 THE EFFECT OF RESTRICTIVE NOTICES, ETC., V. Budd, 3 B. & B. 177, that carriers are constantly endeavoring to narrow their responsibility, and to creep out of their duties, and that he is not singular in thinking that their endeavors ought not to be favored. Of the soundness of this remark, this case affords a striking example. The company not only declare that the baggage is to be at the risk of the passenger, but they attempt to dis- charge themselves from all charge or care of it whatever. The proprietors say they bind themselves to no charge or care of the same whatever, either express or implied. There is a plain endeavor to shirk all responsibility whatever, even to the misconduct of their own agents, and to avoid the duty which the law casts upon them, to provide places for the safe custody of the goods, and persons whose business it is to take charge of such articles as are committed to their care. They undertake to carry for hire, and, by the very nature of their employ- ment, to bestow, for the preservation of the goods, at least the ordinary care of a bailee for hire. From this duty I have no hesitation in saying they cannot dis- charge themselves, even by a special agreement with the owner. Such a stipula- tion would be void, being against the policy of the law. There is no principle in the law better settled than that whatever has an obvious tendency to encourage guilty negligence, fraud, or crime, is contrary to public policy. Such, in the very nature of things, would be the consequence of allowing the common carrier to throw off the obligation, which the law imposes upon him, of taking at least ordinary care of the baggage or othfer goods of a passenger. Under such a regu- lation no man's property would be safe. Cole v. Goodwin, 19 Wend. 251. The special verdict finds that the trunk containing the silver coins, five-franc pieces, and certain articles of wearing apparel, was delivered to the conductor or other agent of defendants, on board of the boat ; that the extra weight of plaintiffs' baggage, including the trunk, was paid for, and the agents took charge of it ; that the trunk was lost, and not delivered to the plaintiff on his arrival at Philadelphia, the place of destination, or at any time thereafter. The verdict omits to find when it was lost, or how it was lost. As we are without proof on this point, the legal inference is, it was lost or mislaid in consequence of the negligence, or it may be the fraud, of the defendants' agents. This would render the defendants liable, notwithstanding notice had been brought home to the plaintiffs. It is proper here to remark, that neither concealment nor fraud can be imputed to the plaintiff. He was not bound to disclose the nature or value of the goods, unless inquired of by the carrier : in which case he must answer truly. Phillips v. Earle, 8 Pick. 182 ; 4 Bing. 218 ; Eelf v. Rapp, 3 W. & S. 21. ' ' Although he may limit the extent of his liability, yet the authorities are uni- form that to discharge the carrier from responsibility, it is necessary to show clearly that the person with whom he deals is fully informed of the terms and effect of the notice. The exemption goes on the ground of a contract express or implied. Angell on Carriers, § 247; 2 Greenl. Ev. § 216; Brookes v. Pickwick, 4 Bing. 218; Kerr v. Miller, 2 Starkie, 53; Cole v. Goodwin, 19 Wend. 251; HoUister v. Nowlen, 19 Wend. 234. " The facts found by the jury negative the idea of such a notice as amounts to a special contract. The plaintiff was a German, wholly ignorant of the Eng- lish language. It is therefore a case of a passenger uninforn^ed of the terms and conditions of the notice appended to the ticket on which the defendants rely for protection. The case of Davis v. Willan, 2 Stark. 279, rules that a UPON RESPONSIBILITIES OP COMMON CARRIERS. 269 notice at the office, when the party who delivers the goods cannot read, does not change the liability of the carrier. That case is in principle identical with this. It, in truth, would be absurd to hold under the circumstances the com- pany exempted from their common-law responsibilities, on the foot of a special or express contract, when he was ignorant of the terms of the proposed agree- ment. Granting that tickets in any case, without more, may be considered as evidence of a special agreement, it is surely not exacting too much to require the carrier to have his tickets printed and his advertisements made in a language which the passenger can understand, or that he should be required to explain to him the nature and effect of the proposed agreement. Although it may be granted that in this state a carrier may limit his responsibility, yet this principle has been reluctantly recognized, and must be confined to cases of special con- tract express or at least implied. The knowledge of the plaintiff of the contents of the notice is negatived by the verdict. It is substantially found the plaintiff had no notice that his goods were carried at his own risk. In the absence of -all proof of notice, the plaintiff had a right to rely on the common-law responsibility of the carrier. The jury find that the extra weight of the plaintiff's baggage, including the trunk, in which the specie was placed, was paid for by the plaintiff, and the agents of the company had charge of it. " Whether the specie is to be viewed as baggage or freight we conceive to be immaterial ; for whether it be the one or the other, the defendants are clearly liable on two grounds : first, because they have failed to prove the nature and manner of the loss ; and, second, because they have also failed to bring home knowledge of the limitations and restrictions contained in their notice to the plaintiff. This renders them liable on the rule of the common law, as insurers against all losses, except those occasioned by the act of God and the king's enemies." The question came again under consideration in Verner v. Sweitzer, 32 Penn. St. 208, and was reduced to this practical point, that it was entirely competent for the carrier to reduce his responsibility, as a carrier, to that of an ordinary bailee, either by special contract with those who employed him, or, what is in principle the same thing, by notice brought home to their knowledge and acqui- esced in by them, and there is manifested no disposition to depart from any of the grounds maintained in the former cases in that state. As a general rule the carrier must take the burden of proving that his em- ployer assented to the limitation of his responsibility. To this result it is essen- tial to show clearly, that he fully understood the claim of exemption from strict responsibility on the part of the carrier. Hence, where the owner of the goods cannot read writing, a written notice merely can avail nothing. Davis o. Willan, 2 Starkie, 279. Abbott, J., said that a notice by carriers to become effectual must be brought " plainly and clearly to the mind of the party who deals with them." And in another case, where the party could read and saw the notice, but not supposing it interested him had in fact never read it, and he was held not affected by it. Lord Ellenborough, C. J., said, " You cannot make this notice to this non-supposing person." The points to be established, therefore, will be, either that the owner of the goods expressly stipulated with the carrier that he should be exempt from his extreme responsibility as an insurer, or else that he knew the carrier claimed to 270 THE EFFECT OF EESTRICTIVE NOTICES, ETC., carry only upon that basis, and knowing this employed him without objecting to the claim. And that beyond this all claim of exemption from responsibility on the part of carriers for that degree of care, skill, and diligence which is required of all bailees, according to the circumstances of the particular case, is based upon an infringement of the just policy of the law, to require good faith and fair deal- ing of all men, under all circumstances, and therefore cannot be maintained. It has been held in some cases that there -should be positive evidence of assent to the carriers' notice of exemption from responsibility, to be judged of by the jury, and that the evidence of assent should come from some thing outside the contract. Michigan Central Railw. v. Hale, 6 Mich. 243. Notice to the principal is always good notice to bind him, whether his agent in the particular transaction has knowledge of the particular notice or not. But notice to an agent in order to bind him in business of this character must be to the agent transacting this particular business. Mayhew v. Eames, 3 B. & C. 601 ; Fitzsimmons v. Joslyn, 21 Vt. 129. The national court of last resort, in York Company v. Central Railroad, 3 Wall. 107, have adopted the same rule already indicated in regard to the right of the carrier to restrict his common-law responsibility as an insurer by special con- tract or understanding, through notices or conditions assented to by their em- ployers provided such restrictions are not attempted to be extended to cover their own defaults or those of their agents. It may therefore be regarded as settled law, at the present time, both in Eng- land and this country, that common carriers may contract for any reasonable qualification of their responsibility at common law, such as insurance of the safe arrival of the goods, thus reducing their responsibility to that of ordinary bailees, and that a notice or custom of the carrier that his business must be done upon that basis, if known to his employers, at the time of entering into the relation, and not objected to by them, will have the same effect. But that if the employer chooses to insist upon the transportation being done under the unqualified com- mon-law responsibility of the carrier, he may still do so, and unless the carrier consents to undertake it upon these terms, he is liable to an action and to respond in such damages as the owner of the goods may sustain in consequence of his refusal to carry. So that in every case of the kind it is at the option of the em- ployer, whether he will consent to waive a portion of the carrier's common-law responsibility. If he will not, and the carrier insists upon having the qualification or not doing the business, he must resort to his action and get his goods carried when and where he can. The practical result of the rule is, that the owner never insists upon his right, as against the carrier, ai>d consequently the carrier, as be- tween himself and the owner of the goods, will always have his own way and can always compel the consent of his employers to allow the business to be done upon any terms he chooses to prescribe. Employers are not in a condition to haggle with carriers as to their terms, or to resort to an action for redress .and in the mean time let the goods wait. As matter of course, the goods must go at once, upon just such terms as the carrier demands. The only effectual redress for the owner of the goods will be found in an action for any loss or injury through the default of the carrier. The courts should therefore be prepared to hold them to a just and reasonable responsibility, and carriers ought, from self-respect, if not from policy, not to insist upon any rule of exemption from responsibility which UPON EESPONSIBILITIES OP COMMON CARRIERS. 271 would carry the appearance of shielding them from the consequences of their own want of faithfulness and fair-dealing. The case of Lawrence v. New York, Providence & Boston Railw., 36 Conn. 63, gives the views upon this question of a very intelligent court and a much- lamented magistrate. HiNMAN, C. J. " The plaintiffs' goods, shipped at Boston to be transported to New York, were consumed by the burning of .the defendants' depot at Groton, on the night of the 28th of December, 1866. The defendants, together with the Boston & Providence Railroad Company, and the owners of certain steamboats running from Groton to New York, had for several years constituted a through line between Boston and New York for the transportation of passengers and freight ; and the plaintiffs had frequently sent freight from Boston to New York by this line, taking, on shipping the goods at Boston, a bill of lading such as they took on shipping the goods in question the day before the loss. The judge at the circuit recognized these bills of lading as special contracts, limiting the liabilities of the companies constituting the line from their ordinary liability as common carriers, if the terms thereof were assented to by the plaintiflfs ; but he at the same time stated to the jury that- such contracts, to be binding on the plaintiffs, must not have been made by them, or their assent thereto obtained, under unlawful threats or compulsion. This contract like all others must of course have been voluntarily made, and not obtained under the influence of un- lawful threats or compulsion. But we look in vain for any evidence of threats or compulsion, either lawful or otherwise, in the making of the contracts evi- denced by these bills of lading. The plaintiffs had been so long in the business of shipping goods by this transportation line that they had themselves caused blank bills of lading to be printed for their own convenience and were in the habit of filling up the blanks from day to day as they had occasion to use them, to be signed by the agent of the line, and to be redelivered to the plaintiffs stamped ' forwarded ' when the goods were forwarded as was done in this case. We do not perceive therefore how there could have been any question as to the fairness with which the bills of lading in this case were made, and the allusion to the subject by the court was rather calculated to induce the jury to think there might be some foundation for the remarks addressed ,to them by the plaintiffs' counsel on the subject, and thus, so far as it had any effect, it must have been to mislead them. And although the judge told the jury that the conduct of the plaintiffs furnished evidence from which a voluntary assent to the terms of the bills of lading might be inferred, we think, if he felt called upon to say any thing upon the subject, he ought rather to have informed them that the conduct alluded to entirely disproved the claim that the plaintiffs accepted the bills of lading under any compulsion. These instruments were introduced in evidence by the plaintiffs .themselves for the purpose of showing the receipt of the goods for transportation to New York, and as there was no evidence whatever of any un- fairness on the part of the defendants with regard to them, but the contrary, they ought we think to have been treated by the court as containing the precise con- tract between the parties in respect to the transportation of the goods. "The liability of the defendants then must rest upon the special contract shown by the bills of lading, and the plaintiffs insist that by these instruments the 272 THE EPEECT OP RESTRICTIVE NOTICES, ETC., defendants are liable for not forwarding the goods to New York on the evening of the 28th of December, immediately on the arrival of them at Groton, and that the withdrawal of the usual boat by which the goods would have gone forward and the substitution for her of a smaller boat which was nut of sufficient capacity to take that portion of the goods which were destroyed, was a breach of their . duty in this respect which rendered the defendants liable, notwithstanding such withdrawal and substitution were for the purpose of necessary repairs. And on this point the plaintiffs rely principally upon the advertisement which the agent of the line had previously caused to be published in a newspaper and posted in placards and hand-bills, in which the steamboats Commonwealth and Plymouth Rock were mentioned as the boats running in gonnection with the railroads, con- stituting with those boats the through line to New York. But the advertisement and placards in question are not addressed to the shippers of freight by the line, and do not in any way allude to the subject of freight. .They merely state when the cars leave Boston for the Commonwealth on certain days, and for the Plymouth Bock on certain other days, and state that through tickets will be furnished and baggage checked through to Philadelphia, Baltimore, and Washington, and that tickets, berths, and state-rooms can be obtained at the offices of the line in Boston and Providence. The advertisement thus shows for itself that it was published for the information of passengers, and not of freighters. We think therefore that the court erred in submitting it to the jury to find whether th«re was a contract or agreement of the parties that the steamboat Plymouth Rock was the boat to run in the line on the night in question, and in instructing them that on this point they should particularly take into consideration the advertisement mentioned. "Again, the special contract contained in the bills of lading provided 'that no responsibility will be admitted under any circumstances to a greater amount upon any single article of freight than two hundred dollars, unless upon notice given of such amount, and a special agreement therefor.' But the court charged the jury, in conformity with the claim of the plaintiffs on this point, that the plaintiffs were entitled to the full value of the goods contained in the thirty-three packages which were lost by the fire, and by reason of this the plaintiffs had a verdict of from four to five thousand dollars more than they would have had if this stipulation had been recognized. This was clearly wrong. There was no claim or pretence of any .gross negligence on the part of the defendants. They stored the goods in their depot because the boat that evening was so full that it could not take them. They had therefore to lie over for the boat of the follow- ing day ; and in the mean time they were destroyed by an accidental fire. And it is admitted that no notice was given of the value of the packages beyond two hundred dollars. We think therefore that the most the plaintiffs should have been permitted to recover is two hundred dollars for each package, instead of the full value of the packages. " But we are not satisfied that the plaintiffs are entitled to recover. any thing. The defendants had carried the goods safely to Groton, and so many of them as could be were put upon the boat that went to New York that evening, and the rest were properly stored in their depot for transportation by the boat of the succeeding day. Now the contract evidenced by the bills of lading does not stipulate for the transportation of the goods by the boat of the day when they are forwarded from Boston. They were to be delivered at Groton to the agent RESPONSIBILITT BEYOND LINE OP FIRST CARRIER. 273 of the owners of steamboats running between New York and Groton in connec- tion with the railroad of the defendants ; and the owners of these boats stipulate that they will deliver them in New York to the consignee, &c. And there is a stipulation that the carriers shall not be liable for any injury to freight arising from the weather or accidental delays. Now the delay in this instance was caused by the necessity of taking off the Plymouth Bock for necessary repairs. Is not that an accidental delay within the terms of this stipulation ? But the court, while correctly stating the liability of the defendants for any want of ordinary care while the goods were in the depot at Groton, added, as we think improperly, ' or by any act of the defendants, such as the want of a proper boat to take these goods on the night in question which contributed to this loss by fire ; ' thus making the defendants liable for the want of capacity of the boat of that evening to take the goods. It appears to us that for this the defendants are not liable ; and for these reasons we advise the Superior Court to grant a new trial." In the recent case ofKeeney ». Grand Trunk Kailw., 69 Barb. 104, 10 Am. Law Reg. N. S. 663, it was held that a special contract, whereby the owner of cattle assumed all the risks of transportation, would not exonerate the company for a loss resulting from the superintendent of freight shunting the car upon a sidetrack in the course of the passage and suffering it to remain there three or four days, whereby some of the cattle died and all were injured, and that the act of the freight superintendent was that of the company. This subject is ably discussed by Gooley, J., in McMillan v. M. S. & N. I. Railw., 16 Mich. 79. It has often been held in this country that special contracts limiting the responsibility of carriers must be reasonable in order to be binding. Adams Express Co. v. Reagan, 29 Ind. 21. A contract excusing the carrier for loss by ordinary neg- lect is void. I. P., &c., Railw. ». Allen, 31 Ind. 394; Penn. Railw. v. Butler, 57 Penn. St. 335. See also Mann v. Railroad, 40 Vt. 326 ; Illinois Central Railw. B. Waters, 41 Ul. 73 ; Squire v. N. Y. Central Railw., 98 Mass. 239 ; Purcell i>. So. Express Co., 34 Ga. 315; School Dist. v. B. H. & Erie Railw., 102 Mass. 552 ; Express Co. v. Kountze, 8 Wall. 342. But an exception of risk by fire on the part of the carrier executing the bill of lading will extend to the whole line of carriers. Pemberton Co. v. N. Y. Central Railw., 104 Mass. 144. See Great Western Railw. v. Hawkins, 18 Mich. 427 ; Mich. So. & N. Ind. Railw. v. McDonough, 21 id. 165, 205. XIII. Responsibility beyond the Line op the First Carrier. I. How FAR IT IS COMPETENT FOR CoHPOEATE CaRKIERS TO CONTRACT FOR Transportation beyond the Limits of their own Line. 1. Hood v. New York and New Haven Bailway, 22 Connecticut Reports, 502. 1853. Railway corporations have no power to contract for transportation of goods or pas- sengers beyond their own line. VOL. II. 18 274 EESPONSIBILITT BEYOND LINE OP FIRST CARRIER. The fact that the directors constantly assume to enter into such contracts on the part of the corporation will not estop the company from setting up their want of power to enter into such contracts, when sued for failure to perform the same. The facts in the case sufficiently appear in the opinion of the court by — Ellsworth, J. It will be noticed, that the suit is upon a special promise of the defendants to carry the plaintiff from New Haven to CoUinsville ; not an action against common carriers, for an injury suffered, while passing over their road, nor as founded upon a responsibility growing out of such relations. This would not answer, for the defendants could not be common carriers, except on their own road ; so the pleader declares upon a special under- taking of the defendants, aside from their appropriate line of duty, and the attempt is, to subject them on that undertaking, and on nothing else. It is found, that the defendants had no power to enter into the undertaking in question, and therefore, as a ground of claim, it must be agreed, the undertaking merely is of no avail, for the rea- son, that the directors, having no authority, did not, in legal esti- mation, make the contract for the company. The question is, are the defendants estopped setting up this in their defence ? The statement of the case carries on its very face conviction to the mind that it cannot be so. The defendants estopped from denying that they have done what they never could have done ! It is a question of power, under the charter ; and however individuals may be liable and estopped, who untruly hold themselves out as clothed with power, the defendants cannot be estopped, on any such principle of law known to the court. The notion of an estoppel in pais, to which class, if any, this estoppel belongs, pro- ceeds on the idea of acquiescence or consent ; a consent expressly or impliedly given by the party claimed to be estopped. Of course, there must be a legal possibility, or there can be no real or sup- posed acquiescence and consent, and where consent may be given, silence may be sufficient proof that it is given ; and so a course of known action may be sufficient proof ; for the law requires no exact form. But as we say, it does require a legal possibility, and where there is none, courts cannot consistently hold, there is an estoppel. The case of Buckley against the Derby Fishing Com- pany, 2 Conn. 252, and that class of cases, which abound in the BESPONSIBILITT BEYOND LINE OF FIRST CARRIER. 275 books, is a good illustration of the distinction above alluded to. If a corporation has the power to do a thing, and is in the habit of doing it, in a particular way, it may bind itself to third per- sons, though it do not pursue the exact mode prescribed in the charter ; for the mode is not exclusive, but concurrent. So, too, where a provision in the charter is designed to protect the corpo- ration, the corporation may waive this provision, and this may be proved to be done, by a repetition of acts of a like or similar char- acter. But the question here is, as we have said, one of power, not of form. ,The plaintiff introduced circumstantial evidence on the trial, to prove that the directors of the company made the contract, and particularly that their subordinate agents had, for some six months previously, been in the practice of contracting with other persons, as they did with the plaintiff. Suppose this is true, and that the knowledge and consent of the directors may be properly inferred, from this continued practice of the directors ; this will not place the plaintiff's case, in our judgment, on any higher ground, than if j;he directors had, by a formal vote, contracted with the plaintiff, to carry him to CoUinsville. It being a question of power, silent acquiescence in the acts of subordinate agents does not make a stronger case ; for, if a formal contract is' not obligatory on the company, one proved by inferior or circumstan- tial evidence certainly is not. The kind of evidence is quite immaterial. Should the directors of a savings-bank, or of any bank, contract with a ship-builder for a steamship to navigate the ocean, would this contract bind the company? Certainly not; because the directors have no power to make it ; nor would they have more, were they to make such contracts from day to day. The legislature has absolutely marked the limit of their power, and they cannot exceed it, under the charter ; and if the directors, even with all the stockholders at their side, transcend the limits of the charter, and make contracts foreign to their business, they only act for themselves. The reason is, there can be no consent of the corporation. The consent of individual stockholders, how- ever repeated, is not their consent, nor is it admissible proof, to establish consent ; so that, if it were true, every stockholder had expressed his consent, it would make no difference in the case. If this is not so, there are no restrictions or limitations on chartered companies, and they may do any thing and every thing the directors 276 . BE8P0NSIBILITY BEYOND LINE OP FIRST CARRIER. please, which is not absolutely unlawful. The exercise of power is held to prove itself, which is absurd. No one will say, that the first contract made by the directors, to carry to CoUiusville or Litchfield or New Hartford or North- ampton, would he obligatory on the company ; yet it must be so, if stockholders are, of course, bound by every contract of their directors. Were the charter a public one, it is agreed, the com- pany would not be bound by such acts, however repeated ; but in truth a private charter is not essentially different from a public one, in this respect ; for the plaintiff must have known that the defendants were incorporated by the legislature, for the purpose of making or using only a railroad. Their very name, as well as tlie location and business of their road, is sufficient notice, that they are not incorporated for running stages throughout the state ; and no person can- assume or suppose the defendants are to go beyond the appropriate business of a railroad. The idea of an imposition on the public, as to these stages running off from the road, to and from Litchfield and other places, as the defendants' stages, is incredible and preposterous. The public know where the charter may be seen, and what it contains. Many cases were read, on the argument, to prove tliat a corpo- ration is considered for civil purposes as a person, and subject to the same rules of law. We do not question this, but we do not see how it helps the plaintiff's case. They hold, that a principal that can give authority, whether a corporation or person, may, when one assumes to act for him, and he does not object to it, be estopped denying his agency ; but an infant is never estopped, nor a married woman, nor ought a body of stockholders to be, united as they are, under a specific charter ; especially when the directors have disregarded it, and assumed to act according to their own pleasure. Could the company, by legal possibility, do the act, it would be otherwise. But, it is said, the jury have found, that the stockholders, in fact, gave their consent, and it may not now be denied. We have already shown, this can make no difference ; but we say further, that this notion of their consent is altogether untenable and un- just. We know, certainly, the stockholders did not, all of them, give their consent. Some were minors, married women, execu- tors and administrators, trustees, ofiicers of the law in possession, and some were, at the time, out of the country. So the body of RESPONSIBILITY BEYOND LINE OF FIRST CARRIER, 277 stockholders was changing from day to day. Now, to hold that the entire body of stockholders gave their consent to the contract in question, and that therefore it is good, is absurd and puerile. But suppose they did ; this was not a corporate act, and has, therefore, no corporate character. We repeat, that the directors and stockholders have no corporate powers or relations, and can give no corporate consent, but what is within the appropriate busi- ness of the charter. Again, it is said, the defendants ought not to be permitted to call in question the acts of their agents. Why not, as much as other principals, whose agents transcend their authority, and abuse their trust ? If it is replied, the directors have suffered this course of things, for months, when they could have arrested it at once, we ask, whose agents they were ? Certainly not of the innocent stockholders. Tlie directors represent them only, while they act within the scope of the charter ; the charter is the meas- ure of their power ; and sad would it be, if directors could trample upon this, and yet bind the stockholders as firmly as if they were acting within it. If the directors have done wrong, let them suf- fer the consequences. We have not thought it necessary to comment particularly on the numerous authorities, cited at the bar, on the several points made, for we find nothing in any of them inconsistent with the views expressed. Gill & Johnson is in direct accordance with what we have said. We place our judgment upon a plain principle of equity and law, viz., that these defendants are not bound by a contract they had no power to make, and are not estopped setting up this mat- ter in defence. The opinion in this case goes upon ground peculiar to this state so far as we know. It is assumed that the corporation had no power, under their charter, to become common carriers except upon the precise line defined in their charter. This point, we say, is assumed, for there is no attempt to argue it by the court. The only question discussed by the learned judge, in giving the opinion, is, how far the corporation will be estopped by the acts of its directors in constantly entering into contracts beyond the line of the company, for which they had no special power from the company, and which it would seem very obvious, on the assumption of the court, the company could not confer, having itself no such power to confer ; and so the court very naturally decide. The correctness of this decision is discussed to some extent in Converse v. Norwich & N. Y. Trans- portation Co., 33 Conn. 166, 179, 180, by the present Chief Justice Butler, of 278 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. that court, who very frankly admits, as all must, that the decision is in conflict with the decisions in other states, and subversive of all convenience in the present extended range of railway transportation ; but no very decided intimation is given by the learned judge whether that court were then prepared to adhere to the decision. One might naturally expect from the abundant ground assigned by the learned Chief Justice, why the case cannot be vindicated, either upon prin- ciple or authority, that if the question were then to have been determined the case of Hood v. The N. Y. & N. H. Bailw., supra, would probably have been overruled. And Mr. Baldwin, the author of the late Connecticut Digest, includes this case among those " overruled, questioned, or explained," referring to the case last quoted from 33 Conn. Reports ; and as there is no explanation of the case to be found there, we must suppose Mr. Baldwin regards it as " overruled," or, at all events, " questioned " in that state. The case, as it will be seen, is placed origi- nally upon a close and strictly technical ground which no one will be inclined to question in th^ abstract, that the powers of corporations are limited to those ex- pressly confined by the charter, or else necessarily implied. But upon this last clause of the definition the whole question arises, Is it practicable for the busi- ness of railways, as common carriers, to be conducted, with reasonable hope of success and just accommodation to the public, while their entire powers of enter- ing into contracts affecting transportation are restricted to the precise line defined in their charter? We think, at the present day, there can be but one opinion in regard to answering this question in the negative. If so, the case of Hood v. N. Y. & N. H. Railway must be disregarded. And so are the decisions both in this country and in England, entirely without exception, so far as we know. Muschamp ». Lancaster & Preston Junction Railw., 8 M. & W. 421; 2 Redf. Railw. 112, and cases cited in § 180. We could not give a more valuable com- mentary upon the doctrine of Hood v. N. Y. & N. H- Railway, supra, than the opinion of Mr. Justice Sawyer in Wheeler v. San Francisco & Alameda Railw., 6 Am. Law Reg. ST. S. 606 ; s. c. 31 Cal. 46. S\WYBR, J. " This is an action brought against the defendant as a common carrier of passengers and freight, to recover damages sustained by plaintiff in consequence of a breach of duty on the part of defendant in refusing to carry the plaintiff across the bay of San Francisco to the city of San Francisco from the defendant's wharf, at the terminus of its railroad, in the county of Alameda, in a steamer under the control of defendant, which ran regularly between the said points in connection with the regular trains on said railroad. The fact that said defendant was, at the time, a common carrier of passengers and freight for hire over the whole of said route, and the duty to carry, are alleged in broad terms. But it is also alleged that defendant is a corporation, organized and existing under the statute of the state, entitled • An act to provide for the incorporation of railroad companies, and the management of the affairs thereof, and other matters relating thereto,' approved May 20th, 1861. " Defendant having demurred to the complaint on the ground that the facts stated are insuflScient to constitute a cause of action, the demurrer was sustained and judgment entered for defendant. Plaintiff appealed. " As we understand respondent's counsel, it is conceded that the facts, broadly stated, considered literally aa they appear upon the face of the complaint, are BESPONSIBILITT BEYOND LINE OP FIRST CARRIER. 279 sufficient, as they undoubtedly are ; but it is claimed that, aa the statute under which the corporation is formed appears on the face of the complaint, and as there- by ' the character of the defendant, and its functions, and the general scope of its powers, also appear, the court can determine, notwithstanding the other strong averments, whether the law did impose the duty on the defendant, and that the other averments will turn out to be merely conclusions of law wrongfully alleged.' " The point of the demurrer is, that the defendant is a corporation for the pur- pose of building and operating a railroad only, with no power or authority to build, own, or control a steamboat ; that the acts complained of were committed on the steamboat and not on the railroad; that on that part of the line the de- fendant had no power to act or become liable as a common carrier ; and that, as the corporation had no capacity to become a common carrier by steamboat, there could be no duty to carry the plaintiff by steamboat, and consequently no breach of duty arising out of the acts alleged in the complaint. In short, that in con- sequence of a want of power to become a carrier over the part of the route traversed by steamboat, the essential facts alleged are legally impossible, and there- fore cannot constitute a cause of action. The defendant is alleged to be a common carrier of passengers and freight over this part of the line, as well as on the rail- road, which is only continued to the wharf whence the steamboat starts. But, if by the law of its organization referred to in the complaint, the defendant had no legal capacity to contract to convey passengers across the bay of San Fran- cisco from the wharf of the defendant to the city of San Francisco, then the demurrer was properly sustained, notwithstanding the averment, and this ques- tion of power is the only point to be determined. " The act under which defendant was incorporated confers the powers generally and ordinarily conferred by similar acts upon corporations organized to build and operate railroads in the various states of the Union, with no special restric- tions affecting the- question. Laws of 1861, 615, §§ 3, 17 ; Hittell's Gen. Laws, par. 826, el seq. The second subdivision of section 17 authorizes the defendant : ' To receive, hold, take, &c., as a natural person might or could do, &c., real estate and other property of every description, &c., to aid and encourage the construction maintenance, and accommodation of such railroad.' And the third subdivision authorizes it: 'To purchase, &c., all such lands, real estate, and other property as the directors may deem necessary and proper for the construction and main- tenance of said railroad, &c., and other accommodations and purposes deemed necessary to accomplish the objects for which the corporation is created.' The fifth subdivision authorizg^ sych companies : ' To construct their roads across, along, or upon any strea^nof,^^ water, watercourses, roadstead, bay, navigable stream,' &c. The sixth ISlHivision : ' To cross, intersect, join, and unite its railroad with any other railroad, either before or after constructed, &c., with necessary turnouts, &c., and other conveniences in furtherance of the objects of its connections,' &c. ; and the eighth subdivision confers authority ' to receive by purchase, &c., any lands or other property of any description, and to hold and convey the same in any manner the directors may think proper, the same as natural persons might or could do, that may be necessary for the construction and maintenance of said road, &c., or for any other purpose necessary for the conveniences of such companies, in order to transact the business usual for such railroad companies.' 280 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. " We will first consider the question on the hypothesis that defendant's route terminates at its wharf, and not at the city of San Francisco, as its name would seem to indicate, and that it does not own the steamer running from the wharf to San Francisco, or control that portion of the line. On this hypothesis, the first question is, had the defendant any capacity to contract to convey passengers and freight beyond the wharf — the terminus of its line — to the city of San Fran- cisco. It has long been settled by judicial decisions, both in England and the United States, under similar acts, that railroad companies may contract to carry passengers and freight beyond their own routes. So far as we are aware, with the exception of a single state (Connecticut), the decisions in England and the several states of the Union have been uniform in favor of the power. Red- field, in his able work on Kailways, states the result of the decisions thus : ' It was for many years regarded as perfectly settled law, that a common carrier, which was a corporation chartered for the purposes of transportation of goods and passengers between certain points, might enter into a valid contract to carry goods delivered to them for that purpose beyond their own limits. Most of the American cases do not regard the accepting a parcel marked for a destination beyond the terminus of the route of the first carrier as prima facie evidence of an undertaking to carry through to that point. But the English cases do so construe the implied duty resulting from the receipt. But the cases, until a very recent one, do hold that a railroad company may assume to carry goods to any point to which their general business extends, whether within or without the par- ticular state or country of their locality. And it has generally been considered, both in this country and in the English courts, that receiving goods destined beyond the terminus of the particular railway, and accepting the carriage through, and giving a ticket or check through, does import an undertaking to carry through, and that this contract is binding upon the company.' Id. 288. He then refers to the single case holding a contrary doctrine (Hood v. N. Y. & N. H. Railroad, 22 Conn. 602, in which there was a divided court), and vindicates the rule as established by the great weight of authority. The following are some of the cases whfch support the rule as stated : Muschamp v. L. & P. Railway, 8 M. & W. 421 ; Watson v. Ambergate, Nat. & Boston Railway, 3 Eng. L. & Eq. 497 ; Scotthorn v. South Staff. Railway, 18 id. 663 ; Wilson v. Y. N. & B. Railway, id. 667 ; Crouch ». London & N. W. Railway, 25 id. 287 ; Collins ». Bristol & Ex. Railway, 86 id. 482 ; Weed v. Sar. & Sch. Railroad Co., 19 Wend. 634; Far. & Mech. Bank u. Champ. Trans. Co., 23 Vt. 186; Noyes o. Rut. & Bur. Railroad Co., 27 id. 110; Kyle e. Laurens Railroad Co., 10 Rich- ardson, 382 ; Angle v. Miss. & M. Railroad Co., 9 Iowa, 488 ; Schroeder v. Hudson River Railroad Co., 6 Duer, 61 ; Hart v. Res. & Sar. Railroad Co., 4 Seld. 37 ; Fitchburg & Worces. Railroad Co. ». Hanna, 6 Gray, 639 ; N. Y., Alb. & Buf. Tel. Co. v. De Rutte, 6 Am. Law Reg. N. S. 407 ; Perkins v. Port., Saco & Ports. Railroad Co., 47 Me. 673. In Noyes v. Rut. & Bur. Railroad Co., Bedfidd, C. J., says: ' It now seems to be well settled that railroad companies as common carriers may make valid contracts to carry beyond the limits of their own road, either by land or water, and thus become liable for the acts and neg- lects of other carriers, in no sense under their control.' 27 Vt. 111. " In Perkins v. Port., Saco & Ports. Railroad Co., 47 Me. 673, the contract was by a railroad company in the State of Maine, to deliver packages of goods at Bloom- RESPONSIBILITY BEYOND LINE OP FIRST .CARRIER. 281 ington, in the State of Illinois. The court held it competent for the corporation to make such a contract. In the opinion the court says : ' Upon a careful survey of all the authorities, we are satisfied that a railroad company may be bound, by special contract, to transport persons or property beyond the line of their own road. In granting the charter, all incidental powers which are necessary to the proper and profitable exercise of those which are specially enumerated may be presumed to be conferred by implication. The business of common carriers between the different places is intimately interwoven, branching off into innu- merable channels, And it is often of great public convenience, if not of absolute necessity, that several companies should combine their operations, and thus trans- port passengers and merchandise by a mutual arrangement over all their lines, upon one contract, for one price. In such cases each is held liable for the whole distance. Fairchild v. Slocum, 19 Wend. 329 ; F. & W. Railroad Co. u. Hanna, 6 Gray, 539. And we think a company may be bound, even without any actual arrangement with the connecting lines, if, by their agents, they hold themselves out to the public as common carriers to a place beyond the limits of their own road.' " However forcible the reasons might seem for a more limited construction of the powers of corporations in this respect under the ordinary acts authorizing the organization of railway companies, if the question were a new one, we should not feel authorized to disregard such an almost unbroken array of authorities. The interests, both of the companies and the public are, doubtless, also best sub- served by the construction established. With respect to the English cases, some of the later ones might, perhaps, if necessary, have been aided by an express provision of a statute (8 Victoria), to which we shall have occasion to refer, but the leading case of Muschamp v.. Lancaster & Preston Railroad, and some others, were decided before the passage of the act referred to ; and they seem to have been decided wholly independent of any statutory provision. In none of the American cases does this statute appear to have been noticed. " It is insisted, however, by the respondent, that the cases of the class cited are all upon express contracts to carry beyond the route of the company ; that, at least, it was optional with the parties whether to contract to carry and deliver beyond the termini of their respective roads ; that they did so expressly contract, and thereby voluntarily assumed the liability beyond that which the law imposed on them as carriers over their own roads ; and that for this reason the cases are not authorities in the case at bar, in which the defendant exercised its option and refused to contract to carry beyond its own road, or to assume responsibili- ties beyond those which the law imposed on it as a carrier to the end of its route. But we have seen that it was competent for the defendant to contract in the character of a common carrier of passengers and freight beyond the terminus of the road. And the complaint avers that the defendant is a common carrier over the whole line. If the defendant is competent to contract for the whole distance in the character of a common carrier, without reference to the termination of its road, and holds itself out as a common carrier, ready to contract with all persons but the plaintiflf, and does contract generally with all who offer to traverse the route with them, — then it is a common carrier for the whole distance under the law, without reference to the termination of its road ; and it is its duty as such carrier, to contract with and convey the plaintiff with the rest. The allegation 282 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. of the complaint is that defendant is such carrier. The allegation is sufficient, if the proof should be sufficient to sustain it. And the allegation, if the fact alleged is legally possible, is admitted by the demurrer. The allegation also is, that the plaintiff entered upon the cars of the defendant, upon a regular train, at a regu- lar station for the reception of passengers, to be carried to San Francisco, and there tendered the regular fare for the entire distance, and that the defendant refused to take him, and when at the end of the railroad ejected him from the steamboat which would otherwise have carried him, and which did, on the same trip, carry the other passengers to the end of the line. The prec'ise point was determined in Crouch v. London & N. W. Railway, 25 L. & Eq. 287. In that case there were two causes of action alleged in separate counts, — one for breach of duty in refusing to carry, as a common carrier of goods and chattels, for hire, a package of goods for plaintiff, from Euston Square station, Middlesex county, England, to Glasgow, in Scotland ; and the other in refusing to convey from the same station to Sheffield, in the county of York, England. The defendant's line toward Glasgow ended at Preston, at which place it connected with another and different road, the Lancaster and Carlisle Railway, which extended to Carlisle, where it connected with still another road, the Caledonian Railway, which was nearly all in Scotland, and extended to Glasgow. On the route to Sheffield the defendant's line ended at Rtigby, at which point it connected with the Midland Railway, which extended to Sheffield. These roads were all owned by different companies organized under different Acts of Parliament. There was an arrange- ment, however, between the defendant and the other companies by which the defendant loaded its own van and locked it ; and it passed through the entire distance over the other roads to Glasgow and Sheffield respectively, the several companies furnishing the steam power and management on their own roads, con- veying it through to its destination for the defendant. The plaintiff himself was a common carrier of packages, which he collected in small parcels from his cus- tomers in London, and packed into one or more large parcels, called ' packed parcels,' and sent them to Glasgow, Sheffield, and other points, to his local agents, to be distributed to the parties to whom the several smaller parcels were respectively addressed ; he depending upon and using the railways of defendant and other companies in the ordinary course of his business, as common carrier of parcels for the purpose of forwarding the goods to his local offices. The officers of the defendant made an order upon their minutes, directing that ' packed parcels ' should be received or invoiced to the termini of their lines only, and gave instructions accordingly to their servants, of which order plaintiff had notice. They had not, however, at the time when the breach of duty com- plained of occurred, enforced the order with reference to merchants, traders, and parties other than the plaintiff, who was himself sending such packages in the exercise of his own ordinary business of common carrier. Under these circum- stances, in the ordinary course of his business, the plaintiff tendered a ' packed parcel ' to the defendant at its station, at Euston Square, London, in time for the regular mail train of defendant for Sheffield ; also a similar package in time for the train for Glasgow, at the same time tendering the ordinary charges through, and defendant refused to receive them on the ground that they were ' packed parcels.' The plaintiff then paid the charges to the end of the routes of the defendant, and they were received and forwarded to the end of their roads, and EESPONSIBILITT BEYOND LINE OF FIRST CARRIER. 283 delivered to the connecting cpmpames, who transmitted them on to their desti- nation, where they arrived in due time by that mode of carriage, but the package for Sheffield arrived some seven, and the package for Glasgow some twenty hours later than they would have done had they been received and booked, and had defendant undertaken to carry for the entire route. The expense by the several transfers was also increased. The defendant at the same time, and by the same train, received, carried, and delivered ' packed parcels ' for other parties. The question was, whether defendant •jfas liable for breach of duty in refusing to carry beyond the termini of its own lines. The fifty-eighth and fifty-ninth pleas raised the question, whether the defendant could become a common carrier beyond the limits of its own line, on the ground that any thing beyond such limits would be ultra vires. But a demurrer having been interposed, so little confidence had counsel in these pleas, that they were abandoned by them on the argument (25 Eng. L. & Eq. 289). It was then contended that the defendant was a common carrier only to the extent of its own line for ordinary parcels. Secondly, that at all events it was a common carrier only to the extent of its own line with respect to ' packed parcels.' Thirdly, that as Glasgow is beyond the realm, the defend- ant could not be a common carrier, nor bound to convey from London to Glasgow in the sense of the averment in the declaration. The court have no difficulty with the first two propositions, and only spend time in discussing the last. Jervis, C. J,, says: ' I am of opinion that the plaintiff is entitled to our judgment. The effect of the 86th, 87th, and 89th sections of the Railways Clauses Act is to put this company, the defendants, on the footing of common .carriers, and the question is, whether, viewing them in that character, they are liable in the present form of action. I think [they are liable on the first count, that, holding themselves out as common carriers in England, and professing as such to carry from London to Glasgow, they are liable for refusing to accept goods to be carried from the one terminus to the other. It is not denied now, al- though the authorities upon the subject are not numerous, that if a person holds himself out as a common carrier from London to Oxford, both termini . being within the realm, he is bound to carry, within reasonable limits, all goods that may be tendered to him to be carried from London to Oxford. The only question on this part of the case is, whether that rule applies where one of the tertnini is a place out of England ; and I think it does. If a person who holds himself out as a common carrier accepts goods, the common law of England, that is the law founded on the custom of the realm, engrafts on such acceptance a contract to take and safely carry the goods, and to deliver them as an insurer, with certain exceptions, viz., the acts of God and the king's enemies. " ' It was admitted during the argument, and could not be denied, that if the defendants had accepted the goods in London the common law would have en- grafted on their contract an obhgation to carry them to Glasgow, subject to the liability I have mentioned. The case of Morse v. Slue would seem to be an authority to that extent, and the commentaries on that case seem to put the matter beyond doubt. Then, if it is admitted that when once they have held themselves out as common carriers, there is engrafted on their acceptance of the goods the common-law liability to carry, even if they are to carry beyond the realm, it would seem also that they are subject to the other part of the common- law liability, namely, to accept within reasonable limits all goods that may be 284 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. tendered to them to carry. If, therefore, being carriers within the realm, they are bound to take the goods offered to them to be carried within the realm, it follows that if they profess to be carriers beyond the realm, being themselves at the time they so profess within the realm, they are bound to accept and to carry goods beyond the realm upon the same terms on which they profess to contract. On the first point, therefore, I am clearly of opinion that the count is good which charges them with that liability, and that they are liable for their breach of duty in refusing to carry, having held themselves out as common carriers, and pro- fessed to carry goods for all persons to Glasgow. " ' The second point, that they were not carriers to Sheffield, is disposed of by the evidence, which shows that they were carriers not only from London to Kugby, but on to Sheffield. They are also carriers to Sheffield of packed par- cels. Their practice is to carry packed parcels in every case except for the plaintiff. Although it is true that their liability rests on the professions which they hold out, and as found in the case, that they have given directions that they would only carry packed parcels to the terminus of their own line, still, their uniform course of conduct and practice with regard to the rest of the world has been in direct contradiction to these directions. They do carry packed parcels to Sheffield, and the law will not allow them to say: " We will, in fact, carry for ninety-nine of the public out of a hundred to Sheffield, and for the hundredth we will only carry to Rugby." They are common carriers and must adopt the same course of practice to all ; and it being found in the case that it was their habit to carry packed parcels for everybody but the plaintiff, they must act with the same justice to him as to the rest of the world.' Id. 298. " The learned Chief Justice refers to the 86th, 87th, and 89th sections of the act of 8th Victoria, before mentioned in this opinion. We have examined those provisions to see what bearing they have upon the case. The 86th section con- tains substantially the same provision as the ninth subdivision of section 17 of our Railway Act, before cited. The 87th section authorizes a railway company to contract with any other railway company for the passage of its engines, coaches, wagons, or other carriages over the road of such other company upon such terms as may be mutually agreed upon by the contracting parties. The 89th section simply provides that railway companies shall not be subjected to other or greater liabilities than were imposed on common carriers by the common law (stats. 8 Vict. p. 124, u. XX., §§ 86, 87, 89, Lond. Law Jour. 1845). But, as has been before remarked, it was decided in England before the passage of this act, and apparently without reference to any express statutory provisions on the subject, that railway companies could render themselves liable by contract to carry be- yond the termini of their roads, — that the capacity to make such contracts existed. On this point, then, the statute could have added no new power. The most that could be claimed for the 87th section as to this point, if it were necessary to in- voke it, is, that it is applicable to railways within the realm, and that to that extent a power in railway companies to contract beyond their own lines may be implied from the express authority to contract with other companies to run their carriages over the road of such other company. And possibly as much may be inferred from the authority found in our act for one company to unite its road with any other railroad. It may, however, be argued with equal plausibility, that the power to contract to carry beyond the line of any company having been before RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 285 established by judicial decision under the general powers conferred by the statutes as they then stood, the power contained in the 87th section was given to facilitate and encourage the exercise of the other power which already existed, and thereby secure greater expedition in the transaction of business, and greatly subserve the interest of both railway companies and the public. " We have already seen that the power in a railroad corporation to contract to carry beyond the terminus of its own road is established in this country by an almost unbroken chain of decisions. In Willey v. West Cornwall Railway (a late English case cited by Reilfield from 80 Law Times, 261), it is stated to be ' also said that the company are as much bound by contract to carry beyond their own route, where the transportation is partly by water, as if it were all by rail, and that the company cannot defend upon the ground that a contract to carry beyond their own route is ultra vires ' (Redf. on Railw. 287, note). The case is not accessible in any other form, and is therefore cited as stated in Red- field's note. This is in consonance with the principle announced in Noyes v. R. & B. Railroad Co., 27 Vt. Ill, before cited, where the Chief Justice says : ' It seems to be now settled that railroad comfpanies, as common carriers, may make valid contracts to carry beyond the limits of their own road, either by land or water, and thus become liable for the acts and neglects of other carriers in no sense under their control.' And this result also necessarily follows from the principles adopted in all the other cases. " This power to make a contract with one party to convey beyond the terminus of the road being established, it follows that any number of such contracts may be made with other parties, and that the corporation making them may, by con- tracting and holding itself out as ready to contract generally with all parties standing in the same relation to it, and by its general course of business become a common carrier beyond its own line. The principle established by the case of Crouch V. N. W. Railway is, that corporations having the power to contract and become common carriers beyond their lines within the realm have power to become such beyond the realm; that having the capacity to contract and become common carriers beyond their lines of road, they become such by hold- ing themselves out to be common carriers, and that when the common-law liability to carry both within and beyond the realm once attaches by reason of such holding out, they are also subject to the other part of the common- law liability, namely, to accept, within reasonable limits, all goods that may be tendered to them. In the language of the Chief Justice, before cited : ' If, therefore, being carriers within the realm, they are bound to take the goods offered to them to be carried within the realm, it follows that if they profess to be carriers beyond the realm, being themselves at the time they so profess within the realm, they are bound to accept and to carry goods beyond the realm upon the terms they profess to contract.' 25 Eng. L. & Eq. 298. The principles, of course, apply to carriers of passengers as well as to carriers of goods. " Upon the authorities cited and principles stated, the defendant, in this case had power to contract, and to incur the duties and responsibilities of a common car- rier of freight and passengers for hire over the entire line described in the com- plaint, irrespective of the question as to whether it legally owned or controlled the steamer .by means of which a portion of the carriage was to be effected. 286 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. The averment, then, ' that defendant was a common carrier of such freight and pas- sengers for hire on said railroad and steamboat,' is the averment of a fact possible in law as well as in fact, and the fact averred is admitted by the demurrer. " But it is alleged that said defendant ' was the owner and proprietor, and had under its management, direction, and control, a certain railroad, together with the tracks, cars, locomotives, and other appurtenances thereto belonging, and was also the owner and had under its control, management, and direction, a certain steamboat known as and called by the name " Sacramento; " that said railroad ran from the wharf of said company, on the east side of the bay of San Francisco, in the county of Alameda aforesaid, and extended to the interior of said county to a place known as " Haywards," a distance of some sixteen miles or thereabouts ; that said steamer, under the management and control of defend- ant, connected with said railroad at said wharf for the purpose of carrying freight and passengers to and from San Francisco on the west side of said bay, forming one continuous line of railway and steamboat transportation to and from the places above named and intermediate stations on the route of said road, carrying thereupon freight and passengets for hire, and that defendant was a common carrier of such freight and passengers for hire on said railroad and steamboat.' And it is insisted by the appellant that the ownership and control of the whole line, including the steamer, is, or may be, under the law strictly within the route and powers of the defendant as a railroad company, by the express terms of sec- tion 17 of the statute under which it is organized. That the steamer may be and is a part of the ' other property of any description,' which the defendant is author- ized ' to hold ' for ' any other purpose necessary for the conveniences of such companies, in order to transact the business usual for such railroad companies.' " We all know, as a part of the general geography of the country, that in con- structing railways large and navigable rivers, creeks, bays, and arms of the sea are, and must of necessity often be, crossed ; that when the necessity arises, they are crossed sometimes by means of expensive bridges, upon which a railway track is laid, and which thus literally becomes a part of the railway itself; that at other times, where the waters of the river, creek, bay, or arm of the sea are so broad and deep as to render bridging impracticable, or where a bridge would be too great an obstruction to navigation to render such a mode of crossing ad- missible, the object is effected by means of a steamboat — a steam ferry. Such instances may be found on lines or connecting lines of railways crossing the Sus- quehanna, Delaware, Hudson, Ohio, Mississippi, and other large and navigable rivers. Sometimes these occasions for the employment of steam ferries or bridges arise in the course of the line of the road, and sometimes at the point separating the land road from the city, which is the ultimate starting-point or destination of all passengers and freight which pass over it, the substantial ter- minus of the road. Any party who has travelled over the line of railway from New York to Washington has had occasion to know that there arc at least three of these steam ferries, which constitute indispensable links in the line of railroad travel, one of which must be crossed at the beginning of the route, and the others on the way. Will it be pretended when such a necessity for using a steamboat upon the line of the road arises, that the steam ferry is not substan- tially and in legal contemplation a part of the road ; as much so as the bridge would be at the same point, if a bridge were practicable or otherwise admissible ? RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. 287 That it would not be ' necessary for the conveniences of such company, in order to transact the business usual for such railroad company,' within the meaning of the provision of the statute ? How would it be possible to carry on the busi- ness of such railroad companies successfully, and in a manner to subserve the public interest, and fully accomplish the ends for* which the corporation was cre- ated without such conveniences ? It is manifest to us that the right to own and control steamboats for the purposes of ferriage, under such circumstances, is a necessity, and clearly within the powers conferred by the statute. Are these conveniences any the less necessary or proper because they happen to be at the end instead of in the middle of the route ? Take the city of New York, for an example, the great commercial metropolis of the continent, the centre to which most of the extensive systems of railways of the country tend, and really the ultimate point upon which the vast commerce and travel passing over them is discharged. We all know it is situate on an island, and that not a railroad can enter its precincts unless over a bridge, or by means of a steam ferry. Does the railway which purports to extend to New York terminate on the opposite side of the strait, or river, or bay? Are the proper functions of the various railways, purporting to terminate at that city, properly and completely performed under the law of their creation, when their myriads of passengers and millions of tons of freight are poured out of their cars on the banks of the river, strait, or bay, opposite New York, in sight only of the promised land ? We think not, and that the full performance of their duties to the public requires that they should own and control, not such conveniences merely, but absolute necessities, as steamboats for ferrying over their passengers and freight. In no other way can the public interests be adequately subserved, and the objects of the creation of such corporations be completely accomplished. It is one thing to build and own a line of steamers to some foreign country, or some distant port, carrying on a wholly distinct and independent business entirely foreign to the objects of a rail- road corporation, which might just as well, and a great deal better, be transacted by, some other company organized for the purpose ; and quite another, to own and control a steamboat for crossing rivers and bays which lie in the line of the road, and the use of which is convenient, proper, and necessary to a successful accomplishment of the objects for which the road is built and operated. The cases cited by the respondent are of the first class, and were mostly brought by stockholders to restrain the directors from misappropriating the funds of the corporation to objects not within the scope of its powers, and not actions by third parties against the corporation for breaches of contracts or duties. They do not, therefore, conflict with the views we have suggested. ' ' We all know also that the city of San Francisco is situate something like New York, and wholly inaccessible to any railroad except from the south, without making a detour of one hundred miles or more, or the use of some means of transportation across the bay by water. This particular fact is not set out in the pleadings, but it may be hypothetically assumed for the purposes of argument and illustration. If this be so, and it is possible to be so, it may be convenient and necessary for a railroad from the north, north-east, or east, designed to ter- minate at San Francisco, the commercial metropolis of the Pacific coast, to own and control a steam ferry to facilitate the legitimate ordinary business of the company, and subserve those public interests which it was contemplated would 288 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. be promoted when the act under which the defendant is organized was passed. The act, as we have seen, authorizes companies organized under it ' to construct their roads across . . . any roadstead, bay, navigable stream,' &c. (sec. 17, Sub. Fifth) . It may be that the waters of the bay of San Francisco are too deep to admit of bridging, or construction of a road, literally so called, or that the interests of navigation would render such a proceeding inadmissible. In such event the only practicable mode of crossing and connecting the road with its ostensible and substantial terminus, the city of San Francisco, might be by means of steamboats, which might therefore be rendered necessary and convenient to the defendant in properly transacting the ordinary business for which it was organ- ized. If so necessary to the accomplishment of the proper objects of its crea- tion, and the successful transaction of its ordinary business, we think the ownership and control of a steamboat .for that purpose would be within the powers incidental and express conferred upon the defendant by the act. " If the views expressed are correct, and we have no doubt they are, it follows that the facts alleged as to the control of the steamboat by defendant are legally possible, and the truth of the allegations is admitted by the demurrer. We think the court erred in sustaining the demurrer." Judgment reversed, with directions to the District Court to vacate the order sustaining the demurrer, and permit defendant to answer upon the usual terms. The American cases are very numerous upon this point, denying, at first, entirely the English rule laid down in Muschamp ». L. & P. J. Railway, supra, and constantly adhered to in the subsequent English cases ; that where the owner delivers his goods to one carrier, upon a connected line, and desires them delivered at a point beyond the line of the first carrier, he must rely upon his remedy against the first carrier for any default in the transportation occurring at any. point, since there is no privity between the owner and any of the subsequent carriers. Coxon v. Great Western Railw., 6 H. & N. 274. The rule is still main- tained in Massachusetts, that there is no implied duty upon the first carrier .be- yond his own line, and that a contract to 'carry to the point of destination is not to be inferred from the fact that a general receipt is given for the goods, accept- ing them for transportation according to their destination to a point beyond the line of the first carrier. Nutting v. Connecticut River Railway, 1 Gray, 602. The question is largely examined by the present Chief Justice, Chapman, in Darling v. Boston & Worcester Railway, 11 Allen, 295, and the rule in this state declared to be, that, " in the absence of any usage or special contract, a carrier is bound to carry goods only upon his own route, and then deliver them to the consignee designated by his employer." And it is farther held here, in substance, that nothing short of a special undertaking will bind the first carrier beyond the extent of his own line. And the same rule is reaffirmed in Gass v. N. Y., Providence & Boston Railw., 99 Mass. 220. These cases seem to exclude the idea of an implied contract resulting from the circumstances under which the goods are received and billed and the price of transportation paid in advance to the ultimate destination, to carry them to that point, while in most of the American states that view is admitted, as being consistent with the rule that no such contract results from the mere acceptance of the goods for transportation to a point beyond the line of the first carrier, as in the English rule. The Eng- EESPONSIBILITY BEYOND LINE OP FIRST CARRIER, 289 lieh rule seems to go upon one extreme view of always holding the first carrier responsible throughout the transit ; and the later Massachusetts cases seem cer- tainly to take the opposite extreme, of never holding the first carrier responsible beyond his own line, except upon the basis of a special undertaking; and both classes of decisions seem to be based upon the same policy in one respect, that of fixing an inflexible rule in the case which may be always easy of application both by the courts and by business men. There is no doubt some convenience in having a clearly defined and fixed rule in such cases as far as practicable, since it is, commonly, and especially in the present case, more important to have such a rule that all may know how to act, than it is to have the rule reach the absolute justice of each particular case. It is the chief business of courts and of legis- latures, in defining the rules of law which may govern business, to have them simple, perspicuous, and easy of application, rather than that they should in all cases embody the absolutely highest degree of wisdom and justice. And upon the point now in review, it is probably more important to business interests to reach a fisxed rule than it is towards which extreme it may incline. But in the present case there is some difliculty in bringing the mind to acqui- esce readily in either extreme. The English rule manifestly operates sometimes unreasonably and unjustly, and is not always based upon any fair construction of the facts involved in the transactions. The owner of the goods desires to have them carried from town to town and from state to state, and possibly from conti- nent to continent. He knows very well that there is no continuous line of trans- portation to the point of destination, that the first carriers have no agents beyond the terminus of their own line ; and there would seem to be no good reason why the first carrier should be made responsible after delivery to the next line of carriers, more than any other party not connected with the transaction. It is true, no doubt, that one carrier is remotely interested in the entire carrying business of a state or country, and indeed, to some extent, throughout the world. The more perfectly it is conducted, the more it will be likely to increase. And the same may be true, to some extent, in regard to the manufacture of the articles trans- ported ; the more perfectly and cheaply it can be done, the more call will there be for such manufactures, and, consequently, the more call for transportation. But all this affords no reason why one man should be held responsible for the faithful performance of the duties of others thus remotely connected with his own business. And this of itself seems sufiicient reason why the first carrier should not be held responsible beyond the extent of his business connections, except upon some contract or understanding that he should be so held respon- sible. And this contract or understanding is to be judged of; as in otiher cases, by the triers of the fact, unless the contract is in writing, or the circumstances so explicit that it may be made a question of law, and then it is to be determined upon the same principles which control other contracts, with a view to reach, as far as practicable, the absolute justice of the case, with reference to all the attending facts and circumstances. But it would seem that the rule attempted to be maintained by the late Massachusetts cases is somewhat liable to the same criticism as the English rule, viz., that it becomes unjust and unreasonable in an extreme pursuit of convenience or facility of application, To say that no amount of connection in business, short of an actual partnership, will justify the presump- tion, in law or in fact, that the first carrier consented, or expected, or, what is VOL. II. 19 290 BESPONSIBILITT BEYOND LINE OP FIRST CARRIER. the same, gave the owner of the goods good ground to believe that he so con- sented or expected to be bound throughout the line, or to any point upon it, beyond his own particular line ; and especially to say that this and billing the goods and accepting the freight throughout the line shall not have that effect, or that all these and other circumstances shall not have that effect seems unjust and unreasonable. If we were, as before said, to choose in fixing a hard and fast line between the two extremes attempted to be maintained respectively by the English and the Massachusetts courts, we should feel compelled to adopt that of the English courts, upon the ground suggested by Baron Eolfe (Lord Gran- woriA), in Muschamp w. L. & P. J. Railw., supra. "All convenience is one way, and there is no [certain] authority the other." But we do not understand that the Massachusetts courts have yet held that no amount of circumstantial evidence will be accepted as sufficient to bind the first carrier beyond his own line. All that can be said is, that the courts of that state manifest a very de- cided inclination to adhere to the fixed rule first adopted by them, and to ex- plain very decided circumstances operating in the opposite direction, as not being sufficient to justify the court or jury in holding or finding that the first carrier specially undertook to carry beyond his own line. The late case of Hill Manuf. Co. v. Boston & Lowell Railw., 104 Mass. 122, seems to conform to the general view in this country. We cannot better illustrate the subject than by giving a very recent decision in New Hampshire. 2. Nashua Lock Company v. Worcester and Nashua Railway., 10 Am. Law Reg. N. S. 224 ; s. c. 48 N H. Reports, 339. 1871. Where several common carriers are associated in a continuous line of transportation, and in the course of the business, goods are carried through the connected line for one price, under an agreement by which the freight-money is divided among the associated carriers, in proportions fixed by the agreement ; if the carrier at one end of the line receives goods to be transported through, marked for a consignee at the other end of the line, and on delivery of the goods takes pay for transpor- tation through, the carrier, who so receives the goods, bound to carry them, or see that they are carried, to their final destination, and is liable for an accidental loss happening in any part of the connected line. Assumpsit to recover for ten cases of locks. Plea, the general issue. The cause was submitted on the following agreed state of facts : — The cases were marked for, Wiesbushhabatt & Co., New York, and were delivered to the defendants, as freiglit, at Nashua, N. H., to be transported over their road from Nashua to Worcester, Mas- sachusetts, and there delivered to the Norwich and Worcester Railroad, to be forwarded by the usual course of transportation to New York city, and the entire freight from Nashua to New York was paid by the plaintiffs to the defendants. The defendants are a corporation in New Hampshire and Massa- chusetts, owning and operating a railroad between Nashua and Worcester, which forms a connection with the Norwich and Wor- RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 291 cester Railroad and the line of steamers across Long Island Sound to New York from Norwich, Connecticut, known as the " Norwich and New York Transportation Company." The road of the defend- ants extends from Nashua to Worcester ; the road of the Norwich and Worcester Railroad extends from Worcester to New London, from which point the boats of the Steamboat Company run to New York. The defendants are accustomed to receive freight at Nashua destined and directed to New York, and to deliver it to the Norwich Railroad as aforesaid. By an arrangement among these corporations the price paid for freight forwarded from Nashua to New York over the line is divided among them in accordance with an agreement. The cases were forwarded by the defendants and by the Norwich and Worcester Railroad and delivered to the Transportation Com- pany, and by them put on board the steamer " City of Norwich," which came in collision with a sailing-vessel on the Sound, took fire", and with the cargo, including the ten cases, was consumed. The value of the steamer has been ascertained, and a pro rata share assigned to the plaintiffs, who have declined to accept it. In case judgment should be for the plaintiff, the value of the goods lost is to be determined by an auditor. Perley, 0. J. According to the agreed case, the three corpora- tions, the Worcester and Nashua Railroad, the Norwich and Wor- cester Railroad, and the Norwich and New York Transportation Company, were engaged as common carriers in the business of transporting goods between Nashua and New York in a continu- ous line under an agreement by which they divided the price paid for transportation through in proportions fixed by the agreement. Tlie agreement is not before us ; but from the general statement of it in the case it must be inferred that the parties to it were mutually bound to transport goods on their connected line accord- ing to the direction given by the owner, when they were received fpr transportation in the usual course of the business by any one of the parties. In this case it would have been a violation of the agreement among the parties to the continuous line, if either the Norwich and Worcester Railroad or the Transportation Company had refused to receive and transport the goods towards their des- tination in the usual course of the business as they were marked and directed when they were received by the defendants. Tlie contract between the plaintiffs and defendants must be 292 EBSPONSIBILITY BEYOND LINE OP FIRST CARRIER. implied from the facts stated in tlie agreed case. There was no special agreement, written or oral, that the goods should be carried to New York, nor that the responsibility of the defendants should end on delivery to the Norwich and Worcester Railroad. The gen- eral question is whether the defendants undertook for the transpor- tation of the goods through to New York, or only agreed to carry and deliver, or tender, them to the Norwich and Worcester Railroad. Had the defendants corporate authority to contract for the trans- portation of the goods beyond their own line ? We have no hesi- tation in holding that railroads may contract to carry goods and passengers beyond their own lines. They could not answer the main objects of their incorporation without the exercise of this power. They are laid out and established with reference to con- nections in business with other extended lines of transportation, and the power to contract for transportation over the connected lines is implied in the general grant of corporate authority. On this point the authorities are nearly unanimous. It has been held otherwise in Connecticut by the opinion of three judges against two. Hood V. N. Y. & N. H. Railroad, 22 Conn. 1 ; Elmore v. The Naugatuck Railroad, 23 Conn. 457 ; The Naugatuck Railroad V. The Button Company, 24 Conn. 468. But in a later case. Con- verse V. The Norwich and N. Y. Transportation Company, 33 Conn. 166, the court in that state have shown some disposition to recede from the doctrine of their earlier cases. No other authorities are cited by the defendants to this point, and I have found no others that sustain their view of this question. The authorities the other way are numerous and decisive. Muschamp v. The Lancas- ter and Preston Railway, 8 M. & W. 421 ; Weed v. The S. & S. Railroad, 19 Wend. 524 ; The F. & M. Bank v. The Ch. Transpor- tation Company, 23 Vermont, 186 ; McCluer v. M. & L. Railroad, 13 Gray, 124 ; Rogers v. R. & B. Railroad, 27 Vermont, 110 ; Wilcox V. Parmelee, 3 Sandf. 610 ; Perkins v. The P. S. & P. Rail- road, 47 Me. 573. And railroads may contract for transporta- tion beyond the limits of the states in which they are established. McCluer v. The M. & L. Railroad, 13 Gray, 124 ; Burtis v. B. & S. L. Railroad, 24 New York, 369. And when a railroad makes a contract for transportation beyond its own line it will be presumed that it had authority to do it. McCluer v. M. & L. Railroad, 13 ' Gray, 124. In the agreed case it is said the goods were received to be for- RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 293 warded, &c., and from this phrase an argument is drawn that the agreement of the defendants was to forward to the next party in the line and not to carry through to New York. But here was no express agreement in any particular terms, and we are not called on to interpret the language used in any contract. The nature of the undertaking must be inferred from the facts stated in the agreed case, and cannot be determined by the phrase used in stating them. Even in a written contract, where the term for- warded is used, if the thing to be done belongs to the business of a carrier, he will be charged as such. In Wilcox v. Parmelee, 3>Sandf. 610, the court say: "The criticism of the defendant on the word forwarded used in the contract is not just. It applies to the whole distance, as well to those portions of the route where other parties were owners of the vessels, as to that portion where he employed his own means of transportation. He was to for- ward the goods from New York to Fairport, not to Buffalo, which he now says was the terminus of his own immediate route. The words used by him can only mean that he was to carry or trans- port the goods, and whether in his own vessels or in those of oth- ers was perfectly immaterial to the plaintiff." In Schroeder v. The Hudson River Railroad, .5 Duer, 55, the defendants gave a receipt for goods " to be forwarded per Hudson River Freight Train to Chicago ; " and under this receipt it was held that the defendants were bound to carry the goods to Chicago. So, in the recent case of Buckland v. The Adams Express Company, 97 Mass. 124, the defendants were cliarged as common carriers, though they described themselves in the contract under which they received the goods as " Express Forwarders." In the pres- ent case the undertaking of the defendants must be implied from the facts stated in the agreed case, and the particular language used in stating them is of no materiality. Since the introduction of steam as the means of transportation by land and water, the general question raised in this case has been much considered in different jurisdictions, and there is no little confusion and contradiction of authority respecting the rule which sliall govern the rights and liabilities of the parties, where goods are put in the course of transportation to distant places through connected lines associated in the business of common carriers. Where such lines are engaged in carrying passengers and their luggage, the several parties to the continuous line incur, 294 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. it would seem, the same liabilities for damage and loss of the luggage as in cases where they carry goods only. Darling v. The Boston & Worcester Eailroad, 11 Allen, 295 ; Quimby v. Vander- bilt, 17 New York, 312 ; "Weed v. The Railroad, 19 Wend. 634 ; The 111. Central Railroad v. Copeland, 24 111. 382 ; 111. Central Railroad v. Johnson, 34 id. 382. In England and in several of the United States, it has been held that when a railroad or other common carrier receives goods marked or otherwise directed for a place beyond the carrier's own line, this alone is prima facie evidence of a contract to carry the goods to their final destination, though the freight-money for transportation through is not paid to the carrier that receives the goods, and though he is not shown to have any connection in busi- ness with other parties beyond his own line. Muschamp v. The Lancaster and Preston Railway, 8 M. & W. 421 ; Watson v. The Ambergate, Nottingham and Boston Railway, 3 Law & Equity, 497 ; Collins v. The Bristol and Exeter Railway, 11 Exchequer, 790 ; s. c.> 7 House of Lords Cases, 194 ; Coxon v. The Great Western Railway, 5 Hurlstone & N. 274. These and several other cases show that in England, after the fullest discussion in all the courts, the rule is firmly established that a carrier who receives goods marked for a place beyond his own line is prima facie bound to carry them as directed to their final destination, and it is there held that the contract in such case is entire, and with the first car- rier alone ; that until some connection in the business, whicli has the general nature, if not the technical character, of a partnership, appears between him and the subsequent carriers, no action can be maintained against them by the owner, though the goods were lost or damaged on their part of the route. I have not met with an American case, in which the rule has been pressed to the extent of holding that the owner cannot come on any carrier, by whose default the loss or damage actually happened. There are, however, numerous authorities in the United States for the general rule of Muschamp v. The Railway, that the receipt of goods marked for a place beyond the line of the carrier who receives them, implies a contract to carry them to their final destination, though no connection in business is shown with other carriers beyond, and though the price for transportation through is not paid in advance. In Foy V. The Troy & Boston Railroad, 24 Barb. 382, the doc- RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. 295 trine of the case is stated in the head-note to be that "where a railroad company receives for transportation property addressed to a person at a point beyond the terminus of the road, he will be understood, in the absence of any proof to the contrary, to have agreed to deliver the property in the same order and condition in which it was received, to the consignee." The court say : " It was no part of the plaintiff's business to inquire how many different corporations made up the entire line of road between Troy and Burlington, or, having ascertained this, to determine at his peril, which of said companies had been guilty of the negligence which resulted in the injury to his wagon." In Schroeder v. The Hud- son River Railroad, 5 Duer, 55, the agent of the defendants gave the following receipt at New York : " Received of Schroeder six boxes — to be forwarded per Hudson River Railroad freight train to Chicago, Illinois ; " and it was held that the defendants under this receipt were bound to transport the goods to Chicago. No connection in business with other carriers was relied on. In Kyle V. The Laurens Railroad, 10 Rich. (Law) 282, the rule of Mus- champ V. The Railway was approved. O'JVeall, J., says : " The case of Muschamp v. The Lancaster and Preston Junction Railway states, I think, the true rule." The rule of Muscliamp v. The Railway was approved and adopted in the Central Railroad v. Copland, 24 Illi- nois, 332, in wliich it was held that " a railroad corporation selling tickets through over its own and other roads is liable for the safety of passengers and their baggage to tlie point of destina- tion." The case was put on the same ground as when goods are received marked for a place beyond the line of the carrier that receives them. Tlie court say : " We are inclined to yield to the force of the reasoning of the English courts, on principles of pub- lic convenience, if no other, and to hold when a carrier receives goods to carry marked for a particular place, he is bound to carry and deliver at that place. By accepting the goods so marked, he impliedly agrees so to do, and he ought to be answerable for that loss." In the later case of the Central Railroad v. Johnson, 33 Illinois, 382, it was decided in the same state that " when a car- rier receives goods to carry marked for a particular place, he is bound under an imfjlied agreement from the mark or direction to carry to and deliver at that place, though it be a place beyond 'his own line of carriage. In the Detroit and Milwaukee Railroad v. The F. & M. Bank, 20 Wis. 122, the railroad gave a receipt for 296 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. the goods directed to New York, but the receipt provided that the railroad should not be liable beyond their own road, and it was held that by an express agreement a carrier might limit his liability to his own road, when he receives goods marked for a place beyond it. The road was in that case discharged upon the ground of an express agreement tbat it should not be liable be- yond its own line, from which the inference is plain that, in the absence of an express agreement controlling the contract other- wise implied from the receipt of the goods marked for a place beyond its line, the road will be liable for a loss happening be- yond. In Angle v. The Mississippi & Missouri Railroad, 9 Iowa, 487, it was decided that " when a common carrier receives goods marked for a particular place beyond the terminus of his route, unaccompanied by any direction as to their transportation and de- livery except such as may be inferred from the marks, he is prima facie bound to carry and deliver them according to the marks." St. John V. Van Santvoord, 25 Wend. 660, is a strong authority for the rule that when goods are received by a carrier marked for a place beyond his line, he is bound to carry them to their final destination, if there is nothing to control the contract implied by the receipt of the goods so marked. Nelson, C. J., delivering the opinion of the court, says : " It appears to me such a contract is fairly to be inferred from the receipt of the captain in the absence of any explanation. The box was directed to J. Petrie, Little Palls, Herkimer County, indicating plainly to whom the plaintiffs were desirous of sending it, and was-- delivered on board for the express purpose of transshipment to him ; and without any quali- fication or explanation the agent received the article and gave his receipt, in effect saying to the plaintiff, I will take and deliver it at the place of destination according to the direction. So the plaintiffs must have understood the contract. It is the plain inter- pretation of the transaction. If the defendants had intended to limit their duty as common carriers short of the place of destina- tion, they should in some way have indicated to the plaintiff this intent." The judgment of the Supreme Court in this case was reversed by the Senate, 6 Hill, 157, upon the ground that the court should have received evidence of a custom controlling tlie general effect of the receipt of the goods marked for the place of destination, though the custom was not known to the plaintiff; leaving the doctrine untouched that the receipt of the goods so EESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 297 marked in the absence of evidence to explain and control the trans- action would imply an agreement to carry to the place for which they were marked. The American authorities above cited sustain the doctrine of Muschamp v. Tiie Eailway, that when a carrier receives goods marked for a place beyond his own line, he is, prima facie and in the absence of other evidence, bound by an implied contract to carry the goods to the place for which they are marked, though he has no connection in business beyond his own line and though he does not receive pay for transportation through. There is another class of American cases which hold that the mere receipt of goods marked for transportation beyond the line of tlie party that receives them is not evidence of a contract to carry beyond his own line, if he has no connection in business with carriers beyond ; but that, if several carriers associate in a con- tinuous line, carry goods for one price through, and divide the freight-money among them in an agreed ratio, though they may not be technically partners, but only quasi partners, yet as to third persons who intrust goods to them for transportation they are jointly liable for a loss that happens in any part of the continuous line, though the freight-money is not paid to the first carrier on delivery of the goods to him. In Champion v. Bostwick, 11 Wend. 571 ; s. c. 18 id. 174, sev- eral proprietors of different sections in a connected line of stage- coaches divided the receipts of the whole route in proportion to the miles run by each ; and it was held that they were jointly lia- ble as partners for an injury to a third person, not a passenger, caused by the negligence of one of them. It is to be observed that in this gase the receipts of the way as well as the through travel were brought into the account ; and on this, a distinction has been taken between that case and one where the receipts of the through travel only are divided ; and for that reason it has been said that in a case like the present there is no partner- ship and no joint liability. But as to parties who deal with the through line, it is of no consequence how the other business is managed, or whether any other business is done by the associated carriers. At most the distinction is merely technical and has no substance. Nor am I acquainted with any legal principle to pre- vent one engaged iti a genei-al business from having a partner in one distinct part of it, like the through business in this case, 298 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. witliout bringing all his business of the same kind into the part- nership account. I take it to be no uncommon thing for a trader to have a partner in his business done at one place, who has no concern in his business of the same kind transacted at other places ; for attorneys to form partnerships limited to certain parts of their business, and merchants, in the voyages, or in a single voyage, of one ship. Hart V. The Eensselaer & Saratoga Railroad is to the point that " where three separate railroad companies owning distinct por- tions of a continuous railroad route between two termini run their cars over the whole road, employing the same agents to sell passenger tickets, and receive luggage to be carried over the entire road, an action may be maintained against any one of them for loss of luggage received at one terminus to be carried over the whole road." Smith, J., delivering the opinion of the court in McDonald v. The "Western Railroad, 34 New York, 501, 502, says : " We may judicially take notice of the fact that the vast business of inland transportation of goods is carried on mainly upon routes formed by successive lines belonging to different own- ers, each of whom carries the goods over his own line and delivers them to the next. Many of these routes extend over thousands of miles. Their proprietors unite and receive goods for transporta- tion upon the promise express or implied that they shall be car- ried safely to the place of delivery. The owner has lost sight of his goods when he delivers them to the first carrier, and has no means of learning their whereabouts till he or the consignee is informed of their arrival at the place of destination." In Wibert v. The Brie Railroad, 12 New York, 256, it was said that " where a carrier is in the habit of receiving and forwarding goods directed to any particular place, an agreement on his part to take tliem there has been presumed ; but where these opera- tions are entirely disconnected, there is no partnership." In Bradford v. The Railroad Company, 7 Rich. (Law) 201, it was held that " an advertisement of a through line and the course of the business is evidence to charge all the roads engaged in the continuous line of transportation as jointly liable for carriage through the whole route." Bedfield, 0. J., in delivering the opinion of the court in The F. M. Bank v. The Transportation Company, 23 Vermont, 131, speaking of Weed v. The S. & S. Railroad, 19 Wend. 534, says : " That case is readily reconciled RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 299 with the general rule that such carrier is only bound to the end of his own route, by the consideration that in this case there was a hind of partnership connection between the first company and the other companies constituting the entire route, and also that the first carrier took pay and gave a ticket through, which is most relied on by the court ; and in such cases where the first company gives a ticket and takes' pay through it may be fairly considered equivalent to an undertaking to carry throughout the entire route." In a note to this case by Medfield, C. J., he says, "in that case (Weed v. The Railroad) the court seem to put the case more upon the fact of taking fare and giving a ticket through, which in practice is seldom or never done except where there is a quasi part- nership throughout the route." This would seem to be a strong authority that where there is a connected line of carriers, and a quasi, though it may not be a technical and legal partnership, they are liable jointly for carriage through the whole connected route. By the statute of New York, enacted in 1847, " whenever two or more railroads are connected together, any company owning either of said roads receiving freight to be transported to any place in the line of either of said roads shall be liable as common carriers for the delivery of such freight at such place." This statute has received a liberal construction and been held to make a railroad in New York liable for a loss on a road in the connected line beyond the limits of the state. Burtis v. The Buifalo and State Line Railroad, 24 New York, 269 ; but not to discharge an intermediate carrier for loss caused by his own fault. Smith v. The N. Y. Central Railroad, 43 Barb. 225. In The Cincinnati H. & D. Railroad v. Speat, 2 Duvall, 4, it was decided that " where several parties are associated for the trans- portation of freight from Louisville to New York, executing through bills of lading and charging through freight, they will be chargeable as common carriers between those points ; and in such cases public justice and commercial policy require a strin- gent construction against any intermediate irresponsibility as common carriers. Two points were decided in this case : that the defendants were liable as common carriers for transportation through to New York ; and that on the facts of the case they held the goods as common carriers and not as warehousemen. The court say : " The facts conduce to prove that the appellants, asso- ciated as they were with steamboats and other carriers from Louis- 300 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. ville to Cincinnati as joint transporters between those points, and jointly charging through freight and giving through receipts, were in the popular and technical import common carriers to the whole extent between those termini." This reasoning applies with full force to the present case. In 2 Redfield on Railways, 104, the learned author sums up the result of the American cases on this particular point as follows : " The American cases upon the subject, with rare exceptions, recognize the right of a railroad company to enter into special contracts to carry goods beyond the line of their road ; and where different roads are united in one continuous route such an under- taking, when goods are received and booked for any part of the lino, is almost a matter of course." In the present case the de- fendants were united in a continuous line to New York ; the goods were received marked, which must be equivalent to booked, for New York ; and the case would seem to fall clearly within the rule laid down in Eedfield as the result of the American author- ities. There is still another class of cases, in which it is held that the fact of a carrier's receiving pay for transportation to a place beyond his own line implies a contract to carry to that place. In the case of Hyde v. Tiie Trent & Mersey Navigation Company, 5 T. R. 389, decided in 1793, the marginal note is as follows : " Common carriers from A to B charge and receive for cartage to the consignee's house at B from a warehouse there, where they usually unloaded, but which did not belong to them ; they must answer for the goods if destroyed in the warehouse by an acciden- tal iire, although they allow all the profits of the cartage to another person, and that circumstance were known to the con- signee." The four judges delivered their opinions seriatim, and all agreed that the charge for cartage to the house of the con- signee " put the case out of all doubt," and bound the carriers who made the charge to carry the goods to their final destina- tion. In answer to the argument that the carriers acted as agents of the owner in forwarding the goods beyond their own line, Mr. Justice Buller said : "According to the defendants' own argument great inconvenience would result to the public from adopting the other rule. According to their argument, there must be two con- tracts, where goods are sent by coach or wagon. But I tHink the same argument tends to establish the necessity of three ; one with RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 301 the carrier, another with the innkeeper, and a third with the por- ter. But in fact there is but one contract ; there is nothing like any contract or communication between any other person than the owner of the goods and the carrier. But I rely on the charge which the defendants compelled the plaintiff to pay before they would engage to deliver the goods. The different proprietors may divide the profits among themselves in any way they choose, but they cannot exonerate themselves from their liability to the owner of the goods." This case, coming before the agitation of these questions on the introduction of steam as a motive power, and decided on the general principle applicable to the liability of carriers at common law, is certainly of very great weiglit. It decides that when a carrier receives goods to be transported be- yond his own line and takes pay for carrying them to their final destination, he agrees to do what he has been paid for doing ; and it repudiates the fanciful theory of an agency for the owner to forward the goods and in his behalf to procure them to be carried by others. In Weed v. The Saratoga & Schenectady Railroad, 19 Wend. 534, the plaintiff's agent took passage at Saratoga in the Sara- toga and Schenectady Railroad for Albany and paid his fare to Albany. The route to Albany consisted of the defendants' and the Mohawk &, Hudson River Railroad. When the agent arrived at Albany, his trunk containing money of the plaintiff was missing, and this action was brought to recover for the loss. One ground taken for the defendants was that there was no evidence the trunk was lost on their road. There was no evidence of a contract to carry to Albany except such as was implied from the fact tliat the two roads made a continuous line to Albany, and the defendants took the trunk for carriage to Albany and received the pay for carrying through. It was held that the payment and receipt of fare through bound the defendants as carriers over the other road through the whole continuous route. Wilcox V. Parmelee, 3 Sandf. 610, is an authority to the same point, that receiving pay for transportation to a place beyond the line of the carrier who receives it, implies a contract to carry to that place. The court say : " Besides, there is a fixed sum which covers the whole charge ; and it would be absurd to suppose that the defendant was to receive the whole sum for merely forwarding, that is, placing the goods on the vessels of some other party to be carried to their place of destination." 302 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. Van Santvoord v. St. John, 6 Hill, 157, cited for the defend- ants, recognizes the doctrine of Weed v. The Railroad. In his opinion for reversing the judgment of the Supreme Court, the Chancellor says : " In the case of Weed v. The Railroad, the two lines were connected together by an arrangement between them- selves, and the agent of the defendant took the pay in advance for the conveyance of the plaintiff and his baggage the whole distance. Or, if no actual connection between the two lines was proved, it at least appeared that the defendant permitted its agent to hold it out as a carrier of passengers and their baggage for the whole distance bt/ taking pay therefor." It thus appears that in Van Santvoord v. St. John, as in Hyde v. The Navigation Company, taking pay for carriage to a place beyond the line of the party that takes it, is regarded as decisive of an undertaking to carry to that place. Quimby v. Vanderbilt, 17 New York, 315, is to the same point, that receiving pay for carriage through a continuous line imports a contract to carry through ; and in Burtis v. The Buffalo and State Line Railroad, 24 New York, 269, 278, Suther- land, J., says : " It would appear to be settled by both the Ameri- can and English cases that when from usage in the particular business, or hy receiving pay to the place to which the goods are addressed, beyond the railway company's road, or from any other circumstance, it is to be presumed that the undertaking of the railway was to deliver at such place, they are responsible for the delivery of the goods at such place, and are liable if the goods are lost after leaving their road." In Choteaux v. Leach, 18 Penn. St. 224, furs were shipped at Cincinnati for New York. The defendants admitted that they were carriers on the canals and railroads of Pennsylvania, but denied that they were on the river Ohio. The furs were lost in a steamboat on that river. The court {Black, C. J.), say : " Tiiey, the defendants, received the full freight from Cincinnati to New York ; and this is wholly inconsistent with the notion that they were agents for the shipment of the furs, and not carriers from Cincinnati to Pittsburgh, as well as on other parts of the route." To the same point is The Baltimore & Philadelphia Steamboat Company v. Brown, 54 Penn. 77, which cites and approves The Illinois Central Railroad v. Copeland, 24 Illinois, 338 ; The Illi- nois Central Railroad v. Johnson, 34 Illinois, 382 ; and The Rail- road V. Schwartzenburg, 9 Wright, 208. So in Candee v. The BESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 303 Pennsylvania Railroad, 21 Wis. 582, where a railroad sells a through passenger ticket by a specified route to some point out of the state over lines belonging to other companies, it seems the understanding of the first company is to transport the passenger and his baggage to such place of destination. Carey v. The Cleveland and Toledo Railroad, 29 Barb. 36, is to the same effect, and also the Illinois Central Railroad v. Copeland, 24 Illi- nois, 332, in which it was held that a railroad selling tickets through over its own and other roads is liable for the safety of passengers and their baggage to the point of destination. Wheeler V. The Railroad, 31 Cal. 52, cites and apparently approves the doctrine as laid down on this point in 2 Redfield on Railways, 109. In Carter v. Peck, 4 Sneed (Teun.), 203, the defendants received fare and gave a ticket to a point beyond their own line ; it was held that they were liable for a detention beyond their own line. Harris, J., delivering the opinion of the court, says : " When the defendants received the plaintiff's money and gave him a through ticket, they thereby became bound for his transportation over the entire line. The arrangement between the defendants and the proprietors of other portions of the line was a matter with which the plaintiff had nothing to do. He was no party to that arrange- ment, nor was he bound to look to any person for the perform- ance of the defendant's undertaking but themselves." Redfield (Railways, 109) sums up the result of the authorities on this point as follows : " It has generally been considered, both in this country and in the English courts, that receiving goods destined beyond the terminus of the particular company and giv- ing a check or ticket through does import an undertaking to carry through, and that this contract is binding on the company." Then, again, there are American cases which maintain the doc- trine that, though carriers are associated in a continuous line, and one of them, on receiving goods marked for transportation through, takes pay for transportation through, which by agreement of the parties to the continuous line is divided among them in a fixed proportion, yet, in the absence of a positive agreement, each carrier is liable for loss on his own line, and not for a loss on any other part of the connected line. This appears to be tiie settled rule in Connecticut. In Hood v. Tiie New York and New Haven Railroad, 22 Conn. 1, the defend- ants' road was connected with a line of stage-coaches which runs 304 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. from their terminus to Coleville ; and they advertised that passen- gers by their line went by stage from Farmington to Coleville. The plaintiff bought a ticket of the defendants at New Haven for Coleville. The conductor on the said road took up the plaintiff's ticket and gave him one for the stage. The plaintiff was injured on the stage route. The whole fare through was paid to the defendants, and they accounted on settlement with the proprietors of the stage line, and this was according to the custom of the business. There was no other contract between the stage com- pany and the railroad. It was held that there was no contract by the defendants to carry the plaintiff on the stage route. The decision would seem to have been put mainly on the ground that the defendants had no corporate authority to contract for carriage beyond their own line. In Elmore v. Naugatuck Railroad, 23 Conn. 457, it was decided that neither the receiving of goods directed to a point beyond the line of the road, nor an advertise- ment of the general facilities of transportation through the route is evidence of a special contract to carry goods to the place to which they were directed. The Naugatuck Railroad v. The Button Company, 24 Conn. 468, is to the same effect ; and in the later case of Converse v. The Norwich and Worcester Transportation Company, 33 Conn. 166, the court consider the question as settled in Connecticut. In Maine a single case is cited by the defendants, Perkins v. The P., S. & P. Railroad, 47 Maine, 673 (and I have found no other in that state bearing on the present question), the head-note of which is as follows : " A railroad company may be bound by spe- ■ cial contract (but not otherwise) to transport persons or property beyond the line of their own road." It is to be observed that in this case of Perkins v. The Railroad, the plaintiff had judgment, on the ground of a special contract ; from which the negative inference is drawn that the plaintiff could not recover otherwise than by a special contract. This cannot be regarded as quite equiv- alent to a direct decision on the point ; for if the point was raised in tlie case, it certainly did not require the court to determine whether a special contract was necessary to charge the defendants, and besides there is reason to think that the term " express con- tract " could hardly have been used in its strict sense to signify a contract in the form of a direct promise or undertaking in lan- guage, oral or written, proper to show a positive agreement ; since RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 305 the judge, who delivered the opinion of the court, speaks of a case where the carriers would be liable on the ground that they " held themselves out as common carriers to that place ; " in which case, as I understand it, the contract would not be express, in the strict or usual sense of the term, but implied from the conduct of the party. And the same learned judge also says : " It is of great public convenience, if not absolute necessity, that several companies should combine their operations, and thus transport passengers and merchandise by a mutual arrangement over all their lines, upon one contract, for one price. In such cases each is held liable for the whole distance." Instances are to be met with in other books of a similar latitude in the use of the term special contract, as in 2 Redf. on Railways, 104, where the term special contract is used, but the example given is of a contract im- plied from certain facts. For these reasons we are not inclined to regard Perkins v. The Railroad, as a direct and final decision by the courts in Maine of the question raised in the present case. In Nutting v. Tlie Connecticut River Railroad, 1 Gray, 502, the Supreme Court of Massachusetts decided that " a railroad corpo- ration receiving goods for transportation to a place beyond the line of their road on another railroad which connects with theirs, but with the proprietors of which they have no connection in busi- ness, and taking pay for transportation over their own road only, are not liable, in the absence of any special contract, for loss of the goods after their delivery to the proprietors of the other road." This could hardly be regarded as an authority for the defendants in the present case ; and I find nothing in the opin- ion of the court which carries the doctrine of the case beyond the statements of the head-note. But, in later cases, the rule has been established in Massachusetts that a carrier is not bound for the transportation of goods beyond Jiis own line in the absence of a positive agreement to that effect. In Darling v. The Boston & Worcester Railroad, 11 Allen, 295, it was decided that if an arrangement is made between several connecting railroad com- panies, by which goods to be carried over the whole route shall be delivered by each to the next succeeding company, and each company receiving them shall pay to its predecessor the amount already due for carriage, and the last one collect the whole from the consignee, a reception of such goods by the last company, and payment by it of the charges of its predecessors, will not render VOL. n. 20 306 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. it liable for an injury done to the goods before it received them." From this case the general rule has been deduced in Massachu- setts that a carrier is not liable for loss beyond his own line with- out a positive agreement to be so liable ; though some of the discussion in Darling v. The Railroad seems hardly consistent with such a rule, for the learned judge who delivered the opinion says : " The usage as to the manner of doing the business enters into the contract as part of it, in the absence of an express con- tract. But the convenience of commerce makes it highly useful to send goods to distant places which can be reached only by inde- pendent lines of transportation. It is important that this busi- ness should be accommodated ; and this may be done by express agreement or established usage. It is frequently done in this country by agreements made by the proprietors of connecting lines with each other ; and this is much better than to leave any impor- tant matter of this kind to be settled by usage. When such arrangements are made, the liability of each line is to be deter- mined by a fair construction of their terms." That is to say, usage enters into the contract on which the goods are carried for the owner ; but when the business is done on the connected line by an agreement among the parties to it, the liability of the dif- ferent parties to the owner for the transportation of his goods is to be determined by a fair construction of the terms of the agree- ment among the parties to the connecting line ; and the contract on which the goods are carried is inferred from usage, or from the arrangements among the parties to the connected line, and in such case does not depend on any positive agreement between the owner of the goods and any one of the carriers. We have been furnished with a manuscript copy of the opinion in Goss V. Thfe New York, Providence & Boston Railroad, in which on facts that we cannot distinguish from the present, the court held that the point was settled by the prior decisions in Massachu- setts, especially by the case of Darling v. The Railroad, and de- clined to discuss the general question further. And in the case of Burroughs v. The Norwich & Worcester Railroad, decided in Sep- tember, 1868, we have also been furnished witii the opinion of the court holding the law to be well settled in Massachusetts that a corporation established for the transportation of goods over a line between certain points and receiving goods directed to a more dis- tant point is not responsible beyond the end of its own line, unless RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 307 it makes a positive agreement extending its liability. And tliis rule, if a newspaper report can be trusted, was lately applied in Pendergast v. The Adams Express Company, by the same court to the case of an express company that gives a receipt for money directed to a place beyond the line of the company that gives the receipt. It has been said that the English rule on this subject has not been generally adopted in this country. A review, however, of the American cases shows but too plainly, that if our courts have dif- fered from the English, they are far from agreeing among them- selves in any principle or doctrine that can be called the American rule. There is not only much confusion, but no little conflict in the American authorities. A large proportion of them are not directly in point for the present case, which must be decided on the facts found by agreement of the parties. The following are the facts and circumstances from which the contract between these parties must be inferred : — The three corporations were engaged as common carriers in the transportation of goods in a connected line between Nashua and New York, under an agreement among the parties to the coimected line. In the present instance, and generally under the agreement, one price was paid for transportation through. The freight-money was divided among the parties to the connected line in proportions fixed by their agreement. The goods were received by the defendants for transportation on the connected line marked for New York. The legal inference from the general statement of the agreement is that the parties to the continuous line were bound by their mutual contract to take from each other and carry through goods so marked, that might be received by any one of them. The price for transportation to New York was paid to the de- fendants, when they received the goods. The American authorities are comparatively few, which hold that when all these circumstances concur, the carrier who receives the goods is not bound, by an implied agreement, to carry them, or see that they are carried, over the connected line to their final destina- tion. I do not find that the decisions in any of the states sustain this defence, except in Connecticut, Maine, and Massachusetts. With regard to the cases in Connecticut, it cannot imply any 308 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. want of the respect due to the courts of that state, if I say that for two reasons their cases on this point are not entitled to all the de- ference that is paid to Jheir decisions on other subjects. In the first place, it is held there that railroad corporations have no cor- porate authority to contract for the transportation of goods or pas- sengers beyond their own lines, — a doctrine rejected everywhere else. If it were admitted that railroads had the power to make such contracts, it does not appear that the courts in Connecticut would have decided that the plaintiff in a case like this would not be entitled to recover. Indeed it would seem from the opinion of the court as delivered by Ellsworth, J., in Elmore v. The Naugatuck Railroad, 23 Conn. 457, that in Connecticut these defendants would be held liable if their power to contract were conceded. He says : " No money was paid, or agreed to be paid, for conveying the leather to any specific place. There was no evidence or claim that there was any connection between the defendants and the steamer, ex- cept in the customary way of forwarding freight. They delivered the goods to each other from time to time as they were marked for transportation, no matter to what place, whether to New York, California, Europe, or Asia. It is obvious that where the different "carriers throughout the route aref connected in business by some joint undertaking or partnership, there can be no difficulty in case of a loss which happens on any part of the line ; but the question arises, where this is not the case, what is the law then ? " Prom this it seems to me that we are warranted in supposing, if the de- fendants had power to contract and the facts had been such as are found in the present case, the court in Connecticut would have no difficulty in charging the defendants for a loss happening in any part of the line. Then again these decisions in Connecticut were by three judges against two ; Waite, then Chief Justice, and Hin- man, who has since filled that place. The reasons for holding the defendants liable in Elmore v. The Railroad are very ably and forcibly stated by Waite, C. J., in his dissenting opinion. Such dissent, it is evident, leaves the authority of the cases so much re- duced that they cannot be entitled to great weight out of the juris- diction in which they were decided. The single case of Perkins v. The P., S. & P. Railroad, for rea- sons before suggested, we cannot consider as a final settlement of the question in Maine. But in Massachusetts the court in a series of decisions have es- RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 309 tablished the rule that a carrier, though associated with others in a connected line of transportation, is not liable for a loss happening beyond his own line without a positive agreement to that effect ; and this rule is applied to the baggage of passengers and the un- dertaking of express companies that receive goods for transporta- tion beyond their own lines. The fact that notwithstanding the earlier decisions, suits have continued to be brought in that Com- monwealth against parties that have received goods to be transported on continuous lines for losses happening beyond their own lines, might seem to suggest a suspicion that the profession and the public had not readily acquiesced in the rule as there laid down ; but the court have adhered firmly to the rule, and in some of the later cases have apparently declined to enter on the discussion of the question, treating it as finally settled ; and we mvist therefore consider the high authority of that court as against the right of the plaintiffs to recover in this action. So far, however, as that court may be understood to have established the rule that to bind a rail- road for transportation beyond its own line there must be an express and positive agreement between the railroad and the owner of the goods, and that such an undertaking is not to be implied from facts such as are found in this case, the current of American authority, to say nothing of the English, appears to be strong the other way. Excepting the cases in Connecticut and Maine, which, when ex- amined, do not, I think, give the Massachusetts doctrine any very strong support, the authorities in other states, though they differ much in other particulars, generally agree in this, that where, as in the present case, there is a continuous line of different carriers united by an agreement under which they carry goods through the connected line for one price, which they divide among themselves in proportions fixed in their agreement, if one of the parties re- ceiving goods to be transported on the continuous line, marked for any place in it, and on receiving the goods takes pay for transport- ing them to that place, the party so receiving the goods and the pay for transportation, is primd facie bound by an implied agree- ment to carry the goods, or see that they are carried to the place for which they are marked, and is liable for a loss happening on any part of the connected line. If the cause were to be considered on authority only, we should feel bound to decide for the plaintiffs, inasmuch as we find the weight of authority to preponderate heavily in their favor; and 310 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. taking general principles and reasons of convenience and public policy for our guide, we are led to the same conclusion. In the view which the plaintiffs ask us to take of this case, when the goods were received by the defendants, marked for transporta- tion to New York, and the price paid to the defendants for trans- portation through on the continuous line, the plaintiffs made one contract with the defendants, by which the defendants agreed, either as joint carriers with the other associated parties, or as un- dertaking for them to carry the goods through for the price paid, as goods were carried in the usual course of the business on that line. In that view the plaintiffs would have nothing further to do in the matter. Every thing else was provided for by the agreement among the associated carriers ; for by their agreement the defend- ants were bound to transport and the successive carriers would be bound to take and carry the goods from each other to their final destination. The price through was paid, and belonged to the dif- ferent carriers in proportions fixed by their agreement ; and this theory would agree exactly with the facts ; for the plaintiffs in fact made but one agreement with one party to have the goods carried for one price to New York. No further stipulation or direction on the part of the plaintiffs was necessary, and none was ever in fact given by owners of goods who put them in the course of transpor- tation, as these were put, in the continuous line. According to the defendant's theory of the case, when the plain- tiffs delivered the goods marked for New York, and the defendants received them and took pay for transportation through, no contract was made with any party to carry the goods through ; but the con- tract then made by the defendants was to carry the goods to the next carriers on the connected line with the surplus money, and as agents of the plaintiffs make a contract if they could with the next carriers to take the goods and the money and carry them on in the same way through successive agencies for the plaintiff to their final destination. If these agents should consent to act for the plaintiffs, and be able to negotiate bargains with the other car- riers for transportation through, the goods would go to New York as was intended ; but they would go under three separate contracts made at different times through this imaginary agency with three different and independent parties. The first objection to the defendants' theory of this transaction is that it is contrary to the fact. The owner of goods in a case RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 311 like this does not in fact appoint or employ the successive carriers in the continuous line as his agents to hold his money for him, and as his agents carry it forward and contract in his behalf with the other roads for further transportation. He makes but one contract for one price ; he pays the price, and the money he has paid does not belong to him, but to the associated carriers in proportions fixed by their agreement. He does not inquire, nor is he interested to know, how they divide the money. The contract is entire and complete when he pays the price for transportation through, and every thing to be done afterwards is regulated by the standing agreement among the associated carriers. He has no control over them as his agents ; he does not and cannot intermeddle with the manner in which they do the business or dispose of the money tliat he has paid for the carriage of his goods. Let us see what are some of the consequences that would follow, if both parties in a case like this should act on the defendants' view of their legal rights. Suppose in this case the goods had been carried through to New York, and the defendants had not paid to the next carriers the proportion of the freight-money which be- longed to the other carriers ; and then suppose that the Norwich & Worcester Eailroad should sue the plaintiffs for carrying the goods over their road. It would avail the plaintifiFs nothing to say that they had paid the freight through when the goods were received at this end of the route. The ready answer would be : " To be sure, you put money into the hands of your agents, the Worcester & Nashua Railroad, to pay us, but they neglected their duty ; your money is still in their hands, and we are not paid." It is, liowever, quite clear, that the money received by the defendants for trans- portation through on the connected line would be held by them for all the parties to the line ; they would be bound to account for it under tlieir agreement as one partner accounts with his fellows for money received on partnership account. Then if the plaintiffs should undertake to pay the different carriers, how are they to know the share of each ? The proportions of the freight-money belong- ing to them respectively are regulated by a private agreement of which the plaintiffs know nothing, and of which in the way the business is actually conducted they have no need to be informed. If the plaintiffs had proposed when they delivered the goods to pay the Worcester & Nashua road their proportion of the freight-money and afterwards to pay the other carriers their respective shares, 312 BESGONSIBILITT BEYOND LINE OP FIRST CARRIER. they probably would have found nobody to tell them what the dif- ferent shares were, or to receive the goods to be carried on such terms. In truth the connected line transacts business as one joint concern, and the business cannot be transacted otherwise with convenience either to the carriers or the owners of the goods. Then if we look to the remedy of the associated carriers for the recovery of the freight-money, each, on the theory of the defend- ants, must bring a separate suit on the separate contract for his proportion of the money. We have had occasion to learn from the facts stated in another case now pending before us that there i^ a connected line consisting of six or seven different railways extend- ing from Ogdensburg in New York through Vermont and New Hampshire to Boston in Massachusetts, in which one price is paid for transportation through and the money divided by a standing agreement as in this case. If goods are carried through on this route, and there are six or seven different contracts, one with each road, then each road must bring a separate action for its share of the freight-money. If it should be said that the remedy of the roads is to retain the goods at the end of the route till the whole price for transportation through is paid, this, in the first place, would show that these roads are so combined that for their own purposes they are a unit, while they insist that they are wholly separate and independent when the owner seeks redress for the loss of his goods. And then again, if the roads act separately and are not jointly interested in the business of the connected line, when one of the roads parts with the possession of goods by delivery to another, it loses its lien for the freight-money, and cannot transfer it to another independent carrier. Angell on Carriers, 357, 369, 609. This is not at all like the maritime lien, when a voyage is broken up and the cargo is put on board another vessel to be carried to the port of destination. There the lien on the cargo for the whole freight is transferred to the second vessel, which completes the transportation under one contract. The use of steam in carrying goods and passengers has produced a great revolution in the whole business. The amount and im- portance of it have of late vastly increased and are every day in- creasing. The large business between different parts of the country is done, as in this case, by parties who are associated in long con- tinuous lines, receiving one fare through and dividing it among themselves by mutual agreement. They act together for all prac- RESPONSIBILITY BKTOND LINE OP FIRST CARRIER. 313 tical purposes so far as their own interests are concerned as one united and joint association. In mq,naging and controlling the business on their lines they have all the advantages that could be derived from a legal partnership. They make such an arrangement among themselves as they see fit for sharing the losses, as they do the profits that happen in any part of their route. If by their agreement each party to the connected line is to make good the losses that happen in his part of the route, the associated carriers, and not the owner of the goods, have the means of ascertaining where the losses have happened. And if this cannot be known, there is nothing unreasonable or inconvenient in their sharing the loss, as in case of a legal partnership, in proportion to their re- spective interests in the whole route. They undertake the business of common carriers, and must be understood to assume the legal liabilities of that business. Tliey transact the business under a change of circumstances ; but the principles and the general policy of the common law, which, as an elementary maxim, holds the common carrier liable for all acci- dental losses, must be applied to these new methods of transacting the same business ; and there is certainly nothing in the present condition of the business, which calls for any relaxation of the old rule. The great value of commodities transported over tliese con- nected lines ; the increased risk of loss and damage from the im- mense distances over which they carry goods ; the fact that where goods are once intrusted to carriers on these long routes they are placed beyond all control and supervision of the owner, — are cogent reasons for holding those who associate in these connected lines to a rule that shall give effectual and convenient remedy to the owner, whose goods have been lost or damaged in any part of the line. Any rule which should have the effect to defeat or embarrass the owner's remedy would be in direct conflict with the principles and whole policy of the common law. • What then is the situation of the owner, whose goods have been damaged or lost on a continuous line of three or any larger number of associated carriers, if he can look only to the carrier, on whose part of the route the damage may have happened ? In the first place he must set about learning where his loss happened. This would often be difficult and sometimes quite impossible. Suppose an invoice of flour shipped in good order at Ogdensburg were found on arrival at Boston to have been damaged somewhere on the route ; 314 EESPONSIBILITT BEYOND LINE OP FIRST CARRIER. or suppose a trunk checked at Boston for" Chicago was broken oj)en and plundered before it reached Chicago, what would the owner's chance be worth of finding out in what particular part of the route the damage happened ? He would have no means of learning himself ; and he would not, unless of a very confiding disposition, rely on any very zealous aid in his search from the different carriers associated in the connected line. And if he should have the luck to make the discovery, he might be obliged to assert his claim for compensation against a distant party, among strangers, in circum- stances such as would discourage a prudent man, and induce him to sit down patiently under his loss rather than incur the expense and risk of pursuing his legal remedy under the rule set up by these defendants. The forlorn condition of the owner in such a case is put in a strong light by Waite, C. J., in his dissenting opinion, Elmore v. The Naugatuck Railroad, 23 Conn. 478, where he says : " A merchant residing in Cleveland, Toledo, or Chicago, purchases goods in the city of New York, which he wishes to send to his place of business. He enters into a contract with a railroad company, for their transportation, not to any given point on the route, but for the whole distance. He delivers the goods to the company and they are taken and locked up in freight cars. He does not accompany them, and often sees and hears nothing more of them until they are delivered to him at their place of destination. The cars in which they are placed are often run over roads belong- ing to different companies to save trouble and expense of change of cars. If the goods are lost or damaged on the route he ordinarily has no means of determining where or in whose custody the injury occurred. The trouble and expense of ascertaining that fact in many cases would amount to more than the whole damage. As a prudent, cautious man he would be unwilling to intrust his goods to the custody of others, unless he could find some person or com- pany that would be responsible for their safe delivery." There- marks of Smith, J., 34 New York, 501, before cited, are of the same import, showing the difficulties and embarrassments of the owner, if he can only resort for compensation to the carrier in the connected line, on whose part of the route the damage happened. A rule, which throws such difficulties in the way of the owner who seeks to receiver of common carriers for the loss of his goods, I cannot but regard as a wide departure from the general doctrine of the common-law on this subject ; and nothing is plainer than RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. 315 the duty of courts to apply the general principles of the common- law to the new circumstances which are introduced by changes in the manner of transacting any business. Few things are of greater importance to the whole country than the cheap, conyenient, . and safe transportation of goods between distant points. Vast sums of money are expended to promote this object. The business is already immense and constantly increas- ing. Most of this business is done on connecting lines of railroads and steamboats, and these by continuous lines have a practical monopoly of the business on their respective routes. The owner of goods must intrust them to these associated carriers ; they can- not be carried in any otlier way. Not only those who are engaged directly in carrying and sending goods are interested in this sub- ject ; all who produce and all who consume are interested that goods should be carried as cheaply, as conveniently, and as safely as possible. Public policy and the public interest concur with the general maxim of the law, that those who transact this great busi- ness should be held to a rule which shall give a ready and effectual remedy to the owner whose goods have been lost or damaged in any part of these connected lines of transportation. There is a perplexing diversity of decision on this subject in the different tribunals of this country. For instance, by the law of New York, as we understand it to be established by the construction which the courts have given to their statute, if goods are received in that state for transportation through on a connected line of rail- roads, the road that receives the goods is liable for loss or damage happening in any part of tlie connected line, though beyond the limits of the state. Burtis v. The Buffalo & State Line Railroad, 24 N. Y. 269. As has been before mentioned, there is a connected line of six or seven railroads extending from Ogdensburg to Bos- ton. If goods are received by the Ogdensburg Railroad for trans- portation to Boston, and are lost or damaged on any part of the line, say on the Lowell Railroad, the Ogdensburg Railroad is liable for the loss. But if merchandise is received at Boston by the Lowell Railroad for transportation to Ogdensburg over the same connected line of railroads associated under the same agreement, the owner would be left to find out, if he could, on which of the six or seven connected roads his goods were lost or damaged, and could claim for his loss of that road alone. There would seem to be no remedy for this confusion and conflict of decisions unless the 316 EBSPONSIBILITY BEYOND LINE OF FIRST CARRIER. national legislature can provide one under the power given by the constitution to regulate commerce. I come to the conclusion that on the case stated the plaintiffs are entitled to recover ; and such is the unanimous opinion of the court. We here adopt the substance of our note to this case, which first appeared in 10 Am. Law Reg. N. S. 262-265. The foregoing case is one of importance and interest, both to the profession and to business men, at this particular juncture, when the necessities of trans- portation are driving railway companies into the creation of extended lines of passenger and goods traffic, and when there continue to be such irreconcilable differences in the decisions of the different states in regard to the rights and responsibilities of the respective parties. The whole subject is so fully presented in the opinion, and the cases so extensively commented upon, that we should not feel justified in going over the same ground. It has seemed to us that much of the apparent conflict in the decisions upon this subject might be measurably reconciled by defining, more carefully and exactly, the precise grounds upon which a contract for transportation beyond the line of the first carrier will be implied. It would scarcely do to refer the matter to the determination of the jury, in each particular case. That would be likely to produce too much uncertainty for practical convenience. But in many cases, and always when the main facts are in controversy, and sometimes where the exact understanding of the parties becomes important, the intervention of the jury will become indispensable. The great argument in favor of the English rule, as declared in Muschamp v. Lancaster and Preston J. Railway, 8 M. & W. 421, and other subsequent English cases is, that it establishes a fixed and definite rule, and one that meets, fairly enough, the practical convenience of the public. But that is not all that is to be sought after. We must and should have some reference to the public duties of common carriers, and what those who employ them may fairly demand of them. It is very obvious that carriers, for their own protection, and to extend their business, would naturally desire to conduct it upon such principles as to afford reasonable and just accommodation to their employ- ers. And it seems but reasonable and just that all judicial constructions should be made in the same direction and with the same end in view. And we by no means intend to intimate that this has not always been the case in the decisions bearing upon this subject, and as affecting the numerous incidental questions in- volved. But it has seemed as if that consideration might safely have been per- mitted, in some cases, to have had a more controlling influence than was allowed. We comprehend, well enough, that a fixed rule made by declaring a hard and fast line and steadfastly adhering to it, with no reserve or qualification, is some- times supposed to save courts a vast deal of perplexity, which a sliding scale or rule, more or less resting in discretion, would be likely to produce and to multi- ply almost indefinitely. And still too great, or too strict, adherence to abstract rules is sure to produce injustice in extreme cases. It seems to us, if we must BESPONSIBILITY BEYOND LINE OP PIBST CARRIER. 317 have a fixed rule, that the English rule upon this subject is more just and more practicable, than any inflexible application of the rule of limiting responsibility to the line of the first company can be made ; and especially where there is an acknowledged business connection between the different companies. It is not always easy to define precisely what connection between diflTerent com- panies, in the transportation of goods, shall bind the first company throughout the line. But in a case like the last preceding one, where the goods are billed through, and the entire freight paid, there should, it would seem, be no question that such facts should be regarded as evidence of an express contract to carry through. There can be no doubt the parties to such a transaction ordinarily so regard it. It is a forced and unnatural construction to regard it in any other light. The consignor in no sense regards the agent of the first company as contracting in the capacity of agent for the successive companies, but as the agent for the first com- pany, whose agent he is, and whose agent only. The case of Schneider v. Evans, 9 Am. Law Reg. N. S. 636, is of this character, and the erroneous conclusion of the court in that case was brought about by attempting to give the transaction the forced and unnatural construction of allowing the successive companies to demand more than their proportion of the entire sum stipulated by the first com- pany for the whole freight. How much less than this shall be held as amounting to an express contract to carry through, it will not, at once, be easy to determine. But the exigencies of business and the experience of the courts will, from time to time, enable us to fix and define the proper limitations. The case of Darling V. Boston and Worcester Railroad, 11 Allen, 296, fell very much short of this, and the court held the facts in that case not inconsistent with separate responsibility. In Boroughs v. Norwich and Worcester Railroad, 100 Mass. 26, there was nothing more than in the next preceding case, upon which to found an implica- tion of an undertaking for the entire route, except the tariff of freight posted in the office of the first company, which gave the through rate in one item, without distinguishing the particular rate of the separate companies. This alone would not be very conclusive of an undertaking to carry through. But the difficulty was, in this particular case, if so applied, that the bill contained an exception of the very risk upon which the loss occurred, and would, therefore, be fatal to the plaintiff's caSe, if made to form the basis of responsibility. But the case of Gass 11. New York, P., & B. Railroad, 99 Mass. 220, did contain the feature of charg- ing through freight, and the court held it not sufficient upon which to imply an un- dertaking for the entire route on the part of the first company. But we think the case last reported must be regarded as having established, upon most unquestion- able grounds, the rule that the first company of a continuous line of transporta- tion receiving goods and accepting the freight through and giving a bill through, must be understood as undertaking for the entire route, unless there is something in the bill of lading, or receipt, or other documents referred to as part of the contract, to indicate a different understanding, or unless the usages of the busi- ness or the custom of the line known or accessible to the knowledge of the ship- per, show that such was not the expectation of the parties. Starting from this safe point, and assuming that in the absence of all business connection between the different lines, the responsibility is several as to each company for its own defaults only, we trust the courts will hold such a judicious control over the con- 318 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. stniction of different classes of contracts upon this subject as to reach the actua or probable justice of each particular class. But it will not be easy to define, in advance, precisely how much weight shall be given to each particular feature in a transaction, or what particular facts or circumstances shall be held decisive in regard to the first company being, or not being, holden throughout the line. The tendency in this country is unquestionably in the direction of extended lines of transportation, either by actual consolidation of stock, by leases, or by some business arrangement, more or less stringent. And with this tendency we must expect a corresponding tendency towards holding the first company bound for the entire transportation. And it would seem not unreasonable where there is a fixed business connection throughout the line, that the first company should be holden to the extent of such business connection. It is certainly much easier for the first company to obtain indemnity from its associates than for the shipper to seek it of strangers, which, so far as any express privity is concerned, all the subsequent companies must be regarded as to him. And it would seem far 'more just to hold the first company responsible for the defaults of its associates than to hold that the shipper must find evidence to make his case against them, when it is so easy for them to cover it up by means of the facilities growing out of the very association. If we ever reach the point towards which we have been drifting from the first establishment of railways in the country, of regarding them as a part of the commerce between the diflPerent states, and as much subject to the national con- trol as the commerce which is carried on by means of navigation upon the ocean, through the numerous bays and inlets along the coast, we may expect something more definite, either by way of legislation or judicial construction upon the im- portant questions here involved. How long we shall be doomed to endure the embarrassments resulting from local legislation and conflicting judicial construc- tions upon this and numerous other embarrassing questions connected with rail- way traffic it is impossible to predict. But this we must be prepared to expect, and to meet, that the dread of centralization will cause the national courts and Congress to hesitate and temporize upon those points which most seriously and most obviously demand a firm grasp and unflinching action at their hands, and which are really justified upon the most obvious and the most indubitable grounds, while the advance is constantly being pushed in the same direction by insidious and covert movements, without purpose and without observation, but through the silent pressure of popular will and the irresistible progression of growth and de- velopment. It will thus happen, as it always does, that the courts and the legisla- ture will not take the initiative in the most essential and imperiously demanded reforms, so far as truth and justice are concerned, until the barriers of precedent and custom are undermined by other and more popular movements, which are not supported by any such array of argument. But that it will come, in the end, there can be no question. But not, perhaps, until after the common schools and the insurance companies have all become national, and many other present state institutions, in regard to which there is not one tithe of the need, and none of the reason, for making national, that there is the railway traflic. But the public can wait, and it must wait, but with the comforting assurance that, at the worst, it is but a question of time. The same questions to some extent are considered in the case of Barter v. RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. 319 Wheeler, 49 N. H. 9. It is here said that in a continuous line of transportation, composed of different companies, each company is responsible for any of its con- tracts, but the law of the place where the loss occurs will govern as to the rights and duties of the respective parties. The last reported opinion contains the fullest and fairest review of all the cases upon the point of the responsibility of a connected line of carriers, brought down almost to the present time, which we have been able anywhere to find. And it seems to us to define what may be called the American rule upon the subject with more exactness than any other case which we have seen. The rule in this country may now, we think, be thus stated : Where there is no business connection between the different carriers, or companies, the first carrier will not, by the mere acceptance of the goods marked, or billed, to a point beyond his particular route, be considered in law as assuming any duty beyond safe transportation to the end of his route and delivery to the next carrier in the line of the transit of the goods. In order to make the first carrier, in such case, responsible beyond his own line, there must be evidence, either direct or circumstantial, of some express undertaking on his part to that effect. But where there is a business connection between the different carriers, or companies, forming a continuous line, not constituting an actual partnership, but only a quasi partnership or joint interest through a division of the gross earn- ings according to the extent of the route of each carrier, and each one being responsible, as among themselves, for loss or damage upon his own line, but this not known to the owner of the goods at the time of their delivery ; and the first carrier gives a ticket or bill of lading for the goods throughout the entire line, or to any point beyond his own route, accepting pay for the whole ireight, or speci- fying an entire sum, as freight for the whole carriage, the first carrier thereby becomes responsible for all loss or damage occurring anywhere upon the line. This last is precisely the rule adopted in Lock Company v. W. & N". Railw., supra, except that in that case the first carrier received the freight for the whole route in advance. But whether the freight is paid in advance, or is fixed, and stipulated to be paid at the end of the route, can make no difference in the duties resulting from the undertaking. It seems to us very clear, that where there is a business connection between different carriers, forming a continuous line, and goods are accepted at any point upon the line and billed to any other point upon the line, for an agreed sum as freight, which is divided between the different carriers, according to the service of each, the owner of the goods must be considered as having obtained the re- sponsibility throughout the transit of the carrier to whom he thus intrusts his goods. How far the other companies connected with the service are also responsi- ble is, practically, a much less important question. The English courts, as we have seen, hold, in all such cases, that there is no such privity between the owner of the goods and the subsequent carriers as will enable him to maintain an action against such carriers for any default on their part in regard to the transportation. 2 Redf. Railw. 112, 113 et seq. and eases cited, ante pp. 42, 43, 288. This rule is not con- formable to the English practice or what we understand to have been the early Eng- lish practices upon analogous questions, as we have attempted to show elsewhere. 2 Railways, 18, 26, § 169, n. 5 ; Lapham v. Green, 9 Vt. 407 ; Root v. G. West. Railw., 46 N. Y. 524. There can be no question the carrier in default, although ,320 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. not the party to whom the shipper delivers the goods, provided there is no partner- ship connection among the carriers, must be responsible to some party for the loss. The only two parties which could by any possibility claim to possess such right of action would be the owner of the goods and the first company who assumed 'the duty of transportation throughout the line. This latter company could only claim to maintain the action on the ground of being a bailee of the goods and responsible for the transportation. But there is no principle of the common law better settled, or more familiar to the profession, than that a bailee of goods, responsible over to the owner, and who may maintain an action for any injury to the goods by a subsequent bailee to whom he intrusts them, has no exclusive right to maintain the action. He is allowed to do it, as against his particular bailee, because, as between them, he is the party primarily interested, being re- sponsible over to the owner. But whenever the owner chooses, for any reason, to bring the action in his own name, he may do so, treating the first bailee as his agent and as having made the bailment for his benefit. It may happen that the first bailee may have deceased or become bankrupt, and that his estate is in the course of settlement through the agency of trustees, and that the owner of the goods could not recover his damages at all, or but in part, as against the estate. There may exist other reasons why the principal, the shipper in this case, may prefer to have the action against the carrier in default in his own name. But the right of the principal in all such cases to institute the action in his own name is most unquestionable. 1 Chitty, PI. 7, 8 ; Scrimshire v. Alderton, 2 Strange, 1182 ; Morris v. Cleasby, 1 M. & S. 676, 579, 580, where Lord Chief Justice Ellenhorough said, " The moment, however, the principal does appear, provided it be before payment, he comes into his full right to receive it ; that is a rule for the protection of the principal." But if the contract is made by the agent or bailee in the name of the principal, or without claiming to be the party primarily interested, the agent cannot sue in his own name until he has given notice of his being the party really in interest. Bickerton «. Burrell, 5 M. & S. 383, 386, 390. See also Coppin v. Walker, 7 Taunt. 237 ; Buller, N. P. 130. Questions will be likely to arise, from time to time, where some of the ele- ments which we have before pointed out as decisive of the implication of a con- tract by the first carrier for transportation throughout the transit, will be wanting. And it will require time, as before suggested, to fix with certainty the precise points which shall be held indispensable as the basis of such implication. The business connecthm between the different companies and the stipulation for an entire freight seem to us the most decisive considerations in fixing the implication. How far one of these may be sufficient it has not yet been found necessary to determine, thut naked question not having arisen, since in those cases where there is a business connection of the character indicated above, the course of business, is generally, if not always, to give bills of lading throughout the line, and stipulate for an entire freight. If such bills are ever given, where there is no traffic arrangement between the different lines, it will commonly be understood by the shipper to be merely done for his particular convenience to enable him to pay the freight in advance, or for some other special object. And under such circumstances there will be no ground for presuming the carrier expected, or was expected by the shipper, to assume any special obligation beyond his own line. But the moment we find the through business of an extended line of car- RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 321 riers practically consolidated, the implication at once arises that each member of the line assumes to answer to the party injured for any default upon his own part of the route. Where the carrier to whom the goods are delivered by the owner enters into a contract for the entire transportation he will be the party primarily and principally interested in any defaults upon other portion^ of the route ; but, as we have shown, he is, after all, but a bailee of the goods or an agent of the owner. He has a special interest, but not more than a factor under a del credere commission, and the cases already cited show that in such case the principal may compel the purchaser of the goods to respond directly to him. If so, by parity of reason the owner of the goods committed to an extended line of carriers may sue any one of the carriers guilty of any default in regard to them. Ante, p. 320. We have thus said all that we desire to say upon this much agitated question, which we examined with some carefulness in Farmers and Mechanics' Bank v. Champlain Transportation Co., 23 Vt. 186, ante, pp. 62 et seq., and we have found no sufficient ground to qualify essentially the views there offered. 1. That where there is a quasi partnership connection throughout the line of successive carriers and the goods are ticketed through and the entire freight paid to the first carrier, there is good ground to decide, as matter of law, that the fiirst carrier is responsible for the safe delivery of the goods at their destination. Weed V. Saratoga & Sch. Railw., 19 We,nd. 534. 2. That where none of these facts exist, the first carrier is only responsible to the end of his own route, and for safe delivery to the next carrier. We give one opinion from Massachusetts, as indicating the view there taken as to holding railway companies responsible beyond their own line. 3. Burroughs v. Norwich 8^ Worcester Railway, 100 Massachusetts Reports, 26. 1868. The facts and the point decided appear in the opinion by — Gray, J. The railroad of the defendant corporation extends from Worcester in this commonwealth to New London in the State of Cjonnecticut. The Norwich and New York Transportation Company is a corporation established in Connecticut, owning and running steamboats between New London and the city of New York. The two corporations carried on the business of transport- ing goods for hire by means of said railroad and steamboats under a written contract between them ; and advertised the route thus formed as the Norwich Line, to distinguish it from other lines to and from New York ; and freight tariffs, signed by the agents of both companies, were posted in the defendants' stations. The plaintiffs delivered to the defendants at their station at North Oxford in this commonwealth six bales of goods, marked and vol.. II. 21 322 RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. addressed to TurnbuU, Slade & Company, New York, to be carried for hire over said line to New York. These goods were carried in due course of business over the defendants' railroad to New Lon- don, and there by the agent of the Norwich and New York Trans- portation Company placed on board one of its steamboats, which started, with the goods on board, bound for New York, but on its passage through Long Island Sound came into collision with a sailing vessel, and was thereby disabled, set on fire, burned to the water's edge and sunk, and the plaintiffs' goods destroyed. The plaintiffs seek to charge the defendants for this loss as common carriers. The law is well settled in this commonwealth, and in most of the United States, that a corporation established for the transpor- tation of goods for hire between certain points, and receiving goods directed to a more distant place, is not responsible, beyond the end of its own line,- as a common carrier, but only as a forwarder, unless it makes a positive agreement extending its liability. Nut- ting V. Connecticut River Railroad Co., 1 Gray, 502 ; Judson v. Western Railroad Co., 4 Allen, 520 ; Darling v. Boston & Worces- ter Railroad Co., 11 Allen, 295, and cases cited ; Perkins v. Port- land, Saco & Portsmouth Railroad Co., 47 Maine, 573 ; Brintnall V. Saratoga & Whitehall Railroad Co., 32 Verm. 665 ; McMillan V. Michigan Southern & Northern Indiana Railroad Co., 16 Mich. 119, 1 20. The plaintiffs seek to charge the defendants as common carriers beyond the line of their railroad upon three grounds. 1. The plaintiffs in the first place rely upon the terms of the receipt, signed and delivered to them by the defendants' station agent at North Oxford at the time of receiving the goods, by the terms of which the Norwich and Worcester Railroad Company " promises to forward and deliver " the goods to the order of TurnbuU, Slade & Company, New York. It is agreed that this station agent had been accustomed to give to the plaintiffs pre- cisely similar receipts for goods delivered by them to the defend- ants at this station to be transported. But it is also agreed that the blank forms of these receipts were furnished by the plaintiffs themselves ; that the officers of the corporation did not know that such receipts were given by the station agent ; and that the re- ceipts supplied by those officers to the station agents, and which such agents were accustomed to fill up, sign and deliver, when requested, for goods to be transported to New York, were of a RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 323 different form, and provided that the goods should be transported by the defendants to New London, and thence by the steamboats of the Norwich and New York Transportation Company to New York, and that, in case loss or damage should be incurred, that company alone should be responsible therefor in whose actual custody the goods might be at the time of such loss or damage. It is agreed that the station agent at North Oxford was the proper person to receive and sign receipts for goods delivered at his station, but that he had no otlier authority to sign and deliver to the plaintiffs the receipt relied upon, than may be implied from the facts above stated. And we are of opinion that these facts are clearly insufficient to warrant a court or jury in inferring that he had authority to bind the defendants as common carriers beyond the line of their own railroad. The English cases in which a station agent has been allowed to bind the corporation by a contract to carry beyond its own line are of no weight in this case ; because the law of England does not make the distinction which our law does between goods which are and goods which are not addressed to a place beyond the corpora- tion's own line, but holds that in either case the corporation is liable as a common carrier to the ultimate destination. Wilson v. York, Newcastle & Berwick Railway Co., 18 Eng. Law & Eq. 557 ; Scothorn v. South Staffordshire Railway Co., 8 Exch. 841; Bristol & Exeter Railway v. Collins, 7 H. L. Cas. 194. 2. The plaintiffs next rely upon the written contract between the two corporations in regard to the transportation of goods be- tween the defendants' stations and New York. But this contract expressly provides that " loss or damage occasioned by injuries to person or property on said line shall be borne by the party having possession of the same at the time the injuries were done." As, at the time of the destruction of the plaintiffs' goods, they were in the exclusive possession of the steamboat company, this contract gives the plaintiffs no right of action against the railroad corpora- tion. Gass V. New York, Providence, & Boston Railroad Co., 99 Mass. 220; Converse v. Norwich & New York Transportation Co., 33 Conn. 166. 3. The only other evidence on which the plaintiffs rely is, the " freight tariff between New York and stations on Norwich and Worcester Railroad by steamers of the Norwich and New York Transportation Company, and the Norwich and Worcester Rail- 324 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. road," copies of which were posted in the defendants' stations. But if the plaintiffs treat this notice as a contract between them- selves and the defendants, varying what would otherwise be the legal liability of the latter, they are bound by its provisions. Squire v. New York Central Railroad Co., 98 Mass. 239, and cases cited. And it is expressly provided therein that " this line will not be responsible for collisions, damages and accidents from steam, fire, sea, rivers." If such was the contract between the parties, the car- riers were exempted from liability for loss of the plaintiffs' goods by collision or by fire. In every aspect of the case therefore the plaintiffs fail to main- tain their action, and there must be judgment for the defendants. The case of Gass v. Providence & Boston Railw., 99 Mass. 220, takes much the same view as the preceding case. But the more recent case of Hill Manu- facturing Co. V. Boston & Lowell Kailw., 104 Mass. 122, seems to assume ground more favorable to the implication of a contract with the first carrier for the entire route. This case was tried by the court on facts agreed, with liberty to make such inferences as a jury might lawfully do. There was a business connection between the defendants and two other railway companies and a steamboat com- pany, forming a continuous line of transportation between Lowell and New York, the freight being agreed, and the mode of division arranged between the differ- ent companies ; each company, as among themselves, to be responsible for its own defaults. The goods were received by the defendants at Lowell, marked for New York, and way-bills given accordingly, and freight for the whole transporta- tion paid them in advance, and the goods forwarded towards their destination, where they never arrived. The court held that these facts justified the implica- tion of a contract to carry through, and held the defendants liable. This case is not essentially different from those before stated from New Hampshire. There are many other cases in different states, but mostly in the direction of the cases already referred to. Southern Express Co. v. Shea, 38 Ga. 519; Cin., &c., Railw. V. Pontius, 19 Ohio, N. S. 221. Toledo, &c., Railw. v. Merrimam, 62 111. 123, and 111. Central Railw. v. Frankenberg, 54 111. 88, and other cases from that state come more nearly upon the ground of the English cases. See also Coates V. U. S. Express Co., 45 Mo. 238 ; Morse v. Brainerd, 41 Vt. 560. 4. McOluer v. Manchester 8; Lawrence Railroad, 13 Gray, 124. 1859. A railway corporation chartered in one state may lawfully accept the lease of a con- necting railway in another state, and enter into binding contracts for the transpor- tation of goods, not only across their own road, but also across such connecting road. The binding obligation of such contracts may be shown by oral proof that such corporation is and has been constantly holding itself out and acting as a common carrier over both roads. RESPONSIBILITY BEYOND LINE OP FIRST CARRIER. 325 Under such circumstances it is not competent for the lessee of such connecting road, who is in possession of and operating the same, to screen itself from responsibility for the safe transportation of goods delivered at a station upon such leased road by showing that the lease was executed without any act of the legislature authorizing the same, and is therefore void. Action of contract against a corporation created by the laws of New Hampshire, as common carriers of goods between Lawrence in this commonwealth and Manchester in the State of New Hamp- shire, to recover the value of sundry boxes of tallow delivered by the plaintifif to them at Lawrence to be carried to said Manchester and thence to be forwarded to Eumney, N. H., and destroyed by fire by reason of the defendants' want of care on the 16th of De- cember, 1854. The answer denied the plaintiff's loss, the defendants' negligence, and their liability to the plaintiff; and averred that the Boston and Maine Railroad were responsible for the plaintiff's loss, if any ; and that the defendants were liable, if at all, as warehousemen only. At the trial in the Court of Common Pleas in Essex, before Mellen, C. J., the plaintiff introduced oral testimony of these facts : The Methuen Branch Railroad, owned by the Boston and Maine Railroad, and leased to the defendants with the privilege of run- ning their cars into the depot at Lawrence, extends northwardly from Haverhill Street in Lawrence to the line between New Hamp- shire and Massachusetts, and there joins the track of the defend- ants, which extends thence to Manchester, N. H. The freight agent and receiving clerk at Lawrence were employed and paid by the Boston and Maine Railroad, and by their instructions acted also as the agents of the defendants, and as such accounted directly to them. The defendants had no other agents there, and paid the Boston and Maine Railroad a certain percentage per ton as a com- pensation for loading and unloading the defendants' merchandise for them at the freight depot in Lawrence. The defendants, and not the Boston and Maine Railroad, controlled and managed the busi- ness of transporting merchandise between Lawrence and Manches- ter and the north. The plaintiff's agent left the tallow, securely packed and properly directed to the plaintiff at Rumney, with the receiving clerk in the freight depot at Lawrence, which stands on the line of the Methuen Branch Railroad, south of Haverhill Street; and it was never forwarded by the defendants, but was consumed by fire, while in the depot. 326 EESPONSIBILITT BEYOND LINE OP FIRST CARRIER. The plaintiff's agent testified that he had for several years been in the habit of sending merchandise over the defendants' road to Rumney and other places north of Lawrence, and had received goods which had been sent from the north, at the same depot, and paid the defendants for the carriage thereof. To the admission of this last testimony the defendants excepted, \ipon the ground that a corporation can only do such acts as its charter authorizes, and that parol evidence of the usual course of business of a foreign corporation was inadmissible until its authority had been proved by the production of its charter. The defendants were allowed, against the plaintiff's objection, to give in evidence a lease at \vill, executed in October, 1849, by which, among other things, the Boston and Maine Railroad agreed " to grant to the Manchester and Lawrence Railroad the use of that part of their road extending northerly from their northern depot in Lawrence, wherever the same may be, to the state line, and also to furnish them with sufficient accommodations at their passenger depot ; and, also to allow them to use the side tracks that may be necessary for the distribution of freight in Lawrence ;" and the Manchester and Lawrence Railroad agreed " to keep that part of the Boston and Maine Railroad, extending from their depot in Lawrence to the state line above mentioned, in repair," and to pay to the Boston and Maine Railroad, for the use of the same, such a proportion of the net earnings of the whole road from Man- chester to Lawrence " as the part of the Boston and Maine Railroad above mentioned bears to the whole road from Manchester to the depot in Lawrence." Also an indenture dated March 1st, 1851, by which the Concord Railroad, including the Manchester and Lawrence and Methuen Branch Railroads, of the first part, and the Boston and Maine Railroad of the second part, mutually agree that " each party is authorized to undertake and agree for both, and will so undertake and agree, for the transaction of any joint business of the companies, meaning by joint business any business jointly participated in by them, originating upon one and terminat- ing upon the road or roads of the other of the respective parties, subject to modifications hereinafter set forth ; " that " each party, upon its respective road or roads, will furnish for the joint business necessary and suitable station and depot accommodations, furnish and sell tickets to passengers, and will with suitable and proper care receive and deliver all freight offered for transportation, RESPONSIBILITY BEYOND LINE OP PIEST CARRIER. 827 including tlie loading and unloading necessary therefor ; " it being " understood; in regard to said first party's liability for the safe care and custody of joint freight while upon the road of the second party, that such liability shall not commence upon upward freight until it is delivered on board the cars of the first party ; " and " that the Methuen Branch Railroad, which is the property of the party of the second part, shall be leased, with all its rights, prop- erties, and fixtures to the party of the first part, for and during the term of five years from the first day of November last, with the right to use the passenger tracks from thence into the new passenger depot in North Lawrence, and the use of the depot for the reception and delivery of passengers and baggage, and such other depot accommodations as may be necessary for the business of said road ; and said party of the second part covenants to keep said track and depot accommodations in good and sufiicient order and repair, south of the centre of Haverhill Street." The defendants contended that the lease and indenture showed that the tallow, while in the depot^ was in the custody of the Boston and Maine Railroad ; that they, instead of the defendants, were responsible for it ; that the freight agent and his assistants were acting for them, and not as agents for the defendants, and that the tallow had not passed into the custody and under the con- trol of the defendants ; and they requested the court so to instruct the jury. But the court declined so to do ; and did instruct them that if they believed the defendants held themselves out as common carriers from Lawrence to Manchester, and by their agents received the tallow for the purpose of transporting it according to its direc- tion, then the defendants would be liable if it was lost as alleged. The defendants further requested the court to instruct the jury " that the defendants being a foreign corporation, and not author- ized by the laws of this commonwealth to act in their corporate capacity, and not being authorized to lease the Methuen Branch Railroad, said lease was void ; that the Methuen Branch Railroad had no right to transfer its privileges and duties to others without the sanction of the legislature, and that therefore the defendants were not liable as common carriers over the Methuen Branch Rail- road." But the court declined to give such instructions. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions, which were argued in writing. 328 RESPONSIBILITY BEYOND LINE OF FIRST CARRIER. Hoar, J. The plaintiff seeks to charge the defendants as com- mon carriers of goods to be transported from Lawrence to Man- chester ; and no question is made as to their liability in this action, if a valid contract with them in that capacity is established upon evidence not open to exception. The parol evidence was certainly suflBcient to show that the defendants were engaged in the business of common carriers of merchandise between those places, and that the plaintiff delivered the tallow to agents employed by the defendants for the purpose of receiving it for transportation. It is no sufficient answer to this proof, to suggest that the defendants were not authorized by their charter in New Hampshire to make such a contract, or to appoint agents for such a purpose. If a corporation, created by the laws of another state, whose existence and legal organization are not dis- puted, is found making contracts within this state through agents which it employs, and a suit is brought in such a manner that the corporation is made amenable to the jurisdiction of our courts, in our opinion it is not necessary for the plaintiff, who seeks to en- force the contract, to furnish in the outset any other evidence of the capacity of the corporation to make the contract. Nor do the lease and agreement between the defendants and the Boston and Maine Railroad render the evidence inadmissible, or in any degree control its effect. If the tallow was delivered to agents of the defendants, and received by them on behalf of the defendants for transportation, it is difficult to see how the responsibilities of the defendants to the plaintiff iipon that contract could be varied by any private arrangement between the defendants and a third party. But, upon a full examination of that lease and agreement, they do not seem to be inconsistent with the plaintiff's claim. By their terms, the business between Lawrence and Manchester is to be done by the Manchester and Lawrence Railroad ; and though the Boston and Maine Railroad agree to furnish depot accommoda- tions at Lawrence, and to receive freight, it is for and on behalf of the defendants. The decision of this court in the recent case of Langley v. Bos- ton & Maine Railroad, 10 Gray, 103, rests upon grounds wholly distinct from those upon which this action is based. The court there decided that the Boston and Maine Railroad, being the own- ers of the Methuen Branch Railroad, and authorized to run cars over it as common carriers of passengers and freight, could not, BESPONSIBILITT BEYOND LINE OP FIRST CARRIER. 329 without the authority of the legislature, lease that road to a cor- poration created by another state, and transfer their powers and duties to such corporation, so as to discharge themselves from liability for injuries to persons or property which might arise iu the use of the road. But if the plaintifiF in the present action might have iiad a remedy, at his election, against the Boston and Maine Eailroad, he is not therefore precluded from seeking it against the party with whom he directly contracted. The defendants, so far as any evidence showed, were competent to hire and use the Methuen Branch Railroad, if they could find any party that would permit them to use it and put them in possession. They were in the actual possession and use of it, without obstruction from the Bos- ton and Maine Railroad or the Commonwealth ; and they received the plaintiff's property through their agents, and agreed that it should be safely kept, and transported to its destination. It is no answer to a breach of that agreement, to deny the validity of their own contract for the use of the road. An innkeeper might as well resist the claim of a guest for compensation for the loss of his lug- gage, by suggesting doubts as to the validity of his landlord's title to the inn which he hired. Exceptions overruled. , And it has been held that a railway company may run steamboats beyond its own line for the purpose of completing the transit of the goods intrusted to it for transportation ; and if they do so, and hold themselves out as common carriers throughout the entire line thus created, they will be held responsible accordingly. Wheeler v. San Francisco & Alameda Railw., 31 Cal. 46, ante, pp. 278 et seq. It seems to be considered, in Perkins v. Portland, &c., Railw., 47 Me. 673, that in order to bind themselves beyond their own line as common carriers of goods and passengers, transportation companies, whether corporations or joint-stock companies, must be shown to have entered into special contracts to that effect. 330 AUTHORITY OP AGENTS AND SERVANTS OF XIV. Authority op Agents and Servants op Railways and OTHER Transportation Companies. The Directors of Corporations and Joint-Stock Companies have Power to bestd the Companies in All Matters of Business to the Full Extent of the Powers of the Company, unless there is SOME Constitutional Restriction upon their Powers. Philadelphia, Wilmington ^ Baltimore Railway v. Quigley, 21 Howard's U. S. Reports, 202. 1858. A railway, like any other corporation, is responsible for the acts and omissions of its agents, within the scope of their employment. Any form of action may be maintained against the company for the act or omission of its agents, which would be appropriate in the case of natural persons. These points illustrated in their application to railways, under a charge of libel com- mitted, as alleged, by its ofScers and agents. The opinion of the court was delivered by Mr. Justice Campbell, which embraces a very full statement of the facts in the case. The plaintiff (Quigley), a citizen of Delaware, complained of the defendants, " a body corporate in the State of Maryland, by a law of the general assembly of Maryland," for the publication of a libel by them, in which his capacity and skill as a mechanic and builder of depots, bridges, station-houses, and other structures for railroad companies, had been falsely and maliciously disparaged and undervalued. The defendants pleaded the general issue. On the trial of the cause, it appeared that, in 1854, the president and directors, then in charge of the affairs of the defendants, instituted an inquiry into the administration and management of a person who had been the superintendent of their railroad for ten years. Among other subjects, the nature of his connection and dealings with the plaintiff, who had likewise been in the service of the cor- poration as "general foreman of all their carpenters," engaged the attention of the committee of investigation. The president of the company, who conducted the inquiry before this committee on behalf of the corporation, seems to have been convinced that the superintendent had exhibited partiality for the plaintiff, and had allowed him extravagant compensation for service, and the privi- lege of free transit over the road for himself, his workmen, and RAILWAYS AND OTHER TRANSPORTATION COMPANIES. 331 freight, to the detriment of the company, and in breach of his duty as superintendent. The superintendent defended himself against these and other imputations, and produced testimony to the skill and fidelity of the plaintiff while in the service of the company ; also, to the value of his services, and to the effect that no unusual or improper favor had been extended to him. The president of the company, in the course of the investigation, addressed a letter to an architect, who had some acquaintance with the plaintiff, to request his opinion of his skill as a mechanic, and whether the services of the plaintiff could have had any peculiar value to a railroad company. The reply of this architect was very pointed and depreciative of the plaintiff, afiBrming that " he was not entitled to rank as a third-rate workman," and " was unable to make the simplest geometrical calculations." All the testimony collected by the committee, as produced by the superintendent, was carefully reduced to writing, and printed ; first, for the use of the president and directors, and afterwards was submitted to the company at their meeting on the 8th of January, 1856, with a report, which exonerated in a great measure the superintendent from any mal-practice in consequence of his relations with the plaintiff. The investigation was searching, and testimony, which, with the report of the committee, fills two printed volumes, was submitted to the company. The letter of the architect, in answer to the letter of the president, is printed in one of these volumes, and this publication is the libel complained of. Several of the directors testify they were not aware of the publication, and evi- dence was adduced that the plaintiff had declared that the investi- gation had resulted in increasing his business. A verdict was returned in favor of the plaintiff. The defendants are a company incorporated by the legislatures of Delaware and Pennsylvania, as well as of Maryland, to construct a railroad to connect the three cities which contribute to form its name, and a portion of their directors and stockholders are citizens of Delaware. The defendants contend that they are not liable to be sued in this action ; that theirs is a railroad corporation, with defined and limited faculties and powers, and having only such incidental authority as is necessary to the full exercise of the faculties and powers granted by their charter ; that, being a mere legal entity, they are incapable of malice, and that malice is a necessary ingre- dient in a libel ; that this action should have been instituted against 332 AUTHORITY OF AGENTS AND SERVANTS OP the natural persons who were concerned in the publication of the libel. To support this argument, we should be required to con- cede that a corporate body could only act within the limits and according to the faculties determined by the act of incorporation, and therefore that no crime or offence can be imputed to it. That although illegal acts might be committed for the benefit or within the service of the corporation, and to accomplish objects for which it was created by the direction of their dominant body, that such acts, not being contemplated by the charter, must be referred to the rational and sensible agents who performed them, and the whole responsibility must be limited to those agents, and we should be forced, as a legitimate consequence, to conclude that no action ex delicto or indictment will lie against a corporation for any misfeasance. But this conclusion would be entirely inconsistent with the legislation and jurisprudence of the states of the Union relative to these artificial persons. Legislation has encouraged their organization, as they concentrate and employ the intelligence, energy, and capital of society, for the development of enterprises of public utility. There is scarcely an object of general interest for which some association has not been formed, and there are institutions whose members are found in every part of the Union, who contribute their efforts to the common object. To enable impersonal beings — mere legal entities, which exist only in con- templation of law — to perform corporal acts, or deal with personal agents, the principle of representation has been adopted as a part of their constitution. The powers of the corporation are placed in the hands of a governing body selected by the members, who manage its affairs, and who appoint the agents that exercise its faculties for the accomplishment of the object of its being. But these agents may infringe the rights of persons who are uncon- nected with the corporation, or who are brought into relations of business or intercourse with it; As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is the recognition of a corporate responsibility for the acts of those representatives. With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brouglit into contact or collision. The result RAILWAYS AND OTHER TRANSPORTATION COMPANIES. 333 ,of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible, as an individ- ual is responsible under similar circumstances. At a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts ; and instances may be found, in the judicial^ annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety. Trespass quare clausum fregit was sup- ported in 9 Serg. & R. 94 ; 4 Mann. & G. 452. Assault and Battery, 4 Gray, Mass. 465; 6 Ex. Ch. 314. For damages by a collision of rail-cars and steamboats, 14 How. 465 ; 19 How. 543. For a false representation, 34 Law & Eq. 14 ; 11 Wheat. 59. The case of the National Exchange Co. of Glasgow v. Drew, 2 Macqueen H. of L. Gas. 103, was that of a company in failing circumstances, whose managers soxight to appreciate its stock by a fraudulent representation to the company, and a publication of the report as adopted by it, that its affairs were' prosperous. Two of its stockholders were induced to borrow money from the company to invest in its stock. The question in the cause was, whether the company was responsible for the fraud. In the House of Lords, upon appeal. Lord St. Leonards said : " I have come to the con- clusion, that if representations are made by a company fraudu- lently, for the purpose of enhancing the value of stock, and they induce a third person to purchase stock, those representations so made by them bind the company. I consider representations by the directors of a company as representations by the company, although they may be representations made to the company." . . . The report " becomes the act of the company by its adoption and sending it forth as a true representation of their affairs ; and if that representation is made use of in dealing with third persons, for the benefit of the company, it subjects them to the loss which may accrue to the party who deals, trusting to those representa- tions." It would be difficult to furnish a reason for the liability of a cor- poration for a fraud, under such circumstances, that would not apply to sustain an action for the publication of a libel. The defendants are a corporation, having a large capital distrib- uted among several hundred of persons. Their railroad connects large cities, and passes througli a fertile district. Their business 334 AUTHORITY OP AGENTS AND SERVANTS OP brings tliem in competition with companies and individuals con- cerned in the business of transportation. They have a numerous body of officers, agents, and servants, for whose fidelity and skill they are responsible, and on whose care the success of their busi- ness depends. The stock of the company is a vendible security, and the community expects statements of its condition and man- agement. There is no doubt that it was the duty of the president and directors to investigate the conduct of their officers and agents, and to report the result of that investigation to the stock- holders, and that a publication of tlie evidence and report is within the scope of the powers of the corporation. But the publication must be made under all the conditions and responsibilities that attach to individuals under such circum- stances. The Court of Queen's Bench, in Whitefield v. South Bast. R. E. Co. (May, 1858), say : " If we yield to the authorities wliich say that, in an action for defamation, malice must be alleged, notwithstanding authorities to the contrary, this allega- tion may be proved by showing that the publication of the libel took place by order of the defendants, and was therefore wrongful, although the defendants had no ill-will to the plaintiffs, and did not mean to injure them." And the court concluded : " That for what is done by the authority of a corporation aggregate, that a corporation ought as such to be liable, as well as the individuals who compose it." The question arises, whether the publication is excused by the relations of the president and directors, as a committee from their board, to the corporation itself. It cannot be denied that the inquiries directed by those officers were within the scope of their power, and in the performance of a moral and legal duty, and that the communication to their constituents of the evidence collected by them, and their conclusions upon the evidence, was a privileged communication in the absence of any malice or bad faith. But the privilege of the officers of the corporation as individuals, or of the corporate body, does not extend to the preservation of the report and evidence in the permanent form of a book for distribu- tion among the persons belonging to the corporation or the mem- bers of the community. It has never been decided that the pi-o- ceedings of a public meeting, though it may have been convened by the authority of law, or of an association engaged in an enter- prise of public utility, could be reported in a newspaper as a RAILWAYS AND OTHER TRANSPORTATION COMPANIES. 335 privileged publication. But a libel coutained in such proceedings, if preserved in the form of a bound volume, might be attended with more mischief to private character than any publication in a newspaper of the same document. The opinion of the court is, that in so far as the corporate body authorized the publication in the form employed, they are responsible in damages. The Circuit Court instructed the jury : 1. If the jury find, from the evidence in this case, that the de- fendants, by the president and directors of said company, published the letter from John T. Mahoney to S. M. Pelton, president, &c., dated March 3d, 1854, in the declaration mentioned, and that any or all of the statements in the said letter respecting the plaintiff in his trade and occupation are false ; and shall further find, that the said president and directors, at the annual meeting of the stock- holders of said company, held 8th January, 1855, reported to the said stockholders their action in the premises, and that the pro- ceedings of the committee of investigation (which contained the said letter) were then being printed, and, as soon as printed, would be distributed to the stockholders, and that said report was ac- cepted by the stockholders; and if the jury shall further find, that, after the meeting of the stockholders had adjourned, the president and directors of said company distributed the book containing the said letter among the stockholders of this company, or any of them, then the jury may find for the plaintiff. 2. And if the jury find for the plaintiff under the first instruc- tion, they are not restricted in giving damages to the actual posi- tive injury sustained by the plaintiff, but may give such exemplary damages, if any, as in their opinion are called for and justified, in view of all the circumstances in this case, to render reparation to plaintiff, and act as an adequate punishment to the defendant. The first instruction is erroneous, because the publication to which the court referred as blameworthy, and to authorize the jury to find a verdict against the defendant, took place after the com- mencement of this suit. The second instruction contains the same error, and is objec- tionable for the additional reason that the rule of damages is not accurately stated to the jury. In Day v. Wood worth, 13 How. S. C. R. 371, this court recog- nized the power of a jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the 336 AUTHORITT OP AGENTS AND SERTANTS OP injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants. The letter of Mahoney was reported to the company with other evidence tlmt rendered it innocuous, and its statements were never adopted by them. Tlie plaintiff has repeatedly affirmed that he had derived an advantage from the investigation by the company, and, upon reading all the evidence, as reported and published, we do not perceive how an impression unfavorable to him could have been made by it upon any candid mind. The circumstances under which the evidence was collected, and the publication made, repel the presumption of the existence of malice on the part of the cor- poration, and so the jury should have been instructed. The averments in the declaration of the facts proper to give the Circuit Court jurisdiction over the parties are identical with those which were fully considered by this court, and received the sanc- tion of two-thirds of the judges in Marshall v. The Baltimore & Ohio B.. R. Co., 16 How. 314. A repetition of the discussion that took place and was reported with that case is deemed to be unnec- essary. The only plea filed in this cause is the general issue. That plea raises an issue upon the merits of the complaint, and leaves the jurisdictional allegations without a traverse. No question involving the capacity of the parties in the cause to litigate in the Circuit Court can be raised before the jury under such pleadings. Conard v. Atlantic Insurance Co., 1 Pet. 886 ; Evans v. Gee, 11 Pet. 80 ; Owings v. Wickliffe, 17 How. 47. The testimony that the States of Delaware and Pennsylvania had re- spectively granted a corporate character to the same corporators that form the corporation in Maryland, for the extension of the railroad through those states, to connect the cities that appear in the name of the corporation, and the testimony that some of the directors of the several corporations reside in Delaware, in the condition of the pleadings, was immaterial and irrelevant. RAILWAYS AND OTHER TRANSPORTATION COMPANIES. 337 We have selected the foregoing case, notwithstanding it is largely occupied in the application and illustration of the general principles involved in the subject of libel, — a subject not often required to be much examined with reference to rail- ways, — because the opinion comes from a judge of great learning and ability and is the decision of the national tribunal of last resort. We do not, nor does that court regard the latter consideration of much weight, except where the case rests upon general principles of the common law, since in all other cases that court, by the peculiar nature of its civil jurisdiction, between party and party, is bound to accept the law which it applies to all such cases from the highest judicial tribunal of the State where the Circuit Court at which the suit is instituted held its session, unless the case is one of a transitory character and is governed by the law of some other place. But in either case the national court will not rule the law according to its own views of what that law may be, but must accept the law as ruled by the highest judicial tribunal of the place whose law rules the case. This case shows very clearly, what all the well-considered cases on the subject will be found to maintain, that the authority of the agent, in binding corpora- tions, depends exclusively upon the range of the employment of the agent, and not in any sense exclusively upon the express authority conferred upon the agent, especially where such authority is restrictive. If the act under consideration comes clearly, or fairly, within the instructions, there can be no question. But such cases seldom come into debate. The questions upon this point arise, for the most part, when the instructions fall short of the authority assumed by the agent. In all such cases the authority must be measured by the ordinary neces- sities of the employment and what the principal might naturally have expected the agent to have done when similar emergencies arose. We think, thei-efore, there can be no question that the directors of a railway company must be regarded as having all the authority of the corporation, so far as the ordinary business of the company is concerned. 2 Kedfield, Railw. § 182, pi. 1. The scope and extent of the employment of the subordinate agents of the company will be matter of fact exclusively, and as such, where there is any controversy, must be submitted to the jury. Scotthorn v. South Staffordshire Eailw., 8 Exch. 341 ; s. o. 18 Eng. L. & Eq. 553 ; Sohroeder v. Hudson River Railw., 5 Duer, 55. The great point which seems to puzzle inexperienced persons most in regard to the responsibility of railway companies for the acts of their agents, servants, and employes of every class, is the fact that the general rules and regulations of the companies are always framed after the most approved model, and are readily shown whenever any question arises, and this seems to throw the blame upon the employes. But the great evil of railway management is, that those general rules are constantly relaxed ; in fact never observed with any degree of uniformity. When the rule of the company requires a given number of minutes between trains on the same track, travelling in the same direction, this period is constantly diminished to meet emergencies, until the rule becomes in practice of no signifi- cance whatever. This first begins to be done probably in some pressing emer- gency, by the general superintendent of the company. The next time, the same or a similar emergency arises, or one that the subordinates esteem similar, the rule is set aside in the same manner. But this time it is done by some subordi- nate, and finally the rule becomes a mere blind, a veritable sham. VOL. II. 22 338 , AUTHORITY OF AGENTS AND SERVANTS OP We had supposed that this readiness to assume responsibility on every emergency, whether demanded or not, provided only that an opportunity arose for the display of recklessness by an apparent dash or push beyond the rules of the company, would be found almost exclusively cbnfined to American railways. But the public investigation made into the causes of the terrible accident and slaughter at Abergele in Wales, in August, 1868, disclosed the appalling fact that the open and constant disregard of the rules of the company, in regard to the prescribed precautions against collisions of trains, had become the rule of daily conduct in carrying forward the business of the company. Col. Rich (as we have stated elsewhere, 2 Railw. 222, in note), the government official sent by the board of trade to examine into the affair, boldly denounces the railway management by which the collision occurred, as nothing less than the known and habitual disregard of the company's regulations in regard to running the trains. And the same thing was shown in regard to the awful slaughter at Revere, Mass. There is probably no certain cure for this evil, except the thorough conviction on the part of the managers of the companies that such a course is perilous in the extreme to their pecuniary interests. No other motive, we are confident, will prove adequate to effect a thorough cure of the evil. But the moment rail- way managers can be effectually convinced that such a course, in the slang of the day, " will not pay," there is no question the sure and effectual remedy will be speedily applied. It is in vain to affect to believe that such relaxation of the rules of the company cannot be cured. If every official who presumed, on any ground, to depart from the prescribed rules of the company were to be dismissed and effectually disgraced and his unfaithfulness published to all other railways, so that he could not find employment anywhere in that line, the thing would be cured in a way that it would never occur again. This would be no libel upon the man, but mere justice to the community. Such a man is as unworthy of trust as a thief or a murderer ; and is no more entitled to claim damages because his untrustworthiness is published, than a common thief or burglar would be be- cause his victims were cautioned to beware of him. The developments consequent upon the awful disaster which lately occurred in this state, resulting in the instant death of more than thirty passengers, show a most appalling degree of carelessness in the mode of running passenger trains, not only upon that road, but upon many of the other roads in the state. It is probably not too much to affirm upon this subject, that there seems to be no more care in running passenger trains, in this country, than in running freight and cattle trains, except as there may be more exposure to pay higher damages in the former case in cases of collision or accident. There really seems to be but two modes of redress left in such cases. The one is by the vengeance of vigil- ance committees and lynch-law, which no right-minded man could for a moment contemplate without disgust and abhorrence ; and the other is by giving and es- tablishing such verdicts against those companies, in every case of reckless injury to passengers, as will push them to the very verge of ruin. We are convinced there is no other real terror for these men. To this end the company must be held responsible, in every instance, for every act of every employ^, within the sphere of his employment, when, whether contrary to his instructions or not, he assumes to depart in any the slightest particular from the strict line of his duty, however good his intentions or slight the probabilities of thereby increasing EAILWAY8 AND OTHER TRANSPORTATION COMPANIES. 339 the peril of others. There is positively no room for the exercise of discretion by railway operatives, where the rule of duty is clearly defined. They must be reduced to the condition of mere mechanism in all the ordinary functions of their position, and the slightest departure from the prescribed routine must, in every instance, be immediately visited by the most condign punishment of dis- missal and public disgrace, so that they shall thereafter find it impracticable to find employment in the same line elsewhere, and this whether any injury re- sulted from their misconduct or not. If this mode of dealing with such cases seems severe, and the public mind recoils at it, then we must be content to meet such wholesale slaughters as that we have just referred to, and, to be consistent, we ought not to complain. No railway company can raise its standard of discipline very much above that of other companies in the same state and country. The thing is simply impossible. And the same is true, in this country at least, in regard to the general public sentiment ; the railway companies cannot go much beyond it in the conduct of their business. If the passengers insist upon having special trains sent to camp-meetings, or political gatherings, or picnics, whether the com-< pany can assure a clear track or not, and without regard to the state of its roll- ing stock, they must not complain at the slaughter of their friends. But even this will not excuse the companies. They have the right to deny these extraordi- nary accommodations, and they must resist all importunity ; and, if need be, the companies must combine to resist this tyranny of public sentiment, and to defy this rude spirit of intermeddling in other people's affairs, until public sentiment is reformed. The American people are eminently teachable ; and if the railways stand firm upon their rights and duties until the voice of the wiser and better portion of public sentiment has time to struggle through the light foam of the multitude and make itself heard, the companies will be sustained, and the unfaith- ful operatives, who assume to exercise discretion in one place where it is not intrusted to them and in another to flee from the post of duty at the first approach of peril, without the slightest effort to save any one but themselves, as occurred in the terrible collision just referred to, such unfaithful and cowardly men will meet the contempt which they deserve, and the companies be commended for dismissing them in disgrace. But so long as the companies are struggling along, in a state of imperfect equipment, with a sort of mad rush to make the highest bid for the approval of the worst portion of the public sentiment, and are never content to wait for the sober second thought of the more discreet and well-intentioned, we need never expect much security in passenger transpor- tation, and must be content to refer our safe arrival at the end of any passage upon railways, to the calculation of chances. The testimony, from all quarters and in all countries, conspires to one point, that the great majority of railway acci- dents occur from the operatives presuming to depart from the known rules of the company. This, we fear, is done every day in the best managed companies, and because no evil consequence follows and some advantage is gained at the mo- ment, it is winked at or applauded ; whereas, in order to maintain the proper de- gree of discipline, it should be punished the same in all cases. We do not punish theft any the less because the offender was in need or his victim could spare something from his large store ; nor is murder regarded any the less as a crime because the victim had passed the period of enjoyment. We punish with great severity even the attempt to commit crime. And why the same precautionary 340 AUTHORITY OF AGENTS AND SERVANTS OF discipline should not be maintained in civil matters of such ■ momentous conse- quence, it is difficult to comprehend. More of human life was destroyed, and in a far more awful manner, at Revere, on the Eastern Railway, in August, 1871,'than by all the murderers in the state for the last five years ; and yet no one meets even civil disgrace or punishment. We are thoroughly convinced that no reform in these matters is practicable until every instance of the departure of the em- ployes of railways from the strictest line of duty is punished in the most exem- plary manner by the company, whether any accident occurs in consequence or not, and the companies are held to the most exemplary damages, in every in- stance where damage occurs in consequence of the failure of any employ^ of the company to meet the full duty of his position, in conforming to the established rules of the company, whether he followed the instructions of his superior or not. The question how far joint-stock corporations will be bound by the acts of the directors, or of their general agents, acting without the knowledge of the direc- tors, is considerably discussed in one portion of the opinion of the court in Whitwell V. Warner, 20 Vt. 426, which we here adopt : — "We come, then, to the only ground, upon which, it seems to us, the plaintiff can expect to prevail in this suit, that is, the agency of Cummings, and by force of the contract which he had attempted to execute. This agency of Cum- mings may be viewed in two lights : first, his innate authority, resulting from his appointment and the general scope of the business, which he was intrusted to execute ; second, any ratification of the contract, either express or implied, either by the company or their directors. " 1. In regard to the innate authority of such an agent, perhaps enough has already been said. It is indeed very extensive ; but, as we have before intimated, it cannot extend to the creating of a lien upon the entire property of the com- pany. The agent might almost as well make a general assignment for the benefit of creditors, and thus have it in his power to wind up the affairs of the company at pleasure. If the company had no other board of control but this agent, then he would doubtless be expected to execute such contracts, as the course of busi- ness might require in the term of time, forming the ordinary interval between the stated meetings of the stockholders. And as contracts of the kind here under consideration do not unfrequently become necessary to be executed, in order to carry forward the business of the company, such an agent, having the entire control of the business of the company, might be expected to execute them, without calling a special meeting of the company. " But, in the present case, this agent had no such universal control confided to him. The company had a board of directors, consisting of Warner, Henry Hodges, and Silas H. Hodges ; and this agent was performing the daily routine of the business of the company under their supervision and control. If any thing out of the common course of this daily routine occurred, the board of directors would be expected to be consulted. If they were not to be so consulted, it would be difficult to define their duty, or to graduate, with any degree of pre- cision, the scale of authority between the board of directors' and the general agent. We think, then, that this contract, to be binding upon the company in the first instance, and in consequence of its execution merely, should have re- ceived the approval of the board of directors in their ordinary mode of action. " 2. As to any ratification of the contract by the company, or the directors, EAILWATS AND OTHER TRANSPORTATION COMPANIES. 341 that is susceptible of being viewed in two aspects : first, it may be inquired, whether the company expressly ratified this contract of their agent. This, as a corporation, they could only do by an express vote, or by the action of some agent, appointed by vote. There is no pretence of any express vote to that effect. And although there is some testimony in the case, tending very fully to establish the point of the express consent of all the directors, still we think such was not the fact. We think the state of the correspondence, and the effort made by Cummings to keep what concerned this contract from the Hodges, and the reason which he assigned for it, namely, that he wanted their aid in other ways, and their conduct, when fully informed of this contract on £he nineteenth of April, 1837, their evident surprise, must give a counterpoise to all the direct evidence upon this point. " There is, indeed, evidence to show, that the directors either did know that there was such a contract, or else, which is perhaps more probable, might have known it, if they had made thorough search into the manner in which Cummings was conducting the business. But this they did not do. Evidently they had very great confidence both in the skill and integrity of Cummings, and equal confidence in making most exorbitant profits from the manufacturing business. The plaintiffs, too, seem to have had much the same view upon all these points. This led them all into most extravagant, one might almost say absurd, confidence, both in regard to the manner of Cummings's management and the final solvency of the concern. There does not seem to us to be any just ground for charging either the plaintiffs or the defendants, for whose benefit the assignment was made, with any intentional dishonesty. "The history of the transaction is a melancholy one, well calculated to excite painful feelings in regard to the results of trade and speculation, both in a moral and economical point of view, and also as to the seductive influences of this mode of doing the most enormous amount of business, — upon mere credit, without one shadow of capital, or real pecuniary responsibility, in the corporation through whose agency the entire business was conducted. Most of the defendants, who took any active share in conducting the business of the corporation, have become beggarly poor and fled the country ; the responsible stockholders, in the most favorable view, have become embarrassed and greatly reduced in their circum- stances ; while the plaintiffs, who seem to have been men of some substance in the outset, after being induced by the flattery, falsehood, and fair promises of this agent (who knew all the airs of honest integrity so well, that he almost im- posed upon his own credulity, by believing himself honest and well-meaning, while he was in fact dragging both the plaintiffs and the stockholders into inevi- table, irrevocable ruin) to make advances and incur liabilities to an enormous amount, were deprived of every cent of that security, upon which they had mainly relied, by one sweeping vote of the stockholders, by which every penny of the available property of the corporation was transferred, from what the plain- tiffs esteemed their own prior claim, to the pockets of the very stockholders, — who made the assignment in payment of just debts, to be sure. And to make the picture more truly severe towards the plaintiffs, they are apprised of it as merely a necessary expedient, to prevent loss by attachments' and as intended to be only temporary ; and at the same time the strongest assurances are given of the entire solvency of the corporation, — which was, perhaps, believed by those 342 AUTHORITY OP AGENTS AND SERVANTS OP who made it, at the time, for men will believe almost any absurdity, under the intoxication of business speculation. And this results in the bankruptcy of the plaintiffs on the same day ; and, as the climax of these severe dealings towards the plaintiffs, to characterize it by no harsher name, a draft for f 1000, accepted by them to put themselves in funds to meet their former acceptances, with the most solemn assurances on the part of Cummings, that every cent should be remitted to them, was, after the failure, made use of to swell the general as- signment, for the benefit of other creditors. It is riot wonderful, that even the elastic moral sense of the agent was so shocked by this last act of baseness towards the plaintiffs, as to compel him to cry out upon himself, and to attempt to cast the fault upon others, who were to be benefited by the treachery, and who might consent to the treason, although there certainly is no proof in the case to show that they ever counselled it. " All this certainly would not justify us in concluding that there was a pre- conceived purpose of defrauding the plaintiflfs by the stockholders. The failure of the corporation was no doubt wholly unexpected to them. It came upon them with a shock, amounting almost to consternation. And drowning men must be expected to cling to the most forlorn hopes, and to push the most desperate expedients ; and that they seem, under such circumstances, a little regardless of the rights of others ought not to strike us with surprise, perhaps ; the best of men, when pressed, will do things, and especially justify things, which, when less pushed by imminent peril of their own lives and hopes, would have appeared shocking to them. " But we do think that it ought not to surprise any one that the plaintiffs should feel that they have been severely dealt with in this affair, and that they ought to have some redress. And we think they are entitled to some redress. It seems to us absurd to say, that, while the entire business of this company was mainly carried along by means of advances and acceptances of the plaintiffs, and much of the very wool and cloth assigned had been purchased by funds primarily or ultimately furnished by them, and when these acceptances were given, or funds furnished, in faith of a contract made by the general agent of the com- pany, that all wool so purchased, either with funds or acceptances of the plaintiffs, should be theirs through all the processes of its manufacture, it should, nevertheless, under all these circumstances, be in the power of the company to adopt the act of the agent in borrowing the money, or procuring the accept- ances, and in purchasing wool with funds so procured, but that they could reject the condition of this agency, by which the plaintiffs were secured, and which was the only ground upon which the plaintiffs would have advanced the funds, or made the acceptances. To hold thus seems to us contrary to reason and to the settled doctrines of the law of agency. "It is no doubt true, as we have before shown, that the agent had no innate authority to give a general mortgage upon the personal property of the com- pany, to secure money borrowed ; and if that were done by the directors, it could not avail the plaintiffs, as against other creditors, until a delivery of the property to the plaintiffs or their agents ; and this possession, thus acquired by the delivery, must be kept up by the plaintiffs. Still, if the plaintiffs furnished funds to the agent upon certain conditions, and the company claim to retain the funds, they thereby ratify the act of the agent in solido. They cannot subdivide it. They must either adopt it, or reject it, in toto. RAILWAYS AND OTHER TRANSPORTATION COMPANIES. 343 " It is not important in the present case to inquire, wlether the act of the stockholders, in assigning property purchased by funds thus obtained by the agent, might not be considered a ratification of the contract made with the plain- tiffs, to the full extent, — especially as this was done with a full knowledge of all the facts. This is not important, inasmuch as there was no change of possession made and kept up, which would enable the plaintiffs to maintain a lien upon property not purchased with their funds. But as to property which was purchased with their own funds, the title would never so vest in the company as to defeat their lien for the price. West v. Bolton, 4 Vt. 658 ; Paris «. Vail, 18 Vt. 277. " We are, then, only to consider the plaintiffs' claim to a lien upon wool, yarn, or cloth, or other material, included in the assignment, which was pur- chased or paid for by funds or acceptances of the plaintiffs, — either in whole or in part to that extent. To this extent we think the plaintiffs are to be allowed to maintain their lien, upon two grounds : first, that the company, by accepting of and appropriating the avails of the contract made by their agent with the plain- tiffs, after they became aware of all the facts, have thereby ratified the act of the agent in borrowing and using the money in their business ; second, that if this were not to be considered a ratification of the act of the agent, then the application of the funds by the agent to the business of the company was an un- aulhorized act, and, as such, a misapplication of the plaintiffs' funds ; and, under such circumstances, they may reclaim them, into whosesoever hands they have come. "1. The principle, that you cannot adopt the act of one professing to act as your agent, without taking it with all its conditions, cum onere, as the phrase is, IS no new doctrine in the law of agency. It is as old as the common law, not to go farther. It is found laid down in most of the elementary treatises upon the subject. It is the only rule upon the subject which is consonant to reason. See Story on Agency, 246, § 260, citing Smith on Mercantile Law, 60 ; Wilson v. Poulter, 2 Str. , 259 ; Billon v. Hyde, 2 Atk. 128 ; Smith v. Hodson, 4 T. R. 211 ; Hovill v. Park, 7 East, 164; Cornwall w. Wilson, 1 Ves. 609 ; Ferguson «. Carrington, 9 B. &C. 69. "2. In regard to the other view of the case, which is substantially the ground upon which the argument is placed by the defendants, there is as little doubt, in my judgment. Suppose that Cummings did exceed his authority, in borrowing this money upon the security demanded, and that in that act he is to be treated as the plaintiffs^ agent. He is still but a special agent, and can bind them only to the extent of his express authority. He is intrusted with their funds, by the plaintiffs, with express directions not to put them to the company's use, unless they give the plaintiffs such security as that-specified in the contract. But he never- theless does do it, contrary to his directions. This is the common case of misap- plication of funds by the agent. In all such cases, the principal may have re- dress by pursuing the funds into whosesoever hands, or whatsoever shape, they may have come. Mr. Justice Story, in his Treatise on Agency, page 225, says, ' It will make no difference in law, as, indeed, it does not in reason, into whatever form, different from the original, the change may have been made, — whether it be into promissory notes, or other securities, or into merchandise, or into stock.' In all these cases, and a great variety of others, the principal may reclaim the prop- erty. "To apply this to the present case : had the money been on hand, borrowed 344 AUTHORITY OF AGENTS AND SERVANTS. upon a contract like the one given to the plaintiffs, the company, by applying the money to the use of the corporation in any way, would confirm the contract of their agent and make the security good. If they elected to repudiate the con- tract, the money became the property of the plaintiffs, and they might pursue it, in specie, — and so, also, whatever was purchased with it. If the product of the money had become mixed with the other goods of the company, it might be more difficult to identify the plaintiffs' property, — but none the less their right to make the attempt to pursue it, so far as they can trace it ; — ' For,' says Judge Story, id., 'the product of the substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such ; and the right only ceases, when the means of ascertainment fail.' And the fallacy in the defendants' application of the rule of law, for which they contend, to the case, seems to lie in this, — that they will have it, that all the acts of their agent which were beneficial to the company are to be regarded as binding upon the plaintiffs, but that those which exceeded the strict limits of his authority, although forming the consideration and motive for the other acts, may neverthe- less be rejected. This is a sophism, which could hardly escape detection in any but interested minds. "But, in rejecting the contract in solido, we only leave the defendants where they would have been if the plaintiffs had never made any advances to their agent. And as it is morally certain that they never would have made them .ex- cept upon the expectation of the security specified in the agent's contract, and as that has been rejected by the company, few unsophisticated minds could fail to see and appreciate the justice of the conclusion to which we come. It is cer- tainly as favorable as the defendants have any right to ask. The only doubt which I have felt in regard to the subject is, whether it is not more so. Had there been any valid change of possession, I should have felt that the conduct of the company was fairly susceptible of such a construction as to make it a con- firmation of the act of the agent to the full extent. But of that some doubt might exist ; for the company intended, no doubt, to repudiate the act of the agent. It is, then, more consistent with the intention of the defendants, and, perhaps, with the absolute justice of the case, to permit the plaintiffs, as far as practicable, to reclaim their own property. " The reason and justice as well as the law of the case, to that extent, must be apparent to all, one would suppose, — even to the defendants themselves. It is, too, in analogy to the rule, which prevailed in the civil law, as to all sales. It is also in analogy to that rule which prevails in this state as to conditional sales. Indeed, it is, in substance, the very case of a conditional sale. For it cannot be denied, that the case of the plaintiffs is as favorable as if they had, instead of fur- nishing funds to buy wool, furnished the wool itself, upon condition that it was to remain theirs, during all the processes of manufacture, until paid for. That would then be the very case of Paris v. Vail, 18 Vt. 277, and Smith v. Atkins, 18 Vt. 461, and many others, which have been decided by this court. It is clearly that case, or else the funds have been misapplied, and the plaintiffs may recap- ture them. And, in whichever point of light it is viewed, it seems to us too clear from doubt to require farther illustration." A railway company may be bound by the unauthorized act of its directors from long acquiescence. Houldworths v. Evans, L. R. 3 Ho. Lds. 263. See also id. EESPONSIBILITY FOR INJURY TO GOODS. 345 171, 249. The company cannot- retain money unlawfully obtained by the direc- tors. Re Cork & Youghall Kailw., 17 W. R. 873. There seems to be no ques- tion, that the directors of a railway company, or an agent acting under their authority, would have power to submit any question of damages against the com- pany to the award of arbitrators, wherever it is competent for such directors or agent to settle the same by agreement, and this will embrace claims for damage by the road passing over the land of any one. Wood v. The A. & K. Rail- road Co., 4 Seld. 160. Railway directors are regarded as standing in the relation of master to all the other employes of the company and as its immediate representatives. Columbus & Ind. Central Railw. v. Arnold, 31 Ind. 174. There is a very recent decision in Maine, Dunn v. Grand Trunk Railway, 10 Am. Law Reg. N. S. 615, 8. c. post, where the competency of the employes of railway companies in one department to bind the company in undertaking service in some other department of the company's business is extensively considered by a very learned and experienced judge. The company, by appropriating the ben- efit of a contract unlawfully entered into by their president, thereby ratify it. Perry v. Simpson, W. P. M. Co., 37 Conn. 620. XVi The Effect of Bills of Lading. Kesponsibility op Carriers for Injury to the Goods during the Transporta- tion, or which exists at its Termination. Improper Package, Stowage, Internal Decay, &c. The case of Nelson v. WoodrufF, 1 Black, U. S. Reports, 156, 1861, will illustrate many of those questions. The head-notes, so far as these questions are concerned, are — Where the bill of lading describes the goods as being received in good order, this prima facie imposes upon the carrier the duty of delivering them in like good order at the end of the transit, and, if not, of showing that whatever defect then appears, in fact existed when he received the goods or occurred during the passage, from causes for which he is not responsible. If lard is stowed in wooden casks for a southern voyage, when, from its inherent qual- ity, under the influence of warm climates, it escapes, the carrier is not responsiblei for the loss. The owner of goods sent by carrier must see that they are so packed as not to suffer unavoidable damage in the passage, or the loss will fall upon him. The carrier has a right to presume the owner has done his duty in this respect, and is not responsible for damages occurring, through defective package, without his fault. The facts sufficiently appear in the opinion of the court by — Mr. Justice Wayne. We are now about to decide two appeals in admiralty from the Circuit Court U. S. of the Southern District of New York. 346 RESPONSIBILITY FOB INJURY TO GOODS. They are substantially cross-actions,- and the testimony is the same in both. They have been fully argued, and shall be discussed by us with reference to the rights and liabilities of the parties growing out of their pleadings, and the bills of lading upon which they rely. William Nelson and others are the owners of the ship Maid of Orleans, and they have filed their libel to recover from John 0. Woodruif and Robt. M. Henning, survivors of the firm of James B. Woodruff & Co., eighteen hundred and thirty-eight dollars eleven cents, with interest from the fourteenth of August, eighteen hun- dred and fifty-four, for the freight, with primage and average ac- customed, of a large quantity of- lard which was carried in their ship, in barrels and tierces, from New Orleans to New York, for which the master of the ship had affirmed for the shippers in two bills of lading ; that they had been shipped in good order and con- dition, &c., and were to be delivered in like good order at New York, the dangers of the sea and fire only excepted, to James B. Woodruff & Co., or to their assigns, freight to be paid by him or them at the rate of 11.15 per barrel, and $1.50 per tierce, with five per cent primage and average accustomed ; and the libellants de- clare that the lard, upon the arrival of the ship, had been delivered to the consignees, and was accepted by them. To this the respondents filed a joint answer, admitting the ship- ment, claiming that they had been made in conformity with the bills of lading, affirming the arrival of the ship in New York, and averring that only a part of the lard had been delivered, and allege that the agents of the libellants had taken so little care in receiving the casks and tierces on board of the ship, and in the stowing and conveyance of them, and in the discharge of them at New York, that a large quantity had been lost, about sixty thousand pounds, of the value of six thousand dollars and upwards, and that the loss or diminution in its weight had not been lost by the perils of the sea, or from fire. They further answer, that, relying upon the bills of lading, the consignees, James B. Woodruff & Co., had made large advances upon them to the shippers of the lard. They then declare that, for cause stated by them, they were not liable to pay the freight and primage, but that the owners of the ship were an- swerable for the loss of the lard, and liable to pay them more than six thousand dollars, and claim to recoup against the freight and primage so much of the damage as they may have sustained as EBSPONSIBILITY FOE INJURY TO GOODS. 347 will be sufficient to liquidate and discharge the amount claimed for freight. When they answered the respondents, they at the same time filed a libel against the owners of the ship, propounding sub- stantially the particulars of what was in their answer to the libel — so much so, that we will not repeat them ; indeed, there is no ad- dition to it, nor will it be necessary to set out again the articles of their answer to the libel filed against them, for they are a repetition of their own original libel, except in one particular, upon which the controversy was made exclusively to turn by the counsel on both sides in the argument of the case before us. That was, that the land, as such, had not been in good order for shipping when put on board of the ship, inasmuch as it was then in a liquid state, and had in that condition been put into barrels and tierces, which, with the heat of the weather then and during the passage to New York, had started them, and had caused the leakage complained of before and during its transportation, and that the leakage had not been caused by any neglect or want of care of them, either in ship- ping the lard at New Orleans, or on the passage thence to New York, or in stowing it in the ship, or in the discharge of it in New York. There is much testimony in the record in respect to the efifect of heat and barrelling of lard in a liquid state, in producing more than usual leakage ; but it was urged in the argument that such proofs were inapplicable to this case, as the bills of lading affirmed that the lard, when shipped, was in good order and con- dition, and were conclusive against the allowance of any inquiry being made, or to any other causes of loss or damage than such as may have been caused by the dangers of the sea and fire. Such is not our view of the effect of the bills of lading we have now to consider. We proceed to state what we believe to be the law, and will then apply the evidence to it to determine if this case is not within it. We think that the law is more accurately and compendiously given by Chief Justice Shaw, than we have met with it elsewhere. In the case of Hastings v. Pepper, 11 Pick. 43, that learned judge says : " It may be taken to be perfectly well established, that the signing of a bill of lading, acknowledging to have received the goods in question in good order and well conditioned, \& prima fade evi- dence that, as to all circumstances which were open to inspection and visible, the goods were in good order ; but it does not preclude the carrier from showing, in case of loss or damage, that the loss 348 RESPONSIBILITY FOR INJURY TO GOODS. proceeded from some cause which existed, but was not apparent, when he received the goods, and which, if shown satisfactorily, will discharge the carrier from liability. But in case of such loss or damage the presumption of law is, that it was occasioned by the act or default of the carrier, and, of course, the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriage, and for which he is not respon- sible." The same has been decided by this court in two cases as to the burden of proof, where the goods shipped were said to have been impaired in quality by the dampness of the vessel during passage to her port of delivery. Clark v. Barnwell, 12 How. 272 ; Eich V. Lambert, 12 How. 347. The rule having been given, our inquiry now will be, whether or not the owners of the Maid of Orleans have brought themselves within its operation, so as to be exempted from all liability for the loss of the lard, by having proved satisfactorily that it had been occasioned by causes existing in the lard, but not apparent when it was shipped, to the extent of the injury which those causes would produce upon the barrels and tierces which contained it ; or, in other words, that the causes of the loss were incident to lard when operated upon by a heated temperature of the sun acting directly upon it, or when it shall be stored, and an excessive natural tem- perature has occasioned its liquefaction. It is alleged that the loss of this shipment was sixty thousand pounds less than the quantity shipped. It must be admitted to be too large for it to be brought under the rule which exempts the carrier from liability for the or- dinary evaporation of liquids, or for leakage from casks, occurring in the course of transportation. The implied obligation of the car- rier does not extend to such cases, any more than it does to a case when the liquid being carried, if it shall be conveyed with care, is entirely lost from its intrinsic acidity and fermentation, and burst- ing the vessel which contains it ; as it was adjudged that the car- rier was not liable when a pipe of wine during its fermentation burst and was lost, it being proved that at the time it was being carried carefully in a wagon commonly used for such a purpose. Parra v. Adams, Bull. N. P. 69. We do hot know where an adjudged case can be found illustrat- ing more fully the exemption of a carrier from responsibility for loss or leakage from the peculiar and intrinsic qualities of an arti- cle, and the inquiries which may be made upon the trial in respect RESPONSIBILITY FOR INJURY TO GOODS. 349 to them, and into the causes of a loss from eifervescence and leak- age, and we may say for its discriminating rulings, than that of Warden v. Greer, in 6 Watt's Penn. 424. Mr. Angell has made all of us familiar with it in his Treatise on the Law of Carriers, c. 6, 215. The action was brought against the owners of a steamer on account of loss on a cargo of two hundred barrels of molasses, which was affirmed in the bill of lading had been received in good order and well conditioned. Witnesses were examined as to the trade in that article on the western waters ; the nature of molasses and the trade in it.; as to its fermentation in warm weather ; the effect upon it by heat in its removal and carriage in a dray ; also as to the means usually taken to prevent loss of it, and injury to the barrels from the expansive force of fermentation ; and as to the loss of it from those means and causes on a passage from New Orleans to Pittsburgh ; and as to the loss by leakage or warm weather, according to the condition of the barrels in which it might be shipped. It was determined in that case that the defendants were not answerable for loss occasioned by the peculiar nature of the article carried at that season of the year, nor for leakage aris- ing from secret defects in the casks, which existed, but were not apparent, when they were received on board of the steamer. Nor is a carrier responsible for diminution or leakage of liquids from barrels in the course of transportation, though they are such as are commonly used for that purpose, if it shall be satisfactorily proved that the barrels had become disqualified from containing their contents by causes connected with the nature and condition of the article, which the carrier could not control. Having stated the law as we think it to be, that a bill of lading for articles shipped, afiirmed to be in good order and condition, is hut prima facie evidence of that declaration, and does not preclude the carrier from showing that the loss proceeded from causes which existed, but were not apparent, we will now examine the testimony, to determine if such was not the fact in this case. The lard was taken from the warehouse, to be put on board of the ship, in a liquid state, in the month of July, during hotter weather — much hotter, all the witnesses say — than is usually felt in New Orleans at that time. This was known to the shippers, to their agent who made the freight by contract, and to the captain of the Maid of Orleans. They also knew that the lard was in such barrels and tierces commonly used for the shipment of lard. All 350 RESPONSIBILITY FOB INJURY TO GOODS. the barrels and tierces were put on board of the ship, according to contract, as soon as it could be done, after they were carted to the levee where the ship was, except a few barrels, not more than twenty, which needed cooperage, and they were left on the levee from Saturday evening until Monday morning. There is no proof of more leakage or loss from them by that ex- posure, than there would have been if those barrels had been put on board of the ship in the bad condition in which they were sent to the levee. Dix, who made the freight engagement in behalf of tlie shippers, says it was expressly agreed that the. lard should be taken on board of the ship as soon as the same was sent to the vessel, to avoid exposure to the sun ; and he testifies that the casks contain- ing it were iu good order when they were delivered ; but antici- pating that some of them might not be, a cooper was sent, for the purpose of packing such of them as might not be in good shipping condition ; and the witness Shinkle, the stevedore employed to load the ship, says the lard was promptly taken on board as soon as it was taken from the drays, but that'there were about fifteen or twenty barrels leaking, which he caused to be rolled aside, and he put them under tarpaulins, to be coopered, and, as soon as they were coopered by the shippers' employes, it was taken. This is the lard, as we learn from another witness, which had been on the levee from Sat- urday night until Monday morning. Besides, from answers of Mr. Dix to the cross-interrogatories put to him, we learn that he knew nothing of the good order and condition of the casks of lard, as to its cooperage, when they were carried to the levee to be received for shipment, except from the report of those who had done the work. Under such circumstances, the casks put aside on the levee for cooperage, before they could be shipped, on account of their leaking, were not received by the stevedore, to be put on board, until they were put in a fit condition to be shipped. Until that was done, they were at the shipper's risk. We cannot, therefore, allow the fact of the exposure of these twenty barrels to charge the ship with any loss, or to lessen the weight of the testimony that, in receiving and putting the casks into the vessel, it had been done iu conformityj as to time, with the engagement made with the agent of the shippers. The proof is ample, that it was put on board with care, and in the manner and with all the appliances for doing so most readily. It is in proof, also, that the stowage on the ship was good, both as RESPONSIBILITY FOR INJURY TO GOODS. 351 to position and as to its support and steadiness, by dunnage and cantling, and that there had been no disarrangement of the casks, either by storm or rougli seas, on the passage of the ship to New York, although she did encounter some heavy weather. Neverthe- less, upon the discharge of the lard in New York, the barrels and tierces were found to be in a worse condition, and leaking more, than had ever been seen by either of the witnesses, whose habit and business had made them familiar witli such shipments. It ap- pears that the barrels containing the lard were of the same mate- rials, and coopered with hoop-poles, as barrels for such a purpose are usually made. "When the contents of such barrels are solidified, the leakage will be small ; when liquefied, larger. All of the witnesses, who know how such barrels are coopered, say so, particularly as to lard in a liquid state, and as to its effect upon thCxStaves and hoops of such barrels when acted upon by the heat or rays of the sun. They know it from observation and experience ; science confirms it from the composition of the article. This lard was of a secondary kind, or, as the witness Magrath says, it was a fair lard, — not pure at all, but a good average lot, not a first-rate article. The differences in the qualities of lard may arise from a deficiency of oxygen, or from tlie inferior quality of the fat of the animal from which it is tried, and not unfrequently from a careless and insufficient melting and expression of the best of the animal fat from its membraneous parts. Oils, whether animal or vegetable, are either solid or liquid, and, when in the first condition, are frequently termed fats. These fats are more abundant in the animal than in the vegetable king- dom. But whether liquid or solid, they usually consist of three substances, two of which (the stearine-suit and the margarine-pearl) are solid, and the other (elane or oleine) is liquid at ordinary tem- peratures. They are all from 6° to 9° lighter than water, and their liquid or solid condition depends upon the proportion in which their component parts are mixed. Thus, in the fats, the oleine exists in small quantities, and in the liquid oils it is the chief con- stituent. A certain degree of heat is necessary to the mixture, for at low temperatures there is a tendency to separation ; the stearine and margarine are precipitated or solidified, and if pressed, can be entirely freed from the oleine. The stearine from the lard of swine is easily separable from the oleine, and it is used in the manufac- ture of candles. The liquid stearine, known in commerce as lard- 352 RESPONSIBILITY FOR INJURY TO GOODS. oil, is used for the finer parts of machinery ; but all of the animal fats — such as those from the hog, the ox, the sheep, and horse — have not a like consistency or proportion of stearine in them ; when deficient in either, or comparatively small, and tried into lard, they have not that tendency at low temperatures to precipitate and solidify as the stearine and margarine of the fat of the. hog has ; and being extremely penetrating from liquidity, there has al- ways been a greater loss from evaporation and leakage from the barrels in which they are ordinarily put for transportation than there would be from hogs' lard under the same temperature ; in other words, hogs' lard will solidify at a temperature at whicli those animal fats will not, and, from their liquidity, they escape from the barrels containing them in larger quantity ; and tiiat fact has been remarkably verified by the returns of English commerce with Buenos Ayres and Monte Video, in the importation from them of what is known there as horse or mare's grease, tried from the fat of the horse. From its liquidity, the ordinary barrels for the transportation of tallow and grease were found to be insufficient, as tlie casks were frequently half empty on their arrival. The commerce in it was checked for some years, and not resumed until the shippers put it into square boxes, lined with tin, and the article is now carried without loss. And here we will remark, that a distinguished gen- tleman, thoroughly acquainted with the commerce of our country and its productions, and with its great lard production from the fat of the hog, has made a calculation of the deterioration of the article and the loss of it by leakage from the barrels and casks in which it is now shipped, and his result is, if we would change it for square boxes, lined with tin, that the cost of them would be a saving of the loss now sustained by barrelling it. We have now shown that the cause of the leakage of lard is its liquefaction under temperatures higher than those at which it will solidify when not deficient in stearine. One legal consequence from that fact is, that shippers of that article should be considered as doing so very much as to leakage at their own risk when it is in a liquid state, however that may have been caused, whether from fire or the heat of the sun, and knowing, too, that it was to be carried by sea at a time from places where there was the higher ranges of heat, through latitudes where the heat would not be less, until the ship had made more than three-fourths of her passage. Such was RESPONSIBILITY FOR INJURT TO GOODS. 353 the case in this instance. When the lard was shipped, the ther- mometer had indicated for several days, and continued until, the ship sailed, a heat of 97° ; the ship itself had become heated by it. Her passage was made in the heat of the Gulf Stream until she made the capes of the Delaware, and the witnesses describe the heat of the hold as unendurable upon her arrival in New York. We have still to show what were the effects of the liquid lard upon the barrels in which it was, and that we shall do briefly by the testimony of several witnesses, and from what we all know to be the additional pressure of an article upon a barrel when liquefied by heat. The pressure from liquid lard is an expansion of its com- ponent constituents by heat into a larger bulk than it occupies when solidified, and its elastic pressure distends or swells the bar- rel which contains it, until the hoops which bind it are slackened, and its staves are started ; just as it would be in a barrel contain- ing any other fluid expanded by heat or fermentation. The con- sequences must be a diminution of the liquid by an increased leakage and evaporation. Now, it so happens that the scientific explanation of the loss of the lard in this instance is verified by the experience of the libellants' and respondents' witnesses. Ben- zell, a cooper of forty years' experience in New York, in coopering casks of lard from New Orleans to New York, and who coopered this cargo upon its arrival, says the casks were of a good quality, except being slack, — that is, hoops started ; hoops were loose upon the casks ; does not think there is any quality in lard to injure casks, except it will, when liquid, tend to shrink them ; it requires a great deal of care in such a case ; pressure increases the diSiculty from heat, conduces to press upon the joints, and produces leakage ; these casks were fully wooden-bound, but saw them leaking at bilge and at liead ; coopered four hundred of them. Ward, the city weigher, and who weighed several hundred casks of this shipment, says that they leaked largely ; leakage was from loose hoops. Dibble, another weigher of twelve years' experience in the article of lard, says the lard was in a liquid state, like oil. Wriglit, who was present all the time when the ship was discharging, gives an account of the stowing of the shipment ; says the packages or bar- rels were slack. Samuel Candler, marine surveyor, surveyed the cargo in August, 1854 ; made seven surveys on cargo and one on hatch ; saw the lard when on board of the ship ; says it was stowed in the after lower hole in four or five tiers on bilge, and cantling VOL. II. 23 354 RESPONSIBILITY FOR INJURY TO GOODS. in ordinary way and best ; bilge and bilge stowing not so well ; went below ; it was very hot there ; barrels looked fair, but slack ; the staves were shrunk ; looked all alike ; top casks leaked as well as those on the bottom tier ; attributes the great loss to great heat and shrinking of the barrels ; has surveyed a great many ships laden with lard in hot weather ; this cargo could not have been stowed better; recollects more of this cargo because there was so much leakage ; nothing stood on the casks, or on the top tier of them, as is afterwards explained ; sui'veyed ship ; she had the ap- pearance of having encountered bad weather. Francis J. Gerean, who has been accustomed for thirty years with stowing cargoes, says : I coopered this cargo for libellants. Woodruff & Henning ; when the cargo was discharging, two coopers under liis direction, one at gangway on deck, the other in the hold of the ship ; he saw the lard in the hold before delivered ; the hoops, were very loose, and the" barrels were leaking from sides and heads ; intensely hot below ; considerably hotter than on deck ; leakage from shrinking of packages ; the lard was liquid ; that tends to shrink ; staves and hoops become loose ; only chime hoops were nailed ; barrels were well stowed ; does not think it possible to stow better ; ground tier was damaged, as well as he judged ; bilge of barrels did not leak ; no barrel rested on a single barrel, but on others. Fisher, a large dealer in lard, grease, and tallow, and who has received them at all temperatures of weather, says lard brought in vessels in hot weather will naturally leak ten pounds out of a package ; lard of reasonable quality, in good packages, will leak about the same as oil ; thinks putting liquid lard into barrels will not produce leakage as much as pressure of the barrels upon each other, but stores lard in cellar three to five tiers. Several other witnesses in New Orleans concur in stating that it was very hot weather when the lard was shipped, and that when shipped it was in a liquid state. Others, uncon- tradicted, testify that it was liquid when the vessel arrived in New York. There is no testimony in the case impeaching the skill and proper management of the ship on the passage to New York, or in the delivery of the lard there, or that there was any part of her cargo of a nature to increase the heat of the ship, or to liquefy the lard, or to alter or shrink the barrels, though the ship's heat, exposed as she had been to the rays of the sun in New Orleans, was higher than that temperature at which lard will solidify ; and it conse- RESPONSIBILITY FOR INJURY TO GOODS. 355 quently continued liquid, from the time it was received on board until its delivery in New York, as the ship, on her way to it, was never in a temperature low enough to solidify it. All the witnesses who were examined in respect to the shrunken and slackened condition of the barrels when they were discharged in New York agree. Two or three of them say they were in a worse condition than they had ever seen or handled, and attribute the loss to the agency of the melted lard upon the barrels. The result of our examination of these cases is, that though the owners of the Maid of Orleans could not controvert the affirmance in these bills of lading, that the lard of the shippers had been re- ceived on board of their ship in good order and condition, that they have made out, by sufficient and satisfactory proofs, that the leak- age and diminution of the lard was owing to existing but not ap- parent causes, in the condition of the lard, acting upon the barrels in which it was, which are not within the risks guaranteed against to the shippers by the bill of lading. In conclusion, that the sign- ing of a bill of lading, acknowledging that merchandise had been received in good order and condition, \a prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order ; but it does not preclude the carrier from showing that the loss proceeded from some cause which ex- isted, but was not apparent when he received the goods, and which, if shown satisfactorily, will discharge the carrier from liability. In case of such a loss or damage, the presumption of law is, that it was occasioned by the act or default of the carrier ; and, of course, the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriage, and for which he is not responsible. We accordingly, with this opinion, affirm the decree of the Dis- trict and Circuit Courts, in all particulars, dismissing the libel of Jno. 0. Woodruff and Robert M. Henning, and also affirm the de- cree of the Circuit Court, with costs, to the libellants and appellees, Nelson, Dennisou et al., in all things expressed in the same. We have not considered the point made in the argument, deem- ing it to be unnecessary, relating to James E. Woodruff & Co., having made advances, in a large sum of money, upon the faith of the bill of lading, as they were not made with any intention of acquiring property in or ownership of the lard. We also concur entirely with the view taken by our brother Betts, 356 RESPONSIBILITY FOR INJURY TO GOODS. of the District Court, upon tlie objections made to the admission of the deposition of Capt. Dennis, taken de bene esse by the libellants. Decrees of the Circuit Court affirmed. The effect of property being shipped in unfit condition for the voyage is very well illustrated by the opinion of Mr. Justice Catron, in the case of the Ship Howard v. Wissman, 18 How. U. S. 231, which we here adopt as illustrative of the grounds upon which the courts overrule the finding of commissioners and ■masters, even where it has been confirmed by successive courts below. ' ' This is a proceeding in rem, against a foreign vessel, by libel ; charging that the libellant shipped on her, at Hamburg, in Germany, 5,004 bushels of potatoes in good order and well conditioned for the purpose of shipping, and that, by the long and wilfiil delay of the vessel at Hamburg, and on her voyage to New York (the port of destination) , and through the carelessness and misconduct of the master and owner, the potatoes became and were injured, decayed, and wholly lost to the libellant. " To this charge the respondents answer, that the decay .of the potatoes was caused by their lying in port for some time before they were put on board ; and that they were delivered to the vessel in a damp and wet state, and were not in a sound condition. The alleged negligence is denied generally. " On the foregoing issue the District Court made an interlocutory decree, de- claring that ' the libellant recover in this action against the ship the value of the potatoes at Hamburg at the time they were laden on board, together with charges and expenses, unless it be proved by the claimants that they were not then in a good, sound condition ; or that they perished afterwards, in consequence of in- herent disease or defects existing at the time of lading the same, and not from the prolonged detention in their transportation ; and it is further ordered, that it be referred to a commissioner to ascertain and report the cause of the destruction and loss of the potatoes, and their value at the time of shipment.' " The commissioner reported that he had heard the parties and their testimony, and found that the potatoes were in a sound condition, and that tliey did not perish afterwards in consequence of inherent disease or defects existing at the time of loading the same, but that the cause of their destruction and loss was the long and protracted voyage of one hundred and nine days ; and that they were worth, when shipped (including charges), $2,256 y'j^. " This report was adopted by the District Court, and a decree made accordingly. " An appeal was prosecuted by the claimants to the Circuit Court, where the decree below was affirmed. " The potatoes were shipped in bulk in the hold of the vessel, which mode of shipment was adopted at the instance of the libellants' agent, who superintended their stowage. " It appears that much rain fell during the time the potatoes were lying in light- ers, awaiting an opportunity to ship them, being about a month ; and it rained when they were alongside, and putting into the vessel ; and in our opinion it is satisfactorily established, that the potatoes were wet to a considerable extent when delivered and stowed in the hold. WulfF, the stevedore, under whose im- mediate supervision they were stowed, deposes that they were wet, ' and con- RESPONSIBILITY FOR INJURY TO GOODS. 357 sidering their condition, and their being shipped in bulk, he thinks they should . not have been shipped across the Atlantic ; for said potatoes began to steam before the sailing of the ship Howard.' " The pilot of The Howard deposes, that he saw them steam out of the fore- hatch, during the passage down the river, before the vessel got outside. " Kumpel deposes, that he saw the potatoes in the lighters and on board, and that they were wet. So the other witnesses prove. " Kundsten, mate of The Howard, deposes that the potatoes began to have a bad smell when the vessel was fourteen days out. The captain says he smelt them when they were only eight days at sea. " It is proved by all the witnesses of both sides, that the potato crop of 1849 was much blighted and diseased, all over Germany ; and several witnesses declare, that potatoes grown that year were generally unfit for shipment across the ocean. " The libellants' witness, Heidpriein, answers to cross-interrogatories, that he purchased and sold that year 7,200,000 pounds of potatoes ; that the crop was generally unsound, and would not stand being shipped in bulk for so long a voyage as from Hamburg to New York; says he shipped to Hamburg — about forty German miles (160 of ours) — by water, and that no cargo arrived, after being on the way from four to fourteen days, without the potatoes'being in a bad condition. And respecting those shipped on The Howard, he states that Mr. Rawalle, Mr. Wissman's agent, applied to him to purchase potatoes ; and he, having none to sell, told Mr. Rawalle of some for sale by, Lehman and Cleve — which, not being sound, the deponent had refused to buy — and he understood Rawalle purchased them. Rawalle deposes that he got the potatoes he shipped of Deven and Lehman, but declares they were not sick or diseased. ' ' Baalmann deposes that he saw the potatoes in the lighters ; they were in a bad condition and diseased, he having made examination by cutting them with a knife, and found they were not in good shipping order; and he knows that potatoes of that year's growth, shipped in bulk to England, arrived there in a worthless state, and had to be thrown overboard. " WulflT, the stevedore, says, that when he stowed the potatoes he examined them, by breaking and cutting ; they appeared to be unsound and diseased. " The master of The Howard deposes, that the ship Miles took a cargo of the potatoes purchased by Rawalle for Wissman, and what The Miles did not take were taken by The Howard ; that he, the master, purchased some of the potatoes' that were going to The Miles, for use on The Howard, which proved to be dis- eased and unfit for use on being cooked. " The mate declares that the potatoes looked well outside, but when cut open they had sickness in them ; that the potatoes loaded on both vessels came from the same man. " Arianson, master of the bark Miles, deposes, that more potatoes were sent to The Miles, when loading at Hamburg, than he could take on board, and that the balance were sent to The Howard ; that the potatoes that he brought rotted. He discovered it five or six weeks after going to sea, by the smell, which was two or three weeks before arriving at New York. " The owner having been committed to the prima facie facts of soundness and good condition by his contract of affreightment, it was properly imposed on him by the District Court to establish the contrary by due proof; and our opinion is, 358 RESPONSIBILITY FOR INJ0RT TO GOODS. that the proof produced by him does overcome the prima facie presumption , and shows the potatoes of the libellant to have been unsound and unfit for shipment, and especially unfit to be shipped in bulk and wet, as was done by the libellarit's agent. " Rawalle was examined for the libellant several times. He deposes, that the potatoes were put on board in good order ; that they were dry and sound ; and in his opinion, if The Howard had sailed in due time, according to her advertise- ment, they would have arrived at New York in a sound condition. " As a dealer in this article, the witness had very small experience compared with various others examined; none of whom express the belief that this cargo, stowed in bulk, could have reached the port of destination uninjured. But what appears to us far more satisfactory than the speculations of witnesses is, that the cargo of The Miles was lost by decay, she being loaded at the same time and in the same manner as was The Howard, and with part of the potatoes taken from the same lighters, — although The Miles made her voyage in due time. " Our conclusion is, that the libellant's case has no merits. It is therefore ordered, that the decree of the Circuit Court be reversed, and the cause re- manded to that court, with directions to dismiss the libel with costs." That portion of the opinion of the court by Mr. Justice Clifford in Propeller Niagara v. Cordes, 21 How. U. S. pp. 26-29, wherein the rules of law appli- cable to carriage of goods by water, and especially as to the extent of the responsibility of such carriers after the vessel is stranded as to the preservation of the goods, will be valuable to the profession. " Carriers by water are liable at common law, and independently of any statutory provision, for losses arising from the acts or negligence of others, to the same extent and "ftpon the same principles as carriers by land ; that is to say, they are in the nature of insurers, and are liable, as before remarked, in all events, and for any loss, however sustained, unless it happen from the act of God or the public enemy, or by the act of the shipper, or from some other cause or accident expressly excepted in the bill of lading. Duties remain to be performed by the owner, or the master as the agent of the owner, after the vessel is wrecked or disabled, and after he has ascertained that he can neither procure another vessel nor repair his own, and those, too, of a very important character, arising imme- diately out of his original undertaking to carry the goods safely to their place of destination. His obligation to take all possible care of the goods still continues, and is by no means discharged or lessened, while it appears that the goods have not perished with the wreck, and certainly not where, as in this ease, the vessel is only stranded on the beach. Such disasters are of frequent occurrence along the seacoast in certain seasons of the year, as well as on the lakes, and it cannot for a moment be admitted that the duties and liabilities of a carrier or master are varied, or in any manner lessened, by the happening of such an event. Safe custody is as much the duty of a carrier as conveyance and delivery ; and when he is unable to carry the goods forward to their place of destination, from causes which he did not produce, and over which he has no control, as by the stranding of the vessel, he is still bound by the original obligation to take all possible care of the goods, and is responsible for every loss or injury which might have been prevented by human foresight, skill, and prudence. An effort was made by able counsel, in King v. Shepherd, 3 Story, C. C, 368, to maintain the proposition. RESPONSIBILITY FOR INJURY TO GOODS. 359 assumed by the respondents in this case, that the duties of a carrier after the ship was wrecked or stranded were varied,, and therefore that he was exempted from all liability, except for reasonable diligence and care in his endeavors to save the property. Judge Story refused to sanction the doctrine, and held that his obligations, liabilities, and duties, as a common carrier, still continued, and that he was bound to show that no human diligence, skill, or care, could save the property from being lost by the disaster. Any thing short of that requirement would be inconsistent with the nature of the original undertaking, and the mean- ing of the contract, as universally understood in courts of justice. Admit the proposition, and it is no longer true that, where there is no provision in the con-, tract of affreightment varying the liability of the carrier, he cannot relieve him- self from liability for injuries to goods intrusted to his care, except by proving that it was the result of some natural and inevitable necessity superior to all human agency, or of a force exerted by a public enemy. Kent, Chief Justice, said, in Elliott v. Russell, 10 Johns. 7, decided in 1813, that it has long been settled that a common carrier warrants the delivery of the goods in all but the excepted cases of the act of God and public enemies, and there is no distinction between a carrier by land and a carrier by water ; and the same learned judge also held that the character, duty, and responsibility of a carrier continue to attach to a master as long as he has charge of the goods. A master, says a learned commentator, should always bear in mind that it is his duty to convey the cargo to-its place of destination. This is the purpose for which he has been intrusted with it, and this purpose he is bound to accomplish by every reasonable and practicable method. Every act that is not properly and strictly in further- ance of this duty is an act for which both he and his owners may be made responsible. His duties as carrier are not ended until the goods are delivered at their place of destination, or are returned to the possession of the shipper, or kept safely until the shipper can resume their possession, or they are otherwise disposed of according to law. King v. Shepherd, 3 Story, C. C, 349 ; Abbott on Ship., 8th. ed. Perk., 478. These authorities are sufficient, it is believed, to demonstrate the proposition, that where a loss or damage is shown, it is incum- bent upon the carrier to bring it within the excepted peril in order to discharge himself from responsibility. It is not sufficient, without more, to show that the vessel was stranded, to bring the goods within the exception set up in this case. Had the goods perished with the wreck, it would be clear that the loss was the immediate consequence of the stranding of the vessel ; and assuming that the disaster to the vessel was the result of the excepted peril, or of some natural and inevitable accident, then the carrier would be discharged. All the evidence, however, in this case, shows the fact to be otherwise ; that the goods did not perish at the time the steamer was stranded ; and the damage having since oc- curred, the rule of law to be ascertained is the one ap^plicable in cases where the injury complained of arises subsequently to the disaster to the vessel. Such interruptions to a voyage are of frequent occurrence, and the rule of law is just and reasonable which holds that the master is bound to the utmost exertions in his power to save the goods from the impending peril, as it is no more than a prudent man would do under like circumstances. In great dangers great care is the ordinary care of prudent men, and in great emergencies prudent men em- ploy their best exertions ; so that the difference in the rule contended for, and 360 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK the one here laid down, is much less than at first appears. Nevertheless there is a difference, and in a question of so much practical importance it is necessary to adhere strictly to the correct rule. Losses arising from the dangers of naviga- tion within the meaning of the exception set up in this case are not such as are in any degree produced from the intervention of man. They are such as happen in spite of human exertions, and which cannot be prevented by human skill and prudence. When such efforts fail to save the goods from the excepted peril, the ultimate loss and damage in judgment of law results from the first cause, upon the ground that when human exertions are insufficient to ward off the conse- quences, the excepted peril may be regarded as continuing its operation. Such, it is believed, is the nature of the contract between a carrier and shipper, so far as it becomes necessary to examine it in the cases under consideration. Carriers may be answerable for the goods, although no actual blame is imputed to them ; and after the damage is established, the burden lies upon the respondents to show that it was occasioned by one of the perils from which they are exempted in the contract of shipment or bill of lading. Clark v. Barnwell, 12 How. 272 ; Rich V. Lambert, 12 How. 347 ; Chitt. on Carriers, 242 ; Story on Bailm. §§628,629; 3 Kent, Com. 213 ; 1 Smith Lead. Cases, 313 ; Choteaux ». Leech e< al., 18 Penn. St. 233; Fland. on Ship., sec. 267; Marvin on Wr. and. Salv., 21 ; Parsons's Mer. L. 848; Smith's Mer. L., 3d ed , 386." Whenever any concealment is practised upon the carrier in regard to the value of the property intrusted to him, in order to induce him to suppose a very valu- able parcel is of much less or even of insignificant value, with a view to reduce the 'charge for freight, or for any other purpose, it will have the effect to relieve the carrier from all responsibility beyond that of faithfulness and diligence in the transportation. Southern Express Company v. Everett, 37 Ga. 688. As to the construction of bills of lading, see McMillan v. M. S. &N. Ind. Railw., 16Mich. 79. As to exceptions in bills of lading of specified risks, see Transportation Co. V. Downer, 11 Wall. 129 ; Steinweg v. Erie Railw., 43 N. Y. 123. XVI. The Carrier is not held responsible for any Injury ACCRUING to Live Stock, transported by him, by reason of the Temper and Disposition op the Animals, and which the utmost Care and Watchfulness could not avoid. 1. Clarke v. The Rochester and Syracuse Railroad Oompany, 14 JV. 7! Reports, 670. 1856. The fact that the owner of live stock is allowed to pass upon the same train, in order to keep some lookout for its safety, will not lessen the responsibility of the carrier. The carrier is not bound absolutely for the safe delivery of such freight at the end of the transit, as in case of inanimate &eight. BT REASON OP TEMPER AND DISPOSITION OP ANIMALS. 361 His responsibility is modified, so far as absolute safety is rendered impracticable by reason of the temper, habits, and disposition of the animals ; but when damage accrues from other causes the carrier is responsible as in other cases. And he is bound to exercise the utmost vigilance to guard against loss or damage from all causes. The facts in the case will sufSciently appiear from the opinion of the court by Denio, C. J. [The important facts not named by the learned judge are that the action Was brought for the loss of a horse transported upon the defendants' cars and which was found dead in the car, lying on its side and its head held by the halter, which had been hitched to a staple in the side of the car, the blood running from the nos- trils of the horse at the time it was found. There was evidence that the owner of the horse was present at the time it was put in the cars and assisted in fastening it in the manner above stated ; and such owner was also allowed by the terms of the contract for transportation to have a passage on the same train in a passenger car attached, but in fact he took passage on a passenger train which passed the train on which the horse was transported before the accident occurred, or before it was discovered. The judge at the trial charged the jury, that the defendants were respon- sible for the safe transportation of the animal, unless the owner, by the terms of the contract, was to go with it and take care of it ; or unless the injury was received by a danger incident to this mode of carriage of this species of property, and which the defendants could not, by the exercise of diligence and care prevent, or by inevitable accident, and that in the absence of any agreement to the contrary, it was the business of the defendants to provide a person to look after the animal, on its passage, if its safety required such oversight.] The fact that the plaintifif was allowed a passage for himself on the train in which his horses w'ere carried did not prove conclu- sively, if at all, that he was to attend to their safety during the journey. It may very well be that he desired to be present at the time and place of delivery in order to take care of them there, and that the privilege of taking passage in the same train was allowed him for that purpose. The charge which permitted the jury to find an agreement which would relieve the defendants from the obligation to keep an oversight of the animals was as favorable to them as they could require. 862 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK As to the carrier's liability respecting the transportation of this sort of property, several theories have been suggested on the argu- ment and in our consultations upon this case. The plaintiffs contend for the rule that the carrier is bound to transport in safety and deliver at all events, save only the known cases in which a carrier of ordinary chattels is excused, while the defendants maintain that they are not insurers at all against the class of accidents which arise from the vitality of the freight. We are of opinion that neither of these positions is well taken. A bale of goods or other inanimate chattel may be so stowed as that absolute safety may be attained, except in transportation by water, where the carrier usually excepts the perils of the navigation, and except in cases of inevitable accident. The rule, established from motives of policy^ which charges the carrier in almost all cases, is not therefore unreasonable in its application to such property. But the carrier of animals, by ^ mode of conveyance opposed to their habits and instincts, has no such means of securing abso- lute safety. They may die of fright, or by refusing to eat, or they may, notwithstanding every precaution, destroy themselves in attempting to break away from the fastenings by which they are secured in the vehicle used to transport them, or they may kill each other. In such cases, supposing all proper care and fore- sight to have been exercised by the carrier, it would be unreason- able in a high degree to charge him with the loss. The reasons stated by Chief Justice Marshall, in pronouncing the judgment of the Supreme Court of the United States, in Boyce v. Anderson, 2 Peters, 150, have considerable application to this case. It was there held that the carrier of slaves was not an insurer of their safety, but was liable only for ordinary neglect ; and this was put mainly upon the ground that he could not have tiie same absolute control over them that he has over inanimate matter. Where, however, the cause of the damage for which recompense is sought is unconnected with the conduct or propensities of the animal un- dertaken to be carried, the ordinary responsibilities of the carrier should attach. Palmer v. The Grand Junction Railway Company, 4 Mees. & Wels. 749, was the case of an action against a railway company for negligence in carrying horses, by which one was killed and others injured ; but the damage was occasioned by the car- riages running off the track of the road down an embankment, and the case did not turn at all on the peculiarity of the freight, but BY REASON OF TEMPER AND DISPOSITION OP ANliMALS. 363 mainly on the question whether the defendants had limited their responsibility by a notice. The jury found that notice had not been given and that the defendants had been guilty of gross neg- ligence. Mr. Baron Parke, in giving the opinion of the court, declared that the common-law duty of carriers was cast upon the defendants. The precise' question now before us was not dis- cussed, but it was assumed that the law of carriers applied to the case. There is no reason why it should not, in all cases of accident unconnected wifcli the conduct of the animals. But the rule which would exempt the carrier altogether from accidents arising out of tlie peculiar character of the freight, irrespective of the question of negligence, would be equally unreasonable. It would relieve the carrier altogether from those necessary precautions which any person becoming the bailee, for hire, of animals is bound to exercise, and the owner, where he did not himself assume the duty of seeing to them, would be wholly at the mercy of the carrier. ■ The nature of the case does not call for any such relaxation of the rule, and, considering the law of carriers to be established upon considerations of sound policy, we would not depart from it, except where the reason upon which it is based wholly fails, and then no further than the cause for the exception requires. We cannot, therefore, assent to the position of the counsel for either of the parties in this case. The learned judge who tried this case gave to the jury the true principle of liability in such cases. Laying out of view the idea of inevitable accident, which it was not pretended had occurred, he instructed them that the defendants were responsible, unless the damage was caused by an occurrence incident to the carriage of animals in a railroad car, and which the defendants could not, by the exercise of diligence and care, have prevented. This accords with our understanding of the law. There was sufficient evidence of negligence to be submitted to the jury. Besides what was said by the witnesses as to the size of the car, it was quite probable that if a proper watch had been kept the horse would have been saved from strangulation. It was for the jury to say whether prudence did not require that a servant of the defendants should have been stationed in or about the horse-car, so as to observe the conduct and condition of the animals constantly or at short intervals. 364 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK We think no error was committed on the trial to the prejudice of the defendants, and that tlie judgment should be affirmed. The foregoing opinion states very clearly and fully the rule of law in regard to the exception from the common-law measure of the carriers' responsibility which exists in regard to the transportation of live animals. The ground of the exception is very obvious. It rests upon the same principle as defective packing or internal decay ; being something inherent in the thing when delivered to the carrier, and for which he could not, with any regard to justice or propriety, be held responsible. But there are some things connected with the transportation of such animals that the carrier may be supposed to understand better than any one else and for which he should therefore be held responsible, and that has reference to the mode of carrying and fastening the animals, the necessary oversight and the feed and water requisite to keep them in healthy condition, for all which the carrier must, in the nature of things, be held responsible, and which respon sibility he ought not to be allowed to shift off upon any one, even the owner. This phase of the law is well illustrated by the following case. 2. Powell V. Pennsylvania Railroad Co., 7 Law Reg. 348 ; S. O. 32 Penn. St. 414. 1859. Common carriers are bound to know how live animals transported by them should be loaded, and to require that they should be so loaded as to arrive at their des- tination with the least peril. They are not at liberty to excuse themselves from such responsibility by consent of the owner and thereby suffer any act, amounting to positive negligence, to occur, either in the loading or transportation of such animals ; and the express contract of the owner even will not excuse them for so doing. Where the carrier permits the owner of such animals to put dry straw in the car where they are carried, the same being exposed to ignite from the sparks thrown off by the engine, and the same is thus ignited, and the animals thereby injured, it is negligence, and the carrier is responsible, even where the shipper had signed a release to the carrier from all claims for damage to such animals, while in the company's cars. The facts in the case will sufficiently appear from the foregoing notes and the opinion of the court, which was delivered by — Woodward, J. Whoever has been attentive to the course of decisions in this court for the last few years, in questions between railroad companies and those whom they have injured in person or property, cannot have failed to observe that on the one hand we accept no excuse from the party who obstructs the track or inter- feres with the transportation of the company ; and on the other, that we hold companies bound to transport safely, or to respond BY REASON OP TEMPER AND DISPOSITION OP ANIMALS. 365 in damages, except where the injury has resulted from the act of God or the concurring negligence of the party complaining. Erie Railroad v. Skinner, 7 Harris, 298, 1 Am. Law Reg 97 ; Little Schuylkill Railroad v. Norton, 12 Harris, 465, 466, and O'Brien v. The Phila., Wilmington & Baltimore R. R. Co., 6 Am. Law Reg. 361, are instances of ruling upon the first branch of the alternative,, whilst there are many cases that belong to the second branch. Goldey v. The Penn. R. R. Co., 6 Casey, 242 ; Sullivan V. The Phil. & Read. R. R. Co., id. 234 ; Reeves v. The Del. & Lack. R. R. Co., id. 454. The ground of these adjudications is that railroads, though in some sense public highways, like turnpike roads, are committed by law to the management and control of corporations, who are bound to employ all necessary officers and agents, and to instruct them in their respective duties, so as to secure to the public a safe transportation. The public, while entitled without distinction to travel upon railroads, are entitled to do so only in a particular man- ner, in vehicles controlled and managed by the company, and of the control and management of which, it would seem, the company are not allowed to divest themselves, even for the purpose of giving them up to another company. Angell, Law of Highways, § 370, and Beman v. Rufford, 6 Eng. Law and Eq. R. 106. And this control and management of the cars extends to every part of the service, — the receiving and discharging of passengers, and the loading and unloading of freight, as well. as to the making up of trains and conducting them over the road. In Reeves v. The Del., Lack. & Western R. R. Co., 6 Casey, 464, it was said the company are bound to employ all necessary agents, to instruct them in their duties, and to look to them for the performance of every act which the business of the road requires. These principles are not more necessary for the safety of the pub- lic than for the prosperity of railroad companies. If every man were permitted to occupy and use the tracks of railroads according to his own fancy or interests, — or to dictate how cars should be loaded and arranged in the train, — confusion and disaster, involv- ing loss of life and injury to person and property, would ensue as inevitable consequences. The agents in charge at shipping points are presumed to know better than freighters or drovers how many dumb beasts ought to be put into a car, and what arrangements are necessary to be made for their comfort and safety ; and it is due, 366 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK alike to the animals and the owners, that the skill and experience of the agents should dictate every thing that pertains to the taking on, the carrying and discharge of the load. Ritz v. Penn. R. R. Co., 15 Leg. Int. 75. With these principles Before us, let us look at the case upon the record. The plaintiff applied to the company's shipping agent, at Pittsburg, for the transportation of a young and valuable mare to Philadelphia. Two witnesses swear that the plaintiff asked for tan for bedding for the mare, and that the agent told him he could not get tan, but said he could get plenty of straw, and directed him where straw was kept for sale. The straw was obtained and put into the car, in the presence and without objection from the agent. On the way it took fire, by sparks from the engine, and burned the mare, if not to death, so badly as greatly to impair her value. The agent swears that the company have a positive rule that shippers are not to use straw except at their own risk. He does not recollect the conversation sworn to by other witnesses ; but that he " must have said that if they used straw it would be at their own risk." The plaintiff signed a release of the company from any and all claims for damages or injury to his stock while in the company's cars. Upon these facts the plaintiff's counsel requested the court to charge that, if there was liability to fire from the locomotive, it was negligence for the company to permit straw or other combustible materials to be used in the cars, and if the jury find the fire origi- nated from that cause the company are liable. The refusal of the court to afiirm this proposition is the only error assigned. The ruling of the learned judge cannot be justified on the ground of the release signed by the plaintiff, because that has been held to be no excuse for negligence. See Goldey v. The Penn. R. R. Co., 6 Casey, 242, and other cases therein cited. Was it negligence, then, to permit straw to be used ? The result proves that it was. The plaintiff's point was dependent on the contingency that the fire originated from that cause, — the use of the straw, — and as the court refused to submit this question, we must presume it would have been found as the plaintiff assumed the facts to be. A fire resulting from the use of straw proves it also. The agent BY REASON OP TEMPER AND DISPOSITION OP ANIMALS. 367 swears to the rule, but he brings home no notice of it to the plain- tiff, except by his argumentative conclusions that he " must have said if they used straw, it would be at their own risk." So far from this conclusion being accurate, the testimony of the other witness shows that the agent encouraged the plaintiff to ob- tain straw, and permitted him to use it without any proclamation of the rule that forbade it. The existence of such a rule is evidence that the experience of the company had established the danger of using straw for bedding. And yet this agent stood by and suffered straw to be used without disclosing the danger or pleading the rule, and thereby subjected the mare to the awful tortures described in tlie evidence, and the plaintiff to the loss of which he complains. Such is this case upon the record. It was a case of flagrant negligence. For what is the company's agent there, but to pre- scribe the bedding for animals shipped on board of their cars, as well as to superintend all the preparations for the trip ? The cars are theirs — under their exclusive control, and they are bound to see that they are road- worthy in all respects. A defective wheel, or axle, or frame-work, would confessedly render them liable, even as against the i-elease. The carrying of a combustible article so near the engine as to be exposed to sparks was even more inexcusable, for this could not escape observation, as defects in the vehicle might. To attend to nine things, and neglect the tenth, was to be guilty of the whole law. They were to take every precaution whicli prudence, diligence, and experience could reasonably suggest. It was for this the law gave them their charter, and their right to be public transporters. Their business will become a snare for the unwary, and an intolerable nuisance in the community, if they be not held to the conditions they have assumed. If they may per- form part of their duties and turn over the rest to be performed by ignorance and inexperience, disasters will become almost as fre- quent as trips. And when it is considered that the company itself generally suffers as much loss by each disaster as those whom it injures, it is obvious that the best interests of the company, as well as of the public, demand a strict observance of the rules and prin- ciples of law that are applicable to tlieir business. We are of opinion that, upon the facts presented, the plaintiff's point should have been affirmed. The judgment is reversed and a venire de novo awarded. 368 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK The duties of carriers of live stock by railway, especially in regard to the mode of carrying, and the relative share of respon- sibility, as regards that matter, between the owner and carrier, is very plainly and fairly stated in the case of — 3. Harris v. Northern Indiana Railroad Oompany, 20 New York Reports, 232. 1859. Where the owner of live stock offered for transportation by railway is shown differ- ent kinds of carriages and makes his own selection, the carrier is not responsible for any damage accruing, in the course of the transportation, through any defect . of construction, or fitting up of the carriages, which was known to the owner at the time of the selection. In such case the owner is presumed to know such defects as are obvious, but he is not bound to enter the cars and make thorough examination. It is the duty of the carrier to point out to the owner all such peculiarities or defects as exist in the carriages, and which are not apparent to a mere casual external observation, and if he fail to do so he will be held responsible for all damage accruing from such defects. The freighter will be justified in expecting the transportation will be accomplished in the ordinary time, and when damage accrues by reason of extraordinary delay upon the passage, the carrier will be responsible, notwithstanding the visible defects in the carriages were the means of effecting such damage, provided it would not have occurred but for the detention. The carrier is responsible for injury to cattle from want of food and water upon the passage ; and those whom the owner sends along with the cattle to overlook and provide for their safety are not bound to persist in removing the cattle from the cars, either to give them food or water, or for greater security during such extra- ordinary delay, provided the agents of the carrier object, and insist there may not be sufficient time for such operations before the train will start. The facts in the case sufficiently appear in the opinion of the court by — Selden, J. The only questions presented in this case arise upon the charge of the judge to the jury, and upon his refusals to charge as requested. The counsel for the appellants, in the first point which he makes, groups together the first, sixth, and seventh exceptions to the charge, and insists that they are all well taken, and for substantially the same reasons. Those exceptions, as stated in the printed case, are as follows : — First exception : " The defendants' counsel requested the court to charge the jury that the defendants' contract was only to carry the cattle in the particular cars in which they were in fact carried. The court refused so to charge, and instructed the jury that if the cars were maladapted to the purpose in case of detention, the de- fendants are responsible if damage result. To which refusal and instruction the defendants' counsel excepted." BT REASON OP TEMPER AND DISPOSITION OP ANIMALS. 369 Sixth exception : " The defendants' counsel requested the court to charge the jury, that tlie plaintiff having notice of the existence of the cross-pieces, and of the width of the cars, cannot recover any damages consequent on those facts. The court refused so to charge and the defendants' counsel excepted." Seventh exception : " The defendants' counsel requested the court to charge the jury that the plaintiffs were guilty of negli- gence, and therefore could not recover. The court refused so to charge and the defendants' counsel excepted." The argument of the counsel in support of these exceptions is, that this is not one of those cases where property is merely deliv- ered to a railroad company to be transported, and where the com- pany selects the vehicles and makes its own arrangements for such transportation, nor a case where the vehicles provided by the com- pany have some latent defect which cannot be discovered, but one where the owner of the property chose for himself the vehicles to be used, — the defects by which the damages was occasioned being visible and palpable, — and hence that the judge should have charged the jury as contained in the said requests. These propositions and the principles implied in them, although in the main correct, are nevertheless, I think, not fully sustained by the evidence. The counsel is no doubt right. in the position, that where the owner of the property to be transported makes his own selection of the vehicles, under circumstances which charge him with full knowledge of all their capabilities and defects, the company is not responsible for any injury which may result exclu- sively from such defects. I cannot concur with the respondent's counsel in holding that railroad companies are bound at all events, and at all times, to have on hand at every point upon the road, suitable, safe, and convenient vehicles sufficient to carry all the property which may be offered for transportation. Such a require- ment would be in a high degree unreasonable. Amid the varying exigencies attending the business of a railroad company, it must sometimes happen, notwithstanding the utmost vigilance and care, that their engines, cars, and other vehicles will be somewhat un- equally and irregularly distributed. They are bound no doubt to make reasonable effort to fulfil the just expectations of the public, but precisely how far their obligations in this respect extend it is unnecessary in this case to decide, and I forbear therefore to dis- cuss the question. VOL. II. 24 370 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK Conceding that where the owner of the property makes his own selection of vehicles, with full knowledge of their condition, the company is not responsible for the consequences, yet the latter should take care that the owner has that knowledge. The com- pany has greatly the advantage in such a transaction, inasmuch as its agents are, or must be presumed to be, familiar with the condition, capacity, and quality of their vehicles ; while a stranger, called upon to make a selection, without any previous knowledge, would be very liable to overlook many defects. I do not intend to say that it is incumbent upon the company to point out such defects as are palpable, and which could not well be overlooked without some degree of negligence ; but I do hold, that if the vehicles selected have defects which are not pointed out, it is incumbent upon the company to prove affirmatively that they were open, visible, and apparent. In the present case the defects were twofold : first, the low cross-pieces ; and, second, the projecting staples. In regard to the cross-pieces, it is easy to see that the defect must have been so palpable to an experienced man — as we may, perhaps, pre- sume the plaintiff Dusenbury to have been — that he could hardly fail, with ordinary vigilance, to discover it. Not so, however, with respect to tlie staples. They were upon the interior of the cars or racks. It does not appear that Dusenbury entered them. He was not bound to do so. He had a right to presume that the company would not offer him cars which had projecting spikes, or irons of any kind, which would tear or bruise the flesh of the cattle. He may, it is true, have known all about these staples ; but it rested with the company to show this, or at least such cir- cumstances as would justly charge him with such knowledge ; and they offered no proof on the subject. That it was an improper mode of constructing the cars is virtually conceded by the com- pany, by their subsequently removing the staples in question. The import of the first of the defendants' requests to charge was, that the contract on the part of the defendants was to carry the cattle in the particular cars selected, as they were, with all their defects ; and, hence, that they were not responsible for any injury arising from such defects. What has been said shows that the judge was not bound to give this charge, because, in respect to the projecting staples, the company had not proved enough to exempt themselves from responsibility. BY REASON OF TEMPER AND DISPOSITION OF ANIMALS. 371 The exception to the instruction actually given in connection with this refusal was not well taken, for a diiferent reason. The language of the judge was, that " if the cars were maladapted to the purposes, in ease of detention," the defendants were respon- sible if damages resulted. Now, as the judge did not distinguish here between the maladaptation arising from the cross-pieces and that produced by the staples, this part of the charge would have been erroneous, but for the qualifying words, " in case of deten- tion." But it is obvious that the plaintiffs were not bound to select cars with reference to their being improperly detained. They had a right to act upon the assumption that the company would do its duty by conveying the property through in the usual time. They, therefore, by selecting the cars themselves, assumed the responsibility for such damages only as would have resulted from the defects, in case there were no unjustifiable detention. The judge, therefore, was clearly right in instructing the jury that, if the cars were not suitable, in case of detention, — meaning, of course, improper detention — then the defendants were respon- sible. What has been said is an answer to the sixth exception. The seventh exception was based upon the familiar rule that where a party seeks to recover damages which have resulted from the negligence of another, he must be free from the charge of negli- gence himself, or his action cannot be sustained. The negligence imputed to the plaintiffs in this case consists in the improper selection of cars. But they were not necessarily cliargeable with any negligence in that respect. The plaintiffs were at Laporte with their cattle, and to be detained there would have been very injurious to their interests. They might well prefer to risk the . slight injury likely to result from the cross-pieces, in case the cars went directly through, rather than to sustain the loss arising from the delay. In regard to the staples they were not, under the proof as it stands, guilty of any negligence. Besides, if there had been any proof of negligence, the question belonged to the jury to decide ; and the request was wrong and the exception not well taken for this reason. The only remaining point made by the appellants' counsel relates principally to the damages resulting from the cattle not having been watered at Sturges Prairie The counsel has col- lected in one group all the remaining exceptions and made but a 372 CARRIER NOT RESPONSIBLE FOR INJURY TO LIVE STOCK single point upon them. It is entirely clear that none of these exceptions are well taken. The first request made to the judge in relation to watering the cattle was to charge that the plaintiifs had a right to take out their cattle at Sturges Prairie, and hence the defendants were not responsible for the damages. But it is appar- ent that they had neither the right nor the power to do this. The train was in the charge and under the control of the agents of the company, and the plaintiffs could not interfere with it. If they could take out the cattle against the will of these agents, they could detain the train, and keep it upon the track, perhaps to the entire derangement of the plans and business of the company. The judge was next requested to charge that the defendants were not responsible for the damages resulting from the cattle not being watered, unless they forcibly hindered the plaintiffs from watering them. It needs no argument to show that it would have been improper to charge thus. The company having the rightful control of the train, the plaintiffs were obliged to regard their mere refusal to have tlie cattle taken out, and had no right to persist until forcibly resisted. The next request was to charge that the possession of the cattle while the train stood at Sturges Prairie was wholly in the plaintiffs. This request was of course unfounded. The possession, if at all, was certainly not wliolly in the plaintiffs. The judge was clearly right, therefore, in refusing severally to charge according to those requests. He was also right in charging the jury that they were to determine whether the plaintiffs wore excused from attempting to water the cattle at Sturges Prairie, by what was said by the defendants' men. Whether what was said amounted to a refusal to have the cattle taken out was of course a question for the jury. An exception was also taken to the refusal of the judge to charge as requested, that the defendants were not answei-able for any consequences of the delay at Sturges Prairie, unless the plain- tiffs made an actual demand that the train should proceed. It is clear that no such demand was necessary. The defendants were bound by their contract, to proceed with all due diligence to To- ledo, without any demand or request on the part of the plaintiffs. These are the only exceptions taken at the trial, and what has been said embraces all the points presented by the case. Had an exception been taken to the omission by the judge to discriminate BY EBASON OP TEMPER AND DISPOSITION OP ANIMALS. 373 between the damages which would have resulted from the defect in the cross-pieces if the train had gone directly through, in the usual time, to Toledo, and the damages which were produced by that defect in consequence of the stoppage of the train at Sturges Prairie, it might have been fatal to the judgment, because in the view which has been taken of the case, the responsibility of the company extended to the latter damages only. But it was the duty of the counsel to call the attention of the judge to this distinction and request him to charge on the subject. This not having been done, no advantage can now be taken of the omission. It is not probable, if the distinction had been presented, that it would have materially affected the result ; as the evidence shows that nearly all the damages of this kind were produced by the delay. The case presents no question as to the justifiable nature of the delay. The company were under obligation to proceed with the usual dispatch. It was for them to excuse the delay, and they offered no evidence on the subject. If these views are correct, the judgment should be afiirmed. Johnson, C. J., Oomstock, Denio, and Allen, JJ., concurred. Judgment affirmed. The cases, both English and American, upon the subject of defective packing and losses consequent thereon, or upon other analogous negligence or defaults of freighters, are fully collected in 2 Redf. Railways, c. 26, sec. 20, and need not be here repeated, except such as have been decided since the fourth edition of tbat work. The carrier is clearly not responsible for damage resulting from any act which it is the duty of the freighter to perform, unless he fails in his duty to arrest such damage at the earliest practicable moment, both by word and deed. If the carrier fails to warn the freighter of any defect in packing as soon as he discovers it, whereby the damage is needlessly enhanced, he will be justly held responsible for all such enhancement. Railway companies, as common carriers of horses, will be held responsible for any loss through any deficiency of the car- riages in which they are transported, where the contract is silent on that point, or unless the owner with knowledge of such deficiency assent to their use. Mc- Daniel v. Chicago and Northwestern Railway, 24 Iowa, 412. It is the duty of common carriers by railway to provide a vehicle in all respects adapted to the transportation, and so constructed as to endure the ordinary perils of the pas- sage. It must be perfect in all its parts, and the carrier will be responsible for any loss through any defect therein. Empire Trans. Co. v. Wamsutta Oil Co., 63 Penn. St. 14. The carrier is bound to take all practicable precautions against the communication or spread of fire, especially while carrying merchandise of a combustible nature. lb. 374 THE RIGHT TO STOP GOODS IN TRANSITU. XYII. The Right to stop Goods in Transitu. As this right of the owner of goods sold on credit, and where the vendee becomes insolvent before the goods reach their destination, to arrest their further passage, is liable very materially to affect the interests of carriers, and often in particulars difficult of solu- tion, it is deemed important to give a few of the most comprehensive of the American cases, although the general subject is one more appropriate for a treatise on sales than for one upon the duty of carriers. The general principles involved in the exercise of this right are well illustrated by the following opinion : — 1. Buchley v. Furniss, 15 Wendell, 137. 1836. Where goods are ordered to be forwarded to an intermediate place, between tlie resi- dence or place of business of the vendor and vendee, and there come into the pos- session of a carrier employed by the vendee to transport them to him, and are taken possession of by the vendor on the passage from such intermediate place to the vendee, the right of stoppage in transitu still subsists, the goods not having reached their ultimate destination. Mere delay in the transportation will not defeat the right of stoppage in transitu, un- less the goods have come to the actual or constructive possession of the vendee. Nor will an attachment of the goods by the creditors of the vendee have that effect. But this right does not exist where the vendor at the time of the sale knew the pur- chaser to be insolvent. The facts in the case will sufficiently appear by the foregoing note and the opinion of the court by — Bronson, J. The vendor, in the case of a sale on credit, may resume the possession of the goods while they are in the hands of a carrier or middleman, in their transit to the consignee or vendee, on his becoming bankrupt or insolvent. In this case the goods had neither reached their destination, nor had they come to the actual possession of the vendee. They were in the hands of a carrier or middleman, on their way to the vendee, and the plaintiff had a right to stop them, unless there be something in this case to take it out of the operation of the general rule. It was urged on the argument, that nearly forty days had elapsed between the sale and the stoppage of the goods. But I am not aware that it has ever been held, that the mere lapse of time was a circumstance of any THE BIGHT TO STOP GOODS IN TRANSITU. 375 importance, in determining the right of the vendor to resume pos- session of the goods, provided the right be exercised before the transitus is at an end. As between the vendor and vendee, no reason is perceived why this consideration should be permitted to affect the question. Mere delay on the part of the seller could neither deprive him of his right,, nor confer a superior equity on the purchaser. But without attempting to decide what might be the effect of delay under circumstances that may possibly arise, it is sufficient, in this case, to say that there is no evidence going to establish the fact that the jjlaiutiff did not exercise the right of stopping the goods as soon as he could do so after learning that the purchaser was insolvent. At what particular time he ascer- tained that fact does not appear, but I infer from the evidenc^e that it must have been as late as the tenth or fifteenth day of Septem- ber. The witness, James H. Titus, of New York, testified that he was at the works (in Malone), and left there on the 6th of Sep- tember ; that he saw the plaintiff in New York, before he replevied the iron, and told him Henry had no interest there (at Malone), and advised him to go and get the iron back. If this conversation was after the witness returned to New York, there was no great delay on the part of the plaintiff in resutfiing possession of the property after he learned that the plaintiff was a bankrupt. Another ground taken by the defendant's counsel is, that the plaintiff sold the goods with a full knowledge of the situation of Titus, and that the sale was consequently absolute. The sale was no doubt absolute, whether the plaintiff knew that Titus was in- solvent or not ; and so are most sales where the vendor afterwards exercises the right of stoppage in transitu. The right of the vendor to resume the possession of goods sold on credit, in case of the in- solvency of the consignee before they come to his hands, does not depend upon any condition or other peculiarity in the contract of sale, but proceeds on the ground of an equitable lien. Still it may be, and probably is true, that if the plaintiff sold the iron with a full knowledge of the situation of the vendee, he could not after- wards exercise the right of stoppage in transitu ; but the argument is not borne out by the facts of the case. The plaintiff knew Titus when he failed in New York, in 1829, but it does not appear that he knew that he had ever since remained insolvent. On the con- trary, he found him subsequently engaged in business at Malone, and representing that he was largely interested in real estate. The 376 THE BIGHT TO STOP GOODS IN TKANSITtT. plaintiflF had before sold goods to Titus, and been promptly paid ; and there was no evidence that at the time of the sale of the iron in question, he knew that Titus was largely indebted, on account of his business at Malone, or that his notes and drafts had been protested in New York, Troy, and other places, as was the fact. The truth no doubt is that the plaintiff was deceived by the false representations of Titus, and the credit was fraudulently obtained. There is, then, nothing in this branch of the argument which militates against the right of the plaintiff to retake the goods. If the defendants intended to rely on the attachment, they should have given it in evidence on the trial. Jenner v. Joliffe, 6 Johns. 9. But if the attachment had been duly proved, it would not have constituted a good defence. The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus had himself. He might, by legal process, acquire a priority over other creditors who were less diligent, and thus secure his debt ; but he could not divest a right already existing in the plaintiff. The pro- cess does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself. If the levy of an execution, or the service of an attachment against the vendee, were allowed to defeat the claim of the vendor, the right of stoppage in transitu would be of little value ; for in this state judgments and attachments not unfrequently furnish the first public evidence of the insolvency of a trader. In Oppenheim v. Russell, 3 Bos. & Pul. 42, the carrier attempted to set up a lien for a general balance of account against the consignee, to defeat the right of the con- signors to stop the goods ; but the defence was overruled. Lord Alvanly, C. J., in delivering the opinion of the court, says : " It was admitted that if the consignee had made an assignment of the goods, his assignee could not have defeated the rights of the con- signor." And he adds, that the consignor can resume possession of the goods " without satisfying any rights derived under the consignee, if he claim to resume them before they come into that situation which gives the consignee a complete dominion over them." Chambre, J., notices an argument which had been urged by the defendants' counsel, that a creditor of the consignee might have taken the goods in execution on their passage, but he gives no opinion on the point. That precise question was decided in favor of the consignor soon afterwards, in the case of Smith and THE RIGHT TO STOP GOODS IN TRANSITU. 377 another v. Goss, 1 Camp. .N. P. 282. The goods, while on their passage, had been attached by process out of the mayor's court of London, at the suit of acreditor of the vendee. Lord Mlenborough held that " the vendor's power of intercepting the goods was the elder and preferable lien, and was not superseded by the attach- ment." This seems to have been regarded as the settled law on this question ever since. 2 Kent, Com. 541, 542, 547, 550. The point was decided by this court, at January term, 1833, in the case of Le Ray De Chaumont v. Griffin, which has not been reported. In that case, the plaintiff owned a furnace at Carthage, in the county of Jefferson, where he manufactured pig and scrap iron. He sold a quantity of iron to Walbridge & Co., who were merchants at Syracuse, on credit, to be forwarded by the way of Sacket's Harbor and Oswego, to the purchasers at Syracuse. After the iron reached Sacket's Harbor, and while it remained in the hands of one Butteri&eld, a forwarding merchant at that place, an execution against the vendees, at the suit of certain creditors, was levied upon the property. After the levy, the plaintiff, learning that the vendees had become insolvent, directed Butterfield to retain the property. Tiie sheriff, disregarding the plaintiff's claim, proceeded on the execution, and sold the iron to the defendant, who purchased for the judgment creditors. The plaintiff's agent attended, and forbade the sale. The defendant, after the sale, took the iron and carried it away, and the plaintiff brought an action to recover the value. The judge charged the jury that the levy of the execution did not destroy the plaintiff's right to stop the goods, and the jury found a verdict for the plaintiff for f 952.21, the value of the iron. After argument, this court held that the defendant, and the judg- ment creditors whom he represented, had no better right to the iron than the purchasers had themselves, and that the plaintiff clearly had the right to stop the goods, notwithstanding the levy ; and judgment was rendered in his favor on the verdict. If there had been a sale on the execution, and a bona fide purchaser had parted with his money before the vendor asserted his right ; or if the vendor had done any act that might have misled third persons, that would have given rise to a different question. Hunn v. Bowne, 2 Caines, Cas. 38 ; Davis v. Reynolds, 4 Camp. N. P. R. 267 ; Buf- fington V. Gerish, 15 Mass. 156. Another point made on the part of the defendants is, that there was an unconditional delivery of the goods, and that the vendor 378 THE RIGHT TO STOP GOODS IN TRANSITU. could not afterwards exercise the right of stopping them in transitu. It may be conceded that the title to the goods passed to the vendee, when they were forwarded pursuant to his order ; that the delivery to the carrier was for most purposes a delivery to the purchaser, and the loss of the property if it had been sunk or destroyed would have fallen on him. Still it was only a constructive, not an actual delivery to the vendee ; and such interest as he had in them was subject to be defeated, in case of his insolvency, by the exercise of the vendor's right to stop the goods before they came to the actual possession of the purchaser. Ellis v. Hunt, 3 Durn. & East, 468, per Buller, J. ; Stokes v. La Riviere, and Hunter v. Beal, before Lord Mansfield, cited 3 Durn. & East, 466. There are cases where tlie delivery of the goods to a third person for safe custody, for disposal on the part of the vendee, or to await his orders as to the place of destination, has been held equivalent to an actual delivery to the vendee, and that the vendor's right to stop the goods was consequently determined. But where the delivery to a carrier or otlier agent is for the mere purpose of conveyance to the purchaser, the right of the vendor to stop the goods continues until they come to the actual possession of the vendee, or reach the end of their journey. It is believed that no case to the contrary can be found. Indeed a different doctrine would completely overturn the right of the vendor to stop the goods in almost every case that can be sup- posed. But the ground on which the defendant's counsel seemed prin- cipally to rely was, that the transitus of the goods was at an end when they reached Green's warehouse at Plattsburgh. The order for the iron did not specify the mode in which it was to be for- warded, but it seems to have been understood that the plaintiff was to follow the directions contained in the previous order for a quan- tity of steel. The iron was a,ccordingly marked, and directed to Titus at Malone, to the care of Tliomas Green, Plattsburgh, and delivered to the carrier. The mode of transportation was from Troy to Whitehall by the canal, from thence to Plattsburgh by vessels on Lake Champlain, and from that place to the residence of the plaintiff the transportation was over land. Plattsburgh was only one of the stages, not the terminus of the journey ; and Green was as much a middleman between the vendor and the vendee as was the master of the canal boat at Troy, or the captain of the sloop Napoleon on Lake Champlain. The warehouseman was not THE RIGHT TO STOP GOODS IN TRANSITU. 379 the agent of Titus for any other purpose than that of storing the goods, and the goods only rested at that place for the purpose of changing the mode of transportation. They were not to remain at Plattsburgh until the vendee should put them in motion in a new direction ; their ultimate destination had already been fixed by the vendee, and that destination they had not reached. The tran- situs was therefore not at an end, and in such a case the vendor clearly had the right to resume possession of the goods. Coates V. Railton, 6 Barn. & Ores. 422 ; Hodgson v. Loy, 7 T. R. 435. The cases cited for the defendants are plainly distinguishable from the one before the court. Dixon v. Baldwin, 5 Bast, 186, was de- cided on the ground that " the goods had so far gotten to the end of their journey, that they waited for new orders from the purchaser to put them again in motion, to communicate to them another sub- stantive destination, and that without such orders they would con- tinue stationary. In Rowe v. Pickford, 8 Taunt. 83, the goods had reached their final place of delivery. In Leeds v. Wright, 3 Bos. & Pul. 320, the agent who ordered the goods had a general au- thority to send them to his principals in Paris, or to Holland, Germany, or such other market as he might deem most beneficial. The goods having been delivered to a packer in London, pursuant to the direction of the agent, it was held that the transitus was at an end. In Coates v. Railton, already cited, Bayley, J., reviews several of the cases, and concludes by saying, " the principle to be deduced from these cases is, that the transitus is not at an end until the goods have reached the place named by the buyer to the seller, as the place of their destination." As a general rule, this remark is no doubt well founded. In the case under consideration, the place of destination named by Titus, the purchaser, was not Plattsburgh, but Malone ; and Green sustained no other character than that of middleman between the parties. The nonsuit must be set aside, and a new trial grafted ; costs to abide the event of the suit. Tlie subject is further illustrated by the following case : — 380 THE EIGHT TO STOP GOODS IN TRANSITU. 2. GouellY. Hitchcock, 23 Wendell, 611, 1840, in the Court of Errors; s. c. 20 WmdeU, 167; Where Chief Justice iVeZsow]intimates an opinion that the tramn situs in this case was at an end, and ruled the case for the plaintiff on the ground of fraud in the purchase. The right of stoppage in transitu is not defeated by the goods having reached the hands of a warehouseman, at an intermediate place in the transit, although there were no public carriers beyond that point, and the goods would there remain until ordered forward by the vendee either by his own or some other private conveyance. The facts in the case sufficiently appear by the foregoing note and the opinion of — WALwqRTH, Chancellor. The first question which arises in this cause is upon the right of the vendor to stop the goods in transitu after they arrived at Havana. The law appears to be well settled that the right of stoppage in transitu exists so long as the goods remain in the hands of a middleman on the way to the place of their destination, and that the right terminates whenever the goods are or have been either actual or constructively delivered to the vendee ; a delivery to the general agent of the vendee is of course tantamount to a delivery to himself. The time during which the right exists, therefore, is during the whole period of the transit from the vendor to the purchaser, or the place of ultimate destination, as designated to the vendor by the buyer ; and this transit continues so long as the goods remain in the possession of the middleman, whether he be the carrier either by land or by water, or the keeper of a warehouse or place of deposit connected with the transmission and delivery of the goods. Here the plain- tiff in error contends that the delivery at the public warehouse at Havana was a delivery to the vendee, because, by the course of trade, there was no public carrier between there and the place of final destination, at his residence in Willardsburgh ; and the case is attempted to be likened to that of Dixon v. Baldwin, 5 East, 175, where goods were by the course of trade sent to the pur- chasers' own agents at Hull, to remain there until such agent received orders from the purchasers when and to whom to ship them at Hamburgh, where they were in the habit of sending such goods. That case was rightly decided ; for as between vendor and THE EIGHT TO STOP GOODS IN TRANSITU. 381 vendee, Hull was the place of destination of the goods ; and the delivery to the agents of the vendees at Hull was tantamount to a delivery to themselves. Although it is difficult to distinguish the case from that of Stokes v. La Riviere, 3 Durn. & East, 466, where LovA -Mansfield held that a delivery to the special agent of the purchaser in London, to be forwarded by him to Ostend, was not a constructive delivery to the purchaser so as to divest the right of stoppage in transitu. In the present case the goods were directed to the vendee, at hi^ place of business, at Willardsburgh, and they were delivered at the warehouse at Havana, merely because that was a point in the transit, and not because the warehouseman was the general agent of the purchaser. The fact that there was no public conveyance between Havana and Willardsburgh, and that it therefore was necessary for the vendee to send on teams himself to complete the transit, I apprehend could not defeat the right of stoppage while the goods remained in the hands of the warehouse- man, who was a middleman merely, and not the general agent of either the vendor or of the vendee. If the purchaser had sent on his own teams, and thus obtained the possession of the goods, on a delivery thereof to his own teamsters by the warehouseman, before the right of stoppage had been exercised, a different question might have been presented. Tiie case of Edwards v. Brewer, 3 M. & W. 375, is in some respects like the present. It also shows that a delivery to a warehouseman or wharfinger at the place of the ultimate desti- nation of the goods, who does not receive them as the mere agent of the purchaser, but in the ordinary course of his business as a middleman, is not a constructive delivery to the purchaser so as to put an end to the right of stoppage in transitu. There the goods were sold to be delivered at the port of London. The mas- ter of the vessel on arriving at that port called at the office of the purchaser, and requested his clerk to send for the goods ; and told him that if he did not, he should be under the necessity of landing them at the wharf, where his vessel was then lying. The clerk promised to send a note to the wharf office ; and he accordingly sent a note to the master of the vessel, saying that the purchaser was from home, but that he had better land the goods at that wharf on his account. He accordingly landed them, but had it entered into the wharfinger's books that the freight and charges were to be paid before the delivery of the goods. Lord Abinger, and the other 382 THE RIGHT TO STOP GOODS IN TRANSITU. judges of the Court of Exchequer held, in that case, that the deliv- ery of the goods to the wharfinger did not prevent the right of stoppage in transitu until the vendee had actually called and taken possession of them ; that the note of the clerk was not a per- emptory order, but only an expression of opinion ; and that the wharf, although it was the place where the vendee was to call and receive the goods, was only a place of deposit in transitu. See also Nicholls v. Le Peuvre, 2 Scott, 146 ; Jackson v. Nichol, 7 id. 577, and James v. Griffin, 2 M. & W. 622. Having arrived at the conclusion that the vendor's right of stop- page in transitu was not at an end by the deposit of the goods in the public storehouse at Havana, it follows, of course, that the right was not divested by the levy of the execution before the receipt of the goods by the vendee. Le Ray De Chaumont v. Griffin, 16 Wend. 144. The right of the plaintiff in the court below having been duly exercised, and notified to the sheriff before the sale, the latter was propei'ly chargeable with the value of the goods, or at least, to the extent of the lien for the purchase-money. This is sufficient to sustain the judgment of the court below. It is therefore un- necessary for me to examine the other grounds upon which the plaintiff claimed tlie right to recover at the trial ; though I am in- clined to the opinion that it was too late at the trial to attempt for the first time to repudiate the sale of the goods on the ground o/ the alleged fraud, of which the sheriff had not been previously apprised. Upon the ground that the right to stop the goods in transitu still existed, and was duly exercised by the vendor, I shall vote to affirm the judgment. The following case, although somewhat peculiar in its facts, in some respects, and the doctrines declared not altogether consonant with the next preceding case, nevertheless presents the leading points involved in the subject of stoppage in transitu with great clearness and ability ; and we are sure the profession will find the opinion more satisfactory than any other we could select upon these precise points. 3. Sawyer v. Joslin, 20 Vermont Reports, 172. 1848. Where goods have reached their destination, so that they will go no further until some new impulse is given them by the vendee, the vendor's right of stoppage in transitu is gone. THE RIGHT TO STOP GOODS IN TRANSITU. 383 The goods have then come into the constructive possession of the vendee, or at all events the transit is at an end. The facts in the case will suflBciently appear from the opinion of the court, by — * Hall, J. By the common law, as it is now understood in Eng- land and in the several states, the unpaid vendor of goods, in case of the insolvency of the vendee, may reclaim them, while on their passage to the vendee, not only against the vendee himself, but also against his creditors, by stopping them while in their transit. For, although the goods, by being despatched to the vendee by the usual modes of. conveyance, become, for other purposes, the property of the vendee, are considered in his constructive possession and at his risk, so that he and not the vendor must bring an action for their loss, or for any injury to them, yet the vendor is held to have such an equitable lien on them, though out of his possession, that, on learning the insolvency of the vendee, he may reclaim them, while in their transit to him, as security for the price for which they had been sold. This right of stoppage in transitu is held not to be defeated by an attachment of or levy upon the goods, as the prop- erty of the vendee, while in their transit ; and a demand of the goods by the vendor, while in the hands of a levying or attaching officer, is held a sufficient claim of them; and this without refer- ence to the question, whether the goods, but for the levy, or attach- ment, would probably have reached the vendee, and thus have destroyed the vendor's right. 'The levy being made while the goods are subject to the lien of the vendor, it is held inoperative as against him, provided his right be made known and insisted on before an actual sale by the officer. Although the general doctrine of the right of the consignor of goods, sold on credit, to stop them while in their transitus to an insolvent consignee, is well established, yet difficulties often arise , in particular cases, in determining whether the goods, at the time of the attempted exercise of the right of the consignor, are in their transit, or are to be treated as having arrived at their place of destination. No two cases are alike in all their circumstances ; and it has been found difficult to lay down any specific rule, by which the determination of the transit is to be ascertained. Emi- nent judges, in some of the early cases on this subject, are reported to have said, that, in order to divest this right of the consignor, 384 THE EIGHT TO STOP GOODS IN TRANSITU. the goods must have come to the " corporal touch " of the con- signee. But in Wright v. Lawes, 4 Bsp. 85, Lord Kenyan re- marked, " I once said, that, to confer a property on the consignee, a corporal touch was necessary. I wish the ex()ression had never been made, as it says too much." Subsequent judges, considering this expression as figurative, have sought to modify it, by saying, that the actual possession of the consignee was intended ; while in all or most of the modern cases, as well as by the elementary writers, it seems to be conceded, that the transitus is at an end whenever the goods, in pursuance of the original destination given them by the consignor, have come into either the actual or con- structive possession of the consignee. What, however, is to be understood as constituting such an actual or constructive posses- sion of the vendee, as to defeat the right of the vendor, is to be gathered rather from an examination of the particular cases, than from any precise definition which has been given of the terms themselves. Chancellor ^ew< says (2 Kent, 545), " In many of the cases, where the vendor's right of stopping in transitu lias been defeated, the delivery was constructive only ; and there has been much subtlety and refinement on the question, as to the facts and circumstances which would amount to a delivery sufficient to take away the right. The point for inquiry is, whether the property is to be considered as still in its transit ; for if it has once fairly ar- rived at its destination, so as to give the vendee the actual exercise of dominion and ownership over it, the right is gone." The question in tliis case is, wheth'er the landing of the goods upon the wharf is to be considered as an actual or constructive delivery of them to Preston, witliin the doctrine of tlie adjudged cases on this subject. I am unable to come to any other conclu- sion, than that it was such a delivery. Under the charge of the court tlie jury must have found, tliat all the duties and responsibil- ities of the transportation line, in regard to the goods, had ceased ; that no duty or responsibility was cast upon Chapman, the wharf- inger, by the landing of the goods on his wharf ; that the goods lay on the wliarf subject to the control and direction of no other per- son than Preston, and that they would remain there in that precise position, until Preston saw fit to remove them. It is difficult to conceive of a more effectual delivery of goods than this, short of their coming to the corporal touch of the vendee. The special property of the carriers had ceased; the wharfinger had nothing to THE RIGHT TO STOP GOODS IN TRANSITU. 385 do with the goods, and unless they are to be considered as having been in the possession of the vendee, no person whatever had any possession of them, — they were absolutely abandoned by all per- sons. It will not be pretended they had assumed the character of lost goods. ' They must therefore have come to the possession of Preston. It being the custom for Preston to receive goods, thus consigned him, on the wharf of Chapman, that must be considered as the place to which they were directed by the vendor. When the goods were landed on the wharf, the result of the orig- inal impulse, impressed upon them by the vendor in transmitting them to the vendee, was accomplished. They would go no farther under that impulse. They were not in the hands of a middleman, to be forwarded by other carriers. Chapman had no charge of them, and could not therefore be a middleman ; and there was no other person, standing in that character. The wharf of Chapman, in the language of the books, became the warehouse of Preston for the reception of the goods, and must consequently be considered the place contemplated by the consignor, as that of their ultimate destination. Preston could not have remained in his store, with his arms folded, expecting the goods to be driven up to his door. He must have looked for them at the wharf of Chapman, which, for the purposes of their reception, he had made his own ; and when they arrived there, their transitus, so far as regarded the right of the vendor to stop them, must, I think, be considered as ended. Richardson v. Goss, 3 B. & P. 119 ; Scott v. Pettit, ib. 469 ; Leeds v. Wright, ib. 320 ; Dixon v. Baldwin, 5 East, 175; Foster v. Prampton, 6 B. & C. 107, 13 B. C. L. Ill ; Rowe v. Pickford, 8 Taunt. 83 ; James v. Griffin, 2 M. & W. 623 ; Went- worth V. Outhwaite, 10 M. & W. 435 ; Dodson v. Wentworth, 4 Mah. & G.,1080, 43 E. C. L. 555. No case is found in the books precisely like the present, in its prominent circumstances ; though the cases are numerous, in which the transit of the goods has been held to be terminated by their coming within the control of the consignee, before they had reached his actual place of business, and even when they had not arrived at the port, or town, to which they had been directed by the consignor. Such are most of the cases before cited. The case of Covell V. Hitchcock, 23 Wend. 611, was much relied upon by the plaintiff's counsel in the argument ; and it does indeed carry the right of stoppage to a great length. But that case is distinguisli- voL. II. 26 386 THE RIGHT TO STOP GOODS IN TRANSITU, able from the present in two particulars. In that case the goods were directed to the vendor, at Willardsburgh, a place thirty miles beyond Havana, the place where they were stopped by the con- signor. It was not, therefore, in accordance with their original direction, that their transit should be ended at Havana. In the case at bar the goods had arrived at the port or place of their orig- inal direction. It was just as consistent with that direction, that they should be delivered on the wharf at Vergennes, as at any other place in that town. And, secondly, the goods in Oovell v. Hitchcock were in the custody of a warehouseman, when they were stopped, who was holding them for the consignee ; whereas in this case the goods were in the custody of no one, unless they were in that of the consignee. It may also be remarked, that the decision relied upon for the plaintiff in Covell v. Hitchcock was that of the Court of Errors of New York, reversing a contrary decision of the Supreme Court of that state in the same case, 20 Wend. 170 ; and that the law of the Supreme Court in that case seems well sustained by the two recent cases of Wentworth v. Outhwaite, and Dodson v. Wentworth, before cited, the one in the Court of Exchequer and the other in the Common Pleas, in Eng- land. Numerous other cases were either read or referred to in the argument for the plaintiff; but none of them appear to me to reach the question in this case. In some of them are found very strong expressions of judges in favor of an extended right of the consignor to stop the goods on their way to the consignee. But the language of courts must be read with reference to questions in the cases before them, and cannot, with any propriety, be extended to apply to other facts and circumstances, not in the mind of the judge, when the language is used. Many of the expressions of Lord Mans- field and Lord Kenyan in the early cases on this subject, — as that the goods must come to the corporal touch, or to the actual posses- sion, of the vendee, in the confined sense of that term, have been found inapplicable to the facts of other cases, which have since occurred, and have, in consequence, been disregarded. And the general dicta of other subsequent judges have been and must be measured and treated in like manner. The cases cited and relied upon by the plaintiff's counsel, where the transit was held not to have terminated, will, I think, all be found to fall within one or the other of the following classes : THE BIGHT TO STOP GOODS IN TRANSITU. 387 1. Cases in which it has been held, that the right of stoppage ex- isted, where the goods were originally forwarded on board of a ship chartered by the vendee. Bohtlingk v. Inglis, 3 East, 381, and Stubbs V. Lynde, 7 Mass. 458. 2. Where the delivery of the goods to the vendee has been deemed 'incomplete by reason of his refusal to accept them. Bartram v. Parebrother, 15 E. C. L. 79 ; James V. Griffin, 2 M. & W. 623. 3. Where goods remained in the custom-house, subject to a government bill for duties. Northey V. Field, 2 Esp. 613. 4. Where they were still in the hands of the carrier, or wharfinger, as his agent, subject to the carrier's lien for freights. Crawshay v. Eades, 8 B. C. L. 53 ; Edwards v. Brewer, 2 M. & W. 375. 5. Where the goods, though arrived at their port of delivery, were still on ship board, or in the hands of the ship's lighterman, to be conveyed to the wharf. Naylor v. Dennie, 8 Pick. 198 ; Jackson v. NichoU, 35 B. C. L. 202 ; Whitehead v. Anderson, 9 M. & W. 518; Tucker v. Humphrey, 15 E. C. L. 63. 6. Where the goods had performed part of their transit, but were in the hands of a middleman, to be forwarded on by other carriers. Mills v. Ball, 2 B. & P. 457 ; Smith v. Goss, 2 Camp. 282 ; Ellis v. Hunt, 3 T. R. 467 ; Hodgson v. Loy, 7 T. R. 436 ; Coates v. Railston, 13 E. C. L. 223 ; Buckley v. Furaiss, 15 Wend. 137; s. c, ante, p. 374, - If, in the present case, the goods, when landed on the wharf, had been in the custody of the wharfinger, the question would have arisen, whether he held them for the carriers, as a middleman, or as the agent of the consignee ; and the right of the consignor to stop them would probably have depended upon the character, in which the wharfinger was found to act. But the jury, ilnder the charge of the court, have excluded that question from our consid- eration, by finding that the wharfinger had no charge of the goods whatever. If the goods had been consigned to a place in the in- terior, beyond Vergennes, and had remained in the hands of the wharfinger at the latter place, possibly the case might be still more variant from the present. Upon any such altered state of facts no opinion is intended to be expressed. In the case at bar the ulti- mate place of destination of the goods, under the direction and impulse given them by the consignor, was Vergennes. Our decis- ion merely declares, that the usual place of the consignee's receiv- ing goods in that town, and where they were in point of fact placed for him by the carriers, was the place of their ultimate destination, 388 THE EIGHT TO STOP GOODS IN TRANSITU. named by the consignor, and that, there being no middleman in the case, the goods, when they passed from the hands of the car- riers, came into tlie constructive possession of tlie vendee, and were beyond the bounds of the vendor's right to enforce his original lien upon them. Tlie judgment of the dounty court is affirmed. The right of stoppage in transitu is restricted to that portion of the transit between the vendor and vendee virhieh the goods will take by force of the im- pulse given them by the vendor at the time of and as part of the delivery to the vendee. It is a right which the vendor can only exercise while the delivery to the vendee is inchoate and so incomplete. Rowley v. Bigelow, 12 Pick. 306, 312, where the point is beautifully stated and illustrated by Shaw, C. J. If the vendee appoints a special agent, either at the place of purchase or at any inter- mediate point, and directs the goods to be delivered or forwarded to such agent, the traiisit will be terminated upon the goods coming to the actual custody of such agent. But a direction to deliver the goods to a particular carrier, for transportation, or to send to the care of a particular wharfinger, or warehouse- man, or carrier, at some intermediate point, for transportation, or being for- warded to the vendee, it will not cause the transit to end, until the goods reach their ultimate destination. The case of Guilford «. Smith, 30 Vermont, 49, 1858i presents the foregoing questions under some confusion, as to the facts, and the court adopted a construction more favorable to the termination of the transit than seems entirely consistent with the current of authority upon the subject. But the result is vindicated by a very learned and able opinion, by Bennett, J., and will well repay a careful examination. The abstract proposition upon which it is made to turn is the same which we have placed at the head of Sawyer v. Joslyn. And the opinion of the learned judge, in reviewing the cases, is so able and satisfactory that we here adopt a portion of it. "It is hardly necessary to vindicate the rule as laid down by Baron Park, in James v. Griffin, 2 M. & W. 631, ' that when goods are delivered at a point where the vendee intends they sha 1 remain until a fresh destination is communi- cated to them by orders from the vendee himself, the transitus is at an end.' In Dixon V. Baldwin, 6 East, 175, the goods were ordered ' to be forwarded to one Metcalfe at- Hull, to be shipped for Hamburg as usuaV It appeared that it was usual for Metcalfe to keep such goods until he received orders from the vendees, and then comply with such orders ; and it was held the transitus ended at Hull, though theie was an ulterior destination of the goods beyond that place. Lord Ellenborough said the goods waited for new orders from the purchaser, to put them in motion, and that without such orders they would remain stationary. In Leeds v. Wright, 3 B. & P. 320, the agent of the bankrupt purchased the goods for exportation, having authority from the bankrupt to export them to any port he pleased; and the court held he did not possess the goods as an agent to forward, and that while in his hands they were not in transitu. In Scott v. Pettit, 3 B. & P. 469, the bankrupt had given general orders to a carrier to send on his goods to a packer to be packed, and the goods were accordingly sent to the house of the packer, and the packer was not treated by the court as an agent to forward, but it was held that, like a warehouseman, he held the goods subject THE EIGHT TO STOP GOODS IN TRANSITU. 389 to the order of the vendee, and that in his hands the iransitus of the goods was ended. The case of Stokes v. La Riviere and Lawley, cited in Ellis v. Hunt, 3 Term, 464, and more fully by Lawrence, J., in Bothling v. Ingless, 3 East, 898, is put upon the ground that the goods were in the hands of the defendants io he conveyed. In Jackson v. Nichols, 6 Bing. N. C. 508, Justice Tindall reiterates the doctrine of the case of Dixon u. Baldwin. The case of Coats v. Railton et ah., 6 B. & C. 422 (13 Com. Law 196), in principle is much like the case of Smith V. Goss, 1 Camp. 282, and neither are opposed to Dixon v. Baldwin. In Smith V. Goss, the goods were ordered to be sent addressed to the care of Goss, Bull's wharf, London, with directions to send them by the first vessel to New Castle. It might well be held in that case, that the goods in the hands of Goss were in transitu. He held them to transport, by the first vessel, to their ultimate destination. In Coats v. Railton, the goods were purchased of the plaintiff by the defendants, as agents for a house at Lisbon, and were to be forwarded to that house at Lisbon by the defendants, who were packers and warehousemen as well as the general agents for the vendees, and it was held that, as the defendants had received the possession of the goods to send them to the vendees at Lisbon, they might be stopped in their hands, and before they reached Lisbon, notwithstand- ing the defendants made the purchase as the agents of the vendees. All that this case decides is, that after the purchase was made the defendants held the goods for the purpose of transport, and that in this case the constructive possession of the goods in the vendees would not defeat the right of stoppage before they arrived at Lisbon. In short, it simply holds that the purchase of the goods by the defendants, as the agents of the vendees, was an element in the cause and could not control the right of stoppage, arising from the fact that the defendants held the goods subsequent to the purchase for the purpose of transport. In Valpy V. Gibson et al., 66 Common Law, 865, in the letter of advice from the consignors to the consignees, the latter were requested to ship the goods with the letter of advice, ' as the bankrupt might direct the same to be shipped ; ' and though the defendants, who were commission merchants and knew the goods were to be sent by the bankrupt to Valparaiso, so informed the house to whom they forwarded the goods at Liverpool when they sent them yet it was held the house at Liverpool could not act on that information, and that they held them subject to the order of the bankrupt ; and that, when the goods had reached the house of the consignees at Liverpool, the transit was ended. Here it should be remarked that the direction was, ' to ship the goods as the bankrupt might direct the same to be shipped.' With such instructions the consignees received the goods to keep and not to transport. In principle this case is the same as Dixon ». Baldwin. " Foster et als.. Assignees of Fowler, v. Frarapton, 13 Common Law, 60, 6 B. & G. 107, is strongly in point for the plaintiffs. There the vendee of several hogsheads of sugar, having had notice from the carrier of their arrival, took samples from them, and directed the carrier to let them remain in his warehouse until he should receive further instructions ; and before they were removed the vendee became bankrupt, and it was held the transitus was at an end. Justice Bayley remarks that the bankrupt, on that particular occasion, used the warehouse of the carrier as his own, and made it the repository of his own goods ; and Holroyd, J., says : ' The carrier ceased to be such, and became a mere bailee.' 390 THE EIGHT TO STOP GOODS IN TRANSITU. The carrier in that case, at least by implication, entered into a new relation, distinct from the contract for the carriage, and held the goods for the vendee as his agent, not to transport but for the custody of them, subject to his order. In Allan V. Gripper, 2 Cromp. & Jervis, 218, the goods had been deposited in the carriers' warehouse for the convenience of the vendee, to be delivered out as he should want them, and it was held the transitus was at an end. Here, too, the warehouse in which the goods were deposited might well be considered, for this special purpose, as the warehouse of the purchasers. Stark, Hill & Co., from the time the flour was deposited in their warehouse, held it subject to the future order of the Pecks, or those standing in their place, and a fresh direction to them was necessary again to put the flour in motion, and in this view they received the flour to keep and not to transport, unless directed. The possession of Stark, Hill & Co. was the constructive possession of the Pecks or their assignees, and it may well be said, they made the warehouse of Stark, Hill & Co., for this particular purpose, their own. "Besides, on the 10th of October, the assignees directed Flagg & Hyde to hold the flour for them, and they immediately directed Stark, Hill & Co. to have the flour remain in the warehouse for further orders, and in obedience to such order it did remain in their warehouse, and was not sent on in pursuance of the previous order of Flagg & Hyde. Baron Park, in Whitehead v. Anderson, 9 M. & W. 518, has well said: ' A case of constructive possession is where the carrier enters, expressly or by implication, into a new agreement distinct from the original ' contract for carriage, to hold the goods for the consignee, as his agent, not for the purpose of expediting them to the place of original destination pursuant to that contract, but in a new character for the purpose of custody on his account and subject to some new or further order to be given him.' There can be no doubt this i.s a case where Stark, Hill & Co., by the strongest kind of implication, assumed to hold this flour subject to the future directions of Flagg & Hyde, who on the tenth of October were acting as the agents of the assignees, and this would give the assignees a constructive possession of the flour if there had been nothing else in the case. " The assignees might well treat, on this occasion, the warehouse of Stark, Hill & Co. as their own. The case of Buckley v. Furniss, 15 Wend. 187 ; s. c, ante, p. 374, is deemed by the defendants' counsel to be strongly in point, but we think it is quite distinguishable from the ease at bar. In that case the iron was marked and directed to Titus, the vendee at Malone, to the care of Thomas Green, Plattsburg, who was a warehouseman at that place, and the court put the case upon the ground that the goods only rested at that place for the purpose of changing the mode of transportation from a water to a land transportation, and that they were not to remain at Plattsburg to await a fresli order from the ven- dee. This is clearly a case where the warehouseman received the iron to trans- port and not to keep until further orders. " It is said in argument that, before the Pecks or their assignees could assert any right to the possession of the flour, it was indispensable that they should have paid the charges and duties on it. But it should be remembered that this is a question between vendors and vendees, and the only inquiry now is, whether the vendors' right of stoppage was at an end, and not whether Stark, Hill & Co. had a lien on the goods for their charges, or the government one for the duties. The THE RIGHT TO STOP GOODS IN TRANSITU. 391 vendees might well have a constructive possession of the flour, subject to such liens, and it is not for Gooderham, Howland & Co., -who are strangers to such liens, to set them up to defeat any rights of the vendees. In Allan v. Gripper, 2 Crompton & Jervis, 218, it was held that the transitiis was at an end, and the vendor's right to stop in transitu gone, although it appeared that the carrier claimed to have a lien on the goods. The payment or the non-payment of the charges and duties may have some bearing upon the character of the possession which a third person may have, but when it is found that such third person has the custody of the goods to keep for the vendee, and await a further order from him, the non-payment of freight or duties becomes of no importance. The vendee has then a constructive possession, subject to all liens. "The title passes to the vendee upon the sale. In Mottram v. Heyer, 1 Denio, 483, the goods were shipped from England to the vendees at New York, and the circuit judge charged the jury, that by the receipt of the bill of lading the pay- ment of the freight by the vendees, and their entry- of the goods at the custom- house, the transitus was ended, even though in that case the agent of the vendors had demanded the goods before the duties were paid, and while the goods were in the custom-house. This ruling was affirmed upon error by the Superior Court of the city of New York. The case stands upon the ground that the vendees had a constructive possession, though the goods were in the custom-house and the duties unpaid. This case went up to the Court of Errors, and though there was some discrepancy of opinion as to the ending of the transit, yet the judgment was affirmed by a vote of thirteen to four. See 6 Denio, 629. Though it is true the chancellor maintains that the entry of the goods at the custom-house in that case did not terminate the transit without a payment of the duties also, yet he admits that if the goods had been placed in a public store under the warehousing system, the transit would have ended. His opinion goes upon the ground, that, from the facts in that case, enough was not shown to give the vendees a constructive possession without the payment of the duties ; but he was for affirming the judg- ment of the Superior Court upon the ground that the demand upon the vendees for a return of the goods, made while they were in the custom-house, was not sufficient to stop the goods in their transit. Porter and Putnam both agreed that the transit was not ended. Van Schoonhovem, Senator, held that the transit was ended, and Senator Lott gave a written opinion, and Johnson, Barlow, and Talcott oral opinions, in favor of ah affirmance, but upon what ground does not appear from the case. All that can be learned from the report of the case on this point is, that the chancellor and two senators held that the transit was not ended at the time the vendors made the demand for the goods then in the custom- bouse. The authority of the case upon this' question, as reported in 1 Denio, cannot be considered as impeached by the Court of Errors. The case of Northey «. Field, 2 Espinasse, 613, is relied upon to show that Gooderham, How- land & Co. exercised the right of stoppage in time, it being before the duties were paid ; but we apprehend the case will not warrant the position as applied to the facts in the case at bar. The consignees in that case neither had an actual nor constructive possession of the wines. The wines remained on board the ship until after the vendees became bankrupt, and the duties not having been paid within the twenty days allowed by the excise law, during which time they are to remain on board, they were taken from the ship to the king's warehouse, in con- 392 THE EIGHT TO STOP GOODS IN TRANSITU. sequence of the non-payment of the duties within the time fixed by the excise laws. The goods remaining in the vessel of the carrier until taken to the govern- ment warehouse, and the vendees having no right to an actual possession until the duties were paid, it is clear they could have no constructive possession. " I apprehend in that case the possession of the carrier was still continued, sub- ject to the lien of the government for the duties. The vendees not only failed to pay the duties, but did not, as was said by Lord Tenterden, enter the goods at the custom-house. No act of ownership whatever was exercised by the vendees over the property. See this case in Abbott on Ship., 664, 7th Am. ed. "Donath V. Brownshead, 7 Barr, 301, is like Northey v. Field. In that case the goods were removed to the custom-house directly from the vessel by the officers, and were not entered at the custom-house by the consignee, on account of the loss of the invoice. Clearly, in this case, the vendee, though he had paid the freight, had not entitled himself to actual possession, and could have no con- structive possession. It could not be implied in that case, that either the master of the .vessel or the agent of the vendee held the custody of the goods to deliver.'''' It was held in Northey v. Field, 2 Esp. 613, that where goods were detained in the public warehouses of the custom-house, for non-payment of duties, that the right of stoppage in transitu was not gone, but might still be exercised. But it seems that this refers to a deposit in the public warehouse, in the due course of transportation by the carrier. And where the consignee had paid the freight, and entered the goods at the custom-house himself, it was held that the transitus had so far terminated, by the goods coming to the constructive possession of the consignee, that the vendor's right of stoppage was at an end. Mottram v. Heyer, 1 Denio, 483 ; s. c. 5 Denio, 629. So, too, it was early held that where the ven- dee was accustomed to use the warehouse of another as his own, and there to dispose of his goods, that the transit would end upon the goods arriving at such place. Rowe v. Pickford, 8 Taunt. 83. But it would seem not enough to termi- nate the transit that the carrier, whether by land or water, had actually arrived with the goods at the place of destination ; there must also have been such a de- livery to the vendee or his agent, or at the place where he is accustomed to receive his goods, as to exonerate the carrier from all further care or responsibility. Tucker v. Humphrey, 4 Bing. 616 ; Wentworth v. Outhwaite, 10 M. & W. 436 ; Coates V. Railtoii, 6 B. & C. 422 ; Crawshay v. Fades, 1 id. 181. And where the vendee had employed an agent at an intermediate place to forward all goods com- ing to that port for him, and he had accordingly paid the charges of the former transportation and forwarded the goods by another ship, it was held not to termi- nate the transit. Nichols v. Le Fevre, 2 Bing. N. C. 81 ; s. c. 2 Scott, 146. And a merely inchoate delivery, for a particular purpose, will not deprive the vendor of his lien for the price. Owenson v. Moore, 7 T. R. 64 ; Goodall v. Skelton, 2 H. Bl. 316. The perplexing question which often arises, whether the goods coming to the possession of a person named by the vendee at an intermediate stage in the transit, will terminate the vendor's right of stoppage, must be made to turn upon the poitit whether such person has authority to act on behalf of the vendee be- yond the mere forwarding of the goods and paying the back charges. Angell on Carriers, § 345. If the goods are demanded of the carrier by the vendor or his agent, while the right of stoppage in transitu still exists, the goods still remaining in ROLE OP DAMAGES AGAINST CARRIERS OP GOODS, ETC. 393 the custody of the carrier and he refuse to deliver them to the vendor, or after- wards delivers them to the vendee, it will amount to a conversion. And even a notice to the carrier or to his servant having the actual custody of the goods at the time, that the vendor will insist upon the exercise of the right of repossessing himself of the goods, will be sufficient to charge the carrier with the duty of keep- ing them for the vendor. Jones v. Earl, 37 Cal. 630, citing Bierce v. Red Bluff Hotel Co., 31 Cal. 160. The bailee of goods cannot assert any higher title than that of his bailor. Balnitt v. Hartley, 20 W. R. 898. XVIII. The Role op Damages against Carriers op Goods and WHEN Liable por Special Damages resolting prom their Defaults. The general rule of damages, as against carriers of goods, is so obvious and so unquestionable that it would scarcely be justifiable in occupying space in reporting any case upon the point. If the , goods are damaged by the fault of the carrier, he must make it good to the owner, so that lie will stand as well as if no such damage had occurred. And if the goods are lost through the default of the carrier he must pay their value at the place of des- tination, deducting freight. This will embrace the profits of the adventure, so that the owner may be placed in the same condition as if the goods had arrived safely. 2 Redf. Railw. § 191, and cases cited ; Sedgwick on Damages, 356. But there are many cases where goods are procured for a par- ticular use, at a particular time, and where it becomes impractica- ble to supply their place by other goods until considerable loss has inevitably accrued. In such cases there is some difference in the equity and justice of the claim for special damages, whether the carrier was aware of the purpose for which the goods were intended. But, in general, the English courts have manifested great reluctance to allow special damages. These questions are presented with as much fairness and fulness in a recent case in New Hampshire as in any other which we have found, which we give below, as far as this question is concerned. Deming v. Grand Trunh Railway, 48 New Hampshire Reports, 455. 1869. Where the carrier knows that goods committed to him for transportation to the place of consignment are sold at a given price on condition of being delivered at a par- 394 RULE OF DAMAGES AGAINST CARRIERS, ticular time, and accepts them imder the assurance that he will deliver them in due time and fails to do so, he will be held responsible for the difference between the contract price and the value of the goods when delivered. The station agent of a railway company, intrusted to receive and despatch freight, will bind the company by any special contract lie makes as to the time of de- livery of freight at the place of consignment, notwithstanding he may have no control over the motive-power of the road or the time of the departure and arrival of the trains. If the carrier contract to carry freight at a particular time, he cannot excuse his fail- ure to do so by showing an unusual and unexpected pressure of business at the time. The facts upon which- this question in the case turned are suf- ficiently stated in the opinion of the court by — Bellows, J. Another question has respect to the instructions to the jury upon the subject of special damages arising from the loss of the sale to the Delaine Company. It is urged by the de- fendants that such damages could not be included, because no binding contract of sale was shown ; but, for the reasons already suggested, we think the jury might have found a valid contract. Tlie defendants also argue that, if there had been a valid contract, damages could not have been given for the loss of it. This raises the question whether the carrier of goods which he undertakes to transport is liable, under the circumstances of this case, for dama- ges arising from the loss of a sale when caused by his delay in delivering the goods. On this point the evidence tended to prove that the plaintiif, having a lot of wool which he had contracted to sell at fifty-six cents per pound, to be delivered in Boston, called upon the defend- ants' agent at Northumberland station, and stated to him that he had a lot of wool that he had sold or bargained, deliverable in Boston ; that he wanted it to go immediately to Boston, and that it was sold" if it could go right in ; that he wanted it to go by the White Mountains Railroad, or by the Grand Trunk Railroad, which- ever route was the quickest ; that he was told by the agent that he would provide two cars for the wool to go by the freight train next day ; that the agent told the plaintiff to send up the wool the next morning, and it should go without fail. That plaintiff did send the wool the next morning, but that defendants did not forward it until as late at least as March 16th, the arrangement about it having been made on the twenty-first day of February, 1866. The evidence also tends to show that the purchaser declined to take and WHEN LIABLE FOB SPECIAL DAMAGES. 395 pay for the wool, assigning, among other reasons, that it had been so long on the way ; and the plaintiffs thereupon sold it to other parties at a diminished price. No objection is made to the sufficiency of the notice that the wool was contracted to be sold deliverable in Boston, and that plaintiffs desired it to be forwarded immediately on that account ; and the jury have found that the station agent made an agreement binding on the defendants to forward the wool by the next freight train. Upon this testimony we think it was competent for the jury to find that by the breach of the defendants' agreement the plaintiffs lost the sale to the Atlantic Delaine Company, and were obliged to sell the wool for a diminished price. The inquiry, then, is, whether for this loss the defendants maybe charged. This subject has of late been' much discussed on both sides of the Atlantic. The leading English case is Hadley v. Baxendale, 9 Exch. 341, where Alderson, B., after great consideration, lays it down as a general rule that, " where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself ; or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." The action here was against the defendants as common carriers for not delivering seasonably a broken iron shaft sent to the manu- facturers as a pattern for another for plaintiff's mill, and it was held that the plaintiffs were not entitled to damages for the loss of profits while their mill was stopped in consequence of defendant's delay ; notwithstanding the plaintiff's agent told the defendant's clerk when the shaft was sent to them that the mill was stopped, and the shaft must be sent immediately, and the clerk replied that it would reach its destination the next day. The opinion of the court was that this was not notice of such special circumstances as would lead the defendants to contemplate such loss of profits as a natural consequence of a delay in forwarding the shaft, inasmuch as, for aught that was said to defendants, the plaintiffs might have had another shaft ; or there might have been other defects in the machinery that would have stopped the mill. The verdict which included such profits was therefore set aside. The court, howr- 396 RULE OP DAMAGES Ag'aINST CARRIERS, ever, held that if the special circumstances under which the con- tract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages re- sulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. The general doctrine of this case, which was decided in 1854, has been recognized and followed in both the English and Ameri- can courts, and is regarded as a leading case. Sedgwick on Dam., 4th ed., 81-84, notes and cases, and also p. 406, 409. See, especially, cases collected on p. 81. Copper Company v. Copper Mining Company, 33 Vt. 92. In G-riffen v. Colver, 16 New York, 489, 494, the subject was carefully considered and the opinion given by Selden, J., who laid it down that the broad, general rule in such cases is, that the party injured is entitled to recover all his damages, including gains pre- vented as well as losses sustained ; and this rule is subject to but two conditions : " The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract ; that is, must be such as might naturally be expected to follow its violation ; and they must be certain, both in tlieir nature and in respect to the cause from which they proceed." In 2 Kent, Com. 480, in note, it is laid down, that " damages for breaches of contract are only those which are incidental to, and directly caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties, and not specu- lative profits or accidental losses, or the loss of a fancied good bargain." In Blanchard v. Ely, 21 Wend. 342, the court recognizes the doctrine laid down in Evans' Pothier, Lond. ed., 1806, in these words : " In general, the parties are deemed to have contemplated only damages and interest, which the creditor might suffer from the non-performance of the obligation in respect to the particular thing wliich is the object of it, and not such as may have been accidentally occasioned thereby in respect to his other affairs ; " and the court quotes the illustrations of Pothier, that, in the case of the failure of title to land demised, the lessor would not be lia- ble for the loss of custom in a business established by the lessee WHEN LIABLE FOR SPECIAL DAMAGES. 397 while residing there, although he would be bound to pay the lessee the expense of removal ; but that a. party may incur liability for extrinsic damages if it appear that they were stipulated for, or tacitly submitted to in the contract, — as if a party stipulate to deliver a horse in such time that a certain advantage may be gained by reaching a certain place, — when for a default the party shall pay for the loss of such advantage ; and, as an instance of a tacit submission, the case of demising premises expressly for use as an inn is put, and there, it is said, that if the tenant is evicted for want of title, the loss of custom may be taken into account. These illustrations furnished by this eminent writer accord sub- stantially with the rule laid down in Hadley v. Baxendale, and the provision of the French code, as stated by Sedgwick in his work on Damages, p. 67, is also in accordance with that rule. The sub- stance of it is that " the debtor is only liable for the damages fore- seen, or which might have been foreseen, from the breach of the contract." And Parke, B., in Hadley v. Baxendale, said that was the sensible rule. It now must be considered as settled both in the English and American courts, that for the breach of a contract to transport goods, the consignee may recover damages for the depreciation of the goods in market during the delay ; that is, the difference be- tween the market price when and where they should have been delivered, and when they were actually delivered. Sedgwick on Dam., 75, 78, 356, 360, and cases ; 2 Redf. on Railw. § 191 ; Griffin v. Colver, 16 N. Y. 491. And it is obvious that this is in the nature of general damages, as in contracts for the sale of goods, and need not be set out specially in the declaration. See Collard V. South Eastern Railway Company, 7 H. & N. 79, cited in Sedg- wick on Damages, 407, in notes ; aud see Stevens v. Lyford, 7 N. H. 366. The question, then, is, whether the consignee may also recover damages for the loss of a sale which he had previously contracted for, and which he communicated to the carrier, when that loss was caused by a breach of the carrier's contract. The authorities very generally agree that the plaintiff can include in his damages only such as are the direct, immediate, and natural consequences of the breach of contract ; such as flow directly and naturally from such breach, and are not remote, speculative, or contingent. There is difficulty in determining, sometimes, what are and what S98 RULE OP DAMAGES AGAINST CARRIERS, are not the direct, immediate, and natural results of the breach complained of. But we think that the decisions which allow, as damages, the difference between the market price of the goods at the time and place when and where they should have been de- livered, and the market price when they were in fact delivered, must govern this case. There it is assumed that if the goods had been delivered to the consignee, according to the contract, they would have been worth to him as much as the then market value, because he could have sold them at that price ; and, of course, it is assumed that the injury is the direct, immediate, and natural result of the carrier's breach of contract. Such an injury must have been foreseen, and in the contemplation of the parties when the contract was made. It would be so equally in the case of a previous sale of the goods, which was communicated to the carrier when he received them, and when the contract was entered into for the express purpose of enabling the seller to- complete the sale. In such a case the loss would be the difference between the price at which the goods were bargained, and the price the consignee was enabled to sell them for in market, and the loss would be the direct, immediate, and natural result of the carrier's breach of contract, as in the other case. In the one case the difference in the market price is the measure of damages, because it is assumed that the consignee could cer- tainly have sold tliem at the market price, had the goods been de- livered in due time. In the other case the sale was already made and the price fixed, and had the goods been delivered in due time the consignee would have received that price for them as surely as in the other case he would have obtained the market price ; and even more surely, because he might not have chosen then to sell. The damages for the loss of a sale would fall under the denomi- nation of special damages ; and, without notice of the fact of such sale, it could not be understood that such a loss would have been foreseen or contemplated by the parties. It is proper that the carrier should understand the extent of the responsibility he as- sumes, and the consequences of a failure on his part ; and if no special circumstances are communicated to him he ought to be held responsible only for the consequences which might ordinarily be supposed to flow from his breach of contract. WHEN LIABLE FOE SPECIAL DAMAGES. 399 In this case the plaintiff's evidence tended to prove that he in- formed the defendants' agent tliat he had a lot of wool that was sold if it could go immediately to Boston, and that if it could not go at once that way he should send it by another railroad, and that the agent told him to send it the next morning, and it should go by the next freight train. Under these circumstances the jury might have found that the contract was entered into for the express purpose of enabling the plaintiffs to complete their contract of sale, and we think the defendants ought to be charged with the loss occasioned by the breach of their contract. Griffen v. Colver, 16 N. Y. 493. In the cases of sales with warranty, or contracts to sell and de- liver goods, it IS often held that the vendee cannot recover damages for the loss of a contract of resale, arising from the breach of war- ranty or the failure to deliver the goods. Clare v. Maynard, 6 A. & E. 519 ; Masterton v. Mayor of Brooklyn, 7 Hill, 68, and cases cited. In these cases, however, it does not appear that the contracts were made with any reference to a resale, and therefore they could not come within the principle we have been considering. But a very different case is presented where the contract is entered into for the express purpose of enabling one party to complete a sale, or to obtain some other advantage, and it is so understood by both parties. In this respect the illustrations given by Pothier, before referred to, are in point. In such cases the special damages are deemed to be within the contemplation of the parties. In the recent English case of Berries v. Hutchinson, 18 0. B. (n. s.) 445, which was a contract to sell and deliver to the plaintiff a quantity of caustic soda, which was designed for sale in Russia, and the defendant knew it was designed for a foreign market, and before the time of delivery he knew it was to be sold in Russia ; it was held that defendant was liable for the loss of the profits on the resale in Russia caused by defendant's failure to deliver the goods according to his contract, and to the additional cost of freight. So where defendant had agreed to deliver to a farmer a thrash- ing-machine at a time fixed, knowing it was to be used to thrash wheat in the field, and by his failure to deliver it the wheat was injured by the rain, it was held that defendant was liable for the injury, since the parties might well have anticipated such injury to 400 RULE OP DAMAGES AGAINST CARRIERS, result from the breach of the contract. Smeed v. Foord, 1 E. & E. 602, cited in Sedgwick on Damages, 81, in note ; see also cases collected in Sedgwick on Damages, 4th ed., 333, 835 ; among them, Randall v. Raper, 1 E. B. & E. 84, 96 Bng. Com. Law, 82, where defendant sold the plaintiff some barley, warranting it to be " Chevalier seed barley," and plaintiff sold it with similar warranty upon the strength of defendant's warranty, and it proving not to be that kind of barley, it was held that defendant was liable for what plaintiff was bound to pay his vendee. See also Waters v. Towers, 8 Exch. W. H. & G. 401, and "Woodbury v. Jones, 44 N. H. 206, and cases cited. Upon these views wo think there was no error in the instructions to the jury in respect to damages for loss of the sale' to the Delaine Company. Nor do we think there was any error in the instruc- tions as to plaintiffs' expenses in looking up the wool. Sedg- wick on Damages, 359, in note and cases cited, 4th edition. The objection in fact is not urged by counsel. The instructions in respect to the authority of Cummings were sufficiently favora,ble to the defendants. He was the station agent at the Northumberland depot, and he testified that he had full charge of receiving and forwarding freight at that station ; and although he also testified that his duties in regard to freight were to receive, weigh, fill, and get it off as soon as possible, and that he had no authority to make contracts, and no authority over the locomotive power of the road, and that he never agreed to send any freight, except live stock, at any particular time, we think the jury might legally find that defendants held him out as their agent authorized to contract for sending freight the next day. This was tlie substance of the instructions on this point, and we think there was no error. If, for the convenience of the corpora- tion, Cummings was voluntarily placed in a situation of apparent authority, and so held out to the public as competent to make the contract in question, the defendants will be bound, although the agent had in fact exceeded his authority, and even if the defendants were entirely innocent of any purpose to mislead ; for when one of two innocent persons is to suffer, he ought to suffer who misled the other into the contract by voluntarily placing the agent in a situation of apparent authority. In this case the agent was apparently clothed with the sole cliarge of receiving and forwarding freight at that depot, and it WHEN LIABLE FOR SPECIAL DAMAGES. 401 might well be supposed to be within the ordinary scope of his duties to make agreements as to the time of forwarding such freight. If such power was possessed by any one at that depot it must have been by him, and we think the jury were well warranted in finding as they did. In 2 Redfield on Railways, 113, it is laid down that station agents who receive and forward freight have power to bind the company that the goods shall be forwarded to a point beyond the terminus of that road before a particular hour, notwithstanding a general notice published that the company would not be liable beyond their own road ; and so in Wilson v. York, New Castle, and Berwick Railway, 18 Bng. Law & Bq. 657 ; Story on Agency, § 443,' 127 ; Backman v. Charlestown, 42 N. H. 125, 131, 133 ; Burnside v. Grand Trunk Railroad, 47 N. H. 554. In respect to the first count, the evidence offered by defendants as to the unexpected rush of freight was properly rejected ; and the jury having found a binding contract to carry the wool by the next freight train, the verdict will not be disturbed, even if the evidence were admissible under the second count. When the car- rier contracts to carry goods within a prescribed time, no tem- porary obstruction or even an absolute impossibility of complying with the engagement will be a defence to an action for failing to perform his engagement; for when a party by his own contract creates a duty or cliarge upon himself he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by his contract. It is otherwise, however, when the duty is created by law. Angell on Carriers, § 294, and cases in note. So it is held in 2 Redf. on Railw. 162, in note and cases. The same doctrine is laid down in Hadley V. Clarke, 8 T. R. 267, per Lawrence, J. With these views there must be judgment on the verdict. This question has been a good deal discussed in the English courts for many years past. The rule declared in Hadley v. Baxendale, 9 Exch. 841 ; s. c. 26 Eng. L. & Eq. 398, that, if the carrier is aware of the circumstances of the em- ployer and the injury likely to result from delay, and is still culpable, thereby caus- ing such delay,' he must make good the special damage. There are some later cases involving the same principle, referred to in the above opinion of Mr. Justice Bellows. The question is discussed in many of the American cases. As where goods procured for a particular use are so damaged in the transportation as to be rendered unfit for the use, the carrier will be held responsible. Racket v. 402 kuLe op damages against carriers. B., C. & M. Railw., 35 N. H. 390. But in Waite v. Gilbert, 10 Gush. 177, special damages by a refusal to deliver goods, when first demanded, were denied. And it has been held that a passenger whose baggage is lost can recover nothing for any special damage consequent upon such loss. New Orleans Railw. v. Moore, 40 Miss. 39 ; C. & Ch. Railw. v. Marcus, 38 El. 219. The subject of special damages is discussed more at length in 2 Redf. Railways, 9, 10, 165, n., 184-190, 252 et seq., 260-265. The question of special damages being recoverable against a carrier who neg- lected to carry packed parcels for one employed in that business, so that he failed to be able to deliver them in time to his customers, whereby his business was damaged to the extent of £200, is largely discussed in Crouch v. Great Northern Railway, 11 Exch. 742 ; s. c. 34 Eng. L. & Eq. 573, with the conclusion that such special damages are not recoverable short of showing that the omission to carry in time was designed on the part of defendants, with the view of lessening or destroying his business. Where one is delayed by a parcel not arriving in time, he cannot recover hotel expenses incurred in consequence. Woodger v. Great Western Railw., L. R. 2 C. P. 318. PART 11. COMMON CAERIERS OF PASSENGERS. COMMON CARRIERS OF PASSENGERS. I. Degree op Care Required. There is no controversy in tlie books in defining the extent of the responsibility of common carriers of passengers. Tliey are bound, in general terms, to the exercise of the utmost degree of care and diligence consistent with the reasonable continuance of the business. If we attempt to define the extent of this duty, by the general terms, the utmost diligence, care, and skill, without any qualification, the courts are compelled, as they would be in the construction of a sta- tute in the same terms, to annex such conditions as would make it possible to have the business of passenger transportation still con- tinue, upon the familiar maxim of construction, ut res mcfgis valeat quam pereat. And even with this qualification, there are many questions connected with passenger transportation which still abide in the most distressing state of uncertainty. We shall endeavor to select such cases under this head as will tend to place the duty upon its fairest and most reasonable basis. While it is universally recognized in all the cases upon this sub- ject, that the common carrier of passengers will be held responsible for all defects in the means of transportation which the utmost care and diligence might have remedied, it is not so clearly settled whether such carriers will be held responsible for secret defects in the apparatus of transportation which no known tests would have disclosed ; in other words, it does not seem to be fully determined, as yet, how far the passenger carrier will be held re- sponsible for those defects in the means of transportation which imply negligence or want of skill in the maker, but which the carrier is not personally in fault in not having discovered. One of 406 DEGREE OP CARE HEQUIKED. the most important and exhaustive of the American cases upon this point and which largely examines the general question of the ■ responsibility of passenger carriers is — 1. IngaUs v. Bills, 9 Metcalfs Reports, 1. 1845. Common carriers of passengers are bound to exercise the greatest care and skill in the discharge of their duties, both as to the carriages used in the transportation and the management and conduct of the business ; but they are not responsible for dama- ges resulting from a defect in the iron axletree of a stage-coach, by reason of a very small flaw entirely surrounded by sound iron one-fourth of an inch thick and which could not be detected by the most careful external examination. Where a passenger in a stage-coach is placed in such apparent imminent peril, by reason of some accident for' which the carrier is responsible, as to render his leap- ing from the carriage a reasonably proper and prudent act, and in doing so suffers the fracture of a limb, the carrier will be held responsible, although it turns out that if the passenger had remained quietly in the carriage he would have escaped all harm. The facts in the case will sufficiently appear by the foregoing notes and the opinion of the court delivered by — Hubbard, J. The question presented in this case is one of much importance to a community like ours, so many of whose cit- izens are engaged in business, which requires their transportation from place to place in vehicles furnished by others ; and though speed seems to be the most desirable element in modern travel, yet the 15,w points more specifically to the security of the traveller. Under the charge of the learned judge who tried this case, we are called upon to decide whether the proprietors of stage-coaches are answerable for all injuries to passengers arising from accidents happening to their coaches, although proceeding from causes which the greatest care in the examination and inspection of the coach could not guard against or prevent ; or, in other words, whether a coach must be alike free from secret defects, which the owner cannot detect, after the most critical examination, as from those which might on such an examination be discovered. The learned judge ruled that the defendants, as proprietors of a coach, were bound by law, and by an implied promise on their part, to provide a coach not only apparently but really roadworthy, and that they were liable for any injury that might arise to a passenger from a defect in the original construction of the coach, although the imperfection was not visible, and could not be discov- ered upon inspection and examination. DEGREE OP CARE REQUIRED. 407 The law respecting common carriers has ever been rigidly en- forced, and probably there has been as little relaxation of the doc- trine; as maintained by the ancient authorities, respecting this species of contract, as in any one branch of the common law. This arises from the great confidence necessarily reposed in persons engaged in this employment. Goods are intrusted to their sole charge and oversight, and for which they receive a suitable compensation ; and they have been and still are held responsible for the safe delivery of the goods, with but two exceptions : viz., the act of God and the king's enemies ; so that the owners of goods may be protected against collusive robberies, against thefts, embezzlement, and negligent transportation. But in regard to the carriage of passengers, the same principles of law have not been ap- plied, and for the obvious reason tliat a great distinction exists between persons and goods, — the passengers being capable of taking care of themselves, and of exercising that vigilance and fore- sight in the maintenance of their rights which the owners of goods cannot do who have intrusted them to others. It is contended by the counsel for the plaintiff, that the proprietor of a stage-coach is held responsible for the safe carriage of passen- gers so far that he is a warrantor that his coach is roadworthy, — that is, is absolutely sufficient for the performance of the journey undertaken, — and that, if an accident happens, the proof of the greatest care, caution, and diligence in the selecting of the coach, and in the preservation of it during its use, will not be a defence to the owner ; and it is insisted that tliis position is supported by various authorities. The cases, among many others cited, which are more especially relied upon, are those of Israel v. Clark, 4 Esp. 259 ; Crofts V. Waterhouse, 3 Bing. 319 ; Bremner v. Williams, 1 Car. & P. 414 ; and Sharp v. Grey, 9 Bing. 457. If these cases do up- hold the doctrine for which they are cited, they are certainly so much in conflict with other decided cases, that they cannot be viewed iu the light of established authorities. But we think, upon an examination of them and comparing them with other cases, they will not be found so clearly to sustain the position of tiie plaintiff as has been argued. It must be borne in mind, that the carrying of passengers for hire, in coaches, is comparatively a modern practice ; and that though suits occur against owners of coaches for the loss of goods as early as the time of Lord Holt, yet the first case of a suit to re- 408 DEGREE OF CARE REQUIRED. cover damages by a passenger, which I have noticed, is that of White V. Boulton, Peake's Cas. 81, which was tried before Lord Kenyan in 1791, and published in 1795. That was an action against the proprietors of the Chester mail coach, for the negli- gence of the driver, by reason of which the coach was overturned, and the plaintiff's arm broken, and in which he recovered damages for the injury ; and Lord Kenyan, in delivering his opinion, said, " when these (mail) coaches carried passengers, the proprietors of them were bound to carry them safely and properly." The correct- ness of the opinion cannot be doubted in its application to a case of negligence. The meaning of the word "safely," as used in declarations for this species of injury, is given hereafter. The next case which occurred was that of Aston v. Heaven, 2 Esp. 533, in 1797, which was against the defendants, as proprietors of the Salisbury stage-coach, for negligence in the driving of their coach, in consequence of which it was overset and the plaintiff in- jured. This action was tried before ^yre, C. J. It was contended by the counsel for the plaintiff, that coach-owners were liable in all cases, except where the injury happens from the act of God or of the king's enemies ; but the learned judge held that cases of loss of goods by carriers were totally unlike the case before him. In those cases, the parties are protected by the custom ; but as against carriers of persons, the action stands alone on the ground of negli- gence. The next case was that of Israel v. Clark, 4 Esp. 259, in 1803, where the plaintiff sought to recover damages for an injury aris- ing from the overturning of the defendant's coach, in consequence of the axletree having broken ; and one count alleged the injury to have arisen from the overloading of the coach. It was con- tended that if tlie owners carried more passengers than they were allowed by act of parliament, that should be deemed such an over- loading. To tills Lord Mlenhorough, who tried the cause, assented, and said, " If they carried more than the statute allowed, they were liable to its penalties ; but they might not be entitled to carry so many ; it depended on the strength of the carriage. They were bound by law to provide sufficient carriages for the safe convey- ance of the public who had occasion to travel by them. At all events, he would expect a clear landworthiness in the carriage itself to be established." This is one of the cases upon which the present plaintiff specially relies. It was a nisi prius case, and it DEGREE OF CARE REQUIRED. 409 does not appear upon which count the jury found their verdict. But the point pending in the present case was neither discussed nor started, viz., whether the accident arose from the negligence of the owner in hot providing a coacla of sufficient strength, or from a secret defect not discoverable upon the most careful exam- ination. No opinion was expressed whether the action rests upon negligence or upon an implied warranty. But it was stated that the defendants were bound by law to provide sufficient carriages for the passage, and, at all events, that there should be a clear landworthiness in the carriage itself. The general position is not denied with regard to the duty of an owner to provide safe carriages. The duty, however, does not in itself import a warranty. The judge himself may have used stronger expressions, in the terms " landworthiness in the car- riage," than he intended, by the thought of seaworthiness in a ship, and the duty of ship-owners in that respect. If the subject had been discussed, and tlie distinctions now presented had been raised, and then the opinion had followed, as expressed in the report, it would be entitled to much more consideration than the mere strength of the words now impart to it. The next case was that of Ghristie v. Griggs, 2 Campb. 79, in 1809, There the axletree of the coach snapped asunder at a place where there was a slight descent from the kennel crossing the road, and the plaintiif was thrown from the top of the coach. Sir James Mansfield, in instructing the jury, said : " As the driver had been cleared of negligence, the question for the jury was as to the sufBciency of the coach. If the axletree was sound, as far as human eye could discover, the defendant was not liable. There was a dif- ference between a contract to carry goods and a contract to carry passengers. For the goods, the carrier was answerable at all events, but he did not warrant the safety of the passengers. His undertaking as to them went no further than this, that, as far as •human care and foresight could go, he would provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff had no remedy for the misfortune he had encountered." The case of Bremner v. Williams, 1 Car. & P. 414, in 1824, is relied on by the plaintiff. There Best, C. J., said he considered that " every coach proprietor warrants to the public that his stage- coach is equal to the journey it undertakes, and that it is his duty 410 DEGREE OF CARE REQUIRED. to examine it previous to the commencement of every journ^." And so in Crofts v. Waterhouse, 3 Bing. 321, in 1825, Best, C. J., said, "The coachman must have competent skill, and use that skill with diligence ; he must be well acquainted with the road he un- dertakes to drive ; he must be provided with steady horses, a coach and liarness of sufficient strength, and properly made ; and also with lights by night. If there be the least failure in any one of these things, the duty of the coach proprietors is not fulfilled, and they are answerable for any injury or damage that happens." But though this language is strong, and would apparently import a warranty, on the part of the stage proprietor, as to the suffi- ciency of his coach, yet Park, J., in the same case, said : " A carrier of passengers is only liable for negligence." This shows that the court did not mean to lay down the law, that a stage proprietor is in fact a warrantor of the sufficiency of his coach and its equip- ments, but that he is bound to use the utmost diligence and care in making suitable provision for those whom he carries ; and we think such a construction is warranted by the language of tlie same learned judge (jBest) in the case of Harris v. Costar, 1 Car. & P. 686, in 1825, where the averment in the declaration was, that the defendant undertook to carry the plaintiff safely. The judge held that it did not mean that the coach proprietor undertook to convey safely absolutely, but that it was to be construed like all other instruments, taking the whole together, and meant that the defendants were to use due care. But the case mainly relied upon by the plaintiff is that of Sharp V. Grey, 9 Bing. 457, where the axletree of a coach was broken and the plaintiff injured. There the axle was an iron bar enclosed in a frame of wood of four pieces, secured by clamps of iron. The coach was examined, and no defect was obvious to the sight. But after the accident, a defect was found in a portion of the iron bar, which could not be discovered without taking off the wood-work ; and it was proved that it was not usual to examine the iron under- the wood-work, as it would rather tend to insecurity than safety. It does not appear by the statement, that the defect could not have been seen, on taking off the wood-work ; but it would rather seem that it might have been discovered. However that may be, the language of different judges, in giving their opinions, is relied upon as maintaining the doctrines contended for by the plaintiff. G-ase- lee, J., held that " the burden lay on the defendant to show there DEGREE OP CARE REQUIRED. 411 ha*d been no defect in the construction of the coach." Bosanquet, J., said: " The chief justice" (who tried the case) " held that the defendant was bound to provide a safe vehicle, and the accident happened from a defect in the axletree. If so, when the coach started it was not roadworthy, and the defendant is liable for the consequences, upon the same principle as a ship-owner who fur- nishes a vessel which is not seaworthy." And Alder son, J., said he was of the same opinion, and that " a coach proprietor is liable for all defects in his vehicle, which can be seen at the time of construction, as well as for such as may exist afterwards, and be discovered on investigation. The injury in the present case appears to have been occasioned by an original defect of construc- tion ; and if the defendant were not responsible, a coach proprietor might buy ill-constructed or unsafe vehicles, and his passengers be without remedy." This case goes far to support the plaintiff in the doctrine con- tended for by his counsel, as it would seem to place the case upon the ground that the coach proprietor must, at all events, provide a coach absolutely and at all times sufl&cient for the journey, and that he is a warrantor to the passenger to provide such a coach. But we incline to believe the learned judges gave too much weight to the comparison of Bosanquet, J., viz., that a coach must be road- worthy on the same principle that a ship must be seaworthy. We think the comparison is not correct, and that the analogy applies only where goods are carried, and not where passengers are trans- ported. And no case has been cited, where a passenger has sued a ship-owner for an injury arising to him personally in not con- ducting him in a seaworthy ship. If more was intended by the learned court than that a coach proprietor is bound to use the greatest care and diligence in providing suitable and sufficient coaches, and keeping them in a safe and suitable condition for use, we cannot agree with them in opinion. To give their language the meaning contended for in the argument of the case at bar is, in fact, to place coach proprietors in the same predicament with com- mon carriers, and to make them responsible, in all events, for the safe conduct of passengers, so far as the vehicle is concerned. But that the case of Sharp v. Grey is susceptible of being placed on the ground which we think tenable, namely, that negligence and not warranty lies at the foundation of actions of this description, may be inferred from the language of Mr. Justice Park, who, in giving 412 DEGREE OF OAEE REQUIRED. his opinion, says : " This was entirely a question of fact. It is clfear that there was a defect in the axletree ; and it was for the jury to say whetlier the accident was occasioned by what, in law, is called negligence in the defendant, or not." And Tindal, C. J., who tried the cause before the jury, left it for them to consider whether there had been that vigilance which was required by the defendant's engagement to carry the plaintiff safely ; thus apparently putting the case on the ground of negligence and not of warranty. See also Bretherton v. Wood, 3 Brod. & Bing. 64, and 6 Moore, 141. An- sell V. Waterhouse, 6 M. & S. 385, and 2 Chit. 1. The same question has arisen in this country, and the decisions exhibit a uniformity of opinion that coach proprietors are not lia- ble as common carriers, but are made responsible by reason of negligence. In the case of Camden •& Amboy Railroad Co. v, Burke, 18 Wend. 626, the court say that the proprietors of public conveyances are liable at all events for the baggage of passengers ; but as to injuries to their persons, they are only liable for the want of such care and diligence as is characteristic of cautious persons. And in considering the subject again in the case of Hollister v. Nowlen, 19 Wend. 236, they say that " stage-coach proprietors, and other carriers by land and water, incur a very different respon- sibility in relation to the passenger and his baggage. For an injury to the passenger, they are answerable only where there has been a want of proper care, diligence, or skill ; but in relation to baggage, they are regarded as insurers, and must answer for any loss not occasioned by inevitable accident or the public enemies." In a case which occurred in respect to the transportation of slaves, Boyce v. Anderson, 2 Pet. U. S. 155, Chief Justice Marshall, in giviiig the opinion of the court, says : " The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in cases to which it has been ap- plied, we admit its necessity and policy, we do not think it ought to be carried further, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them." So in the case of Stokes v. Saltonstall, 13 Pet. 181, the question arose and was thoroughly discussed ; and the same opin- ions are maintained as in the cases above cited from Wendell. And the whole subject is examined by Judge Story, in his Treatise on Bailments, §§ 592-600, with his usual learning ; and his result IS the same. DEGREE OF CARE REQUIRED. 413 If there is a discrepancy between the English authorities which have been cited, we think the opinions expressed by Chief Justice Hyre and Chief Justice Mansfield are most consonant with sound reason, as applicable to a branch of the law comparatively new, and, though given at nisi prius, are fully sustained by the discus- sions which the same subject has undergone in the courts of our own country. We have said, as being most consonant with sound reason, or good common sense, as applied to so practical a subject ; because, if such a warranty were imposed by force of law upon the proprietors of coaches and other vehicles for the conveyance of passengers, they would in fact become the warrantors of the work of others, over whom they have no actual control, and — from the number of artisans employed in the construction of the materials of a single coach — whom they could not follow. Unless, there- fore, by the application of a similar rule, eveiy workman shall be held as the warrantor, in all events, of the strength, suflSciency, and adaptation of his own manufactures to the uses designed, — which, in a community like ours, could not be practically enforced, — the warranty would really rest on the persons purchasing the article for use, and not upon the makers. If it should be said that the same observations might be applied to ship-owners, the answer might be given, thgit they have never been held as the warrantors of the safety of the passengers whom they conveyed ; and as to the transportation of goods, owners of general ships have always been held as common carriers, for the same reasons that carriers on land are bound for the safe delivery of goods intrusted to them. But as it respects the seaworthiness of a ship, the technical rules of law respecting it have been so re- peatedly examined, and the facts upon which they rest so often investigated, that the questions which arise are tfiose of fact and not of law, and in a vast proportion of instances depend upon the degree of diligence and care which are used in the preservation of vessels, and practically resolve themselves into questions of negli- gence ; so that the evils are very few that arise from the mainten- ance of the doctrine that a ship must be seaworthy in order to be the subject of insurance. The result to which we have arrived, from the examination of the case before us, is this : That carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaches, harnesses, horses, and coach- 414 DEGREE OP CARE REQUIRED. men, in order to prevent those injuries which human care and fore- sight can guard against ; and that if an accident happens from a defect in the coach, which might have been discovered and reme- died upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence, for which the owner, is liable in case of injury to a passenger happening by reason of such accident. On the other hand, where the accident arises from a hidden and internal defect, which a careful and thorough exam- ination would not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant over- sight, then the proprietor is not liable for the injury, but the misfor- tune must be borne by the sufferer, as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense. And we are of opinion that the instructions, which the defendants' counsel requested might be given to the jury in the present case, were correct in point of law, and that the learned judge erred in extending the liability of the defendants further than was proposed in the instructions requested. The point arising on the residue of the instructions was not pressed in the argument ; and we see no reason to doubt its cor- rectness, provided the peril to which the plaintiff was exposed arose from a defect or accident for which the defendants were otherwise liable. Jones v. Boyce, 1 Stark. 493. New trial granted. The question in regard to passenger transportation by railway is again discussed, ten years later, in the New York Court of Appeals, by distinguished counsel and by different judges of great eminence ; and the rule of responsibility applied is not only more rigorous in detail, but evidently different in principle. It will therefore be important to give the case at length. 2. Hegeman v. The Western Railroad Oorporation, 13 N. T. Reports, 9. 1855. The degree of care and diligence required in passenger transportation will vary in proportion to the known perils to be encountered in different modes. Therefore a rule adopted in regard to passenger transportation by stage-coach will not be held binding with regard to such transportation by railway. The responsibility of carriers of passengers in the latter mode extends to all the apparatus of transportation and requires every precaution to be used, as well by the manufacturers as the carriers ; and, if through defect of such precaution dam- age accrues to the passenger, the carrier will be held responsible. DEGREE OP CARE REQUIRED. 415 Where a passenger upon a railway suffered damage by reason of the breaking of an axletree, through latent defects, which could not be discovered by the most careful external examination, but might have been discovered and remedied in the course of manufacture, the company were held responsible. It is a question for the jury to determine, under proper instructions, how far a passen- ger carrier is guilty of negligence in not ascertaining the utility of and adopting an improvement to protect passengers from injuries by accidents to which the cars are liable, and against the effects of which such improvement affords protection. It will not excuse the carrier of passengers by railway, that he procures his cars and all the apparatus of transportation from the most experienced and the best reputed manufacturers ; he will be responsible to the same extent as if he were himself the manufacturer. The facts in the case will sufficiently appear from the foregoing notes and the opinion of the court by — Gardiner, 0. J. It has been said that every wayfarer must take the risks incident to the mode of travel he adopts, but these risks are only those which cannot be avoided by the carrier of passen- gers by tiie utmost degree of care and skill in the preparation and management of the means of conveyance. Angell on Com. Oarr. § 623. The carrier, in the language of other judges, is bound to use all precautions, as far as human care and foresight will go, for the safety of his passengers. 2 Kent, 602, 7th ed., and cases cited. In the application of these principles, it is obvious that the same precautions will not exonerate the carrier of passen- gers from responsibility in every mode of travel. The foresight and preparation that would suffice to satisfy the rule in one species of navigation or conveyance would not answer in another ; and the external examination, which, in connection with the reputation of the builder of a stage-coach, would and ought to satisfy the scruples of the most cautious person, as to the safety and security of a vehicle designed to run from six to eight miles the hour, would not satisfy any reasonable man as to the sufficiency of another intended to sustain a far greater weight, and to be pro- pelled by steam thirty, forty, or fifty miles in the same time. The charge of the learned judge, at the trial, assumes and proceeds upon this distinction throughout ; and in that part of it where he gives the measure of the responsibility of the defendant, in the strongest terms against him, and in favor of the plaintiff, he says, " that although the defendant purchased his axles and cars of ex- tensive and skilful manufacturers, who, in the exercise of their skill, knew of no test, and used no test, to discover latent defects 416 DEGREE OP CAEE REQUIBED. in axles, yet, if there were any tests known to others, and which should have been known and employed by the manufacturers, as men professing skill in their particular business, although the same may not have been used by some others engaged in the same business, defendant was guilty of negligence in not using this test, provided the injury occurred to the plaintiff by reason of a defect, which, by such test, might have been discovered. The substance of the charge was, that although the defect was latent, and could not be discovered by the most vigilant external examina- tion, yet, if it could be ascertained by a known test, applied either by the manufacturer or the defendant, the latter was responsible. In these instructions there was no error. 'Ingalls v. Bills, 9 Met. 1, cited by the defendants' counsel, was the case of a stage- coach, in which the injury was occasioned by the breaking of the axle ; the fracture was internal, and surrounded by sound iron one-quarter of an inch thick ; the court held, that where the acci- dent arises from a hidden and internal defect, and which could not be guarded against by the exercise of a sound judgment, and the most vigilant oversight, then the proprietor was not liable for the injury. I concur in that decision in the particular case presented; but the learned judge did not intimate " that a sound judgment and the most vigilant oversight" would be evidenced by the adop- tion of the same methods of examination in the case of a stage- coach and a car for the express train of a railroad. The mode of construction, the purposes to be subserved, and above all the prob- able consequences of a hidden defect, in the two cases, are alto- gether different. It might as plausibly be urged, that a chain for agricultural purposes and the cable of a ship of the line should be subjected to the same tests, because both were chains and each manufactured of the same material. Keeping the distinction indi- cated in view, the charge was sufficiently favorable to the defendant. Two questions were presented for the consideration of the jury. First, was there a test known, to and used by others, and which should have been known to a skilful manufacturer, by which the concealed defect in the axle of the car could have been detected ? and, if so, then, secondly, was the injury to the plaintiff the con- sequence of that imperfection ? Thei-e was evidence tending to establish these facts, which the jury have found; and the question returns, can the defendant, who neither applied the test or caused it to be applied by the manufacturer, insist that this accident could DEGREE OP CARE REQUIRED. 417 " not have been avoided by the utmost degree of care and skill, in the preparation of the naeans of conveyance," or " that they used all precautions, as far as human care and foresight would go, for the safety of the plaintiff, as one of their passengers " ? It seems to me that there can be but one answer to the question. It was said that carriers of passengers are not insurers. This is true. That they were not required to become smelters of iron, or manufacturers of cars, in the prosecution of their business. This also must be conceded. What the law does require is, that they shall furnish a sufficient car, to secure the safety of their passen- gers, by the exercise of the " utmost care and skill in its prepa- ration." They may construct it themselves or avail themselves of the services of others ; but in either case they engage that all that well-directed skill can do has been done for the accomplishment of this object. A good reputation upon the part of the builder is very well in itself, but ought not to be accepted by the public, or the law, as a substitute for a good vehicle. What is demanded, and what is undertaken by the corporation, is not merely that the manufact- urer had the requisite capacity, but that it was skilfully exercised in the particular instance. If to this extent they are not respon- sible, there is no security for individuals or the public. It is perfectly understood that latent defects may exist undiscov- erable by the most vigilant examination, when the fabric is com- pleted, from which the most serious accidents have and may occur. It is also well known, as the evidence in this suit tended to prove, and the jury have found, that a simple test (that of bending the iron after the axle was formed and before it was connected with the wheel) existed, by which it could be detected. This should have been known and applied by men " professing skill in that par- ticular business." It was not known, or, if known, was not applied by these manufacturers. It was not used by the defendant, nor did they inquire whether it had been used by the builders. They relied upon an external examination which they were bound to know would not, however faithfully prosecuted, guard their pas- sengers against the danger arising from concealed defects in the iron of the axles, or in the manufacture of them. For this omis- sion of duty, or want of skill, the learned judge held, and I think correctly, that they were liable. This is the only important question in the cause. The requests of the defendant's counsel to the judge for instructions to the jury VOL. II. 27 418 DEGREE OP CARE REQUIRED. were intended to present this principal point in its strongest as- pect for the defendant ; and all the exceptions are determined, if the above suggestions are well founded. The evidence of the utility and use of the safety beam was properly admitted. It had been used in New Jersey eleven years before this accident, and upon some of the Albany and Buffalo roads from the latter part of the year 1846 ; and in 1851 was introduced upon the road of the defendant. Whether the adoption of this improvement, under all the circumstances, was a necessary or proper precaution on the part of the defendant, was correctly submitted to the jury. The judgment of the Supreme Court should be affirmed. The same subject is again considered by the same court in a subsequent case, where the same rule is reaffirmed in the most unqualified terms : 3. Alden v. The W. T. Centred Railway, 26 N. T. 102. 1862. Common carriers of passengers are bound absolutely to provide road-worthy car- riages ; and if tliey fail to do so, tliey are responsible for all injuries to their pas- sengers in consequence, regardless of any question of negligence on their part. Held accordingly that a railway company was responsible for injuries to its passen- gers by reason of a crack in the iron axletree of a car, although it could not have been discovered by any practicable mode of examination, except during the manufacture. The facts in the case will sufficiently appear by the opinion of the court by — Gould, J. In regard to what has been called the negligence of railway companies, in not providing safe axles for their cars, the only case in our own courts which professes to fix any rule, is that of Hegeman v. The Western Railway Corporation, 3 Kern. 9. The result of that case held, in substance, that the company was responsible, both for the manufacturer's possessing the requisite skill, and for his actual exercise of that skill, in each particular axle, — the judgment in that case being against the company for negligence, in not having discovered a flaw in the axle, which could not have been discovered by any known trial after the axle came into the company's possession, but which might have been discovered by a process of bending before it left the hands of the manufacturer. DEGREE OP CARE REQUIRED. 419 But in that case the charge to the jury, at the circuit, held that, " in making the careful examination required by law, before the train started, the company was not guilty of negligence, if it made all the examination which human skill and foresight could make without taking the machinery to pieces." And in this court the prevailing opinion says the company " is bound to use all precau- tions, as far as human care and foresight will go, for the safety of the passengers." ' In the case before us, so far as the defect in the axle (the hid- den crack) is concei-ned, it is clearly, and without any contradic- tion, proved that it was absolutely out of the reach of discovery by any practicable examination of the axle, unless by taking off the wheel, with great difficulty and labor ; that is, " taking the machinery to pieces." Tried by the Hegeman case, it would seem that this defendant could not be responsible for an injury caused, as the one sued for seems to have been, by that defect ; as it is positively testified " that it would not be safe to run at all an Uxle cracked as this was " found to have been on examination after the accident. There has, however, always been something unsatisfactory in the decision of the Hegeman case, arising from the difficulty in finding any thing to call negligence in the acts of the company as there proved ; and we can probably place the result of that case on a surer and more satisfactory ground, as well as fix a test of much easier application, by referring to another case. In Sharp V. Grey, 9 Bing. 457 ; s. c. 2 M. & S. 621, the proprietor of a stage-coach was sued for injuring a passenger by the overturning of his coach from the breaking of an axle. The axle was of iron, secured and strengthened by parallel wooden strips screwed on and around it ; and before starting it was carefully examined, and showed no flaw. After the accident, it was examined, and it then appeared that it had been cracked for some time, but the crack was in sucli a place that it was not possible for any strictness of examination to find it, without taking off the wooden strips, the frequent taking off of which would have injured the axle, and ren- dered it less safe than it would be if those pieces of wood were left undisturbed. Yet in that case a verdict of <£500 was rendered against the defendant, and the court in lane refused to set it aside ; holding unanimously (not that the defendant was guilty of any negligence, 420 DEGREE OP CARE REQUIRED. but) that he must be held accountable, in every event, to furnish a road-worthy coach ; and that, if the event proved it not to have been so, he must suffer the consequences. And though this may seem a hard rule, it is probably the best that can be laid down ; since it is plain and of easy application, and, when once estab- lished, is distinct notice to all parties of their duties and liabil- ities. And, practically, jt will be likely to work no more burden- some results to carriers of passengers than to leave them, with an uncertain criterion of responsibility, to the trouble and expense of strongly litigated contests before juries. The judgment of the Supreme Court should be affirmed, not- withstanding there may, in strictness, have been an error in the refusal to charge (as requested) that the defendant was not bound to take off the wheel and examine the axle ; since, by the rule now laid down, so charging would be entirely immaterial to the result. All the judges concurring. Judgment affirmed. In McPadden v. N. Y. Cent. Railw., 47 Barb. 247, the Supreme Court of New York seem to regard the rule as established in that state that a common carrier of persons is bound to provide road-worthy vehicles, irrespective of any question of negligence, and that the principle of this rule would require the carrier who furnishes his own road, and has secured to him the exclusive possession and control of it, to provide a vehicle-worthy road ; that is, a road adapted to the safe passage of the vehicle used over it, — a road of continuous unbroken rails for each and every train to enter upon in its passage over the road, and, as the rail is a part of the machinery by which the vehicle is operated, it falls directly within this principle ; and, as it appeared in this case that the cause of the acci- dent, and of the injury to the plaintiff was a broken rail which threw the car off the track, and that a train from the opposite direction had passed over the spot only a short time previous, and that there had been no examination of the track between that time and the time of the accident, it was lield that the plaintiff should have been allowed to go to the jury upon the question whether the iron rail was not broken before the train on which he was a passenger came upon it, — it being clearly a question for the jury to determine, whether the broken rail was in a sound condition at the time such train came upon it. The court, John- son, J., say: "The plaintiff was improperly nonsuited. His counsel asked permission to go to the jury upon the question whether the iron rail was not broken before the train on which the plaintiff was a passenger came upon it. The cause of the accident and the injury to the plaintiff was a broken rail, which threw the car in which the plaintiff was riding from the track, while the train was runfling at a speed of from twenty to twenty-five miles per hour. It appears from the evidence that the express-train from the west had passed over the place where the rail was broken only a short time previous, and that there had DEGREE OP CARE REQUIRED. 421 been no examination of the track between tjiat time and the time of the accident in question. It was, therefore, clearly a question for the jury to determine, whether the broken rail was in a sound condition at the time the train in which the plaintiff was riding came upon it. It is claimed by the defendants' counsel that all the evidence shows that {jhe rail was then in a safe condition, and that it broke under the train on which the plaintiff was riding. The most that can fairly be claimed is, that the evidence tended to establish this. It does not prove it conclusively, and it should have been left to the jury to draw the infer- ence. The rule is now established in this state, that a common carrier of persons is bound to provide road-worthy vehicles, irrespective of any question of negli- gence. Alden v. The N. Y. Cent. Railw. Co., 26 N. Y. 102. This is a simple, plain, and eminently sensible rule, and it should be applied in all cases falling clearly within the principle. The same principle would require the carrier, who furnishes his own road and has secured to him the exclusive posses- sion and control of it, to provide a vehicle-worthy road ; that is, a road adapted to the safe passage of the vehicles used over it, — a road of continuous unbroken rails for each and anj' train to enter upon in its passage over the road. Strictly speaking, the rail is no part of the vehicle, though in some sense it may be said tp be so. But, however this may be, the rail is clearly a part of the machinery by which the vehicle is operated, and falls directly within the principle. The learned judge erred, therefore, at the circuit, in refusing to allow the plaintiff to go to the jury on the question whether the rail was not broken before the train on which he was riding came upon it. There must, consequently, be a new trial, with costs to abide the event.'' This subject was before the Court of Exchequer Chamber in England, in May, 1869, in the case of Readhead v. The Midland Railway Company, reported in 17 Weekly Reporter, 737 ; s. c. Law R. 2 Q. B. 412, 4 id. 379. The unani- mous judgment of the court, consisting of Kelly, C. B., Bramwell, and Channel, BB., Keating and Montague Smith, JJ., may be regarded as an authoritative ex- position of the present state of the English law. It was held that the contract entered into by a carrier of passengers, and the obligation undertaken by him, are to take due care, including in that term the use of skill and foresight, to carry pas- sengers safely ; there is no warranty by way of insurance on the part of the car- rier to convey the passenger safely, or that the carriage should be in all respects perfect, that is to say, free from all defects likely to cause peril, although those de- fects were such that no skill, care, or foresight could have detected their existence. Therefore, where an accident was caused by the breaking of the tire of one of the wheels of a railway carriage in which the plaintiff was travelling, owing to a latent defect in the tire, which was not attributable to any fault on the part of the manufacturer, and could not be detected previously to the breaking, and the plaintiff was injured, it was held that no action lay against the company. We insert in full the opinion of the court in which the authorities bearing upon the question are fully considered, delivered by Montague Smith, J. : — "In this case the plaintiff, a passenger for hire on the 'defendants' railway, suffered an injury in consequence of the carriage in which he was travelling getting off the line and upsetting; the accident was caused by the breaking of the tire of one of the wheels of the carriage owing to a latent defect in the tire, which was not attributable to any fault on the part of the manufacturer, and 422 DEGREE OF CARE REQUIRED. could not be detected previously to the breaking. Does an action lie against the company under these circumstances ? This question involves the considera- tion of the true nature of the contract made between a passenger and a general carrier of passengers for hire. It is obvious that for the plaintiff on this state of facts to succeed in this action, he must establish either that there is a warranty by way of insurance on the part of the carrier to convey the passenger safely to his journey's end, or, as his learned counsel mainly insisted, a warranty that the carriage in which he travels should be in all respects perfect for its purpose, that is to say, free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have detected their existence. "We are of opinion, afler consideration of the authorities, that there is no such contract either of general or limited warranty and insurance entered into by the carrier of passengers, and that the contract of such a carrier and the obligation undertaken by him are to take due care, including in that term -the use of skill and foresight, to carry the passenger safely. It, of course, follows that the absence of such care, in other words, negligence, would alone be a breach of this contract ; and as the facts of this case do not disclose such a breach, and, on the contrary, negative any want of skill, care, or foresight, we think the plaintiff has failed to sustain his action, and that the judgment of the court below, in favor of the defendants, ought to be affirmed. " The law of England has from the earliest times established a broad distinction between the liabilities of common carriers of goods and of passengers. Indeed, the responsibility of the carrier to redeliver the goods in a sound state can attach only in the case of goods. This responsibility (like the analogous one of innkeepers) has been so long fixed, and is so universally known, that carriers of goods undertake to carry on contracts well understood to comprehend this implied liability. If it had not been the custom of the realm, or the common law declared long ago, that carriers of goods should be so liable, it would not have been competent for the judges in the present day to have imported such a liability into their contracts on reasons of supposed convenience. But this is, as it seems to us, what we are asked by the plaintiff to do in the case of carriers of passengers. " The liability of the common carrier of goods attached upon the particular bailment of the goods to him in his capacity of common carrier, and the rules which govern the rights of bailors and bailees of things, are of course applicable only to things capable of bailment. "The law and the reasons for it in the cases of bailments to carriers are found in the great judgment of Holt, C. J., in Coggs u. Bernard, 1 Sm. Lead. Cas. 189, 6th ed., and are thus stated: 'As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts, either a delivery to one that exercises a public em- ployment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, hoyman, master of a ship, &c., which case of a master of a ship was first adjudged, 26 Car. II., in the case of Mors B. Slue, Sir T. Raym. 220, 1 Vent. 190, 238. The law charges this person thus intrusted to carry goods, against all events but acts of God, and of the enemies of the king; for, though the force be never so great, as if an irre- DEGBEE OP CARE REQUIRED. 423 sistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all persons that had any dealings with them by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point.' " The same law is found in numerous text-books (some of which are referred to in the judgments of my brothers Mellor and Lush in their judgments below) , and has been acted on for centuries in the case of carriers of goods. " The court is now asked to declare the same law to be applicable to eon- tracts to carry passengers. "The learned counsel for the plaintiffs felt the difficulty of the attempt to apply the entire liability of the carrier of goods to the carrier of passengers, but he contended for, and mainly relied on, the proposition that there was at least a warranty that the carriage in which the passenger travelled was road-worthy, and that the liability of the carriers of goods in this respect ought to be imported into the contract with the passenger. " But, first, it is extremely doubtful whether such warranty can be predicated to exist in the contract of the common carrier of goods. This obligation is to carry and redeliver the goods in safety, whatever happens ; in the words of Lord Holt, ' he is bound to answer for the goods at all events.' Again, ' the law charges this person thus intrusted to carry goods, against all events but acts of God and the enemies of the kings.' And this broad obligation renders it un- necessary to import into the contract a special warranty of the road- worthiness of the vehicle ; for if the goods are safely carried and redelivered, it would be immaterial whether the carriage was road-worthy or not ; and if the goods are lost or damaged, the carrier is liable on his broad obligation to be answerable ' at all events,' and it is unnecessary to inquire how that loss or damage arose. "But, however that may be, it is difficult to see upon what principle the contract of the carrier of goods, which on the hypothesis does not apply in its entirety to carriers of passengers, is to be dissected, and a particular part of it severed and attached to what on the hypothesis is another and different contract. It was contended that the reason which made it the policy of the law to impose the wider obligation on the carriers of goods applied with equal force to impose the limited warranty of the soundness of the carriage in favor of the passenger. The reason suggested was, as we understand it, that a passenger when placed in a carriage was as helpless as a bale of goods, and therefore entitled to have for his personal safety a warranty that the carriage was sound ; but this is not the reason, or any thing like the reason, given by Lord Holt for the liability of the carrier of goods. The argument founded on this reason, however, would ob- viously carry the liability of the carrier far beyond the limited warranty of the road-worthiness of the carriage in which the passenger happened to travel. This safety is, no doubt, dependent on the soundness of the carriage in which he travels, but in the case of a passenger on a railway it is no less dependent on the road-worthiness of the other carriages in the same train, and of the engine drawing them, on the soundness of the rails, of the points, of the signals, of 42J: DEGREE OP CARE REQUIRED. the masonry, in fact of all the different parts of the system employed and used in his transport, and he is equally helpless as regards them all. "If, then, there is force in the above reason, why stop short at the carriage in which the passenger happens to travel ? It surely has equal force as to all these things ; and if so, it must follow as a consequence of the argument that there is a warranty that all these things shall be and remain absolutely sound, and free from defects. This, which appears to be the necessary consequence of the argu- ment, although Mr. Manisty disclaimed the desire to press it, so far tries the value of it. But surely if the law really be as it was contended to be, it would have been so declared long ago. No actions have been more frequent of late years than those against railway companies, in respect of injuries sustained by passengers. Some of these injuries have been caused by accidents arising from defects or unsoundness in the rolling-stock, others from defects in the permanent works ; long inquiries have taken place as to the causes of these defects, and whether they were due to want of care and skill, which would have been alto- gether immaterial if warrantees of the kind now contended for formed part of the contract. " An obligation to use all due and proper care is founded on reasons obvious to all, but to impose on the carrier the burden of a warranty that every thing he necessarily uses is absolutely free from defects likely to cause peril, when from the nature of things defects must exist which no skill can detect, and the effects of which no care or foresight can avert, would be to compel a man by implication of law, and not by his own will, to promise the performance of an impossible thing, and would be directly opposed to two maxims of law, Lex non cogii ad impossibilia. Nemo ienelw ad impossihilia. " If the principle of implying a warranty is to prevail in the present case, there seems to be no good reason why it should not be equally applied to a variety of other cases. As, for instance, to the managers of theatres or other places of public resort, who provide seats or other accommodation for the public for re- ward. Why are they not to be equally held to insure, by implied warranty, the soundness of the structures to which they invite the public ? But we apprehend it to be clear that such persons do no more than undertake to use due care that their buildings shall be in a fit state. " Thus a staircase in the Polytechnic Institution fell and injured several per- sons attending a public exhibition there. Two actions were brought by separate plaintiffs, who had paid money for their entrance. The first was tried before Wightman, J., the second before Erie, C. J. No one seems to have supposed there was any warranty of the soundness of the staircase, yet the persons using it were as helpless to detect or prevent the accident as the traveller. Both learned judges put the liability entirely on the question, whether there was the want of due care in maintaining the staircase ; and Erie, C. J., told the jury that the defendants would not be liable for latent defects. Brazier v. The Polytech- nic Institution, 1 F. & F. 507 ; Pike v. Same, id. 712. So in stating the liability of a canal company, who made the canal for profit, and allowed the public to use it on, payment of tolls, Tindal, C. J., in delivering the judgment of the Court of Exchequer Chamber, says : ' The common law in such a case imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstructions ; but to take reasonable care, so long as they keep it open for DEGREE OP CARE REQUIRED. 425 the public use of all who may choose to navigate it, that they may navigate with- out danger to their lives or property.' Lancaster Canal Co. v. Parnaby, 11 A. & E. 223, 242. " The liability in that case was not put in any degree upon a warranty that the canal should be free from perilous defects, but upon the natural obligations to use due care that it should be so. The common law with regard to carriers of goods and innkeepers stands, as I have said, on its own special grounds. But it has been found so stringent, not to say unjust, in the liabilities it imposed on persons carrying on those trades, that the legislature has found it necessary, in both cases, to modify its stringency. "It will now be necessary to examine the leading authorities cited during the argument. The counsel for the plaintiff in the first place referred to some of the cases in which it had been held that in contracts for the supply of goods for a particular purpose, there is an implied warranty that the goods supplied shall be reasonably fit for that purpose. Bigge v. Parkinson, 10 W. R. 349, 7 H. & N. 965, is a case of that class. But the agreement to sell and supply goods for a price which may be supposed to represent their value is a contract of a differ- ent nature from a contract to carry, and has essentially different incidents at- tached to it. Indeed the learned counsel did not cite these cases as directly governing the present. Even in the cases of contracts to supply goods, it may be a question on which it is not now necessary to express an opinion, how far and to what extent the vendor would be liable to the vendee in a case of a latent defect of the kind existing in the present case, which no skill or care could pre- vent or detect ; that is to say, where an article is supplied which has been manu- factured and tested in the best and most careful manner, so as to be turned out as perfect as in the nature of things it could be. It is clear that if the manufacturer is liable for such an inevitable and undiscoverab defect, he can never sell what he makes without the risk of an action attaching itself to every contract he enters into ; without, in fact,, becoming an insurer, unless he limits his liability expressly. ' ' In cases of express warranties, the compact of the parties is to be gathered from the words they use in making them. When warranties are expressly made, the parties themselves may guard against excessive liability by any exceptions they please ; and in those implied by law, the law itself must take care to keep them within the boundaries of reason and justice, so as not to impose impracti- cable obligations. " It is now proposed to consider the authorities relied on as having a direct bearing on the question before us. The case which the plaintiff's counsel relied on as the strongest in his favor is Sharp v. Grey, 9 Bing. 457. But that case, when examined, furnishes no sufficient authority for the extensive liability which the plaintiff seeks to impose on the defendants. There the plaintiff was injured by an accident caused by the breaking of the axletree of a stage-coach ; the de- fect might have been discovered if a certain examination had taken place, and it was made a question of fact at the trial whether it would have been prudent or not to make that examination. Tindal, C. J., who tried the cause, is reported to have directed the jury to consider ' whether there had been on the part of the defendant that degree of vigilance which was required by his engagement to carry the plaintiff safely.' Now, if the learned chief justice had supposed there 426 DEGREE OF CARE REQUIRED. was an absolute warranty of road-worthiness, this direction could not have been given ; as it would then have been immaterial whether the defendant had used vigilance or not, and the degree of vigilance would have been an utterly imma- terial consideration. The jury having found on his direction for the plaintiff, a motion was made, in the absence of Tindal, C. J., for a new trial. Two of the learned judges in refusing the rule, Gaselee and Bosanquet, JJ., are certainly reported to have used expressions which seem to indicate that they thought the defendant bound to supply a road-worthy vehicle. Park, J., uses language which as reported is ambiguous. But the judgment of Aldersim, J., is distinctly op- posed to the notion of a warranty against latent and undiscoverable defects. He says : ' A coach proprietor is liable for all defects in his vehicle which can be seen at the time of construction, as well as for such as may exist afterwards and be discovered by investigation.' " We have referred somewhat fully to this case because it was put forward as the strongest authority in support of the plaintiff's claim which can be found in the English courts, and because it was relied on by the judges of the Court of Appeal in New York, in a decision which will be afterwards referred to. But the case when examined furnishes no sufficient authority for the unlimited war- ranty now contended for. The facts do not raise the point for decision, and the authority of Tindal, C. J., and Alderson, J., is against the plaintiff. The dictum of Best, C. J., in Bremner ». Williams, 1 C. & P. 414, was not necessary to the decision of the case. The ruling of Lord Ellenborough in Israel w. Clark, 4 Esp. 259, was also relied on ; of these two last authorities, Blackburn, J., says in his judgment below : ' These are, it is true, only nisi prius decisions, and neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood.' We find also that Best, C J., certainly makes obser- vations in the opposite sense, in the case of Crofts v. Waterhouse, 3 Bing. 319, 321. "These cases are really the only English authorities which afford any support at all to the plaintiff's view, for the interpretation reported to have been given by Cresswell, J., in Benett v. The Peninsular & Oriental Steam Packet Com- pany, 6 C. B. 782, of the case of Sharp v. Grey, was only an observation made during an argument, when it was cited as incidentally bearing on the question then before the court, and cannot be relied on as authority. " On the other hand, there is not only the plain distinction between the lia- bilities of the carriers of gc^ods and of passengers, constantly referred to by text-writers and judges as well known and settled law, but numerous cases have been decided on grounds at variance with the supposition that there existed con- temporaneously with them the liability by way of warranty. " In Aston v. Heaven, 2 Esp. 533, which was the case of injury to a passen- ger, Eyre, C. J., after carefully pointing out the law as to the liability of carri- ers of goods to make good all losses (except those happening from the act of God or the king's enemies), and the reasons for it, says : ' I am of opinion the cases of losses of goods by carriers and the present are totally unlike ; ' again, ' There is no such rule in the case of the carriage of persons ; this action stands on the ground of negligence alone.' In Christie v. Griggs, 2 Camp. 79, Sir James Mansfield says : ' There was a difference between a contract to carry goods DEGREE OP CARE REQUIRED. 427 and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety of the passengers. His undertaking as to them went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance.' " In Crofts V. Waterhouse, 3 Bing. 319, the observations attributed to Best, C. J., clearly show that he did not think there was any warranty on the part of carriers of passengers, and Park, J., in the same case, says : ' A carrier of goods is liable at all events ; a carrier of passengers is only liable for negligence.' " But besides the observations of individual judges to show what has hitherto been understood to be the law, there is a long series of important cases, involv- ing costly and protracted trials, in which by common consent the liability of car- riers of passengers has been based upon the duty to take due care, and not upon a warranty. " In Grote v. The Chester and Holyhead Railw. Co., 2 Ex. 251, where the accident arose from the breaking down of one of the bridges of the railway, the case turned on what would or would not be negligence for which the company were answerable. Parke, B., says : ' It seems to me the company would still be liable for the accident unless he (the engineer) also used due and reasonable cai-e, and employed proper materials in the work.' There is no trace in the report, that it ever occurred to the court to suppose there was any warranty of the safety of the bridge. " In a case tried before Erie, C. J., Ford v. London and Southwestern Railw. Co., 2 F. & F. 730, the plaintiff was injured by the tender of the train being thrown off the line ; and one of the causes was alleged to be the defective tire of one of the wheels of the tender. Erie, C. J., in his direction, told the jury : ' The action is grounded on negligence ; negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonably to be required from the parties, considering all the circumstances. The railway company is bound to take reasonable care to use the best precautions in known practical use for securing the safety of their passengers.' There the defect was in the tire of a wheel of the tender of the train by which the plaintiff travelled, and no suggestion that a warranty of its soundness existed was made. "But a case still more directly bearing upon the present point was tried before Cockhurn, C. J., Stokes v. The Eastern Counties Railw. Co., 2 F. & F. 691. There the accident happened in consequence of the breaking of the tire of the near wheel of the engine. The tire broke from a latent flaw in the weld- ing. The trial lasted six days, and the questions mainly were, whether the flaw was not visible, and whether, by the exercise of care, it might not have been detected. The lord chief justice commences a full direction to the jury by saying, ' The question is, whether the breaking of the tire resulted from any negligence in the defendants or their servants, for which they are responsible. The latent defect in the tire was admitted to be the cause of the accident, but the jury having found in answer to specific questions that there was no evidence that the tire was negligently welded, and that the defect had not become visible, and having in other respects negatiyed negligence, the verdict was entered for the defendants. " The facts of that case appear to be exactly like the present, except that in 428 DEGREE OF CAEE REQUIRED. this the defective tire was in the wheel of the carriage, and there in the engine; but, for the reasons already given, it can never be that a warranty can exist as to the carriage, but not as to the engine drawing it. Thus, then, it is plain a trial of six days took place on issues which were utterly immaterial, if a warranty ought to have been implied ; and there the learned chief justice and the parties themselves seem to have been utterly unconscious of the contract which was really existing, if the plaintiff in this case was right ; for the warranty as an obligation implied by law must have existed at the time of these trials if it exists now ; and surely it is strong to show that no such rule does form part of the common law, that it was not then recognized and declared. " The learned counsel for the plaintiff insisted that a carrier by sea is bound to have his ship seaworthy. Undoubtedly the carrier of goods by sea, like the carrier of goods by land, is bound to carry safely, and is responsible for all losses however caused, whether by the unseaworthiness of the ship or otherwise ; and it does not appear to be material to inquire, when he is subject to this large obligation, whether he is also subject to a less one. In the case of Lyon v. Mells, 6 East, 428, it was no doubt stated by the court that the carrier of goods is bound to have a seaworthy ship, but this only as part of his general liability. It is well to observe that Holroyd, who argued for the plaintiff, and Qaselee, for the defendant, both state the liability of the carrier in all its breadth; viz., a liability for all losses, however happening, except by the act of God or the king's enemies. This case, therefore, falls within the class of decisions relating to the liability of the carriers of goods. No case has been found where an absolute warranty of the seaworthiness of the ship in the case of passengers has arisen, and it affords a strong ground for presuming that no such liability exists, that no passenger in this maritime nation has ever founded an action upon it. "The case of Burns v. Cork & Bandon Railw. Co., in the Irish Court of Common Pleas, 13 Ir. Com. Law, 643, certainly does not support the plaintiff's view of the law. The court say there that the averments in the defendants' plea are all consistent with gross and culpable negligence, and on that ground give judgment for the plaintiff. The judgment plainly shows that the court do not mean to declare there is an absolute undertaking that the vehicle shall be free from defects. The language is, ' free from defects as far as human care and foresight can provide, and perfectly road-worthy.' The court refers with appro- bation to the language of Sir William Mansfield and Alderson, J., which helps to explain that they were disposed to adopt the views of these learned judges, and to place the liability, not on a warranty, but on the obligation to exercise care and foresight. " It now remains to consider the American decisions on the subject. They have not been uniform. The judgment of Mr. Justice Hubbard in Ingalls v. Bills, 9 Metcalf, 1, 15, cited at length by my brother Mellor in his judgment below, is opposed to the notion of a warranty. Decisions, however, were cited before us by Mr. Manisty from the courts of the State of New York having a contrary tendency, and to show us that in that state the law had been declared in favor of annexing a warranty to the contract. The most important of these cases is Alden v. The New York Cent. Railw. Co., in the Court of Appeals of the State of New York, 12 Smith, 102. That was the case of an accident caused by a defect in an axletree. The reasons given by Oould, J., are not satisfac- DEGREE OP CARE REQUIRED. 429 tory to our minds ; the learned judge seems to assume there was no negligence shown on the part of the company ; he cites the case of Sharp v. Grey, in the Court of Common Pleas here, and he interprets that case to determine that the carrier warrants the road-worthiness of his coach. " But if the view of the case of Sharp v. Grey, taken in the early part of this judgment, is correct, the learned judge gave too great weight to it. Oould, J., then, after having given the rule as he supposed it to be laid down in Sharp v. Grey, observes : ' And though this may seem a hard rule, it is probably the best that can be laid down, since it is plain and easy of application, and, when once established, is distinct notice to all parties of their duties and liabilities.' With deference to the learned judge, these reasons, founded on the convenience of the arrangement, are scarcely sufficient to warrant the introduction of onerous obliga- tions into the contracts of parties, and the terms in which the judgment is given rather lead to the conclusion that the learned judge was conscious that he was annexing to the contract of the carrier of passengers what had not hitherto been understood to form part of it. The English courts are desirous to treat the American decisions with great respect ; but, as their authority here must mainly depend on the reasons on which they are founded, we have felt bound to examine them, with the result which has been stated. " Warranties implied by law are, for the most part, founded on the presumed intention of the parties, and ought certainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given. " We have already gone fully into the reasons for holding that in our opinion this alleged warranty is not so founded. On the other hand, it seems to be per- fectly reasonable and just to hold that the obligation well known to the law, and which, because of its reasonableness and accordance with what men perceive to be fair and right, has been found applicable to an infinite variety of cases in the> business of life, viz., the obligation to take due care, should be attached to this contract. We do not attempt to define, nor is it necessary to do so, all the lia- bilities which the obligation to take due care imposes on the carrier of passen- gers ; nor is it necessary, inasmuch as the case negatives any fault on the part of the manufacturer, to determine to what extent and under what circumstances they are liable for the want of care on the part of those they employ to construct works, or to make or furnish the carriages and other things they use. See, on the point, Grote V. The Chester & Holyhead Railw. Co., 2 Ex. 251. " 'Due care,' however, undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all vigilance ; to see that whatever is required for the safe convey- ance of their passengers is in fit and proper order. But the duty to take due care, however widely construed, or however rigorously enforced, will not, as the pres- ent action seeks to do, subject the defendants to the plain injustice, to our minds, of being compelled by the law to make reparation for a disaster arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected. " In the result we come to the conclusion that the case of the plaintiff, so far as it relies on authority, fails in precedent ; and so far as it rests on principle, 430 HOW FAB PASSENGER CARRIERS REQUIRED TO ADOPT fails in reason ; consequently the judgment of the Court of the Queen's Bench in favor of the defendants will be affirmed. Judgment affirmed." The rule laid down in Alden v. N. Y. Central Railw., 26 N. Y. 102, is com- mented upon in McPadden v. Same, 44. d. 478, and some exceptions to the re- sponsibility of passenger carriers stated, as the breaking of a rail from cold. It is further said here, that if the plaintiff claims the rail was broken before the train reached it he must give evidence of the fact. But the courts of this state seem to adhere to the rule, that the passenger carrier by railway must be held responsible for any defects in the entire apparatus of transportation which might have been remedied by the exercise of the utmost care and skill in the manufac- ture. Oardiner, C. J., in Hegeman v. Western Kailw., supra. And it has been claimed that the case of Alden v. N. Y. Central Railw. requires of the carrier an absolute warranty that all his apparatus is perfect, and such seems to be its nat- ural construction. But the case of Readhead, supra, clearly does not go so far. It only requires what Hegeman's case did, that the apparatus should be as perfect as care and skill could make it, thus making the carrier responsible for all defects in the manufacture. The courts in Pennsylvania seem to have adopted the English rule. Meir v. Penn. Railw., 27 Legal Int. 229. II. How FAR Passenger Carriers are required to adopt the MOST Approved Precautions against Accidents, if gener- ally KNOWN and in Common Use. This is a question almost of necessity resting largely with the triers of the facts. All these special precautions against accidents are, at first, always merely tentative or experimental, and probably the largest proportion never commend themselves to general ac- ceptance so as to come into general use. There is, no doubt, in the case of passenger transportation by railways, a duty of extreme watchfulness, on the part of those having the superintendence and control of the business, in regard to the adoption of every pre- caution against accident, which gives reasonable promise of being useful and is not so expensive as to justify its rejection. In this view there must be allowed reasonable time to test new inventions, and no one will be regarded as failing in duty because he is not among the first to test or adopt it. And it is equally clear, that he cannot excuse himself for not adopting it, because some others, or some portions of the country, have not adopted it. This is sub- stantially the ground upon which this question was submitted to the THE MOST APPROVED PRECAUTIONS AGAINST ACCIDENTS. 431 jury in Hegeman v. Western Railroad Company, ante, p. 414. And the rule thus laid down to the jury was indorsed by the Court of Appeals, and although there was some disagreement in the court, upon some points, there was none upon this. The question of expense should never be allowed as an excuse for neglecting to procure an obviously useful precaution against accident, unless it is so extreme as to render it measurably impracticable for the car- rier to adopt it, without seriously depressing his business or rais- ing his fares to an exorbitant point. But no precautious of that expensive character would ever be invented, with any expectation of bringing them into general use. So that the question of ex- pense will not commonly operate as much excuse in such cases. The following case presents these questions in the fullest and fair- est manner of any case which has fallen within our examination : Le Baron v. ^ast Boston Ferry Company, 11 Allen, 312. 1865. A ferry company, being common carriers of passengers, are bound to furnish rea- sonably safe and convenient means for the passage of teams from their boats, and to exercise the utmost care and skill in the use of such means ; but they are not bound to adopt, in addition to such previously possessed means, a new and improved method, because it is safer and better than the one in use by them, if it is not requisite to the reasonable safety and convenience of passengers and the expense is excessive, for even the cost may be, under circumstances, a sufficient excuse for not adopting it. The fact that damage accrues to passengers in the course of transportation is not presumptive evidence of negligence on the part of the carrier, irrespective of the mode in which it occurs ; but that is a circumstance tending to show negli- gence, to be considered by the jury in determining the question of negligence. Those cases where the happening of an injury to passengers has been held prima fade evidence of negligence on the part of the carrier, and thus imposing the burden of exculpation upon him, are cases where the nature of the accident indi- cated default on the part of the carrier, as where a rail or wheel or axletree or something else fails, or a collision occurs, or the train runs ofi" the track. Per Colt, J. The facts in the case sufficiently appear from the opinion of the court by — Colt, J. The claim of the plaintiff that the failure of the defendants to adopt the new supplemental or adjusted drop, which had been adopted and used by another ferry company with the knowledge of the defendants, constituted negligence, and made them liable for the plaintiff's injury, cannot be sustained, although it was proved that such new drop obviated all liability to 432 HOW FAR PASSENGER CARRIERS REQUIRED TO ADOPT the accident which caused his injury. The question of negligence was a question upon all the evidence for the jury, and we think it was submitted to them under full and accurate instructions. A common carrier of passengers contracts in law that the kind of conveyance which he adopts shall be a reasonably safe and con- venient mode of transportation, for its kind. The modes of convey- ance in use by passenger carriers, both by land and water, vary as the exigencies of the traffic and its remunerative character require and justify. To require all carriers to adopt alike expensive pro- visions for the safety of passengers, without reference to the nature of their employment or the amount of their business, would be impracticable and absurd. It would be like requiring all the pub- lic highways in the Commonwealth to be kept in a like state of repair, without reference to the nature of the country through which they pass, or the amount of travel they accommodate. The different kinds of ferries in use vary from the rudest form of boat, drawn from shore to shore by ropes, propelled by oars or horse- power or the current of the stream, with landing-places on the banks, to those expensive steamboats which ply between populous districts, provided with every convenience of access from docks and ferry-houses. It cannot 'be necessary, in order to protect themselves from liability, that all these different ferrymen should adopt those appliances which can be shown to be the safest, and which others in the same occupation use. And yet the rule con- tended for by the plaintiff would require every ferryman, without regard to the nature or amount of his business, to use the most improved mode of securing the safety of passengers, regardless of expense, if thereby a liability to injury peculiar to the mode adopted by him could be avoided, either in the transportation or in the means provided for entrance upon or exit from his boat. This whole matter of negligence is for the jury, and is and should be affected by the nature of the transportation which the carrier has undertaken to afford, and the amount and character ' of his business. If the means of transportation are adapted to the reasonably safe carriage of passengers upon that particular kind of conveyance, and he exercises the utmost skill in the use of such means, he has discharged his legal obligations. The case of Hegeman v. Western Eailroad, 3 Kernan, 9, cited by the plaintiff, was an action for an injury sustained by a passen- ger and caused by the breaking of an axle. There was evidence THE MOST APPROVED PRECAUTIONS AGAINST ACCIDENTS. 433 that a safety-beam, then in use on many other railroads, would secure safety in case of such an accident; and although this means of safety was adopted by carriers engaged in precisely the same kind of transportation with the defendants, yet the judge charged the jury that if they should be of opinion that a safety- beam was designed and calculated to prevent an injury to passen- gers in case of the breaking of an axle, it did not necessarily follow that the defendants were liable because they had not adopted it, but it would, be for the jury to say whether the de- fendants were or were not negligent in informing themselves of the necessity and utility of the invention, and availing themselves of it. The plaintiff further asked the court to rule that, having proved due care on his part, and the occurrence of the accident, the law would imply negligence on the part of the defendants, and cast upon them the burden of proving that the accident happened without their fault. We think such instruction would have been erroneous, as applied to the case as presented upon the pleadings and evidence. The declaration alleges that the negligence of the defendants consisted in not providing safe exit for the plaintiff with his loaded wagon from their ferry-boat, so that in attempting to pass off the boat the wheels of the wagon struck violently against the drop of the ferry, and threw the load upon the plain- tiff, causing the injury complained of. The general rule, that the plaintiff, in actions of this descrip- tion, is bound to prove negligence on the part of the defendants as the cause of the injury, has been apparently modified in a class of cases in which it is said that proof of due care on the part of the plaintiff, with proof of the accident, is prima facie evi- dence of negligence on the part of the defendants. An examina- tion of these cases, we think, will show that there is in them no real invasion of the general rule as to the burden of proof. It will be found, we believe, in all of them that the nature of the accident was such, or the attending circumstances such, that proof of the accident alone raised a presumption of negligence, and that the same evidence which proved the injury done also proved the defendants' negligence, or developed circumstances from which it must be presumed. Thus in Carpue v. London and Brighton Railway, 5 Q. B. 747, where the injury was caused by a train running off the track and overturning the carriage in which the VOL. II. 28 434 HOW PAR PASSENGER CARRIERS REQUIRED TO ADOPT plaintiff was a passenger, Benman, G. J., told the jury, that " it having been shown that the exclusive management of the ma- chinery and the railway was in the haads of the defendants, it was presumable that the accident arose from their want of care, unless they gave some explanation of the cause." So in Stokes v. Sal- tonstall, 13 Pet. 181, the injury was occasioned by the overturning of a stage-coach ; and in Ware v. Gay, 11 Pick. 106, the accident was of a similar nature, occasioned by the running off of the wheel of the coach in which the plaintiff was a passenger. In these cases clearly the nature of the accident afforded proof of the defendants' negligence. The plaintiff, in proving his injury, must ordinarily prove the nature of the accident and the circumstances ; and when such Pj'oof has any tendency to prove negligence, and especially when tli6 defendant has exclusively the means of knowledge within his control, as to what caused the injury, it is said the burden is cast upon the defendant to explain the cause, and exculpate himself. Upon recurring to the facts in this case, it appears that this accident might have liappened without negligence on the part of the defendants, and that the means of knowledge as to the cause of the injury were equally within the reach of both parties. The court therefore rightly declined to give the instructions asked for upon this point, and for the reasons stated the instructions which were given were sufficiently favorable to the plaintiff. Ex- ceptions overruled. As in the charge to the jury, the judge, in the foregoing case, refers to the opia- ion of the court iu Warren v. Fitchburg Railroad Company, 8 Allen, 227, 230,' and as that opinion discusses the general question of the responsibility of passen- ger carriers in some important particulars, it will be desirable to insert it here. HoAK, J. The plaintiff could not recover unless he was himself using due care at the time when he received the injury, even if the carelessness of the de- fendants occasioned it. And the burden of proof was upon him to show that he used this care. So much is clearly settled. In several recent cases it has been held that, if the whole evidence introduced by the plaintiff has no tendency to show care on his part, but on the contrary shows that he was careless, it is the duty of the court to direct the jury, as matter of law, to return a verdict for the defendant. Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64 ; Gahagan ». Boston & Lowell Railroad, 1 Allen, 187 ; Todd V. Old Colony & Fall River Railroad, 3 Allen, 18 ; Wilson v. Charlestown, 8 Allen, 137. We should have no doubt, if the evidence in the case at bar had disclosed THE MOST APPROYBD PRECAUTIONS AGAINST ACCIDENTS. 435 nothing more than that the plaintiff crossed a railroad track, with due notice of its existence, and without looking to see whether a train were approaching, that the principle of those cases would be applicable to this. Such evidence, with nothing to explain or qualify it, would not have shown the exercise of due care, but the contrary. But we are of opinion that the other facts which appeared in evidence had a very important bearing upon the propriety of the plaintiff's conduct, and that all the circumstances taken together presented a case which was proper to be sub- mitted to the jury, and which the court could not rightfully withdraw from their consideration. It was shown that the plaintiff had purchased his ticket entitling him to a passage to Boston, and was waiting in the passenger-station for the arrival of the train ; that when the whistle of the approaching train was heard, the station agent, employed by the defendants, said to him, " The train is coming; we will cross over." Upon receiving this information and direction, the plaintiff followed the station agent from the room, across toward the train, which had arrived and stopped before he came out on the platform. The path by which he went to the train was somewhat oblique, so that the engine which struck him came in a direc- tion partially behind him. Whether, in this condition of things, in his anxiety seasonably to reach the train, which would stop but a moment, the plaintiff, at a station with which he was not familiar, would have been likely to be thrown off his guard by the direction to cross over, given without any caution or qualifica- tion ; whether he might naturally, and without subjecting himself to the imputa- tion of want of care, have considered himself under the charge of the defendant's agent, with an assurance that it was safe and proper to go directly to the cars, were questions for the jury, and not for the court. They were submitted to the jury, with instructions which were appropriate and sufficient, and to which, in the opinion of this court, the defendants had no just ground of exception. The next exception taken was to the instruction given to the jury " that a per- son who had purchased a ticket entitling him to a passage on a particular train, was to be considered, while passing from the office or place of business where the purchase was made to the train, to take his seat in one of the cars of which it consists, as a passenger; and that the defendants were bound to exercise the same degree of care in providing for him a safe and convenient way and manner of access to the train, and in preventing the interposition of any obstacle or ob- struction which would unreasonably impede him or expose him to harm or injury while proceeding to take his seat in the cars, as in the subsequent transportation and carriage of him." We think this instruction, though not strictly correct as a general proposition applicable to all cases of the kind, was not erroneous, if taken with the qualifications which the particular case afforded, and which must have been obviously understood as included in it. As a general statement it was too broad, because a passenger may buy his ticket at an office which is not in the same town, or even in the same state, in which he intends to take the cars. The railroad company have, no control over his movements, and he does not, by the purchase of a ticket, put himself under their charge. But if he is " passing from the office or place of business where the purchase was made to the train, to take his seat in the cars,'' on the premises belonging to the company, connected with the railroad, and under the direction of the company's agents, given to him as a 436 HOW FAR PASSENGEK CARRIERS REQUIRED TO ADOPT passenger with whom the company have made the contract for conveyance which- the purchase of the ticket creates, as was the case with the plaintiff, we think he is to be considered as a passenger, and entitled to the rights of a passenger while so passing. It is the duty of the railroad company to afford to the passengers whom they undertake to carry in their cars a reasonable and safe opportunity to pass from the room or building in which they receive passengers for transporta- tion, to the cars, when the proper time comes for them to take their seats. The purchasers of tickets are bound to comply with all reasonable rules and orders of the company or their agents, as much when going to the cars from the station- house, or from the cars to a place of safety beyond the railroad track, as they are when actually on board the train, and while the transit continues. The instruc- tion to the jury, therefore, seems to have been sufficiently adapted to the circum- stances of the case, and this exception cannot be sustained. The remaining exception was taken to the terms in which the judge who pre- sided at the trial defined the degree of care which the law imposes upon carriers of passengers for hire. The language used was precisely that in which the rule of law was laid down by this court in the case of Ingalls v. Bills, 9 Met. 1. Upon a full examination and review of the English and American cases, Mr. Justice Huhhard in that case declared the result to be " that carriers of passenr gers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable coaclies, harnesses, horses, and coachmen, in order to prevent those injuries which human care and foresight can guard against ; " and the change of phraseology in the case at bar was only that required to adapt this rule to the circumstances of the carriage of passengers by railroad. The rule in its full extent has been recognized and affirmed in several subse- quent decisions. McBlroy v. Nashua & Lowell Railroad, 4 Cush. 400; Schop- man v. Boston & Worcester Railroad, 9 Cush. 24. The carriers of passengers are not, like the carriers of goods, insurers against everything but the act of God and public enemies. But they are bound to exercise reasonable care, according to the nature of their contract ; and as their contract involves the safety of the lives and limbs of their passengers, the law requires the highest degree of care which is consistent with the nature of their undertaking. The defendants object that they cannot be held to the exercise of the utmost care and diligence which human care and foresight are capable of. But such was not the language of the court. They were only held to the utmost care in providing suitable and proper carriages, engines, tracks, and agents, in order to prevent those injuries which human care and foresight can guard against. The object is to prevent such injuries as are the subject of human care and foresight ; that is, such as are not inevitable. The duty is to use the utmost care in regard to the ordinary and usual appliances and means of carrying on their business. They are not to take every possible precaution to prevent injury ; for that would be inconsistent with the cheapness and speed which are among the chief objects of railway travelhng. But their care is to be exercised in relation to such mat- ters and in such ways as are appropriate to the business they have undertaken, to afford proper and Reasonable securities against danger ; and it is only in regard to these, from the importance of the interests involved, that they are held to a proportionate, that is, to the utmost care and diligence. Exceptions overruled. THE MOST APPROVED PRECAUTIONS AGAINST ACCIDENTS. 437 In Smith o. New York & Harlem Railw., 19 N. Y. 127, it is distinctly decided, that railways are responsible for all injuries to any one rightfully using their road through the default of the company to adopt any precautionary improvement which is known to have been tested and found materially to contribute to safety and the adoption of which is reasonably practicable. The language of Selden, J., is very pertinent to this question: "It has been held that railroad companies are bound to avail themselves of all new inventions and improvements known to them, which will contribute materially to the safety of their passengers, whenever the utihty of such improvement has been thoroughly tested and demonstrated., Hegeman v. The Western Railroad Company, 3 Kern. 9. Undoubtedly this rule is to be applied with a reasonable regard to the ability of the company, and the nature and cost of such improvements ; but within its appropriate limits it is a rule of great importance, and one which should be strictly enforced. A stronger case for the application of the rule than is here presented could scarcely arise. The improvement related to a part of the apparatus of the road which is the source of numerous accidents. Its utility was undoubted and the expense trifling. The defendants had themselves recognized its value. If the principle should ever be applied, therefore, it should be applied here. The defendants were clearly in default for permitting the short switch to remain in use upon the road, especially at a place where there was a somewhat unusual complication of switches. The judge was fully warranted, therefore, in submitting this question of negligence to the jury, even if he woul3 not have been authorized to assume, as matter of law, that the company had neglected their duty in this respect. The language in which this part of the charge was couched was appropriate, and I discover no error in it." The same question is discussed in Brown v. N. Y. Central Railw., 34 N. Y. 404, with the same results. The same question is considered in Taylor v. Rail- way, 48 N. H. 304, and it is here insisted that to excuse the carrier from adopt- ing any known and accepted precaution against accidents in the transportation of passengers by railway on the ground of expense is calculated to encourage negli- gence on his part. See also Bait. & Ohio Railw. v. State, 29 Md. 252 ; Railw. v. State, id. 420. Where free passes are issued with the condition annexed, that the company shall not be held responsible for any damage the holder may sustain while using it, this will not extend to such damage as may result from the negligence of the company. Mobile & Ohio Railw. v. Hopkins, 41 Ala. 489. And the express stipulation that the company shall not in such case be held responsible for any neglect of its agents will not be held valid. Illinois Central Railw. v. Read, 37 111. 484. 438 CARRIERS MAY KXPEL PROM THEIR CARRIAGES III. Passenger Carriers mat expel prom their Carriages any Passenger refusing to pat the Legal Fare upon Proper Eequest. Questions of this kind are not likely to occur upon the English or Continental railways, or those railways in this country, where no one is allowed to enter the carriages except upon presenting the proper ticket for his passage. But in many portions 'of this country the railway companies have so long indulged passengers in the most extreme relaxation, upon this point, that it would now be attended with considerable embarrassment, no doubt, to enforce any such rule. But the courts have held that in order to enforce their reasonable regulations requiring passengers to pay fare in advance, the railways may' exclude from their carriages all who refuse to comply with such requirements. O'Brien v. Boston Sf Worcester Railroad Co., 15 Gray's Reports, 20. 1860. A railway company has the right to eject a passenger from its cars for non-payment of his fare, according to the regulations of the company, or on a reasonable demand being made therefor. Nor can he again enter the same train and require the company to accept him as a, passenger upon tender of his fare. The company having the right by law to establish all needful and proper regulations concerning passengers who refuse to pay their fares, may prove such regulations as part of their justification. The plaintiff entered the cars of the defendants at Boston, intending to go to Cordaville, and having a ticket from Brighton, an intermediate station, to Cordaville, but none from Boston to Brighton. Before reaching Brighton the plaintiff handed the con- ductor his ticket, and payment of fare from Boston to Brighton was demanded. Upon the plaintiff's refusal to pay it, the cars were stopped, and he was put off the train. He immediately went to the rear of tlie train and got upon it, and the conductor being informed thereof, at once went to the rear car, and although the plaintiff offered to pay whatever fare the conductor should demand, the conductor refused to receive it, and stopped the cars and forci- bly ejected the plaintiff a second time. For this the plaintiff brought tort against the railway company and the conductor. PASSENfiERS BEPUSING TO PAT LEGAL FABE. 439 OPINION. BiGELOW, J. The correctness of the instructions given to the jury in this case can be readily ascertained by considering the nature of the contract entered into between the plaintiff and' the defendants, and the respective rights and duties of the parties under it. On entering the cars of the defendants at Boston, the plaintiff had a right to be carried thence to his place of desti- nation in that train on paying the usual rate of fare. This fare he was bound to pay, according to the regulations of the company, or on a reasonable demand being made therefor ; if he failed to do so, then his rights under the contract ceased ; he had forfeited them by his own act ; and having himself first broken the contract, he could not insist on its fulfilment by the defendants. This is the rule of common law. It is also expressly enacted in St. 1849, c. 191, § 2, that no person, who shall not upon demand first pay the established toll or fare, shall be entitled to be transported over a railroad. The defendants, therefore, were not bound to transport him farther, but were justified in ejecting him from the cars by the use of all lawful and proper means. Angell on Carriers, §§ 525, 609 ; Redfield on Railways, 26, 261 ; Stephen v. Smith, 29 Vt. 160. Nor could he regain his right to ask of the defendants to perform their contract by his offer to pay the fare after his ejection. They were not bound to accept performance after a breach. The right to demand the complete execution of the con- tract by the defendants was defeated by the refusal of the plaintiff to do that which was either a condition precedent or a concurrent consideration on his part, and the non-performance of which ab- solved the defendants of all obligation to fulfil the contract. After being rightfully expelled from the train, he could not again enter the same cars and require the defendants to perform the same con- tract which he had previously broken. The right to refuse to transport the plaintiff farther, and to eject him from the train, would be an idle and useless exercise of legal authority, if the party, who had hitherto refused to perform the contract by paying his fare when duly demanded, could immediately re-enter the cars and claim the fulfilment of the original contract by the defend- ants. Besides, the defendants are not bound to receive passengers at any part of their route, but only at the regular stations or appointed places on the line of the road, established by them at 440 CARRIERS MAT EXPEL FROM THEIR CARRIAGES, ETC. reasonable distances for the proper accommodation of tlie public. Angell on Carriers, § 527 a; Murch v. Concord Railroad, 29 N. H. 39. The plaintiff had, therefore, no right to enter the cars at the place where the train was stopped for the purpose of ejecting him. A person who had committed no breach of contract could not claim any such right ; a fortiori the plaintiff could not. It follows that, on the facts stated in the exceptions, the plaintiff proved no just claim for damages against the defendants, and the instruc- tions given to the jury, under which the verdict was rendered, were clearly erroneous. The court also erred in rejecting the evidence of tljfe regula- tions established by the defendants concerning passengers who refused to pay their fare. The right to establish all needful and proper regulations is vested in the defendants by law. Rev. Sts. c. 39, § 83 ; Commonwealth v. Power, 7 Met. 602. And they should have been permitted to prove them as part of their justification. Upon the subject of the right of a railway company to exclude persons from its grounds or cars, Commonwealth v. Power, 7 Met. 596, is a leading case ; but the opinion of Shaw, C. J., is so fully cited, 1 Redf. Bailw. 95, that it will be un- necessary to repeat it here. In that case, the court say the authority to make rea- sonable and suitable regulations in regard to passengers intending to pass and repass on the company's road, in the passenger cars, and in regard to all other persons making use of the houses and buildings connected with the railway, is incident to such ownership and their employment as passenger carriers ; and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment ; and also such as are necessary and proper to insure the safety and promote the comfort of passengers. And the regulations need not be made in the form of by-laws, to be carried into effect by penalties and prosecutions. " Such by-laws are rather the regulations which a corporation has power to make in respect to the government of its own members, and its corporate offi- cers, or of municipal corporations that exercise, to a limited extent, the powers of government. But the regulations in question are such as an individual who should happen to be the sole owner of the depots and buildings, and of the rail- way cars, would have power to make, in virtue of his ownership of the estate, and of his employment as a carrier of passengers." Tothe same effect also is State V. Overton, 4 Zab. 441, infra, p. 441. The same general doctrine is maintained in Stephen v. Smith, 29 Vt. 160, where the court say that the safety and security of the travelling public, as well as the interest of the railway itself, require that the right and duty to establish and enforce reasonable regulations for the govern- ment of the line, exist and be enforced. And upon that ground it has been held, that the railway company and their servants may not only exclude from their cars those who refiise to pay their fare, or to comply with such reasonable regulations as are made for their government, but they may also rightfully inquire into the PASSENGERS REQUIRED TO GO THROUGH. 441 habits or motives of those who claim the right of passage ; citing Jencks v. Cole- man, 2 Sumner, 221, and Commonwealth v. Power, supra. The court also say the discrimination in fare which the railway company made in that case when tickets were purchased at the several stations, or when paid to the conductor in the cars, which was five cents, is reasonable, as affording proper checks upon its accounting officers, and which they have a right to enforce. While the law re- quires of the company the adoption of such regulations as are necessary for the safety and convenience of passengers in their trains, they have also the right to adopt such reasonable regulations as are necessary for their own security ; and those regulations are to be mutually observed. If they are not complied with by passengers, the company may not only refuse them admission within the' cars, but if they are within they may remove them. In this case, however, a statute of Vermont permitted the company to remove a passenger from the cars only at one of their stations. See also to the same point, State v. Overton, 4 Zab. 434, infra. A Regulation by Railway Passenger Carriers requiring Passengers TO GO through on the Same Train is Valid. State V. Overton, 4 ZdbrisMe, 435. 1854. By paying for a ticket and procuring a passage from one point to another on a railway, the passenger acquires a right to be carried directly from one point to the other without interruption, but not the right to leave the train and resume his seat in another train at any intervening point on the road. The validity of the by-law of a corporation is purely a question of law. Per Green, C. J. Regulations by common carriers of passengers touching the comfort and convenience of travellers, or prescribing rules for their conduct to secure the just rights of the company are unlawful when unreasonable, and because unreasonable, and the reasonableness or unreasonableness is a question for the jury under proper in- structions. OPINION. GrREBN, 0. J. The defendant was convicted in the Oyer and Terminer of Morris, of an assault and battery upon Theodore A. Canfield. A motion having been made for a new trial, upon the ground that the charge of the court was erroneous, and that the verdict was against law and contrary to the evidence, the question was reserved and submitted to this court for its advisory opinion. The material facts ai'e, that on the 18th of March, 1853, Can- field, the prosecutor, procured at the oflSce of the Morris and Essex Railway Co., in Newark, a passenger's ticket to Morristown. He paid for the ticket the regular fare from Newark to Morris- 442 PASSENGERS REQUIRED TO 60 town, and took his seat in the cars. At Millville, one of the way- stations upon the road, he left the train. Before leaving the cars, he received from Van Pelt, the conductor of that train, a conductor's check, upon which was printed the words, " Conductor's check to Morristown." About an hour afterwards, Canfield took the next train of cars which passed the Millville station for Morristown, of which train Overton, the defendant, was conductor. Upon being asked by the conductor for his fare, Canfield tendered in payment the check received by him from Van Pelt, the conductor of the train in which Canfield had first taken his seat : this the conductor refused to accept, and the passenger refusing to pay his fare and declining to leave the cars upon request, he was, without unneces- sary force or violence, and without personal injury, removed by the defendant from the cars at one of the way-stations upon the road before reaching Morristown. The company furnished, at the office in Newark, through tickets to Morristown, and also tickets to Millville and other way-stations upon the route.- The cost of a ticket directly from Newark to Morristown was less than the cost of a ticket to Millville and another ticket thence to Morristown. Some years previous to the transaction, the company had given public notice that conductors' checks were not transferable from one train to another. It was not questioned upon the trial that a railway company are not bound to carry a passenger, unless upon payment or tender of his fare ; that they may, in such case, either refuse to permit him to enter the cars, or having entered them, they may require him to leave them before the termination of the journey ; and that if he refuses to leave, they may remove him at a suitable time and place, using no unnecessary force. The ground upon which the convic- tion was asked was, that in fact the passenger had paid his fare ; that he offered the conductor competent and satisfactory evidence of that fact, and that, consequently, the act of the conductor in re- moving him from the cars was illegal. Had the passenger in fact paid his fare, or was the check given by the conductor of another train evidence of that fact ? He had, it is admitted, paid his fare to Morristown, by the train in which he originally took his passage. Did that authorize him to leave the train at any point upon the road, and to resume his place for his original destination, in a difierent train, at his pleasure? The question is obviously a question of contract between the pas- THROUGH IN SAME TRAIN. 443 senger and the company. By paying for a passage, and procuring a ticket from Newark to Morristown, the passenger acquired the right to be carried directly from one point to the other, without interruption. He acquired no right to be transported from one point to another upon the route, at different times and by different lines of conveyance, until the entire journey was accomplislied. The company engaged to carry the passenger over the entire route for a stipulated price. But it was no part of the contract that they would suffer him to leave the train and to resume his seat in another train, at an intervening point upon the road. Their contract with the passengep would have been executed, if they had pro- ceeded directly to Morristown, without stopping. at any intervening point ; nor could he have complained of a violation of contract, if no other train had passed over the road, in which he might have completed his journey. If the passenger chose voluntarily to leave the train before reaching his destination, he forfeited all rights under his contract. The company did not engage, and were not bound, to carry him in any other train, or at any other time, over the residue of the route. The production of the conductor's ticket in no wise altered the case, or affected the terms of the original contract. It was evidence, indeed, that the holder had paid his passage, and was entitled to be carried to Morristown. But how and when? Why, clearly according to the terms of his original contract. It was evidence that he had paid his fare to Morristown, and was entitled to be carried there by the train in which he had originally taken his pas- sage ; for that purpose alone it was given to him ; that train he had left voluntarily, without the knowledge or assent of the conductor, and without giving up his check. The check was, therefore, value- less ; the right, of which it was the evidence, the passenger had voluntarily relinquished. This is the clear legal effect of the contract between the company and the passenger, in the absence of any evidence to the contrary. If the passenger insists that under his contract, by virtue of general usage, or the custom upon the road, he is entitled to be carried at his pleasure either by one or by different trains, and at different times, over various portions of his journey, the burden of proof was upon the state. No such usage was established, although some evidence was offered upon the trial, for the purpose of proving it. Tlie defendant offered evidence to show that some years previous 444 PASSENGERS REQUIRED TO GO to the transaction, the company had adopted a rule, and given pub- lic notice, that a conductor's check was not transferable from one train to another. This, properly considered, is a simple warning to passengers, that they would be carried strictly accoVding to the terms of their contract. Even if a previous custom had been proved (which it was not) for passengers to be carried over different parts of their journey by different trains, it was a mere warning that in the future the custom would not prevail. Upon the trial this action of the company was presented to the court, and by them submitted to the jury, as if it were a by-law or regulation of the company affecting the rights of passengers, upon the reasonable- ness and consequent validity of which the jury were to decide. The court clearly intimated its opinion, that the regulation of the company was valid, but under the influence of the ruling of another tribunal submitted the .validity of the regulation as a matter of fact to the jury. In this the court erred. Here was no evidence of any by-law, or of any regulation made by the company, affecting the rights of passengers upon the reasonableness or validity of which either court or jury were called upon to decide. The right of the pas- senger rested upon his contract. The notice given by the company was in strict conformity with his rights under the contract. Up- on the evidence in the cause, if no proof had been offered of the notice given by the company, that conductors' checks were not transferable, the defendant would have been entitled to a verdict. Proof of that notice certainly placed him in no worse position. The company have an unquestionable right, under their charter, independent of any by-law or regulation, to charge different rates by different trains, or a higher price for travelling over the road as a way-passenger, by different journeys, than for a through pas- senger. This was in reality all that was involved in the evidence of the action by the company, as proved upon the trial. The case does not fall within the operation of the principle, by which it was held to be controlled. Assuming at the bar, as was done upon the trial, that the guilt or innocence of the defendant depended upon the validity of a regulation made by the company, affecting the rights of passengers, the question was elaborately argued whether the validity of such regulation can in any case be submitted as a question of fact to be decided by a jury, and the broad principle was assumed that the THROUGH IN SAME TRAIN. 445 Talidity of every regulation made by a railroad company, regu- lating the concerns and affecting the rights of the road, is a ques- tion of law, tp be decided by the court, and never can be submitted to a jury ; that the company is bound to make regulations for the comfort and convenience of passengers ; that the power is regu- lated by their charter ; that what is lawful is reasonable ; and that, therefore, every regulation is reasonable that is not unlawful. The validity of the by-law of a corporation is purely a question of law. Whether the by-law be in conflict with the law or with the charter of the company, or be in a legal sense unreasonable, and therefore unlawful, is a question for the court and not for the jury. Commonwealth v. Worcester, 3 Pickering, 462 ; Paxon v. Sweat, 1 Green, 196 ; Ang. and Ames on Corps. 357. But the by-laws of a private corporation bind the members only by virtue of their assent, and do not affect third persons. All regulations of a company affecting its business, which do not operate upon third persons, nor in any way affect their rights, are properly denomi- nated by-laws of the company, and may come within the operation of the principle. Within this limit it is the peculiar and exclusive office of the court to decide upon the validity of the regulation. But there is another class of regulations, made by corporations as well as by individuals, who are common carriers of passengers, whicli operate upon and affect the rights of others which are not, properly speaking, by-laws of the corporation, and which do not fall within the operation of the principle. Of this character are all regulations touching the comfort and convenience of travellers, or prescribing rules for their conduct to secure the just rights of the company. It is not perceivable of this class of regulations, that they are never unreasonable unless they are unlawful. On the contrary, they are unlawful because they are unreasonable, or an unnecessary infringement of the rights and liberty of the pas- sengers. The reasonableness and validity of a regulation, that passengers by railroad or steamboat should exhibit their tickets when reasonably requested, that they should not smoke or indulge in other filthy or offensive practices ; that male passengers should not enter a car or a saloon, especially appropriated to females, might be conceded, and the right of the company to enforce them, even by excluding, in case of necessity, the offending passenger from the train. But it would scarcely be contended that a regu- lation requiring passengers continually, or as often as the caprice 446 PASSENGERS REQUIRED TO GO THROUGH. or malice of a conductor might require it, to exhibit their tickets ; forbidding them to speak, or change their seats from one part of a car or saloon to another, when the riglit of no other passenger was affected, was a regulation lawful in itself, or which might safely be enforced. This latter class of regulations are no more in violation of the charter of the company, or of any particular statute, than the former. But they would be held unlawful be- cause they are unreasonable, and an unnecessary infringement of the rights and liberty of travellers. The distinction between such regulations as are necessary, and conducive to the comfort and convenience of travellers, or to protect the rights of the company, must from its very nature be a question of fact rather than of law. The reasonableness and unreasonableness of the regulation is 'prop- erly for the consideration, not of the court, but of the jury. In Jencks v. Coleman, 2 Sumner, 221, the action was brought to recover damages against the defendant, for refusing to receive the plaintiff as a passenger on board of a steamboat, of which the defendant was commander. The defence was, that an agreement had been entered into by the proprietors of the boat, with a line of stages, to carry their passengers from and to Providence and Bos- ton. That the plaintiff was the agent of another line of stages, and that his object in going on board of the boat was to procure passengers, and thus interfere with the arrangement made by the steamboat proprietors. Justice Story, in his charge to the jury, said, " The true question is, whether the contract is reasonable and proper in itself, and entered into with good faith, and not for the purpose of an oppressive monopoly. If the jury find the con- tract to be reasonable and proper in itself, and riot oppressive, and they believe the purpose of Jencks in going on board was to accom- plish the objects of his agency, and in violation of the reasonable regulations of the steamboat proprietors, then their verdict ought to be for the defendant, otherwise to be for the plaintiff." If the question whether a contract entered into by common carriers be reasonable and proper, and one which may be enforced, even by excluding passengers from the conveyance, be a question of fact, to be decided by a jury, there is surely no violation of principle in submitting to their decision the necessity or propriety, and conse- quent validity, of a regulation affecting the comfort or safety of passengers. But there was in reality no such question involved in the present REQUIRING PASSENGERS TO EXHIBIT THEIR TICKETS, ETC. 447 case. The right to transfer conductors' checks resulted upon a contract which the company had a clear and unquestionable legal right to enforce. The question was improperly submitted to the jury, and the verdict is against law, and contrary to the evi- dence. The Oyer and Terminer should be furnished with the advisory opinion of the court, that the verdict ought to be set aside, and a new trial granted. When one purchases a ticket, entitling him by the rules of the company regu- lating the tariff of fares to a continuous passage through, but not to stop at an intermediate station and complete his passage in another train, and avails himself of the reduction in price allowed to such passengers, and at the time of purchas- ing the ticket is ignorant of the rules, it has been made a question whether he ought to be affected by them. In Cheney v. Boston & Maine Railw. Co., 11 Met. 121, 123, the court say, " This might very properly be insisted upon in his behalf, if it were attempted to charge him with any liability created by such rules, especially if it were attempted to enforce any claim for damages by reason of them. " The question as to the right of the plaintiff to be transported as a passenger does not depend upon his knowledge, at the time of the purchase of his ticket, of the difference of the price to be paid for a passage through the whole distance by one train, or that of a passage by different trains. The plaintiff might have in- quired and informed himself as to that. If he did not, he took the mode of conveyance, the price of the ticket, and the superscription thereon, secured to him under the rules and regulations of the company.'' And this is unquestion- ably the true construction. If one is ignorant of the regulations of the company affecting the duty imposed by the issue of a particular ticket, he is bound to inquire or in some way inform himself on that point. IV. Requiring Passengers to exhibit their Tickets on Pain of Expulsion prom the Cars. Hihbard v. N. T. ^ Erie Railway Co., 15 New York Reports, 455. 1857. A regulation of a railway company requiring passengers to exhibit their tickets, when requested to do so by the conductor, and in case of refusal authorizing their re- moval from the cars, is a reasonable and proper regulation, and binding upon the passengers. It seems that a passenger having once forfeited his right to proceed further in the cars by refusing to show his ticket, it is for the company or its agents to say whether he shall be retained upon subsequently showing it. Per Denio, C. J. If his expulsion, after such subsequent showing of his ticket, is unlawful, it seems 448 EEQUIEINfi PAS8ENGEES TO EXHIBIT THEIR TICKETS the railway company would not be liable, but only those who committed the tres- pass. Per Comstoch, J. [Sed qucere. ] If the servants of a railway company, in removing a passenger from the cars, wan- tonly use unnecessary force, they and not the company are responsible for the conse- quences. Per Brown, J. [Quare.] OPINIONS. Denio, C. J. In my opinion the learned judge before whom this case was tried, committed two capital errors : First, he refused to charge the jury that the plaintiff was bound to conform to the rules and regulations of the company, by showing his ticket to the conductor when requested so to do. As a substitute for this di- rection, he clia'rged that a passenger was bound to exhibit his ticket when reasonably requested ; and, he added, that if the conductor knew the plaintiff had paid his fare, he had no right to expel him from the cars, although he refused to show his ticket. The defend- ant was. entitled to the instruction asked for, without qualification. It was proved that the defendant's company had established a regulation by which passengers were required to exhibit their tickets when requested to do so by the conductor, and that in case of refusal they might be removed from the cars. If this was a rea- sonable regulation, the plaintiff was bound to submit to it, or he forfeited his right to be carried any further on the road. In my opinion the rule was reasonable and proper, and in no way oppres- sive or vexatious. In the first place, it was easy to be complied with. The railroad ticket is a small slip of paper or pasteboard, which may be conveniently carried about the person ; and it in- volves no conceivable trouble for the passenger, when called upon at his seat by the conductor, to exhibit it to him. Then no one can question but that this or some similar arrangement is abso- lutely necessary for the company, unless they are willing to transport passengers free. A train of railroad-cars frequently contains several hundred passengers, a portion of them constantly changing as the train passes stations where persons are received and dis- charged. The tickets which are given as evidence of the payment of fare are of as many different kinds as there are stopping places on the road ; each being for the distance or to the place for which the passenger has paid his fare. The conductor must necessarily be a stranger to all or a large portion of his passengers. Unless he is allowed a sight of these evidences of the payment of fare, whenever he may require it, he is exposed to the chance of car- ON PAIN OF EXPULSION PROM THE CARS. 449 ryiug the holder of them beyond the place to which he has paid, or of carrying persons who have not paid at all. If the conductor is not allowed to ascertain whether a passenger who has obtained a ticket still keeps it, there is nothing to prevent its being given to another passenger, who has not procured one, and thus serving as a passport for several passengers. But it is argued that if the ticket had been once shown to a conductor, the passenger cannot reasonably be required to exhibit it a second time. If the duty of showing it were at all difficult or arduous, it might be a question whether the company would not be bound to devise some easier arrangement ; or, if it was possible that the memory and other faculties of persons employed as conductors could be so cultivated that they could know and remember the persons of several hundi-ed people, upon seeing them for the first time, and could, moreover, retain the recollection of the terms of the several tickets held by them upon their being once shown, it might be considered unrea- sonable to require a second exhibition of a ticket in any case. As this degree of perfection is unattainable in the present condition of mankind, I am of the opinion that it was lawful for this railroad company to require that persons engaging passage in its cars should show their tickets whenever required by the company's ser- vants intrusted with that duty, upon pain of being left to travel the remaining distance in some other way in case of refusal. I do not think it was correct for the judge to leave it to the jury, as he did, whether the request to show the ticket a second time was reasonable. The regulation required that it should be shown, when requested by the conductor, and the question for the court to determine was whether that regulation was lawful. 8 Co. 126 h. The judge would not pass upon that question, but submitted to the jury whether it was reasonable to require a conformity to it on the part of the plaintiff. There was no evidence tending to show that the conductor wished to vex the plaintiff, or put him to inconvenience. After the plaintiff had purchased his ticket and taken his seat, and had once exhibited the ticket, the train had stopped at a station (Wellsville), and had again started on its course. Then the conductor desired to see the ticket and was re- fused. He may not have been able to remember, if he knew, that the plaintiff had paid fare and had a ticket, whether it was for Wellsville or for a place beyond that station ; or he may not have' remembered his person so as to be able to determine whether he 450 EEQUIEING PASSENGERS TO EXHIBIT THEIR TICKETS had got on at Wellsville or had come from Hornellsville, or some place farther west. True, Mr. Crandall informed the conductor that the plahitiff's fare was paid and that he had a ticket, and Mr. Crandall may have been known to the conductor to be a truth- ful person, or he may have been aii utter stranger. The company, however, had a test far more convenient to all concerned than the taking of testimony, to wit, the exhibition of their own ticket, which the plaintiff had in his pocket, but which he pertinaciously refused to show. It is true, the judge put it to the jury to say whether the con- ductor knew that the plaintiff had paid his fare. Ordinarily, the law would hold that what a person knows at one time, he should be taken to know and remember at a short distance of time after- wards. The conductor had seen the plaintiff's ticket, and had some opportunity of studying its contents ; and under this charge the jury would necessarily find for the plaintiff. The judge made no account of the peculiarity of the circumstances ; of the number of persons the conductor would be obliged, in order to protect the company, under this rule, to recognize and remember ; of the divers kinds of tickets which must be used ; and of the haste with which this business must necessarily be done. It was precisely in consideration of these circumstances that the rule was made, and that it was reasonable, and therefore lawful. If the judge had submitted it to the jury, whether the conductor knew and remem- bered that the plaintiff was travelling under a ticket which ex- tended to the place where they then were, and whether his conduct in requiring a second sight of the ticket was caused by a desire to harass the plaintiff, the only objection, so far as I can now see, would have been that there was not the slightest evidence to raise such a question. But this was not the point submitted. It was whether he knew that the plaintiff had paid ; and as he had shortly before seen the authentic evidence of such payment, the jury would necessarily find, as they did, that he had such knowledge. The other error which I have supposed to exist in the charge is, that the judge held, in effect, that if the plaintiff offered to show his ticket, or did show it, after the cars had been stopped in order to put him out for refusing to show it, the conductor should not have persisted in expelling him. The request assumed that the jury might find that the conductor was right up to that time ; and the point decided was that, though this were so, the plaintiff saved ON PAIN OF EXPULSION FROM THE CABS. 451 the forfeiture by this late compliance with the company's rule. This question, like the other, requires a consideration of the pecu- liar character of this new mode of transporting persons. Railroad trains are run according to a scheme in which the time required in passing from one point to another, and the time required for the necessary stoppages, is accurately calculated. Any derangement, or departure from the time fixed is exceedingly hazardous to the safety of the company's property and to the lives of the passengers and the persons employed in running the train. The most horrible calamities have often been the result of such derangements. A train of railroad cars cannot be stopped and again set in motion so as to attain its former speed, without considerable delay ; and if one passenger, by his unjustifiable humor, can cause the cars to stop, another may do the same thing, and the utmost irregularity may be brought about. The rule, therefore, was in my judgment plainly reasonable which imposed a forfeiture of his right to pro- ceed further in the cars upon a person who should refuse to show his ticket to a conductor when requested. Having forfeited his right by his improper conduct, it was for the company or its agents to say whether he should be retained after having occasioned the inconvenience of a stoppage by his pertinacity. There are some other questions in the case which I have not thought it necessary to. examine, as those which I have men- tioned are necessarily fatal to the judgment. I am in favor of a reversal. Brown, J. The instructions which the judge, upon the trial of this action, gave to the jury, and also those which he refused to give when requested by the counsel for the defendant, involve an inquiry into the rights and duties of the company under the con- tract which is the basis of the plaintiff's claim. The defendant is a carrier of passengers for hire by railroad. " It is bound to give all reasonable facilities for the reception and comfort of passengers, and to use all precautions, as far as human care and foresight will go, for their safety upon the road, and is answerable for the smallest negligence in itself or its servants." 2 Kent, Com. 601. Transportation by railway is one of the highest efforts of science and art, and imposes upon those employed in it a degree of care, circumspection, and diligence unknown to other modes of conveyance. It implies also a degree of authority in the direction and management of the trains, in their progress 462 EEQUIRING PASSENGERS TO EXHIBIT THEIR TICKETS over the road, and in regard to the time and manner in which pas- sengers shall enter and depart from, and the conditions upon which they are to remain within the cars, little less than absolute. Such regulations as will enable a railroad corporation to execute its diflScult and responsible duties, insure the comfort and safety of its passengers, and protect itself from wrong and imposition, it . has an undoubted right to prescribe, provided such regulations are reasonable and just. It has a right to require that passengers shall preserve order ; that they shall be seated and not stand up in the passage-way or upon the platforms ; and that they shall abstain from any act which tends to impede or interrupt the conductors and managers in the transaction of their necessary business. A railroad company has also a right to prescribe how and at what places the passengers shall pay their fare or passage money, and what shall be the evidence to the conductor that such money has been paid and of the passenger's right to ride upon the train. It may also require passengers to accept tickets temporarily ; to ex- hibit them from time to time upon the request and for the informa- tion of the conductors ; and, finally, to redeliver such tickets, upon request, before leaving the cars. Some of these regulations are necessary to insure the safety of the passengers themselves, others to insure the payment of the regular fare and to protect the car- rier from imposition. They may be enforced by such reasonable means as the company may have at its command ; for, without some measure of power to give them effect, such regulations 'would be of little avail. Commonwealth v. Power, 7 Met. 596; Hall V. Power, 12 id. 482. By the rules and regulations of the New York and Brie Railroad Company every passenger is required to exhibit his ticket, if he has one, to the conductor, upon request, or, if he has no ticket, to pay his fare and accept one. And upon refusal to comply with the regulation, it is made the duty of the conductor to remove such delinquent passenger from the cars. The regulation, it appears to me, is not unreasonable, for the company is responsible for its un- just application, or for enforcing it with undue severity. No well- disposed passenger will refuse to accept a ticket and exhibit it as often as the conductor may reasonably desire it ; and it is quite usual to place the ticket in some conspicuous place about the per- son of the passenger, so as to supersede the necessity of repeated inquiries. If one passenger may at his pleasure contemn the reg- ON PAIN OP EXPULSION FROM THE CARS, 453 ulations of the company and put the conductors at defiance, all may ; and such a result would put it out of its power to protect itself from injury, and to fulfil its duties to those who committed themselves to its charge. The regulation referred to assumes that an individual within the cars, who refuses, upon request, to ex- hibit to the conductor the customary evidence of his right to a seat, or to pay for and accept such evidence, is an intruder and a wrong-doer, and has no legal right to remain where he is. Such, I think, should be the legal, as it certainly is the natural presump- tion. It is, therefore, quite right that he should be requested to leave the cars when he manifestly has no right to remain. If he refuses, the conductor may then employ so much force as may be necessary to effect his removal, at the same time using no violence and doing no unnecessary injury. If, however, the passenger refuses to comply, and resists, and injury happens, it is an injury for which the company is not responsible, for it is a result attrib- utable to his own wrongful conduct. The counsel for the defendant requested the judge to charge the jury, " that when the plaintiff paid his fare and took his ticket from the ticket-office at Hornellsville, for Scio, he agreed to con- form to the rules and regulations of the company by showing his ticket to the conductor when requested so to do." The judge de- clined so to charge, and the defendant excepted. In this I think he erred. It appears to me the proposition embodied in the re- quest is too plain to admit of a doubt. The regulation was a necessary and a reasonable one, and unless railroad passengers are above all control they are bound to observe reasonable and proper regulations while- within the cars, claiming the services and the care and foresight of the company. The refusal to instruct the jury as requested, coupled with what the judge said to them afterwards, left them to infer that if the conductor knew the fare had been paid, the plaintiff was justified in refusing to show the ticket. The judge then charged " that the ticket being the or- dinary evidence of the payment of fare, a passenger is bound to exhibit his ticket when reasonably requested to do so ; but if the conductor knew that the plaintiff had paid his fare he had no right to expel him from the cars, although he refused to exhibit his ticket." To this also the defendant excepted. This part of the charge imports that, if the conductor knew the plaintiff had paid his fare, the latter was under no obligation to show his ticket, and 454 EEQOIBING PASSENGERS TO EXHIBIT THEIR TICKETS that the sole office of the ticket is as evidence that the fare has been paid. In this particular I also think the judge erred. It was no justification to the plaintiff, though the conductor did know- that the fare was paid. The ticket does not bear the name of the passenger to whom it is issued. It is usually inscribed with the day when and the office from whence it is issued, and the place to which the passenger proposes to travel. But it is as good in the hands of a stranger as it is in the hands of the person who paid for and took it from the office, and the conductor has a right to see it from time to time, that he may be assured it is not made the instrument of carrying two passengers in place of one. If the rule laid down by the court is correct, and the conductor has only a right to see the ticket when he has no knowledge that the fare has been paid, there is nothing to prevent a passenger, who has paid his fare with the knowledge of the conductor, from passing his ticket over to a stranger to be used as evidence that he also has paid his fare and acquired a right to be carried in the cars. The ticket is the property of the railroad company, and is a part of the means by which it conducts its business. It is delivered to the passenger to be held by him temporarily, for a special purpose, and who, to that extent, acquires a special property in it. When the journey is ended, or about to end, it is to be redelivered to the conductor. It serves a threefold purpose : it is evidence in the passenger's hands that he has paid his fare and has a right within the cars ; it insures the payment of the passage money by all who take seats, and when it is redelivered to the company it becomes a voucher in its hands, against the office or agent -who issued it, in the adjustment of its accounts. To say that the passenger is bound to exhibit the ticket when reasonably requested, but if the conductor knew the passenger of whom the request is made had paid his fare, he had no right to enforce his request, is a contra- diction in terms which could do nothing less than mislead the jury from the true question before them. If I am right in the opinion that the regulation for the exhibition of the passenger's ticket is a necessary and reasonable regulation, and one which may be enforced by removing the refractory passen- ger from the cars, then the court also erred in the instructions given to the jury for estimating the damages. The counsel for the defendant " requested the justice to charge that the defendant was not liable for the injuries which the plaintiff may have sus- ON PAIN OF EXPULSION FROM THE CAHS. 455 tained in consequence of the assault in question, by their agents and servants." The justice declined, and told the jury " that if in pursuance of the defendant's orders and instructions, the plaintiff was wrongfully ejected from the cars, and was wantonly treated by the conductor or agents of the defendant in so ejecting him, the defendant is liable for the injuries resulting to the plaintiff from such ejection." The jury were also told that they " might award damages in their discretion, as a compensation for the personal ill treatment to which the plaintiff had been subjected in ejecting him from the cars." The defendant excepted to the refusal of the court to charge as requested, and also to the instruction given them in respect to the measure of damages. The object of the request was, that the court should discriminate between those acts of the company's agents, done in the execution of its directions, and those done in excess of its instructions, and without authority or approbation. This, I think, should have been done. The plaintiff may have been injured by the use of unnecessary force to effect what the company had a right to do. The conductor, and those who aided him, are not the company. Tliey are its agents and servants, and whatever tortious act they commit by its direction, it is responsible for and no other. This is upon the principle that what one does by another he does by himself. For injuries re- sulting from the carelessness of the servant in the performance of his master's business, the latter is liable. But for the wilful acts of the servant the master is not responsible, because such wilful acts are a departure from the master's business. Wright v. Wil- cox, 19 Wend. 343, and the cases there referred to. In removing a passenger from the cars who refuses to pay his fare, or exhibit his ticket, the servants of the company are limited to the use of just so much force as may effect that object, and no more. They are not to resort to force at all, until , it becomes absolutely necessary, by the refusal of the passenger to depart upon request ; and when tliey do resort to it, they are to use no more than becomes sufficient, and they are to do no unnecessary injury to the party. This is the extent of their authority ; and if they exceed it, they, and not the company, are responsible for the consequences. The defendant had a right, I think, upon the trial, to have the attention of the jury directed to this distinction ; for it 456 EEQUIRING PASSENGERS TO EXHIBIT THEIE TICKETS is impossible to say, from an examination of the bill of exceptions, upon what ground so large an amount of damages was rendered. There should be a new trial, with costs to abide the event. CoMSTOCK, J. If the plaintiff had forfeited his right to be car- ried as a passenger, by refusing to show his ticket when requested to do so by the conductor, and if the right was not restored by subsequently complying, then his expulsion was lawful, and he has nothing to complain of, unless greater force and violence were used than his own resistance rendered necessary. The verdict of the jury was for a wrongful expulsion and not for an excess of force. If, on the other hand, the conductor had no right to eject the plaintiff from the train after he had complied with the request and produced the ticket, then I do not see on what principle the defendant can be made liable for the wrong. The regulation, and instructions to the conductor, as we have said, were lawful, and they did not, in their terms or construction, profess to justify the trespass and eviction. Tbe result is, that the wrong was done without any authority ; and, therefore, that those who actually did it are alone answerable. The judge was requested to charge the jury that the plaintiff, if entitled to recover at all, could only recover such damages as he bad sustained in consequence of the defendant's not performing its contract to carry him to Scio ; to wit, damages to his business. Tbe judge refused so to charge, but did charge that the plaintiff could recover, if at all, for per- sonal ill treatment ; in other words, for the unlawful assault and battery. It seems to me that the request was essentially right, and that the refusal and charge were erroneous. The request was made, and the charge given, upon the theory that the plaintiff's expulsion was unlawful. But if unlawful, then the company had not authorized it. There was, no doubt, an implied contract to carry the plaintiff to the place for which he had bouglit his ticket, and that contract was broken. The defendant being bound to carry him to Scio, might be liable for a breach of the engagement, even if the plaintiff had been expelled by another passenger. The defendant was bound even to prevent an unlawful expulsion and to carry the passenger through. But this is a liability entirely different from the one enforced at the trial. The conductor, ac- cording to the plaintiff's own showing, without authority from his ON PAIN OP EXPULSION FROM THE CARS. 457 principal, assaulted and expelled him from the train ; and, under the charge given to them, the jury rendered their verdict for the personal wrong and outrage. This, I think, is contrary to the law of the case. The conductor, it is true, testified that he acted " in pursuance of instructions from the defendant." By this I understand merely that he pretended to act, and justified his conduct, under the regu- lation and instructions which have been referred to. But if he mistook the authority conferred upon him, both when he committed the trespass and when he was examined as a witness, it cannot alter the law, or change the rights of the parties. His own mis- take, as to the extent of his powers, cannot make the railroad com- pany liable for acts not in fact authorized. The judge also charged that a passenger is bound to exhibit his ticket when reasonably requested to do so ; but if the conductor knew that the plaintiff had paid his fare, he had no right to expel him from the cars, although he refused to exhibit his ticket. It had been proved that the request was made just after the train had left a station, and while the conductor was going through and examining the tickets of passengers. The plaintiff, when called upon, refused to exhibit his ticket, saying that he had once shown it, referring to some previous occasion after he had taken his seat. It will be. seen, therefore, that the request was made upon a proper occasion, in the usual round of the conductor's duties ; and no suggestion was made on the trial that such request was dictated by any mere caprice or whim, or that it was fraudulently made in order to get a pretext for expelling the plaintiff from the train. Now, the regulation of the company required the plaintiff on this occasion to show his ticket, and it contained no qualification de- pending on the previous knowledge of the conductor that the fare had been paid. It is, however, plausibly urged that, as the object of exhibiting a ticket is to show the conductor that the fare has been paid, he has no right to enforce the regulation if he already knows the fact. Still, I am of opinion that this is not a sound view of the question. The difficulty is in the nature of the inquiry, which a jury must always be allowed to entertain, if we adopt this suggestion. How, it may be asked, is it to be proved that the conductor knew the passenger had paid his fare, if he refuses to exhibit the ordinary evidence of the fact ? It can only be proved by showing that the ticket had already been shown to the conductor 458 PASSENGER CABEIER8 RESPONSIBLE FOE on some former occasion, or that the passenger himself, or some third person, informed him that the fare had been paid. I know of no other mode of getting at the fact ; but the moment we admit any or all of these modes of inquiry, the regulation itself becomes entirely worthless. The conductor clearly is not bound to take the word of a passenger who refuses to comply with the regulation, nor the word of a third person ; and still more clearly it will not do to say that one exhibition of the ticket must suffice in all cases, or in any case. The rule is a reasonable one, that the conductor may ask to see the tickets of passengers after leaving each station where new passengers are taken up. If a passenger refuses to comply with such a rule, and is expelled, the law should not allow him to allege and try the fact of the conductor's knowledge of the payment of the fare. Without examining other questions, I am of opinion that the judgment should be reversed and a new trial granted. All the other judges, except Bowen, J., who dissented, con- curred in this result ; the court, however, declining to pass upon the question last discussed by Denio, C. J., or that first discussed by Comstock, J. Judgment reversed and new trial ordered. In State v. Thompson, 20 N". H. 250, it was held that a general regulation, established by a railway company, that the conductors on the road should take from the passengers their tickets as soon as practicable after leaving the stations where they entered the cars, or require them to pay their fares if they have no tickets, and that if any one did not give up his ticket or pay his fare, he should be put out of the cars as soon as convenient, was not a reasonable and proper one, unless a check or some evidence of the payment of fare was given to the passenger in exchange for his ticket or fare. V. The Effect op Coupon Tickets for Passenger Transporta- tion. Successive Passenger Carriers responsible foe Safe Delivery to the Next Carrier. Knight v. P. S. ^ P. Railway, 8 Law Register^ N. S. 654 ; s. c. 57 Maine Reports, 202. 1869. Coupon tickets issued by one of two or more connected roads, forming a continuous line of passenger transportation, should be regarded in aU respects the same as dis- SAFE DELIVERY TO NEXT CABRIER. 459 tinct passenger tickets by the several roads, and sold by their own employ^ at their own offices. Passenger carriers by railway are " bound to use the best precautions in known prac- tical use for securing the safety and convenience of passengers." [By Chief Justice Erie, in Ford v. L. & S. "W. Kailw., 2 F. & F. 732.] Where passenger carriers convey by steam upon railways, " public policy and safety require that they be held to the greatest possible care and diligence." [By Mr. Justice Grier, in Phil. & Reading Railway v. Derby, 14 How. 486.] Where passenger transportation is undertaken, across successive lines, and one ticket, consisting of separate coupons for each line, is given for an entire fare throughout the line, each preceding line will be held responsible for the safe delivery of pas- sengers to each succeeding one. Excess of damages, to form the basis of setting aside the verdict of the jury, must go very much beyond what the court might deem reasonable and proper. So, too, where there is clearly evidence of negligence on the part of the defendants, which it becomes the duty of the court to submit to the jury, and upon which they are properly left at liberty to find either for or against them, it is not competent for the court to set aside the verdict upon the ground of misconception of the evidence by the jury, whatever view the court might have entertained in regard to the weight of evidence had the question been proper for their determination in the first instance. The facts in the case sufficiently appear from tlie opinion of the court by — Appleton, C. J. This was an action on the case against the defendants for negligence. It appeared in evidence from the plaintiff, that she, on the 10th of August, 1866, purchased at Lawrence, Mass., a through ticket from that place to Belfast, in this state, for which she paid $4 ; that the ticket so purchased was on one piece of paper, but creased for three different tickets ; that one part of the ticket was taken by the conductor on the Boston & Maine Railroad, soon after she entered the cars at Lawrence ; that a second part was taken at South Berwick by the conductor of the defendant corporation, and the third part on board the steamer, between Portland and Belfast, that she arrived about 11 o'clock at night at the defend- ants' depot at Portland, where the cars stopped ; that she left the cars there to walk to the steamboat regulator, which lay at the end of a wharf contiguous ; that the way to the steamboat was dark ; that she proceeded, in company with other passengers from the depot to the place of embarkation, without accident, until within, as she judged, from ten to fifteen feet of the edge of the wharf, when, as she was walking along a level surface, without warning of any danger, she stepped her foot into a hole or open- 460 PASSENGER CAKRIBRS RESPONSIBLE FOR ing in the planking of the wharf, over which she was passing, and fell backward and fainted ; that it was found, on examination, that the small bone of her right leg had been fractured and her right ankle sprained and lamed ; and that her back and side were wrenched and lamed ; that it was a considerable distance from where the passengers left the cars to the place where they go on board the boat ; that she heard no directions nor instructions by any officer of the railroad or steamboat about getting from the cars to the boat, nor saw any one to guide her, and that no one accompanied her with a light; and that she had been over this route twice before. It was admitted that an arrangement for the sale of through tickets and division of the price existed between the steamboat and railroad companies over which the plaintiff passed, and tliat the baggage of passengers was checked through ; and that the wharf from which the steamboat sailed, and on which the plaintiff was when injured, was the property of the defendant cor- poration. It was in evidence that the distance from the place where the cars stopped in the depot, at Portland, to the steamboat, was about forty rods, and that the defendants had a side track running from their main track, near the depot, to within six or eight feet of the steamboat ; that, until within four or five years, passenger cars had been run down this side track to the steamboat ; but that since that time, the use of the side track for passenger cars had been discontinued ; and that it was still and had constantly been used for running freight and baggage cars to the steamboat. The defendants introduced evidence tending to show that, at the entrance to the steamboat wharf was a guide-board, or« sign, indicating the way to the steamboat. There was evidence introduced tending to show that the wharf was in good condition, and that it was amply lighted, and evidence to the contrary. 1. The through tickets in the form of coupons, purchased at Lawrence, entitled the plaintiff to pass over the defendants' road. They are to be regarded as distinct tickets for each road, sold by the first company as agents for the other companies. The rights and liabilities of the parties are the same as if the purchase had been made of the defendants at their station. Schopman v. Boston & Worcester Eailroad Co., 9 Gush. 24; Sprague v. Smith, 29 Ver- SAFE DELIVERY TO NEXT CARRIER. 461 mont, 421 ; Hood v. N. Y. & N. H. Eailroad Co., 22 Conn. 1 ; 2 Eedfield on Railroads, § 185. But railroads may so issue their tickets and so conduct themselves as to have the purchasers under- stand that they undertake for the whole route, in which case they will be held responsible to that extent. Quimby v. Vanderbilt, 17 N. Y., A. 306 ; Blake v. G. W. Railroad Co., 7 Hurlst. & N. 987. 2. The degree of care and caution required of the carriers of passengers was correctly stated by the presiding justice and in ac- cordance with the authorities. The care to be used depends some- what upon the value and importance of what is to be carried. The greater the value to be transported, the greater^the need of care and caution on the part of the carrier. If the business is of the highest moment, then the skill, care, and diligence should be in proportion thereto. In Ford v. London & S. W. Railway Co., 2 P. & ¥. 732, Mr. Chief Justice jEVfe uses the following language : " The action is grounded on negligence. The railway company is bound to take reasonable care ; to use the best precautions in known practical use for securing the safety and convenience of pas- sengers." In Philadelphia and Reading Railroad Co. v.. Derby, 14 Howard, 486, Mr. Justice Grrier remarks as follows: "When carriers undertake to convey passengers by the powerful and dan- gerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence." The question came before this court in Edwards v. Lord, 49 Maine, 279, and the instructions given in this case will be found in accordance with the views of the court as there expressed. 8. The depot and the grounds around the depot belonging to the defendant corporation, and used in connection therewith, should be in safe condition for those who, in the course of travel, are obliged to pass over them. The defendants own the wharf. It is in their use for the purpose of their business as carriers. The cars con- taining the baggage for the steamboat, with which the defendant corporation is connected, pass over it. The cars, with passengers for the steamboat, formerly passed over it, though they are now discontinued. The wharf is used by the railroad, and in connec- tion with the boat. The passengers for the boat pass over it on their way to the boat. It is the way provided. It is the way pas- sengers in the cars are directed to take. The train arrives in the evening. Passengers from the cars to the boat pass rapidly over the intervening distance. The wharf should be lighted. The ser- 462 PASSENGER CARRIERS RESPONSIBLE FOR vants of the defendant corporation should be in readiness to point out the way. The wharf should be safe. The defendants should be justly held responsible for any neglect of their servants, or for any deficiencies in the wharf, which, with due care, might be avoided. If the defendants had carried the plaintiff over the wharf, as heretofore, in their cars, and she had been injured in conse- quence of the neglect of the defendants, she would have been entitled to recover. Her rights are none the less because she walks over the wharf to reach the steamboat than if she had been borne over it, if, on the way, she is injured through the negligence of the defendants by leaving the wharf in an unsafe and dangerous condition. The defendants are not released from liability because, for their convenience, she used her own limbs when she might be entitled to the use of their cars. Their liability did not cease the moment the cars reached the depot. It continued equally as if at the depot while she was on her way over the defend- ants' wharf, and, by their direction, to the steamboat, and until, in the ordinary course of her passage, she should reach the point where the liability of the steamboat company commences. The passage contracted for was from Lawrence to Belfast. The plaintiff was in itinere from the point of departure to the destined point of arrival. The defendants must, at any rate, be deemed liable from tlie place where they received the passenger to the place where she was to be transferred to the next agent in the course of trans- mission to the place of her destination. These views seem to be in accordance with the general princi- ples of law established in similar cases. The proprietors of a rail- road, as passenger carriers, are bound to the most exact care and diligence, not only in the management of their trains and cars, but also in the structure and care of their track, and in all subsidiary arrangements necessary to the safety of passengers. McBlroy v. The Nashua & Lowell Railroad Co., 4 Gush. 400. Assuredly, a safe passage-way to and from the cars is a subsidiary arrangement which passengers have a right to require to be safe. The wharf was this passage-way for those going to the boat from the cars, or coming to the cars from the boat. A railway company, for the more convenient access of passengers between the two plat- forms of a station, erected across the line a wooden bridge, which the jury found to be dangerous ; held, that the company were liable for the death of the passenger through the faulty construction SAFE DELIVERY TO NEXT OAKEIER. 463 of this bridge, although there was a safer one about one hundred yards further round, which the deceased might have used. Long- more V. G. W. Kailway Co., 115 E. C. L. R. 183. In Nicholson v. L. & Y. Railway Co., 3 Hurlst. & Colt. 534, the plaintiff sued the defendants, common carriers, for not sufficiently lighting their depot, and for not providing proper and sufficient accommodation for their passengers to depart safely from their station after their arrival, and for leaving hampers in the way of passengers de- parting, over which the plaintiff falling was. injured. The facts were these : The plaintiff, a passenger by the defendants' railway, was set down at T., after dark, on the side of the line opposite to the station and the place of egress. The train was detained more than ten minutes at T., and, from its length, blocked up the ordinary crossing to the station, which is on the level. The ticket collector stood near the crossing with a light, telling passengers to " pass on." The plaintiff passed down the train to pass behind it, and, from the want of light, stumbled over some hampers put out of the train, and was injured. The practice of passengers had been to cross behind the train, when long, without interference from the railway company. Held, that these facts disclosed evidence for the jury of negligence on the part of the company. In Martin v. The Great N. Railway Co., 80 B. L. & Bq. 473, the defendants, sued as common carriers, were held liable for so negligently managing and lighting their station, that the plaintiff, being a pas- senger by the railway, was thrown down, while on his way to the carriages. In Murch v. Concord Railroad Corporation, 29 N. H. 9, it was held that the owners of railroads, which are public high- ways, are bound to make such landings and places of access to their roads as are necessary for the public accommodation, and to keep them in a suitable and safe state for the accommodation of persons who may reasonably be expected to use them. In Penn. Railroad Co. v. Henderson, 61 Penn. (1 Smith) 315, the railroad corporation was held liable as common carriers for an injury occasioned by not having a safe and convenient platform, the court terming the want of such platform " an imperfection or defect in the road." So the ferryman is bound to have his lauding in a complete state of repair for the reception of travellers, and to furnish proper easements for entering the boat, and to provide fastenings to keep the boat in a firm and steady position while passengers are being received. Cohen v. Hume, 1 McCord (S. C), 439. 464 PASSENGER CARRIERS RESPONSIBLE FOR Indeed natural persons, who assume no public duties, are held liable if they suifer tlieir property to remain in a condition danger- ous to the public. BlUot v. Pray, 10 Allen, 378. In Oorby v. Hill, 93 E. C. L. R. 656, the defendant was held liable in tort for negli- gently placing and leaving an obstruction in the private avenue, known to be used in the ordinary way, whereby a passer lawfully using it, though having no permanent right of way, was injured. In Packard v. Smith, 100 E. 0. L. R. 468, the refreshment-rooms and a coal-cellar at a railway station were let by the company to one S., the opening for putting in coals being on the arrival plat- form. A train coming in while the servants of , a coal merchant were shooting coals into the, cellar for S., the plaintiff, a passenger, whilst passing in the usual way out of the station, without fault of his own, fell into the cellar opening which the coal merchant's ser- vants had left insufficiently guarded. Held, that S., the occupier of the refreshment-rooms and cellar, was responsible for this negli- gence. Much more is it the duty of railway companies to the public using their railway to keep the approaches thereto safe and free from obstruction at all points where freight or passengers are received. 1 Redfield on Railroads, 144. So a railway company is bound to fence the station that the public may not be misled, by seeing a place unfenced, into injuring themselves by passing that way, being the shortest to the station. Burgess v. The Great N. W. Railway Co., 95 E. C. L. R. 923. 4. The damages assessed by the jury are large. Different in- dividuals would vary in their estimate of what would be a just pecuniary compensation for bodily pain and suffering. " It is one thing," observes Mr. Justice Story, in Tlmrston v. Martin, 1 Mason, 197, " for a court to administer its own measure of damages in a case properly before it, and quite another thing to set aside the verdict of the jury because it exceeds that measure." The damages given are not so excessive as to require or justify our interference. 5. Under instructions of the presiding justice, deemed unexcep- tionable, the jury have found the defendants guilty of negligence. The question was one properly for their determination. The law makes them judges of fact. It is not enough for the court to be satisfied that they should have come to a different conclusion to authorize it to be set aside, as was remarked by Erie, 0. J., in Longmore v. G. W. Railway Co., 115 B. C. L. R. 183, in refer- SAFE DBLIVBBT TO NEXT CAERIER. 465 ence to the safety of a bridge : " I think the judge clearly would not have been justified in taking upon himself as matter of law to determine as to the propriety of its construction, and withdraw that question from the jury." So, too, in the same case, Keatitig, J., says : " No doubt the jury might, if so minded, have found that there was no negligence on the part of the company. And it cer- tainly seemed to me there was a strong case for the company." Yet the verdict was sustained. There is no such proof of miscon- duct that imperatively demands the verdict to be set aside. The law has made the jury the judges to determine whether the defend- ants have been negligent or not, and to their determination the defendants must submit. Exceptions and motion overruled. Kent, Walton, Barrows, and Danforth, JJ., concurred. There are several points brought out in the foregoing opinion which seem to us of considerable practical importance ; and which, although largely discussed in many other cases, have not always been so definitely passed upon. 1. The precise point here decided in regard to coupon-tickets for different roads and sold at the office of one, where the passenger goes upon the line, is, that the rights of the passenger and the duty of the several companies are pre- cisely the same as if the tickets had been purchased at the office of each road. This is perfectly definite and intelligible, and at the same time just and reasonable. It seems to us impossible for any party interested in such transactions to raise any fair and just objection to the rule as here declared, so far as the passenger transportation is concerned. The companies could certainly expect nothing less. And it is difficult to present any theory of duty or demand on the part of the companies or the passenger which will give the passenger any further security or indemnity consistent with established legal principles. 2. The responsibility of passenger carriers is expressed in rather more moderate terms than we have of late felt was consistent with the advancing exi- gencies of the business. As the number of passengers and the peril of transpor- tation has been largely increased since the introduction of railways, it seems but just and reasonable to demand of the companies every precaution to insure safety, which is known and in use in the business, whether the expense would be con- sistent with profit or not. And if companies imdertake to carry passengers> without these precautions, all hazard should fall upon them, unless the passenger is himself in fault, or the injury occurred wholly without fault or defect of appli- ances on the part of the company. 3. The rule that the responsibility of one company continues until the safe delivery of its passengers to the custody and responsibility of the next carrier on the advancing line is clearly just and reasonable, and it has also the merit of clearness and definiteness, and is in strict analogy to the duty of common carriers of goods. 80 466 RESPONSIBILITY WHERE DEATH ENSUES. VI. Eesponsibility where Death Ensues. 1. Pennsylvania Railroad Go. v. McOloshey, 23 Penn. St. 526. 1854. In an action to recover damages for the death of a passenger through the want of the required care on the part of the carrier, the jury were told they might compute the damages by the prob- able accumulations of a man of the age, habits, health, and pur- suits of the deceased, during the period of his probable future life, and also that if they could find a better rule they were at liberty to adopt it. It was held not erroneous ; and also that the jury must place a pecuniary estimate on the life in the same man- ner they estimated health and reputation that the law can furnish no definite rule of damages in cases so essentially indefinite. A passenger will not deprive his representatives of redress in such a case, because he followed the specific instructions of the conductor in the particular case, although in conflict with what he had been informed were the standing rules of the company. Common carriers cannot, by contract with their employers, escape responsibility for gross negligence. The other facts in the case will sufficiently appear from the opinion of the court by — LowRiB, J. (^Black, _C. J., and Woodward, J., dissenting.) The learned judge of the court below allowed the jury to find the damages according to the value of the life lost, and suggested that, in estimating them, they might compute them by the prob- able accumulations of a rnan of such age, habits, health, and pur- suits, as the deceased, during what would probably have been his lifetime, and then added : " I think this would be a fair measure of damages in this case ; but if the jury can find a better rule than the one suggested, they are at liberty to adopt it." To this it is objected, that it gives to the representatives of the deceased more than compensation; that is, more damages than they have suffered by the death, and that this judgment acquires a punitive character, which, it is said, could not have been intended, since the law has manifested its punitive will in a different form. EESP0N8IBILITT WHERE DEATH ENSUES. 467 by providing for the punishment of the really guilty persons, the servants of the company, in the Act of 1st April, 1836. The latter part of this argument is answered by saying that there are many cases in which vindictive damages are given, though the act is also subject to punishment ; and this is a denial of the unexpressed promises of the argument, and therefore the conclusion is left without support, and we are saved the necessity of showing that it is a mere assumption to call such damages punitive. The main purpose of the argument, however, is to show that the representatives appointed by the law in such a case are entitled to no more damages than they have individually sustained, and it requires a more extended consideration. Heretofore no action has been allowed among us for the death of a freeman, and the novelty of the case contributes to the difficulty of determining it, and warns us to proceed with appropriate caution. But, strange as the case is in our jurisprudence, we are not without analogies here and elsewhere which may furnish us some light. The principle which requires compensation for the death of a. freeman is not at all new in history. It was long an institution among our Anglo-Saxon ancestors ; and perhaps it was never pos- itively abolished, but rather died out under the influence of the Norman conquest, and the centralizing powers of the king's courts, which treated all such wrongs as wrongs done to the king, and hence as criminal offences. It seems to have been an institu- tion common to all Germanic nations,' and perhaps to every people that rose one degree above the savage life, and were still striviiig to rise. With tliem it was intended as a compensation to surviv- ing kindred, and as a means for preventing the disorders that fol- low in the train of private revenge. There are indications of its existence among the Romans (Dig. 9, 2, 7, 4, also 9, 2, 9, and 31), though Pasquier (Inst, de Just. 4, 3) expresses doubts about it. Voet (Pandects, 9, 2, 11) and Pacius (Analysis Institution em, 4, 3, 1) refer to it as existing there, and also in Holland, the Netherlands, and perhaps in some other parts of modern Europe ; and we have evidence of its exist- ence in Scotland. Erskine's Inst. 592, n. 13 ; Bell's Principles of Law, 749 ; 10 Eng. L. & Bq. 437. As it existed among the Ro- mans, the damages recovered by the kindred were not by way of hereditary succession ; for damages for wrongs done to the body 468 RESPONSIBILITY WHERE DEATH ENSUES. of a freeman were not allowed to pass in that way. Dig. 9, 3, 5, 5 ; Pothier's Pand. 9, 3, 12. A recent English statute (9 and 10 Vict. c. 93) seems to have revived the principle of the old Saxon law, and to allow the rela- tions of the deceased to recover damages to be apportioned among them according to the injury resulting to them respectively. In form, therefore, the action is for their own loss, and not a survival of the right of action for the injury to the deceased. Yet the English courts have not known how to estimate tlie damages, except according to the value of the life lost. 10 Eng. L. & Eq. 437 ; Armsworth v. S. B. Railway Co., 11 Jurist, 758 ; 6 Harr. Dig. 273 ; and this statute seems to leave other injuries to the person just as they were before, and consequently a death from another cause, before compensation recovered, is not provided for. But it is asked, how can any one that is dead be compensated by a civil procedure, for injuries done to him in his life, and especially for the loss of his life ? This directs us to another aspect of the pres- ent claim that is not as new as the one already noticed. In the early stages of our law all rights of action for wrongs done, not breaches of contract, died with the injured person. This, however, was altered by Statute 4 Edw. III., c. 7, and this alteration has been very largely extended by construction ; and by our statute, 24th February, 1834, § 28, nothing was excepted but slander, libel, and wrongs to the. person. Many of the cases thus declared to survive involve questions of compensation, and exem- plary damages for wrong and insult, fraud and malice, which are to be decided upon, and executed after the injured party is be- yond the reach of civil compensation, and yet the injury is meas- ured just as if he were still living. There are abundant indications of the same law of survivorship in the Roman law in regard to such injuries. Inst. 4, 12, 1 ; Dig. 44, 7, 26, and 68 ; Dig. 50, 17, 139, and 164 ; Heineccius, Elementa Juris, §§ 1193, 1194 ; Pacius, Analysis Inst. 4, 12 ; and these embrace a wider range of injuries than liave been heretofore saved from death by our law ; for they include all cases actually commenced in the lifetime of the injured party, and prevent their abatement by his death. Our Act of 15th April, 1851, seems to express its purpose better than the English one heretofore referred to ; for in one section it simply provides that the action commenced for injuries to the person shall not abate by the plaintiff's death, but shall survive RESPONSIBILITY WHERE DEATH ENSUES. 469 by substitution of his personal representatives ; and, in another, that if no suit for damages be brought during life by the party mortally injured, by negligence or violence, then the widow, and if there be no widow, the personal representatives, may maintain an action for damages for the death. The first of these sections is very plain, and it provides that the personal representatives may continue the action commenced, that is, may proceed and recover the very damages to which the de- ceased would have been entitled, had he survived until verdict and judgment. The other section is somewhat less definite in regard to the damages intended ; but this very indefiniteness is proof that no other thought was in the mind of the legislature than the wrong and damage done to the decedent ; else it would have been made to appear. If one section related to damages done to the de- ceased, and the other to damages done to his relatives, these con- trasted thoughts could hardly have failed to come out clearly in the expression. But, even if this were otherwise, we do not perceive how it could influence the damages ; for they must necessarily .be meas- ured by the absolute value of the life lost, and not by the pecun- iary loss which tlie designated representatives shall have thereby sustained. The precept involved in the law is, " Thou shalt not by negligence or violence take away the life of another ; " and the sanction of the law lies in the duty of compensation for the life destroyed, measured according to its own merits and not according to the necessities and circumstances of his kindred. It is very hard to value ; but not for that more uncertain than the specula- tions in relation to damages, which are proposed in its stead. This thought is involved in the whole course of the legislation and jurisprudence already referred to, and it is a rejection of the idea that the negligence which destroys life is irresponsible, and an assertion of the principle that all negligence must answer for its result, however serious. We have not heretofore been startled at the absurdity of giving a pecuniary compensation for broken limbs or ruined health or shattered intellect or tarnished repu- tation. If the body be all crushed, we have regarded its sufferings as a subject of civil compensation so long as life smoulders beneath the ruins ; even though there be no capacity to appreciate or 470 RESPONSIBILITY WHERE DEATH ENSUES. enjoy compensation. We ought not to be startled that the duty of compensation is continued when such life is smothered out. We call it compensation, while we admit that money is a very insufficient and uncertain measure of all such injuries. But it is the best standard we have, and in practice it is not found to be absurd. The duty of the wrong-doer to make compensation is very plain, and such as he has, which the law can reach, it compels him to give : though it may never reach the consciousness of the per- son injured. It is an act of distributive justice in vindication of invaded right, and it adopts the best approximation to compensa- tion which the authority of the law can enforce. And in these times, when criminal justice presents so many symptoms of going out of repute, and police officers are so often held up to public indignation for their performance of duty, it is found to operate well. Call it punitive ; yet it is only indirectly so, as all compensation is, and does not wipe out any offence that is involved against the state. Prom our present experience and observation, therefore, we are unable to discover any substantial error in the instruc- tions complained of. It would be wrong to limit the value of a man's life by his probable accumulations, for many men make none in a lifetime, and many have arrived at an age when they no longer attempt to make any, and many women never make any ; and yet every one is entitled to his life, and we have as yet dis- covered no standard for its valuation. It is not human possessions that are destroyed, but humanity itself; and as this has no market value, it must necessarily be very much a matter of human feeling. Hard, then, as the task may be, and however uncertain its results, it is to be performed by the jury, aided by the cautions and counsels of the judge, who has been trained in the consideration of juridical questions. Looking, on the one hand, to the dignity of human nature, as it has been assailed, and on the other to the position and rights of the defendant, and consid- ering the dignity of their positions as judges of most sacred right, and their own dignity and responsibility as individuals, and loving mercy even while doing justice, the jury must place a money value upon the life of a fellow-being very much as they would upon his health or reputation. The law can furnish no definite measure for damages that are essentially indefinite. The other points in this cause we feel compelled to dispose of in a few brief propositions : EESPONSIBILITT WHERE DEATH ENSUES. 471 A railroad company carrying passengers, cannot allege that a passenger is in fault in obeying specific instructions of the con- ductor, instead of the general directions of which he has been informed. Assuming that a public company of carriers may contract for other exemptions from liability than those allowed by law, still such a contract will not exempt from liability for gross negligence. A regulation by which a passenger with live stock on the freight train is required to remain on the oars which contain his stock, is not so transgressed by his being in another part of the train, when it is at rest, as to make him a contributor to his own injury by that train being run into by another. Judgment affirmed. 2. Railroad Oompany v. Barron, 5 Wallace Reports, 90. 1866. A railway company in carrying passengers is responsible for an injury to such pas- sengers through the default of another company in running a train upon the same line by the permission of the first company. When the statute, giving the remedy to the wife or next of kin of a person killed through the default of the railway company, restricts the damages to the pecuniary injuries resulting to such surviving relatives from the death, the amount awarded must depend mainly upon the sound sense and deliberate judgment of the jury, or, in other words, upon the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. In such oases the recovery will not depend upon the fact that the party, for whose benefit as next of kin the suit is brought, had a legal claim upon the deceased for support. The facts in the case will sufficiently appear from the opinion of the court by — Nelson, 0. J. There are only two questions raised in the course of the trial in the court below that it is material to notice. It was insisted on the trial, in behalf of the defendants, that the express train was wholly in fault, and responsible for the injury. But the court ruled, that, considering the facts to be as claimed, still the defendants were liable ; and this presents the first question in the case. It will be observed the defendants owned the road upon which they were running the car in which the deceased was a passenger at the time of the collision, and that the train in fault was running on the same road with their permission. 472 RESPONSIBILITY WHERE DEATH ENSUES. The question is not whether the Michigan Company is respon- sible, but whether the defendants, by giving to that company the privilege of using the road, have thereby, in the given case, relieved' themselves from responsibility ? The question has been settled, and we think rightly, in the courts of Illinois, holding the owner of the road liable. The same principle has been affirmed in otlier states. The second question is, as to the proper measure of damages. The only direction on this subject in the statute is, that the jury may give such damages as they shall deem a fair and just compen- sation, regard being had to the pecuniary injuries resulting from the death to the wife or next of kin, not to exceed five thousand dollars. The first section gives the action against the company for the wrongful act, if death happens, in cases where, if the deceased had survived, a suit might have been maintained by him. The second restricts the damages in respect both to the principles which are to govern the jury and the amount. They are confined to the pecuniary injuries resulting to the wife and next of kin, whereas if the deceased had survived, a wider range of inquiry would have been admitted. It would have embraced personal suffering as well as pecuniary loss, and there would have been no fixed limitation as to the amount. The damages in these cases, whether the suit is in the name of the injured party, or, in case of his death, under the statute, by the legal representative, must depend very much on the good sense and sound judgment of the jury upon all the facts and circum- stances of the particular case. If the suit is brought by the party, there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body. So when the suit is brought by the representative, the pecuniary injury resulting from the death to the next of kin is equally uncertain and indefinite. If the deceased had lived, they may not have been benefited, and if not, then no pecuniary injury could have resulted to them from his death. But the statute in respect to this measure of damages seems to have been enacted upon the idea that, as a general fact, the personal assets of the deceased would take the direction given them by the law, and hence the amount recovered is to be distributed to the wife and next of kin in the proportion EBSPONSIBILITT WHERE DEATH ENSUES, 473 provided for in the distribution of personal property left by a person dying intestate. If the person injured had survived and i-ecovered, he would have added so much to his personal estate, which the law, on his death, if intestate, would have passed to his wife and next of kin ; in case of his death by the injury the equivalent is given by a suit in the name of his representative. There is difficulty in either case in getting at the pecuniary loss with precision or accuracy, more difficulty in the latter tlian in the former, but differing only in degree, and in both cases the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury. It has been suggested frequently in cases under these acts, for they are found in several of the states, and the suggestion is very much urged in this case, that the widow and next of kin are not entitled to recover any damages unless it be shown they had a legal claim on the deceased, if he had survived, for support. The two sections of the act taken together clearly negative any such con- struction, as a suit is given against the wrong-doer in every case by the representative for the benefit of the widow and next of kin, where, if death had not ensued, the injured party could have main- tained the suit. The only relation mentioned by the statute to the deceased essential to the maintenance of this suit is that of widow or next of kin ; to say, they must have a legal claim on him for support, would be an interpolation in the statute changing the fair import of its terms, and hence not warranted. This construc- tion, we believe, has been rejected by every court before which the question has been presented. These cases have frequently been before the courts of Illinois, and the exposition of the act given by the learned judge in the "present case is substantially in conformity with those cases. Judgment affirmed. The probable benefits of the continuance of the life of the father to children is to be estimated with reference to the age of majority, and, as to the widow, with reference to the expectation of life as determined by the tables. Bait. & Ohio Kailw. V. State, 33 Md. 642. See also Passenger Railw. v. Luttler, 54r Penn. St. 375 ; Penn. Bailw. v. Stutler, 57 id. 335 ; Catawissa Railw. v. Armstrong, 62 Penn. St. 282 ; s. o. 49 id. 186, where it is said that whether certain facts con- stitute negligence is a question of law, but how far they contributed to the injury is one of fact for the jury. 474 WHERE PLAINTIFF WAS GUILTY OF CONTEIB0TOET NEGLIGENCE. VII. Where the Party Injured was Guilty of Contributory Negligence. 1. Ishell V. New York ^ New Haven Railway Company, 27 Connecticut Bepoi-ts, 393. 1858. ■ This subject is one of so much difficulty, and operates so exten- sively upon questions connected with railway administration, that we have selected the above case as the fundamental one upon this subject, although not one connected with passenger transportation. The opinion of Mr. Justice Ellsworth is so full and so able that we could desire nothing more to our purpose. The negligence on the part of the plaintiff which will preclude his recovering dam- ages for the negligence of the defendant must be the actual proximate cause, con- trihuting to some extent directly to the injury, and not a mere technical wrong, contributing either incidentally or remotely, or not at all, towards the injury. The facts will appear in the opinion of the court. Ellsworth, J. In this case the plaintiff seeks to recover the value of three oxen, destroyed, as he says, on the defendants' rail- road, by a locomotive carelessly and negligently conducted by the defendants' servants and agents. The jury by their verdict have found the facts alleged in the declaration to be proved, and, which is essential to the plaintiff's right of recovery, that there was no co-operating carelessness or negligence on his part. If this be all that there is in the case, there can be no question that the verdict should stand, and that no new trial should be granted. But the defendants insist that this is not all, — that the court has mistaken the law, and left the jury to adopt false rules in arriving at their conclusion. They say that the oxen were tres- passing on the railroad, and that therefore the defendants' agents were absolved, so far as these cattle were concerned, fi'om the duty of exercising ordinary care and attention in the running of their train ; and under this view they requested the court to charge the jury, in the first place, that the oxen,, being at large without a keeper, were to be presumed to have escaped from the plaintiff's enclosure through his insufficient fence, which they claim is the WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. 475 same as if the oxen had been turned out upon the highway or left to wander without restraint, and so were unlawfully at large and were trespassers in going upon the railroad ; and in the second place, that the cattle being trespassers, the defendants' agents were under no obligation to exercise ordinary care to avoid injuring them ; and further, that if the cattle were wrongfully let out by a stranger, and were on the road even without the knowledge or actual fault of the plaintiff, there was, in the eye of the law, neg- ligence and fault 'on his part which precludes his right to recover ; upon tlie well-settled doctrine that a man cannot recover for dam- age caused by the negligence of another, unless he was free from negligence himself. The defendants had an undoubted right to ask for these specific instructions, if they contain the true rule of law on the subject and will sustain their defence ; but we think that the propositions which they contain are not the law, and that the court committed no error in refusing so to charge the jury, or in giving the instructions that were given. Is there then any presumption of law, as claimed by the defend- ants, that cattle found at large have escaped through an insufficient fence of the owner 'r We think there is not. Besides, in this instance, the state of the plaintiff's fence, and the cause and cir- cumstances of the escape of the cattle, were fully inquired into on the trial, and, upon the evidence, the jury have found the facts to be as claimed by the plaintiff, — at least so far as this, that it was through no fault or neglect on his part that the cattle were on the railroad track. The defendants say that because the cattle were there, it puts the plaintiff of necessity in the wrong in the eye of the law, makes the cattle trespassers, unlawfully obstructing the road, and works a forfeiture of the right to demand the exercise of care on the part of the defendants in running their train of cars, even though from the want of such care the cattle should be run over and killed. This presents a most grave question, both of law and of moral-' ity, but we think its solution attended with no serious difficulty. Tlie defendants place their defence on the doctrine of the books, that where a plaintiff seeks to recover for the negligence of a de- fendant, it must appear that the negligence of the plaintiff did not essentially contribute to the injury ; a doctrine which has long been recognized as a sound one here, and elsewhere ; indeed the law was so laid down in the judge's charge in this instance. But 476 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTOET NEGLIGENCE. to this general doctrine there are important qualifications, and this case is claimed by the plaintiff to present one of them ; or rather, in this and kindred cases, it is said, and we think correctly, that there is an important distinction to be observed, and that great in- justice would be done by the indiscriminate application of the rule of law to which we have referred. Assuming it as true, then, that the cattle escaped and wandered upon the track through the misconduct of a stranger, without the knowledge of the owner and without fault or wa'nt of care on his part, wherein, we ask, is there wrong or neglect, more than if the cattle had been wrongfully let out of the owner's stable, and had wandered upon the road ? It is true, perhaps, that being at large contrary to the by-law, they might be taken up and impounded, and an action of trespass might lie in favor of a party on whose land they should enter ; but wherein is there wrong or neglect on the part of the owner of the cattle ? A right to impound the cattle does not imply any such thing, nor does a liability to be sued for a technical trespass. How then does the doctrine alluded to apply to this case, so as to preclude the plaintiff from recovering in his action for the defendants' negligence ? If the plaintifiF is free from all actual fault, of course the defendants must pay the damages which he has sustained by their negligence; for had tliey done their duty no injury would have ensued, and to hold, under these circumstances, that the plaintiff has forfeited his cattle and placed himself beyond the pale of the law, leaving the defendants free from all obligation to exercise care, slaocks every moral feeling, and well-nigh brings the whole doctrine itself, which the defend- ants are seeking to apply, into suspicion and doubt. Tlie great argument of the defendants is, that the railroad is their unqualified property, which they may occupy and use witliout restraint at their pleasure, and when wrongfully hindered therein may remove the hindrance in the manner most convenient for •themselves ; that in this instance their train was moving with its accustomed speed only, and, if the plaintiff's cattle happened to be run down by it, it was their fault to be so exposed, and that they were themselves under no obligation to exercise care to prevent the injury. This line of argument is to a certain extent reasonable and correct, but along with it, underlying the defendants' conclu- s on, there is a radical and manifest error. Even if the premises assumed by tlie defendants are throughout correct, it by no means WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 477 follows that an obstruction on the road, of the kind in question, may be ejected In any way most convenient to the defendants' agents. It must, we think, be done with prudence and reasonable care ; the force may not be excessive, barbarous, and unnecessarily destructive. The plaintiff has not forfeited his cattle because they have strayed away, but may justly demand of the defendants to conduct as the circumstances at the moment require, doing no un- necessary injury to his property, and carrying out the spirit of the golden rule, which, applied to a case like the present, is as good " law as it is sound morality. The kindred maxim, sic utere tuo ut alienum non Icedas, is but another expression of that rule, and in our view should govern the defendants' conduct in this instance, even if there be a possible remote neglect on the part of the plain- tiff, or a technical liability for the trespass of the cattle. A remote fault in one party does riot of course dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common hu- manity, to say nothing of law, demand this ; and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less ex- tent incident to human affairs. Preventive remedies must there- fore always be proportioned to the case in its peculiar circumstances, — to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it. And herein is no novel or strange doctrine of the law ; it is as old as the moral law itself, and is laid down in the earliest books on jurisprudence. A boy enters a door- yard to find his ball or arrow, or to look at a flower in the garden ; he is bitten and lacerated by a vicious bull dog ; still, he is a trespasser, and if he had kept away would have received no hurt. Nevertheless, is not the owner of the dog liable ? A person is hunting in the woods of a stranger, or crossing a pasture of his neighbor, and is wounded by a concealed gun, or his dog is killed ' by some concealed instrument, or he is himself gored by an en- raged bull. Is he in all these cases remediless because he is there without consent ? Or an intoxicated man is lying in the travelled part of the highway, helpless, if not unconscious ; must I not use care to avoid him ? May I say that he has no right to incumber the highway, and therefore carelessly continue my progress, regard- less of consequences ? Or if such a man has taken refuge in a field 478 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. of grass or a hedge of bushes, may the owner of the field, knowing the fact, continue to mow on, or fell ti'ees, as if it was not so ? Or if the intoxicated man has entered a private lane or by-way, and will be run over if the owner does not stop his team which is pass- ing through it, must he not stop them ? These are instances I am aware of personal rights, but what is true in relation to the person is essentially true in relation to dumb animals and other kinds of property, though perhaps the rule would be applied in the latter case with less strictness. It must be so, that an unnecessary in- jury negligently inflicted in these and kindred cases is wrong and therefore unlawful. If assailed, a man may do what is necessary to defend himself against the assault, but he may not become him- self the assailant. He may defend his property, but he may not in doing it make use of unnecessary violence, and cease to use all care as to the injury which he inflicts. The duties which men owe to each other in society are mutual and reciprocal, and faulty con- duct on the part of another never absolves one from their obliga- tions, though such conduct may materially affect the application of the rule by which this duty is to be determined in the particular instance. Let us suppose in this case, that, instead of the plaintiff's cattle, the plaintiff himself had been on the railroad track, and that he was too deaf to hear the noise of the train or the ordinary alarm given in such a case. This would certainly have been most culpa- ble and inexcusable conduct on his part, but would it have absolved the defendants from the duty to exercise reasonable care if they saw the plaintiff, or with proper attention might have seen him ? Ought they not in that case to check the speed of the train ? May they run over him merely because he is on the track ? They may well suppose that he is deaf, or blind, or insane, or bewildered, and have no right, as we think, to continue their headway as if he was not there. If they are bound, to ring their bell or sound their whistle, as they certainly are, they may be bound for the same reasons to go further, and check their speed a little, or stop en- tirely. As we have said, preventive remedies must not be dispro- portioned, excessive, or barbarous, and such was the remedy, we think, which was resorted to in this case. There is yet another consideration which has a bearing on the question, which, according to some of the oases, is decisive against the present defence. We mean that the negligence of the plaintiff WHERE PLAINTIFF WAS GUILTY OP CONTRIBCTORY NEGLIGENCE.' 479 if there has been any, was not the proximate cause of the accident. To be so it must have been simultaneous in its operation with that of the defendants, of the same kind, immediate, growing out of tlie same transaction, and not something distinct and independent, of a prior date, remotely related to the negligence of the defendants. The question of proximate and remote negligence has generally arisen in cases of collision, where the conduct of the parties at the very moment, or the isolated transaction viewed by itself, is before the triers, who are called to judge upon the evidence with which party lies the fault of the collision. In such cases the rule of law is of easy application, while in other cases it is more difficult and unsatisfactory, and often requires a broader range of reasoning. In the case of Davies v. Mann, 10 M. & W. 545, the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public higliway; and at the time in question, the ass was grazing on the off side of a road, about eight rods wide, when the defendant's wagon, with a team of three horses, coming down a slight descent, ran against the ass and knocked it down, and, the wheels passing over it, it was killed. The ass was fettered at the time, and the driver of the wagon was some little distance be- hind the horses. Urskine, J., told the jury, that though the act of the plaintiff in leaving the donkey in the highway, so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was the want of proper conduct on the part of the driver ofj the wagon, the action was maintainable against the defendant, and he instructed them, if they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. In the Exchequer, where tliis case was reviewed. Lord Abinger said : " Even if this ass was a trespasser, and the defend- ant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though tfie animal may have been improperly there." A new trial was denied. The same is held in the case of Trow v. The Vermont Central E. R. Co., 24 Verm. 494. The court there say : " Where the neg- ligence of the defendant is proximate, and that of the plaintiff re- mote, the action can then well be sustained, although the plaintiff is not entirely without fault. This seems now to be settled in England and in this country. Therefore if there be negligence on 480 WHERE PLAINTIFF WAS GUILTY OP CONTEIBUTOET NEGLIGENCE. the part of the plain tifi', yet, if at the time when the injury was committed, it might have been avoided by the defendant in the ex- ercise of reasonable care and diligence, an action will lie for the injury. So in this case, if the plaintiff were guilty of negligence or even of positive wrong in placing his horse in the highway, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of their train and engine ; and if the injury arose from the want of that care they are liable." The same doctrine is held in the case of Kerwhacker v. Cleve- land, Columbus & Cincinnati R. R. Co., 3 Ohio, 172, and in that of Cleveland, Columbus & Cincinnati R. R. Co. v. Elliot, 4 id. 475. The language of the court in the latter case is : " Suffering domestic animals to run at large, by means wliereof they stray upon an uninclosed railway track, where they are killed by a train, is not in general a proximate cause of the loss, and hence, although there may have been some negligence in the owner in permitting the animals to go at large, such negligence being only a remote cause of their death, it will not prevent his recovering from the railroad company the value of the animals, if the immediate cause of their death was the negligence of the company's servants in conducting the train." And again : " The paramount duty of a conductor of a train is to watch over the safety of the persons and property in his charge, subject to which it is his duty to use rea- sonable care to avoid unnecessary injury to animals straying upon the road." We will not pursue the discussion of this question, but will pro- ceed to adduce the authorities we have before us, in addition to the three just referred to, in support of the main doctrine of the case, which is presented in the earlier part of this opinion. The three cases already cited to the question of proximate and remote negli- gence are clear and direct authorities to the second and main point in the case, but we proceed to. mention several others. ' In the case of the New Haven Steamboat and Transportation Company v. Vanderbilt, 16 Conn. 421, this court held it to be a principle of law, that while a party on the one hand shall not re- cover damages for an injury which he has brought on himself, neither shall he, on the other hand, be permitted to shield himself from responsibility for an injury which he has done, because the injured party was in the wrong, unless such wrong contributed to WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 481 produce the injury ; " and even then (the court say) it would seem that the party setting up such defence is bound to use common and ordinary caution to be in the right." In Birge v. Gardner, 19 Conn. 507, a child, too young to exercise any discretion, by shaking a gate, which the owner had left care- lessly standing on his own land, being a lane through which chil- dren were accustomed to pass and repass, pulled it over upon himself and thereby broke his leg ; yet he recovered damages, though he was a trespasser. The court say in this case : " There is a class of cases, in which defendants have been holden respon- sible for their misconduct, although culpable acts of trespass by the plaintiffs produced the consequences ; and the fact that the plaintiff was a trespasser in the act which produced the injury complained of would not necessarily preclude him from a recovery against a party for negligence." The same has been decided in a very recent case in this court. Daley v. The Norwicli and Wor- cester R. R. Co., 26 Conn. 691. That was the case of a very young child, which, having escaped from the house of its parents, passed upon and along the railroad track, unconscious of danger and incapable of taking care of itself. The jury found that the child was injured through the carelessness of the company, and they were compelled to pay heavy damages. The same was decided in the case of Lynch v. Nurdin, 1 A. & E. N. S. 35, which was an action for negligence committed by the defendant's servant, in leaving his cart and horse standing for half an hour in an open street, where the plaintiff, with other children, got into and about the cart, and teased the horse, until the horse moved forward, and with the cart ran over and greatly injured the plaintiff. Here, it will be observed, was a clear trespass on the part of the child. It is said that these are peculiar cases, where no blame is attach- able to the plaintiffs because of their age and incapacity ; but they were trespassers, and could have been sued as such, which is quite as much as can be alleged against the present plaintiff. But let us proceed. In the case of Loomis v. Terry, 17 Wend. 496, the defendant was sued for keeping dogs accustomed to bite mankind, which attacked and bit the plaintiff's son and servant, while hunting in the defend- ant's woods. The defence was that the person injured was a tres- passer and brought the evil upon himself. The court held that, TOL. II. 81 482 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. though he was trespassing, he did not thereby forfeit all protection against vicious dogs, and that the defendant should only have used such force as he found necessary to remove the intruder. This, say the court, is the utmost remedy which the law allows by the act of the party injured. May a man, they continue, knowingly keep on his premises a ferocious dog, in such a way that he will worry ordinary trespassers in the daytime ? The rule, they pro- ceed to say, is as laid down by Dallas, J., in the case of Deane v. Clayton, 7 Taunt. 519, that the owner of property may use proper means to repel violence, or to remove a trespasser, or trespassing cattle, taking care to use no unnecessary force, likely to destroy life or property. We have a remarkable case in our own reports, in which this conservative doctrine is sanctioned and illustrated. Johnson v. Pat- terson, 14 Conn. 1. The defendant, having for a long time been annoyed by the plaintiif' s fowls in his garden, notified him that he should scatter poisoned meal in his garden, and that the fowls would be exposed to be poison.ed if he did not keep them at home. The plaintiff did not heed the threat, and the fowls, coming again into the garden, were poisoned by the meal and died. The owner sued and recovered their value. This court unanimously sus- tained the verdict as resting on sound principles of law and morality. They regarded the remedy as excessive, cruel, and unnecessarily destructive ; they considered that the ordinary course of the law furnished an adequate and peaceful remedy, by a repe- tition of suits, if need be, until the trespasser would be constrained to desist from a repetition of the wrong. Otherwise, it was said, if one may poison his neighbor's fowls with impunity, he may shoot them, and if he may do this he may shoot his ox or his horse if it happen to stray into the adjoining lot. The celebrated case of Deane v. Clayton was examined by Sherman, J., in giving the • opinion of the court, and he pointedly disapproved of the views of Judges Dallas and Gibbs, who held that such a mode of protecting one's game (viz., by spring guns and dog spikes) was not exces- sive, cruel, or unnecessarily destructive ; and he agreed with the other two judges, Parke and Burrough, who held the contrary doc- trine. And even the two first named judges said that they should agree with their brethren, if the defendant had been present, but, as he was not, and had given notice of the concealed dangers, they thought he might resort to these remedies, even though death WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTOEY NEGLIGENCE. 483 might ensue. Now, so far as absence is material (and it is held to be so in all the cases which justify a resort to deadly instruments for prieventing a mere trespass), it is a circumstance wanting in the present case. The defendants were present by their agents and servants, and active in conducting the train, and saw or could have seen the cattle, and could have anticipated a collision if they did not wholly or partially arrest the progress of the train. No one will contend that a proprietor, being present, may shoot down a mere trespasser, or destroy a neighbor's cattle straying in the high- way, as a remedy for a slight wrong or trespass, when there are other and more peaceful methods of redress, more compatible with the relations of society and the duties we owe to each other. The same doctrine is maintained in Chaplin v. Hawes, 3 C. & P. 554, where Qibhs, C. J., remarks: "If the plaintiff's servant had such a clear space that he might easily have got away, then I think he would have been so much to blame as to prevent the plaintiff from recovering. But on the sudden a man may not be sufficiently self-possessed to know in what way to decide, and, in such a case, I think the wrong-doer is the party who is to be answerable for the mischief, though it might have been prevented by the other party's acting differently." In the case of Bird v. Holbrook, 4 Bing. 628, a spring gun had been set secretly to prevent the repetition of theft, and the plaintiff, having climbed over the wall near the gun in pursuit of a stray fowl, was shot. The defendant was held liable in damages, although the plaintifiF brought the injury upon himself by trespass- ing upon the defendant's enclosure. In the case of Vere v. Lord Cawdor, 11 Bast, 568, the plaintiff's dog was shot by the defendant's servant, because he was pursuing the defendant's hare in the defendant's close, and it was necessary to kill him in order to save the hare. Lord BUenborough said : " The question is, whether the plaintiff's dog incurred the penalty of death for running after a hare in another's ground. And if there be any precedent of that sort, which outrages all reason and sense, it is of no authority to govern other cases." In the case of Raisin v. Mitchell & al., 9 C. &. P. 613, the owner of a brig was sued for an injury done to a sloop. The jury having found a verdict for J 250, instead of £500, the amount of injury proved, on being asked by the court how they made up theit ver- dict, replied, that in their opinion there were faults on both sides. 484 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTOHT NEGLIGENCE. It was held, notwithstanding, that the plaintiff was entitled to the verdict, as there might be faults in the plaintiff to a certain extent, and yet not to such an extent as to prevent his recovering. The same doctrine was much discussed in Deane v. Clayton, where Dallas, J., remarks : " To the next class of decisions I also equally accede, namely, those which establish that you shall do no more than the necessity of the case requires, when the excess may be in any way injurious to another, — a principle which pervades every part of the law of England, criminal as well as civil, and indeed be- longs to all law that is founded on reason and natural equity." So in the case of The Mayor of Colchester v. Brooke, 7. A. & E. N. S. 339, although the plaintiff was chargeable with wrong and negligence in placing and keeping the deposit of a bed of oysters ill the channel of a navigable stream, the defendant was held not to be justifiable in running his vessel upon the deposit, greatly injuring the oysters, when there was room to pass in the stream without it, and the injury could have been avoided by the use of reasonable care and diligence. This is only carrying out the rule, that though a man do a lawful thing, yet if any damage thereby be done to another which he could reasonably and prop- erly have avoided, he will be held liable, according to the maxim )Sie utere tuo ut alienum non Icedas. See Vaughan v. Menlove, 3 Bing. N. C. 468, and Marriott v. Stanley, 1 M. & G. 568. The same is decided in Norris v. Litchfield, 35 N. Hamp. 271, where the court expressly deny the claim that if the plaintiff was a wrong-doer he could maintain no action whatever, however pru- dent and careful he may have been. TJiey recognize as the true doctrine what was said by Lord Mlenborough in Butterfield v. For- rester, that "one's being in fault will not dispense with another's using ordinary care." In Dixon v. Bell, 5 M. & S. 198, the court held that great care must be used by a person having the custody and handling of dan- gerous implements, like loaded guns and powerful machinery, and that slight negligence in another person who was injured by the going off of the gun was no objection to his recovering for an injury resulting from the negligence of the former. We need not further pursue this topic, and certainly we need not adduce more authorities to est-ablish a doctrine which is so plain and reasonable. We will, however, refer again to the case of Kerwhacker v. Cleveland, Columbus, and Cincinnati Railroad WHERE PLAINTIFF WAS QDILTY OF CONTRIBUTORY NEGLIGENCE. 485 Co., 3 Ohio N. S. 172, for the purpose of remarking that the opinion of the court contains an elaborate, learned, and conclusive argument upon all the points raised in the present case, and to commend it entire to every one who wishes to see all the law on this important subject, with the reasons on which it rests. It must not be supposed that we have overlooked or slightly examined the numerous respectable authorities cited by the de- fendant's counsel. Some of them, as we view them, only add strength and force to the views which we have expressed ; some rest on principles wholly distinct from those involved in the doc- trine which we maintain ; while others, and especially the cases from the New York reports, if we understand them, are at vari- ance, as we most fully believe, not only with our own law, but with the common law of England. We do not advise a new trial. In this opinion the other judges concurred ; except Sanford, J., who having tried the case in the Superior Court did not sit. New trial not advised. ' This subject, and the cases bearing upon it, are so fully discussed in 2 Redf. Railw. § 193, that nothing more will be required here than briefly to indicate its application to passenger transportation, as shown by the reported cases. These are not entirely harmonious. Some have taken the extreme view, that if the passenger fails in exercising care and watchfulness in every particular, both in regard to position in the train, as well as his conduct during the transit, the car- rier will be relieved of all responsibility, whether such want of care contributed to the injury in any essential degree or not. We are not sure but it might have been the more salutary rule, practically, if the courts had adhered to this ex- treme view upon the point, since it might possibly have induced more willingness on the part of passengers, to have submitted to the reasonable regulations of railway companies aifecting the security of passengers. But such a rule, not being defensible, upon the established principles of the common law, could only be made uniformly obligatory upon passengers by statutory enactments. The true rule of the common law in regard to the effect of contributory neg- ligence on the part of the plaintiif, in actions against railways to recover damages suffered through the negligence of their agents and servants, is, we feel confident, correctly stated by Mr. Justice Elhworth„m the preceding opinion. And some of the cases go even further perhaps. The Irish courts have persistently main- tained, that the negligence of the plaintiflf, although contributing directly to the injury, will not preclude the recovery, provided the defendant might still have avoided doing the damage. Doyle v. Kinahan, 17 W. R. 679 ; Scott «. Dublin & Wicklow Railw., 11 Ir. Com. Law, 377. And some of the American cases have maintained the same high and just ground. Morrissy v. Wiggins Ferry Co., 43 Mo. 380 ; MTheteers 11. Han. & St. J. Railw., 45 id. 265 ; Ch. & Alt. Railw. 486 WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTOET NEGLIGENCE. V. Gretzner, 46 HI. 76; Robertson, J., in Kentucky Central Railw. ». Dills, 4 Bush, 593 ; Louisv. & Clarksv. Railw. v. Siekings, 5 Bush, 1 ; Macon & W. Railw. V. Davis, 18 Ga. 679, 686; Runyon v. Cent. Railw., 1 Dutch. 556. But most of the cases seem content to defend the ground maintained by Ellsworth, J., supra. Ch. & Alton Railw. v. Pondrom, 61 111. 383. And it seems agreed that if the plaintiff might have avoided the damage notwithstanding the negligence of the defendant he has no cause of action. Macon &, W. Railw. v. Winn, 19 Ga. 440 ; see also Central Railw. & B. Co. ». Davis, id. 437. And where the conduct of the defendant is wilful he cannot excuse himself on the ground of the plaintiff's fault. Brownell v. Flagler, 6 Hill (¥. Y.), 282. So when the wrong of the defendant is such that no vigilance on the part of defendant would have enabled him to escape, he may recover notwithstanding any fault on his part. Bridge v. Grand Junction Railw., 3 M. & W. 244. It has been held that one being in the baggage car by the permission of the conductor may recover for an injury caused by collision, even when he would have escaped injury if he had been in the pas- senger cars. Carroll v. N. Y. & N. H. Railw., 1 Duer, 671. But where one rodfe upon the engine in violation of the known rules of the company and was there injured, it was held he could not recover, notwithstanding the consent of the engineer. Robertson v. New York & Erie Railw., 22 Barb. 91. But how- ever much a passenger may be out of place, he will not be precluded from re- covering for the misconduct of the carrier, provided his own default did not contribute to the injury. Keith v. Pinkham, 43 Me. 601 ; Lackawanna Railw. v. Chenewith, 62 Penn. St. 382 ; p'enn. Railw. v. McCloskey, 23 Penn. St. 526 ; s. c. ante, p. 466. The cases are somewhat conflicting upon the point whether a passenger let- ting his arm or Siny part of his person remain outside the car-windows, while the train is in motion, and thereby suffering damage, can maintain an action against the company. In Laing v. Colder, 8 Penn. St. 479, it was held that such con- duct being grossly careless and in violation of the known rules of the company, the plaintiff could not recover. But in New Jersey Railw. v. Kennard, 21 Penn. St. 203, it was considered to be the duty of the company to so protect the win- dows of their cars that passengers could not thus expose themselves to damage in passing bridges and narrow cuts in the way. But the latter case has been since overruled. P. & C. Railw. B. M'Clurg, 7 Law Reg. N. S. 277 ; s. c. 66 Penn. St. 294. And the rule of the latter case has been adopted in Indiana. I. & C. Railw. V. Rutherford, 7 Law Reg. K. S. 476 ; s. c. 29 Ind. 82. But one who persists in getting off a train while in motion, especially when warned by the conductor not to do so, has no claim against the company for any damage he sustains. Ohio & Miss. Railw. v. Schiebe, 44 111. 460. And one who leaves a safe course and crosses the track in the night-time to save distance cannot recover for any damage he may sustain. Forsyth «. B. & A. Railw., 103 Mass 610. How far the conduct of the plaintiff at the time the injury occurred was rep- rehensible, under the circumstances, and to what extent it was the result of neglect of duty on the part of the defendant and thereby excused, are questions of fact to be solved by the jury. This question is ably discussed by Mr. Justice Agnew, in a recent case in Pennsylvania. "We give the opinion as a valuable commentary upon the question. WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 487 " This case appears to have been carefully tried by the learned and able judge in the court below. Yet, after an attentive examination, we are led to the con- clusion, that the rule of concurrent negligence was held a little too closely against the plaintiff, and the province of the jury rather trenched upon. The judge him- self states the well-known rule that, ' generally what constitutes negligence in a particular case is a question for the jury.' Kay v. Penn. Railroad Co., 1.5 P. F. Smith, 273, 274; Penn. Canal Co. «. Bently, 16 id. 30. But we think his error was in laying down, as a rule of law, a matter which was only an element in the evidence, to wit, that if the train was distinctly running on the track, so as to be perceptible to those alongside, the plaintiff was guilty of negligence in attempt- ing to enter upon the train, and could not recover. The following passages in the charge perhaps most clearly denote the spirit and meaning of the instruction given to the jury : — " 'Yet, if the train was entirely still when he stepped from the platform by its side, it is not suggested that there was any want of care in the attempt to enter. If, however, it was not entirely still — was in the act of starting — taking up the slack, as one of the witnesses has denominated it, but was not yet dis- tinctly under way when he attempted to enter, then it is for you to determine whether he was or was not guilty of carelessness in making the attempt, encum- bered as he was.' ' The defendant has asked us to instruct you, that if the train was in motion when the plaintiff attempted to get upon it, he was guilty of negli- gence, and cannot recover. If by the term "motion" is meant running upon the track, — distinctly running so as to be perceptible to those alongside, — the point is affirmed, otherwise it is not. There may have been some motion inci- dent to starting, and preceding it, yet of so slight a character that the law can- not pronounce an attempt to enter at the time negligence ; but must leave it to the jury to judge of it in the light of all the circumstances. But if the train was distinctly running upon the track when the plaintiff attempted to enter, then he was guilty of negligence, and cannot recover.' " It is evident that the meaning which a jury would draw from the charge was, that if the preparation for starting was over, and the train was under way, that, no matter how slow the motion, yet if the running of the train on the track was distinctly visible to a bystander, the plaintiff's time to enter was past, and his attempt to get on the train would be such culpable negligence in law as would bar his recovery. That such a rule may be applicable to some cases may be true, though we do not now affirm it. But clearly we are not to leave out of view, in all cases, the conduct of the railroad company in prpducing the result, and the natural and probable effect that conduct has had upon the miqd of the passenger in influencing his act. There cannot be an inexorable rule so unbending that no circumstances begotten by the railroad company itself shall not change it. Even when a train is distinctly under way, there are cases, and this was one, where it must be left to the jury to say whether the danger of going aboard was so apparent that it would be culpable negligence in the passenger to attempt it- Here the West Chester Railroad Company had a running arrangement with the Philadelphia and Baltimore Central Railroad Company, by which their trains met at the Baltimore Junction, and passengers were received from each on through tickets. The plaintiff's ticket is not questioned. Under such an arrangement, it is the duty of each company to give a reasonable time for the transfer of 488 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. passengers and their baggage. In this instance, it appears that the West Ches- ter train began to move almost as soon as the Baltimore train stopped. It seems that the conductor of the latter signalled the conductor of the former that he had no passengers for the West Chester train. But the plaintiiF, who had a through ticket, was not responsible for this mistake. Reasonable time should be allowed to develop the fact whether there are passengers. A through ticket issued under such an arrangement is binding on both roads. The plaintiff, it seems, hastened across the platform, and attempted to enter, but, being encumbered with a valise, a bundle, and a coil of pipe on his arm, he missed his footing, fell to the track, and his right arm was crushed by the wheels of the car. The fact appears to be clear, that a reasonable time for the transfer was not given, and that thg plaintiff, with'all his effort to make haste, was unable to make the connection in conse- quence of this want of time. Now, though the train was distinctly in motion, so that a bystander, cool and unconcerned, could see it visibly running on the track, are we to say, as a matter of law binding on the jury, that a passenger, having a right to go on the train, and seeing himself about to be left improperly by the wayside, is guilty of culpable legal negligence if he should essay to reach his destination, no matter how slow the motion in running might be, or how little danger was apparent to him ? He may be guilty of negligence, but of this the jury should judge under the circumstances. He may not ' set his life or limbs on the hazard of a leap at the running train,' as the judge emphatically said, and doubtless if such were the character of his attempt it would be negligence. The expression ' leap at a running train * denotes a higher effort and less considera- - tion on part of the traveller, than merely attempting to board a car under way. In the former a jury might discover negligence, while in the latter they might not, in view of the circumstances, discover any. " In discussing the conduct of the passenger merely, we are not to lay out of sight the wrong of the company, in its influence upon his mind and act. He may have strong motives to reach his destination, — indeed, no man but must feel, and feel strongly, at being left by the wayside ; he is conscious of his right to go aboard, and naturally becomes excited at the sight of the moving train, perhaps is alarmed, and in some degree confused. If the train be running slowly, and the danger is not apparent to him, what so natural as that he should hurry to reach the train, and to get aboard? But if we lay down the inexorable , rule for this and every other case, that whenever the train can be seen to be distinctly running, it is legal negligence to attempt to get on, we set a premium on the wrong of the company, which influenced the very act itself. To say that when- ever the motion of the train is so distinct that bystanders can distinctly see it under way, and running along the track, the passenger is to be as cool and un- concerned as they, fold his arms, and say to himself, I'll sue you for this breach of contract in leaving me here, is to him bitterness itself. He may be a stranger, and know not where to find accommodation ; the severity of the winter may sur- round him, or the heat of summer oppress him ; the elements may war against him, and night or approaching darkness may heighten his alarm. Or, if no stranger, his business may be urgent ; his family may reqiiire his presence ; his health may be poor ; his means limited ; his desire to reach his destination over- powering, and a hundred reasons may influence him to go on. Now, are we to say, that the wrong, which has caused his mind to be excited, and aroused his WHERE PLAINTIFF WAS GUILTY OP CONTEIBDXOBY NEGLIGENCE. 489 fears, which confases him, and has made him less cool and calculating than those who are standing by, and can look upon the departing train without emotion, is not to be taken into the account in considering his act? What caused his state of mind ? Not his own carelessness or breach of duty as a passenger, but the illegal and wrongful act of the carriers. Surely it does not lie in the mouth of the railroad company to say to him, the law will take no account of our breach of duty in its effect upon you. You ought not to have suffered it to move you, but if you saw our train was moving along the track, the "slack taken up, the train stretched out, and the cars under way, so that any one else could distinctly see it running, you ought to have looked upon our leaving you on the wayside with perfect coolness ; made no effort to go, and sued us for our breach of the contract of carriage. No matter how slow the motion of the train was, nor how little danger in getting on was apparent to you, or what the state of your mind caused by our wrongful act, it is not a question for a jury under the circum- stances, but the law holds you guilty of culpable negligence in the attempt to board the train, and we are allowed to go free. This is too stringent a rule for the case. Culpable negligence is the omission to do something which a reason- able, prudent, and honest man would do, or the doing of something which such a man would not do, under all the circumstances surrounding the particular case. Shearman & Redfield on Negligence, § 7 ; Kay v. Pennsylvania R. R. Co., 14 P. F. Smith, 273. Instead, therefore, of the rule laid down by the learned judge, he should have left it to the jury to say, under all the circumstances in evidence, whether the danger of boarding the train, when in motion, was so apparent, as to have made it the duty of the plaintiff to desist from the attempt. There is no objection to the court's assisting the jury in the performance of their duty, by reminding them of the danger of boarding a train in motion, and the caution and care that passengers should use, as well as of the duties of the carriers, and the influence of their wrongful acts in producing the catastrophe. But railroad com- panies are bound to remember that they owe duties to the public, for whose benefit their charters have been granted, and therefore should not be lightly loosed from the effects of their own wrongful acts. We are of opinion the court should have left the question of negligence on the part of the plaintiff to be de- termined by the jury upon the circumstances, and under an instruction less strin- gent and binding as to the duty of the plaintiff. Judgment reversed, and a venire facias de novo awarded." Upon the question of responsibility for injury to children of tender age in- flicted by railway companies through negligence or misconduct, there seems to be an important practical distinction, whether the neglect occurred after the com- ^pany knew or had reason to expect the child was or would be thus exposed. After the engineer of a railway train or any other railway operative knows that a child incapable of exercising discretion is exposed to a passing train or any other dangerous operation connected with the business of the company, he is bound to the exercise of watchfulness and effort proportioned to the peril, and has no right to expect or demand any further care to escape the peril than what may fairly be expected of one of that age in such a condition. Stout v. L., C. & P. Railw., 11 Am. Law Reg. N. S. 226 ; Bronson v. Southbury, 37 Conn. 199 ; Penn. Railw. V. Mahoney, 57 Penn. St. 187 ; 2 Redf. Railw. 225 ; Kay v. Philadelphia Railw., 27 Philadelphia L. I. 206. 490 WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTOBT NEGLIGENCE. 2. Dunn V. Grand Trunk Railway, 10 Am. Law Beg. N. 8. 615 ; s. C. 68 Maine Reports, 187. 1870. A person who is allowed, hj the conductor of a freight train, to pass over the road in the saloon car attached to the train, upon the payment of the same fare as that demanded of a first-class passenger may require of the company the same degree of responsibility for his safety as in a passenger train. [See note at end of case.] The facts in the case will sufficiently appear by Ijiie opinion of the court by — Appleton, C. J. The defendants are common carriers of pas- sengers and freight. They may carry freight in their passenger train, or passengers on their freight train. They have a right to make all reasonable rules and regulations in the management of their business, with which those in their employ, or those making use of their means of conveyance, are bound to conform when in- formed of their existence. By one of the regulations of the defendant corporation, after May 23, 1866, passengers were not " allowed to travel by freight trains on that part of the line between Portland and South Paris. The regulation was a reasonable one, and the defendants were authorized to make it. It is, however, fairly inferable from the regulation itself that previously passengers had been permitted to travel by the freight train. By the notice of September 8th, 1868, dated at Montreal, no passengers were to be carried in the brake- vans attached to freight trains " without written authority from the superintendent." And " any conductor allowing a passenger to travel on the brake-van, or any part of the freight train, will be dismissed." The plaintiff went aboard the freight train, in the saloon-car, and was there with the knowledge of the conductor. It was the duty of the conductor to inform him of this regulation, if it was to be enforced, and request him to leave. If no notice was given of this rule, and no request to leave, but instead thereof the usual fare was received, he had a right to suppose liimself rightfully on board, and entitled to all the rights of a passenger. Every one riding in a railroad car is, prima facie, presumed to be there law- fully as a passenger, having paid or being liable, when called on, to pay his fare, and the onus is upon the carrier to prove affirma- WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. 491 tively that he was a trespasser. Peun. Eailroad Co. v. Books, 7 Am. Law Reg. N. S. 529. If not being rightfully on board, and being advised thereof, the plaintiif neglected or refused to leave, the conductor had a right to remove him, using no more force than was necessary to accomplish that object. Fulton v. G. T. Railway, 17 Up. Can. 428 ; Hilliard v. Goold, 34 N. H. 230 ; State V. Goold, 53 Me. 279. The regulations of the defendant corporation are binding on its servants. Passengers are not presumed to know them. Their knowledge must be affirmatively proved. If the servants of the corporation, who are bound to know its regulations, neglect or violate them, the principal should bear the loss or injury arising from such neglect or violation, rather than strangers. The corpo- ration selects and appoints its servants, and it should be responsible for their conduct while in its employ. It alone has the right and the power of removal. A passenger goes on board a freight train, enters the saloon- car, and remains there when the train starts, against the rules of the company, but with the knowledge of the conductor, and is not directed or requested to leave, but pays the usual fare of a first- class passenger to such conductor, and is injured on his passage by the negligence or carelessness of the railroad corporation. Is he entitled to compensation for such injury ? If inert matter be injured or destroyed by the negligence or carelessness of a common carrier, its owner can maintain an action, and recover damages as a recompense for such injury. Is the traveller entitled to the pro- tection of the law, when the negligence of the carrier destroys his goods, and without its protection, when the same negligence in- jures his health or breaks his limbs ? If any extraordinary danger arises from the violation of the known rules of the" company, as by standing on the cars when in motion, the passenger violating the rules assumes the special risks resulting from such violation. But if the act of the passenger in no way conduces to the injury re- ceived, the carrier must be held responsible for the necessary consequences of his negligence or want of care. Baker v. Portland, 10 Am. Law Reg. N. S. 559. In Zump V. W. & M. Railroad Co., 9 Rich. (S. C.) 84, there were two cars on the train, and the plaintiff's seat was in the forward car. Near the door on the rearward car was a notice that passengers should not stand on the platform. The train was 492 WHERE PLAINTIFF WAS GUILTY OP CONTRIBUTORY NEGLIGENCE. running over an unfinished part of the road. The cross-ties were too far apart, and were insufficiently spiked, and the accident arose from " the breaking of the cleat at the end of one of the rails." All the other passengers were inside the cars, and none of them injured. The defence was that the injury arose from the plaintifif's own fault in standing upon the platform while the cars were in motion. The verdict was for the plaintiff, which the court refused to set aside, holding that whether the plaintiff had notice that the platform was a prohibited place, and if so, then whether under the circumstances his own act so contributed to the injury as to exonerate the railroad, who were guilty of negligence, were for the jury. The plaintiff's seat, " it will be recollected," observes O'iVeafe, J., " was in the forward car; the notice proved was in the rear car, on the platform of which he was standing when the accident occurred. That such notice is not enough to change th6 liability of the company to a passenger, is, I think, clear from Story on Bailment, § 558. If the conductor had said to the plain- tiff, as was his duty, ' you are in an improper place,' and he had then persisted in remaining, it might have been that this would have excused the company from any consequences which might have followed." An action was brought against a railroad com- pany by a passenger, while travelling in one of its gravel trains. The defendant asked the court to instruct the jury that a railroad company was not liable for an injury which might happen to one taking passage in a gravel train, and not engaged in carrying pas- sengers. This requested instruction was held to be properly denied in Lawrenceburgh & Up. Miss. Railroad Co. v. Montgomery, 7 Porter (Ind.) 475, the court holding that in a suit brought against a railroad for an injury occasioned by a collision, it was not sufficient for the company to show that the plaintiff was acting at the time in disobedience of a proper order to secure his safety, but that it should also appear that the injury was occasioned by such disobedience. In Watson v. Northern Railway Co., 24 Up. Can. (Q. B.) 98, the plaintiff travelling in the defendants' train on a passenger ticket went into the express company's compartment of a car. While there, owing to the negligence of the defendants' servants, the train, which was stationary, was run into by another coming up behind it, and the plaintiff's arm was broken. No person in the passenger cars was seriously injured. It was proved that notice that the passengers were not allowed to ride in the WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 493 baggage-car was usually posted upon the inside of the door of the passenger-cars, but it was not distinctly shown that it was there on that day. The jury found that the plaintiff was wrongfully in the car, but that he was not told where to go when he bought his ticket, nor did the conductor order him out, and so he was not to blame. " In my opinion," observes Draper, C. J., " the jury were warranted in finding that the plaintiff did not so contribute (to the injury) as to deprive him of the right to recover. Giving the full- est weight to the considerations urged in the defence, — such as the ticket which the plaintiff had, the notices stated to have been kept up in the cars, conceding the plaintiff saw them, though it is not proved, — I do not think they preclude the plaintiff from recovering, when the injury he sustained was occasioned by col- lision-resulting entirely and directly from the gross negligence of the defendants' servants." In O'Donnel v. Alleghany Valley Rail- road Co., 59 Penn. 239, in a suit by an employ^ of a railroad company, who held the relation of a passenger, the court charged that the baggage-car is an improper place for a passenger to ride, — whether the rule against it was communicated to him or not, if he left his seat in a passenger-car and went into the baggage-car, it was negligence which nothing less than a direction or an invita- tion of the conductor could excuse, — and such invitation should not be inferred from his having ridden there frequently with the knowledge of the conductor without his objection. Held to be error. That a railroad corporation cannot repudiate the acts of its agents so as to free themselves from responsibility for their neg- ligence, was held in Lackawanna & Bloomsburgh Railroad Co. v. Chenowith, 6 Am. Law Reg. N. S. 93, when the agents of a rail- road company, contrary to the instructions and rules of the company, at the request of the owner of a freight-car, attached it to a passenger-car, the plaintiff agreeing to run all risks, the plaintiff having sustained a loss by the negligence of the defend- ant, brought his action for compensation. The same defence was attempted as in the case at bar. The plaintiff was not a trespasser, " for," observes Thompson, J., " he was there by permission, and under the contract of parties competent to give him authority to be there. . . . When, therefore, they (the defendants) consented to hitch on his (plaintiff's) car to the passenger train, even at his urgent solicitation, — and we have not a particle of evidence that 494 WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTOKY NEGLIGENCE. other inducements to do the act were held out, excepting freedom from responsibility as a consequence of the attachment, — we must presume it was done with a view to the compensation to be paid on the one hand, and the usual care to be exercised on the other. The argument, however, is, that the plaintiff was guilty of such a wrong in asking for permitting his car to be attached, that whether the act contributed to the disaster or not, he is to be treated as a trespasser, and not entitled to any compensation for injuries not wilfully done. We think this is not the law, unless, in a case where the will of an agent is controlled and subverted by improper influences, he is induced to do that which is manifestly beyond the scope of his powers. That there was a regulation against running freight trains with passenger-cars may be admitted, although it was not properly proved, yet that neither proved that it might not be safely done, nor that if the company undertook to do it, they might lay aside the duty of care, and |!commit' such cases to the guardianship of chance." When a railroad company admits passengers into a caboose-car attached to a freight train, to be transported as passengers, and takes the customary fare for the same, it incurs the same liability for the safety of the passengers as though they were in the regular passenger coaches at the time of the occurrence of the injury. Bdgerton v. N. Y. & H. Railroad Co., 39 N. Y. (12 Tiffany) 227. In Carrol v. N. Y. & N. H. Railroad Co., 1 Duer, 578, the plain- tiff, remarks Bosworth, J., " took a seat in the post-office apartment of the baggage-car. The position was injudiciously chosen, and may be assumed to have been known to him to have been a far more dangerous one than a seat in a passenger-car. He took it with the assent of the conductor. He was not there as a tres- passer, or wrongfully as between him and the defendants. So far as all questions involved in the decision of this action are con- cerned, he was lawfully there." His being there was not such negligence as would exonerate the defendants from the conse- quences of their negligence or "want of care. The plaintiff was not entitled by law to be carried on the freight train contrary to the regulations of the defendant company. They might have refused to carry him, and have used force to remove him from the train. Not doing this, nor even requesting him to leave, but suffering him to remain, and receiving' from him the ordinary fare, they must be held justly responsible for negligence or want of care in his transportation. WHERE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE. 495 The question before the court was whether the defendants were liable at all as common carriers. The defence was based entirely upon a regulation of the company. There was no question raised as to the general obligations of carriers. Indeed none is raised at the argument. The counsel for defendants rest their defence on the rules of the company. The plaintiff had paid tlie usual fare of a first-class passenger. The defendants had received it, and had undertaken the transportation of the plaintiff in their freight train, during the course of which he was injured by their neglect or want of care. Under such circumstances, the judge said that they could not " plead their regulation in release of their ordinary liabilities, but they were just as liable as if it had been a passenger train, and as if there had been no notice, provided plaintiff was not guilty of any fault or want of ordinary care himself. Undoubtedly a passenger taking a freight train takes it with the increased risks and diminution of comfort incident thereto, and if it is managed with the care requisite for such trains, it is all those who embark in it have a right to demand. The Chicago, B. & Q. Railroad Co. v. Hazzard, 26 111. 373. " We have said in The Chi- cago AMAGE8 FOE INJURIES TO PASSENGERS. the court refused to set it aside. Beardmore v. Carrington, 2 Wils. 244. " After this," says Lord Campbell, in his Lives of the Chan- cellors, " he became the idol of the nation. Grim representations of him laid down the law from sign-posts, many busts and prints of him were sold not only in the streets of the metropolis, but in the provincial towns ; a fine portrait of him, by Sir Joshua Rey- nolds, with the flattering inscription, 'in honor of the zealous assertor of English liberty by law,' was placed in the Guildhall of the city of London ; addresses of thanks to him poured in from all quarters ; and one of the sights of London, which foreigners went to see, was the great Lord Chief Justice Pratt." In this country perhaps Lord Camden is better known as one of the able English statesmen who so eloquently defended the American colonies against the unjust claim of the mother country to tax them. Lord Campbell says some portions of his' speeches upon that subject are still in the mouths of school-boys. But in England his immense popularity originated in his firm and vigor- ous enforcement of the doctrine of exemplary damages. And we cannot discover that the legality of his rulings in this particu- lar was ever seriously called in question. On the contrary, we find it admitted by his political opponents that he was a profound jurist and an able and upright judge. His stringent enforcement of the right of the jury to punish flagrant wrongs with exemplary damages arrested not only great abuses then existing, but it has had a salutary influence ever since. It won for him the title of the " assertor of English liberty by law." In this country the right of the jury to give exemplary damages has been much discussed. It seems to have been first opposed by Mr. Theron Metcalf (afterwards reporter and judge of the Su- preme Court of Massachusetts), in an article published in 3 Amer- ican Jurist, 387, in 1830. The substance of this article was afterwards inserted in a note to Mr. Greenleaf's work on Evi- dence. Mr. Sedgwick, in his work on Damages, took the opposite view, and sustained his position by the citation of numerous author- ities. Professor Greenleaf replied in an article in the Boston Law Reporter, vol. 9, p. 529. Mr. Sedgwick rejoined in the same periodical, vol. 10, p. 49. Essays on difierent sides of the ques- tion were also published in 3 American Law Magazine, N. S. 537, and 4 American Law Magazine, N. S. 61. But notwithstanding RULE OF DAMAGES FOR INJURIES TO PASSENGERS. 511 this formidable opposition, the doctrine triumphed, and must be regarded as now too firmly established to be shaken by any thing short of legislative enactments. In fact the decisions of the courts are nearly unanimous in its favor. In a case in the Supreme Court of the United States Mr. Justice Grier, in delirering the opinion of the court, says, it IS a well-established principle of the common law that in all actions for torts the jury may inflict what are called punitive or exemplary damages, having in view the enormity of the offence rather than the measure of compensation to the plaintiff. " We are aware," the judge continues, « that the propriety of this doctnne has been questioned by some writers ; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument." Day v. Woodworth, 13 How. 363. In a case in North Carolina the court refer to the note in Professor Greenleaf 's work on Evidence, and say that it is very clearly wrong with respect to the authorities; and in their judg- ment wrong on principle ; that it is fortunate that while juries endeavor to give ample compensation for the injury actually received, they are also allowed such full discretion as to make verdicts to deter others from flagrant violations of social duty And the same court hold that the wealth of the defendant is a proper circumstance to be weighed by the jury, because a thousand dollars may be a less punishment to one man than a hundred dol- lars to another. In one case the same court sustained a verdict which in terms assessed the actual damages at f 100, and the ex- emplary damages at 11,000. The court held it was a good verdict B-'i u' ?;„ r""" '*°" ^- ^^'''^^ ^ •^°""'^ (^- CO, 98; McAulay v. Birkhead, 13 Iredell, 28 ; Gilreath v. Allen, 10 id. 67. In fact, Professor Greenleaf is himself an authority for the doctrine of exemplary damages. Speaking of thB action for assault and battery, he says the jury are not confined to the mere corporal injury, but may consider the malice of the defend- ant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon award such exemplary damages as the circumstances may in their judgment require. 2 Greenl. on Ev. § 89 But if the great weight of Professor Greenleaf 's authority were to be regarded as opposed to the doctrine, we have, on the other 512 BULB OP DAMAGES FOE INJURIES TO PASSENGERS. hand, the great weight of Chancellor Kent's opinion in favor of it. He says, surely this is the true and salutary doctrine. And after reviewing the English cases, he continues by saying it cannot be necessary to multiply instances of its application ; that it is too well settled in practice, and too valuable in principle, to be called in question. Tillotson v. Cheetham, 3 Johns. 56, 64. This brief review of the doctrine of exemplary damages is not so much for the purpose of establishing its existence, as to correct the erroneous impression which some members of the legal pro- fession still seem to entertain, that it is a modern invention, not sanctioned by the rules of the common law. We think every candid-minded person must admit that it is no new doctrine ; that its existence as a fundamental rule of the common law has been recognized in England for more than a century ; that it has been there stringently enforced under circumstances which would not have allowed it to pass unchallenged, if any pretext could have been found for doubting its validity ; and that in this country, notwithstanding an early and vigorous opposition, it has steadily progressed, and that the decisions of the courts are now nearly unanimous in its favor. It was sanctioned in this state, after a careful and full review of the authorities, in Pike v. Billing, 48 Me. 539, and cannot now be regarded as an open question. But it is said that if the doctrine of exemplary damages must be regarded as established in suits against natural persons for their own wilful and malicious torts, it ought not to be applied to corporations for the torts of their servants, especially where the tort is committed by a servant of so low a grade as a brakeman on a railway train, and the tortious act was not directly nor impliedly authorized nor ratified by the corporation ; and several cases are cited by the defendants' counsel, in which the courts seem to have taken this view of the law ; but we have carefully examined these cases, and in none of them was there any evidence that the servant acted wantonly or maliciously ; they were simply cases of mistaken duty ; and what these same courts would have done if a case of such gross and outrageous insult had been before them, as is now before us, it is impossible to say ; and long expe- rience has shown that nothing is more dangerous than to rely upon the abstract reasoning of courts, when the cases before them did not call for the application of the doctrines which their reason- ing is intended to establish. EULB OF DAMAGES FOR INJURIES TO PASSENGERS. 513 We have given to this objection much consideration, as it was our duty to do, for the presiding judge declined to instruct the jury that if the acts and words of the defendants' servant were not directly nor impliedly authorized nor ratified by the defend- ants, the plaintiff could not recover exemplary damages. We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to railroad corporations in their capacity of common carriers of passengers ; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases where such an act is directly. or impliedly ratified ; for no such cases will ever occur. A corpo- ration is an imaginary being. It has no mind but the mind of its servants ; it has no voice but the voice of its servants ; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands ; and these minds and hands are its servants' minds and hands. All attempt, therefore, to distinguish between the guilt of the servant and the guilt of the corporation ; or the malice of the servant and the malice of the corporation ; or the punishment of the servant and the punishment of the corporation is sheer non- sense, and only tends to confuse the mind and confound the judg- ment. Neither guilt, malice, nor suffering is predicable of this ideal existence called a corporation. And yet under cover of its name and authority there is in fact as much wickedness, and as much that is deserving of punishment, as can be found anywhere else. And since these ideal existences can neither be hung, imprisoned, whipped, or put in the stocks, — since in fact no cor- rective influence can be brought to bear upon them except that of pecuniary loss, — it does seem to us that the doctrine of exem- plary damages is more beneficial in its application to them than in its application to natural persons. If those who are in the habit of thinking that it is a terrible hardship to punish an inno- cent corporation for the wickedness of its agents and servants, will for a moment reflect upon the absurdity of their own thoughts, their anxiety will be cured. Careful engineers can be selected who will not run their trains into open draws ; and careful baggage-men can be secured who will not handle -and smash TOL. II. 33 514 RULE OP DAMAGES FOR INJURIES TO PASSENGERS. trunks and bandboxes as is now the universal custom ; and con- ductors and brakemen can be had who will not assault and insult passengers ; and if the courts will only let the verdicts of upright and intelligent juries alone, and let the doctrine of exemplary damages have its legitimate influence, we predict these great and growing evils will be very much lessened, if not entirely cured. There is but one vulnerable point about these ideal existences called corporations ; and that is, the pocket of the moneyed power that is concealed behind them ; and if that is reached they will wince. When it is thoroughly understood that it is not profitable to employ careless and indifferent agents, or reckless and insolent servants, better men will take their places, and not before. It is our judgment, therefore, that actions against corporations, for the wilful and malicious acts of their agents and servants in executing the business of the corporation, should not form excep- tions to the rule allowing exemplary damages. On the contrary, we think this is the very class of cases, of all others, where it will do the most good, and where it is most needed. And in this conclusion we are sustained by several of the ablest courts in the country. In a case in Mississippi the plaintiff was carried four hundred yards beyond the station where he had told the conductor he wished to stop ; and he requested the conductor to run the train back, but the conductor refused, and told the plaintiff to get off the train or he would carry him to the next station. The plaintiff got off and walked back, carrying his valise in his hand. The plaintiff testified that the conductor's manner toward him was insolent, and the defendants having refused to discharge him, the jury returned a verdict for $4,500, and the court refused to set it aside. They said the right of the jury to protect the public by punitive damages, and thus prevent these great public blessings from being converted into the most dangerous nuisances, was conclusively settled ; and they hoped the verdict would have a salutary influence upon their future management. Railroad v. Hurst, 36 Miss. 660. In New Hampshire, in an action against this identical road, where, through gross carelessness, there was a collision of the passenger train with a freight train, and the plaintiff was thereby injured, the judge at nisi prius instructed the jury that it was a proper case for exemplary damages ; and the full court sustained RULE OF DAMAGES FOR INJURIES TO PASSENGERS. 515 the ruling, saying it was a subject in which all the travelling public were deeply interested ; that railroads had practically mou- opolized the transportation of passengers on all the principal lines of travel, and there ought to be no lax administration o^ the law in such cases ; and that it would be difficult to suggest a case more loudly calling for an exemplary verdict. [If mere careless- ness, however gross, calls loudly for an exemplary verdict, what shall be said of an injury that is wilful and grossly insulting ?] Hopkins v. At. & St. Lawrence Railroad, 36 N. H. 9. Judge Redfield, in his very able and useful work on railways, expresses the opinion that there is quite as much necessity for holding these companies liable to exemplary damages as their agents. He says it is difficult to perceive why a passenger, who suffers indignity and insult from the conductor of a train, should be compelled to. show an actual ratification of the act, in order to subject the company to exemplary damages. 2 Redfield on Rail- ways, 231, note. But if such a ratification is necessary, he thinks the corporation, which is a mere legal entity, inappreciable to sense, should be regarded as always present in the person of its servant, and as directing and ratifying the servant's acts within the scope of his employment, and thus be made responsible for his wilful misconduct. 1 Redfield on Railways, 615 et seq. And in a recent case in Maryland (published since this case has been pending before the law court), a case in all respects very similar to the one we are now considering, the presiding judge was requested to instruct the jury that the plaintiff was not entitled to recover vindictive or punitive damages from the defendants, unless they expressly or impliedly participated in the tortious act, author- izing it before or approving it after it was committed ; but the pre- siding justice refused so to instruct the jury, and the full court held that the request was properly rejected ; that it was settled that where the injury for which compensation in damages is sought is accompanied by force or malice, the injured party is entitled to recover exemplary damages. Railroad v. Blocher, 27 Md. 277. But the defendants say that the damages awarded by the jury are excessive, and they move to have the verdict . set aside and a new trial granted for that reason. That the verdict in this case is highly punitive, and was so designed by the jury, cannot be doubted ; but by whose judgment is it to be measured to deter- mine whether or not it is excessive ? What standard shall be 616 RULE OP DAMAGES FOE INJURIES TO PASSENGERS. used ? It is a case of wanton insult and injury to the plaintiff's character and feelings of self-respect, and the damages can be measured by no property standard. It is a case where the judg- ment will be very much influenced by the estimation in which character, self-respect, and freedom from insult are held. To those who set a very low value on character, and think that pride and self-respect exist only to become objects of ridicule and sport, the damages will undoubtedly be considered excessive. It would not be strange if some such persons, measuring the sensibilities of others by their own low standard, should view this verdict with envy, and regret that somebody will not assault and insult them, if such is to be the standard of compensation. While others who feel that character and self-respect are above all price, more valu- able than life itself even, will regard the verdict as none too large. We repeat, therefore, that it is a case where men's judgments will be likely to differ. And suppose the court is of opinion that the damages in this case are greater, much greater even, than they would have awarded, does it therefore follow that the judgment of the court is to be substituted for that of the jury? By no means. It is the wisdom of the law to suppose that the judgment of the jury is more likely to be right than the judgment of the court, for it is to the former and not to the latter that the duty of estimating damages is confided. Unless the damages are so large as to satisfy the court that the verdict was not the result of an honest exercise of judgment, they have no right to set it aside. A careful examination of the case fails to satisfy us that the jury acted dishonestly, or that they made any mistake in their application of the doctrine of exemplary damages. We have no doubt that the highly punitive character of their verdict is owing to the fact that, after Jackson's misconduct was known to the defendants, they still retained him in their service. The jury undoubtedly felt that it was due to the plaintiff, and due to every other traveller upon that road, to have him instantly discharged ; and that to retain him in his place, and thus shield and protect him against the protestation of the plaintiff, made to the servant himself at the time of the assault, that he would lose his place, was a practical ratification and approval of the servant's conduct, and would be so understood by him and by every other servant on the road. And when we consider the violent, long-continued, and grossly EOLB OP DAMAGES FOE INJURIES TO PASSENGERS. 617 insulting character of the assault ; that it was made upon a person in feeble health, and was accompanied by language so coarse, profane, and brutal, that, so far as appears, it was wholly unpro- voked ; we confess we are amazed at the conduct of the defendants in not instantly discharging Jackson. Thus to shield and protect him in his insolence deeply implicated them in his guilt. It was such indifference to the treatment the plaintiff had received, such indifference to the treatment that other travellers might receive, such indifference to the evil influence which such an example would have upon the servants of this and other lines of public travel, that we are not prepared to say the jury acted unwisely in making their verdict highly punitive. We cannot help feeling that if we should interfere and set it aside, our action would be most unfortunate and detrimental to the public interests. On the contrary, if we allow it to stand, we cannot doubt that its influ- ence will be salutary. It will be an impressive lesson to these defendants, and to the managers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill-mannered, and unfit for their places. And it will encourage those who may suffer insult and violence at the hands of such servants not to retaliate or attempt to become their own avengers, as is too often done, but to trust to the law and to the courts of justice, for the redress of their grievances. It will say to them, be patient and law-abiding, and your redress shall surely come, and in such measure as will not add insult to your previous injury. On the whole, we cannot doubt that it is best for all concerned that this verdict be allowed to stand. In Welch v. Durand, 36 Conn. 182, it was decided that " smart money " may be allowed as damages in actions of tort founded on the malicious or wanton misconduct or culpable negligence of the defendant, and that the expenses of litigation may be taken into consideration in assessing the damages in any case where " smart money " may be allowed. The case is also reported 10 Am. Law Reg. N. S. 566, where we appended the following note : — There are some terms used in regard to damages being awarded beyond the act- ual pecuniary injury, in personal actions, which seem to have tended to bring the whole matter into discredit. Where the exemplary damages have been character- ized as "vindictive damages,'' or, as in the case last referred to, as "smart money," it has the tendency to keep up the impression in the popular, and to some extent in the professional mind, that some portion of the damages awarded must be put down to the score of punishment of the defendant. It is true; indeed, that the 518 RULE OP DAMAGES FOR INJURIES TO PASSENGERS. term " exemplary damages " may suggest the same idea in some sense, but not in so objectionable a form, we think, as the other terms alluded to. We should, therefore, prefer to use that term or else the expression, as it is very justly denominated in another portion of the opinion in the case first mentioned in this note, " a sum to cover the expenses of litigation." This latter is precisely what the law ought to allow, and what, in our opinion, it will, and does allow. We know that the inclusion of counsel fees eo nomine among the damages has been objected to, and denied to be admissible, in some cases of good authority. Sliaw, C. J., in Barnard v. Poor, 21 Pick. 378, 381, 382, and cases cited; Lincoln v. Saratoga & Schenectady Railway, 23 Wend. 425, 435. But such a claim as part of the damages is clearly countenanced in Sandback v. Thomas, 1 Stark. 306, although denied in other cases. Grace v. Morgan, 2 Bing. N. C. 634; Jenkins v. Biddulph, 4 Bing. 160 ; Sinclair v. Eldred, 4 Taunt. 7. See also Webber v. Nicholas, 1 R. & M. 419. The case of Sandback v. Thomas, supra, was for maliciously holding the plaintiff to bail, and the court held him entitled to recover "not merely the taxed costs, but the costs as between attorney and client." Lord Ellenborough said : " Tou must indemnify him against such expenses.'' And in Webber v. Nicholas, supra, Best, C. J., said: " I should myself have thought that my Lord Ellen- iorougVs opinion was the correct one ; " but the learned judge felt bound by the earlier decision of his own court in banc, in Sinclair v. Eldred, supra. And in Grace v. Morgan, supra, there is an intimation by Tindal, C. J., to the same effect, referring to Jenkins ». Biddulph, supra, as having concluded the question. But the latter case was one for false return against an officer, where exemplary damages are not allowed, as a general rule. And the case of Jenkins v. Bid- dulph was really decided upon the authority of Sinclair ». Eldred, supra, and Hathaway jj. Barrow, 1 Camp. 161, and not upon what the court, at the time, regarded as the true rule upon the point. But, in looking into the cases here relied upon, it will appear that Hathaway v. Barrow turned upon the construction of an order " to pay costs,'' which the court very justly held to mean taxable costs, and was not, of course, in conflict with the later opinion of the same judge in Sandback ». Thomas, already adverted to. And the case of Sinclair ». Eldred, upon which all the other English cases against the allowance of counsel fees, as part of the necessary expenses of litigation, seem to rest, was not an action in which the plaintiff recovered at all. There was, therefore, no occasion to discuss the question of damages, in the court in banc, where a rule to enter a nonsuit in the action was made absolute, on the ground that the fact that the plaintiff in the former action, by arrest of. the body, had become nonsuit, was no evidence that the same was instituted maliciously. It is true the plaintiff at nisi prius had claimed that the plaintiff becoming nonsuit in the action, after swearing out a capias, was not only evidence of malice in instituting the proceedings, but that he should also recover the expense of the proceedings, as between attorney and client. And the learned Chief Justice Mansfield, in giving judgment against the plain- tiff's right to maintain the action at all, upon the facts proved, also volunteered to tell him that he could not recover the costs, as between attorney and client, even if he had proved express malice in instituting the proceedings. As this was a mere obiter dictum of the judge, in rounding out his judgment upon another point, it seems a little remarkable that it should have been treated as authority RULE OP DAMAGES FOE INJURIES TO PASSENGERS. 519 by the courts to so great an extent in England, while all along protesting against its soundness or justice. But the foregoing summary of the cases will show that the weight of judicial opinion, in England even, is greatly in favor of embracing the expenses of the litigation in the indemnifying suit. For when one is subjected to litigation by the wrongful act of another, his suit for redress is but a suit for indemnity against the loss and expense of the litiga- tion, to which he has thus wrongfully been subjected. And in all suits for indem- nity against other suits, the party entitled to indemnity is allowed to recover the expenses of the first suit, as between attorney and client, unless it appear that he should have paid the money without waiting for an action to be brought. Thus, where one, to whom property is warranted, either as to its title or quality, is compelled to respond in damages to his vendee to whom he gave a similar war- ranty, and is by consequence compelled to resort to an action for his indemnity, he will be allowed to recover, not' only the damages and taxable costs recovered of him, but, in addition thereto, the whole expenses of the litigation. But none of these cases exactly touch the point of counsel fees and other expenses of the very suit brought to recover the very damages which the party himself sustains, by the wrongful act of another. There seems, no doubt, to be a kind of incongruity in allowing the party to recover, by way of damages, the counsel fees incurred in the very prosecution then pending, and which, by a settled rule of practice, the party prevailing in the suit is not allowed to recover, by way of costs. It seems to be a sort of evasion of the rule of the court disallowing the expenses as part of the costs. And we think there has always been some hesitation, among judges holding trial terms, in allowing counsel fees to come in, as part of the damages, in any class of actions. But we confess an inability to comprehend why such expenses should not be embraced in all verdicts, which are intended to aftbrd the injured party full in- demnity. It is certain he cannot, or will not, obtain full indemnity short of that. In actions where there is no culpable negligence, or intentional wrong, it may be fair enough, in estimating the actual damage done or suffered, to restrict the jury to the actual pecuniary loss suffered by the act or omission at the time it occurs. But this, it will be perceived will have, in some measure, the effect to divide the more important expenses of the litigation between the parties. And this may be just enough in the majority of cases. No one expects full indemnity against all those inflictions which constantly arise from living in a social state. AH that can be hoped for in such matters is such an approximation to justice as will so quicken the sluggish and restrain the greedy, as to keep them within endurable limits. But in all that considerably numerous class of actions, where the jury are allowed to look beyond the actual damage and injury at the moment of its inflic- tion, and to have regard to affording the plaintiff full indemnity for all losses incidental as well as direct ; in short, in all actions where the fault is exclusively on one side, and upon that side more or less wanton, or grossly negligent, it seems highly suitable that some regard should be had to those expenses of litiga- tion, which are never allowed to be embraced in the taxed bill of costs. The difference between the actual costs of litigation and those which the prevailing party will be allowed to embrace in his taxed bill is, day by day, in this country, growing wider and wider. Partly from the fact, perhaps, that the profession in an early day obtained a fee-bill in their favor of somewhat liberal character, and 520 HOW FAR RAILWAY PASSENGER CARRIERS more from the prejudice which exists in the popular mind, against what has been called their cupidity, growing mainly, we believe, out of the disposition to judge the mass, by extreme cases of abuse in that direction ; the fee-bill of taxable costs was fixed by subsequent legislation at the extreme point, almost, of starvation, and has been studiously maintained at that low point almost of zero, while the expenses of almost every thing else, in the mean time, has risen from two to ten- fold. Under such extreme limitations in the taxable costs, it became indispensable to allow large charges, as between attorney and client, not embraced in the fee- bill of taxable costs. And if the jury can have no regard to those expenses, in esti- mating damages in cases of mere wanton outrage, it will follow that the expenses of litigation alone will drive the injured party out of court, since his recovery of the mere pecuniary loss, at the moment of the infliction of the injury, will not meet the necessary expenses of litigation. We confess, therefore, to a decided preference of the rule laid down in the case last reported, above that which shuts out all incidental considerations in estimating the damages in wanton and malicious injuries. We cannot regard an action in that class of cases as differing in prin- ciple from a suit for indemnity. And if in suits strictly for indemnity against loss, caused by breach of covenant or of warranty, counsel fees and other expenses of litigation not embraced in the taxable costs may be embraced, it seems to us they should be in actions for compensation for malicious injuries. IX. How FAR Railways as Passenger Carriers are Responsible, BY Way 01 Employes. BY Way of Exemplary Damages, for the Misconduct of their The general rule of law, that corporations subject themselves to the same degree of responsibility for the same acts, as do natural persons, applies with peculiar force in the matter of exemplary damages, to the misconduct of railway employes in passenger transportation. Atlantic S^ Great Western Railway v. Dunn, 19 Ohio, N. 8. 162. 1871. Railway corporations, acting, as they do, solely through their servants and agents are responsible for all their acts within the scope of their employment to the same ex- tent and in the same form as are natural persons who perform similar acts, either in person or through the agency of others. Hence such corporations, as passenger carriers, will be held responsible in exemplary damages in all cases where they are responsible at aU, and the facts are such as to call for the infliction of such damages. The facts will sufficiently appear in the opinion of the court by- RESPONSIBLE FOR MISCONDUCT OP EMPLOYES. 521 Brinkerhopp, C. J. The question presented by the record in this case is, whether a corporation may be held liable to exemplary or punitive damages for such acts, done by its agents or servants acting within the scope of their employment, as would, if done by an individual acting for himself, render him liable for such damages. That such damages may, in a proper case, be recovered against an individual party acting for himself, is settled in this state by the case of Roberts v. Mason, 10 Ohio St. 279, to which the court below, in its charge to the jury, referred ; but whether the same doctrine is, in any case, applicable to corporations acting through their servants or agents, is a question which has not heretofore been determined in this state by the court of last resort. The question is one of much practical importance, both to corporations and the public with which they deal and come in contact, and we have endeavored to give to it a careful consideration, and having done so, a majority of the court find ourselves constrained to answer the question in the affirmative. In our deliberations on the question, and looking to the adjudi- cations of courts outside of Ohio, we find no settled or decidedly preponderant course of decision upon it. The cases are irrecon- cilably conflicting ; and the only aid we can derive from them is through the suggestions of legal principles which they contain. The foundation principle which governs these cases, it seems to us, is found in the maxim qui facit per alium facit per se. The act of the servant, done within the scope and in the exercise of his employment, is in law the act of the master himself. And " this legal unity of the principal and agent," says the Su- preme Court of Mississippi, in New Orleans, Jackson & Great Northern R. R. Co. v. Bailey, 40 Miss. 453, " in respect to -the wrongful or tortious, as well as the rightful acts of the agents, done in the course of his employment, is an incident which the law has wisely attached to the relation, from its earliest history." And Blackstone in his Commentaries says : " The master may be frequently a loser by the trust reposed in his servant, but never can be a gainer ; he may frequently be answerable for his ser- vant's misbehavior, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uni- form and the same, — that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a 522 HOW FAR RAILWAY PASSENGER CARRIERS standing maxim, that no man shall be allowed to make any advan- tage of his own wrong." Vol. i. p. 431. In Story on Agency the law is thus stated : " It is a general doctrine of law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate ill, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them. In all such cases the rule ap- plies, respondeat superior ; and it is founded upon public policy and convenience ; for in no other way could there be any safety to third persons in their dealings, either directly with the principal or indirectly with him through the instrumentality of agents. In every such case, the principal holds out his agent as competent and fit to be trusted ; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency." §452. Now this general doctrine, as to the legal identity of principal and agent, is fundamental. It is established. We are not at liberty to ignore or disregard it ; and no one even dreams that it ever will, or ever ought to be, abrogated. And resting as it does on sound principles of public policy and regard for the public convenience and safety, it seems to me to apply with peculiar pro- priety to corporations, — which are capable of action only through the medium of agents, and which touch, infringe upon, and come in contact with individual persons and the public only by means of their agents and servants. In Philadelphia, Wilmington, & Baltimore R. R. Co. v. Quigley, 21 Howard, U. S. 202, it was held that a railroad corporation might be guilty of acting maliciously, and so render itself liable to damages for the publication of a libel, although it acted, and could act, only through the medium of agents. And Oampbell, J., delivering the opinion of the court in that case, says : " The result of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible as an individual EBSPONSIBLB FOR MISCONDUCT OP EMPLOYES. 523 is responsible in similar circumstances." And it is furthermore noticeable in that case, that the charge of the circuit court to the jury, to the effect that they were at liberty to award exemplary or punitive damages, was held to be erroneous, solely for the reason, as in P., Ft. W. & C. Railroad Co. v. Slusser, decided by us at this term — that the facts by which the wrongful act was characterized did not make a proper case for the application of the rule on the subject, had it been done by a natural person. But the legal identity of the master and servant being admitted, and the legal consequence, that the master is responsible in dam- ages for the wrongful acts of the servant done within the scope of his employment, the particular question still remains, whether such damages can properly and legally transcend the measure of compensation merely ; or may tliey, in a proper case, be given to the extent of exemplary or punitive damages, as in cases against a natural person ? In answer to this query, it is proper to inquire what is the ground of reason and principle on which exemplary damages are allowable in any case ? The answer is ready and clear. Nobody will dispute it. It rests not on the ground of ab- stract or theoretical justice, but on the ground of public policy — a policy which seeks to promote the public safety ; to punish, through the medium of a civil proceeding, a fi-audulent, malicious, insulting, or wilful wrong-doer, and to hold him up as a warning example to others, to deter them from offending in like manner. Now, wl^ do not the same considerations of public policy apply as well to corporations as to natural persons ? I am unable to see why they do not. Corporations, embodying, as they often do, the concentrated wealth and influence of many individuals, certainly may have the power to do injury at least equal to that of natural persons, and it seems to me that the history of corporations affords no satisfactory guaranty that they may not use that power for purposes inimical to individual and public interests, unless re- strained by a consciousness of amenability to effective legal pen- alties. The legislative policy of our state has been exceedingly liberal towards railroad corporations, in delegating to them, to a liberal extent, its sovereign power of eminent domain ; in the unlimited discretion accorded to them in the selection of their routes ; in the legal facilities afforded them for raising the means for the con- struction of their roads ; in authorizing consolidations with other 524 HOW PAR RAILWAY PASSENGER CARRIERS RESPONSIBLE, ETC. companies, and in the enactment of penal statutes for their protec- tion. Directly and incidentally they contribute much to the wealth and convenience of our people ; but the wealth that controls them is largely held by persons outside of our state, and is constantly changing hands; and individual stockholders feel but little per- sonal responsibility for wrongs which may be done by their ser- vants to individuals placed within their power. Practically, they have almost a monopoly of the means of travel. Millions of per- sons annually pass under the control and within the power of their servants. And unless the public, through the medium of our laws, retain the means to exercise an effective restraint upon any tendency to wrong-doing to which they may be subject, and espe- cially in respect to the care, or the want of it, with which their servants may be selected, it seems to me there is so much danger of the abuse of power in this direction as to forbid the recognition of a distinction between them, acting through agents, and individ- uals acting in their own proper persons, in respect to the liabilities consequent upon tortious action. The actual management of such corporations is apt to fall into the hands of either a single indi- vidual, or of a small and closely associated number of individuals ; and the danger is that such persons will be led by a spirit of nepo- tism or personal favoritism, or by false notions of economy leading them to fix the compensation for the services of their servants at a rate inadequate to secure the services of competent and trustworthy men, to forget the higher paramount duty due to the pubjic in this particular, unless the stern, but just and discriminating hand of the law is kept constantly visible before them. Delivering the opinion of the Supreme Court of New Hampshire on this question, Perley, C. J., says : " If a corporation like this railroad is guilty of an act or default, such as in the case of an individual would subject him to exemplary damages, we think the same rule must be applied to the corporation." ..." According to the general theory of the common law, crimes are prosecuted and punished by the State alone. Individuals are not supposed to have any private interest in the punishment of public offences. And so, on the other hand, as a general rule, the plaintiff in a civil action recovers a mere compensation for his private injury." He adds : " It is, however, extremely well settled that exemplary or vindictive damages may in certain cases be recovered ; and this is perhaps in accordance with the legislative policy which has given DUTY OP CARRIERS TO INSURE SAFETY, ETC. 525 pecuniary penalties in numerous instances to private prosecutors of certain offences. Where the wrong done to the party partakes of a criminal character, though not punishable as an offence against the state, the public may be said to have an interest that the wrong-doer should be prosecuted and brought to justice on a civil suit, and exemplary damages may in such cases encourage prosecutions where a mere compensation for the private injury would not repay the trouble and expense of the proceeding. Hop- kins V. The Atlantic & St. Lawrence Railroad, 36 N. H. 9. We cannot say, as in the case of the P. Fort W. & 0. R. R. v. Slusser, above referred to, that this is not a case for exemplary damages, for the evidence is not fully set forth in the record ; and the facts which the bill of exceptions declares the evidence of the plaintiff below tended to prove are such as authorized the court to submit the question to the consideration of the jury. Judgment affirmed. X. The Duty of Passenger Carriers in Regard to maintain- ing THE Platforms about the Passenger Stations in Safe Condition and Properly Protected, so as to insure the Safety of Passengers in entering and leaving the Cars, etc. 1 McDonald ^ Wife v. The Gkicago ^ N. W. Bailw., 9 Law Reg. N. S. 10; s. c. 26 Iowa, 124. It is the duty of railway passenger carriers to provide comfortaMe rooms for the accommodation of passengers while waiting at stations, and to enforce such regu- lations in regard to smoking therein as to enable passengers to occupy them in reasonable comfort. If this is not done, it will afford reasonable excuse for passengers to enter the cars before they are drawn up in front of the platform, in preparation for immediate departure. And if in so doing a passenger sustains injury through defect in the platform, against or opposite which the cars are standing during a halt for refreshments, the company will be held responsible. Railway passenger carriers hare power to make reasonable rules and regulations, in regard to the conduct of passengers, extending to the time and mode of entering the cars ; but such rules and regulations must, in some way, be made known to passengers or they will not be in fault for not conforming to them. 526 DUTY OP CARRIERS TO INSURE THE This being an action for injury to the wife while a passenger upon the defendants' train, the important facts are, that, while the train was waiting for refreshments at a station, the plaintiff, on whose account the action is brought, finding the passenger room so foul by reason of tobacco smoke and other impurities as to be unfit for comfortable occupation, attempted to find a seat in the cars. The cars had been run back from the passenger station, so as to bring the passenger coaches beyond the passenger platform and nearly opposite the freight station. It was the custom of de- fendants before starting a passenger train to have it drawn up before the passenger station, and to there receive the passengers. But the wife, being unable to remain in the passenger room on account of the tobacco smoke, attempted to find a seat in the cars, and, in doing so, went tlie entire length of the ordinary passenger platform, and in going down steps at the end of it was seriously damaged by their giving way. These steps were in constant use by the passengers of other roads in changing cars at this place, but were not expected ordinarily to be used by defendants' passen- gers in entering the cars. The opinion of the court was delivered by — Dillon, C. J. Appellant's various grounds for a reversal of the judgment we notice in the order in which |hey are presented by counsel. 1. There was no error in allowing the plaintiffs to amend the petition so as to increase the amount claimed as damages. 2. There was no error in the action of the court in allowing witnesses to testify as to the condition of the passenger room with respect to tobacco smoke. Tlie evidence was proper as part of the transaction out of which the injury arose, and as showing why the plaintiffs did not remain in the passenger room, or return to it. The eifect of this circumstance upon the rights of the parties was not stated to the jury. It would not justify the plaintiffs in vio- lating a known rule of the company, if there was one, as to the par- ticular place where passengers were required to enter their cars. But I have no hesitation in saying, that, without any statute enacting it, there is a common-law duty on these companies to pro- vide reasonable accommodations at stations for the passengers who are invited and expected to travel on their roads. See Caterham E,. R. Co. V. London R. R. Co., 8 Eng. C. L. 410. If the station room is full, or if it is intolerably offensive, by reason of tobacco SAFETY OP PASSENGERS ENTERING OARS. 527 smoke, so that a passenger has good reason for not remaining there, while this will not justify him in violating reasonable rules and regulations of the company, which are known to him re- specting the place, mode, and time of entering the cars, it will justify his endeavor to enter the cars at as early a period as possible, especially if it is dark and cold without, if in so doing he uses proper care and violates no rule or regulation of the company of which he has actual knowledge, or which, as a reasonable man, he would be bound to presume existed. He would not, of course, be justified by the condition of the passenger room in rashly en- deavoring to board a train in motion, or the like ; but if the train had arrived, was on the track, the car doors open, and if, as is frequently if not generally the case, passengers are allowed, or at least not forbidden, to enter the cars before they are drawn up in front of the station, we think a passenger may reasonably and prop- erly make the attempt to reach and enter the cars, if he is not aware of any rule or regulation to the contrary ; and if he receives an injury in so doing (he using proper care), from the unsafe and dangerous condition of the platform or the steps in a place where passengers would naturally go, the company are liable therefor. This subject, and some of the leading and recent decisions bearing upon it, will be alluded to in considering the instructions of the court to the jury. 3. There was evidence tending to show that the injuries to the wife were permanent in their nature, and likely to disable her during her life from rendering effectual service to her husband and family in the discharge of her household duties ; and that in consequence a woman had been and was and probably would have to be employed to do the work she had been accustomed to perform. Under these circumstances there was no error in the admission of the Carlisle tables to show the expectancy of the life of the wife. It was shown that, at the plaintiff's age, the expectancy of life was about fifteen years. If the jury believed the injury was permanent, and that it would disable the plaintiff for life from doing labor, the length of time that she would probably live affords some data proper for the jury to consider in determining the amount of pecuniary damage occa- sioned by the injury. At common law where the action was for a tortious injury to a married woman, the husband suing alone might recover for the ex- 528 DUTY OP CAERIERS TO INSURE THE penses of a cure, for loss of service, and of the society of iais wife. But n a suit in the name of the husband and wife, the cause of action was the injury to the wife, and the recovery was limited to damages for that injury, including, of course, the mental sufferings of the wife, and did not embrace the injury to the husband, who alone was liable to pay the medical attendant, and who alone was consid- ered damnified by the loss of the services and society of his wife. Puller and Wife v. R. R. Co., 21 Conn. 657, 571 ; 2 Redf. on Rail- ways, 213, 3d ed. But our statute has changed the common-law rule as to parties in such cases. Rev. 2775. This provides that " in an action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to join thereto claims in his own right." See Rev. § 2771. This was done in the present case. If there were doubt as to the propriety of the testimony as tending to show the extent of the injury to the wife, there can be none as to its propriety as tending to show the extent to which it would deprive the husband of the services of the wife. 4. The point that the agreement of the plaintiffs with Mr. Latham was champertous, does not appear to have been presented to the District Court. This agreement was set up in the answer as showing that the proper parties plaintiff had not joined in the action. The point made was, that Latham, by virtue of this agree- ment, was a real party in interest, and ought to have been a party to the action. The court held, that this was not such an assignment as would defeat the right to recover (see 4th instruction refused), or make it necessary that Latham should be a party plaintiff (see 3d paragraph of court's charge). And in this view the court was correct. 5. It is next insisted, that the court erred in refusing to instruct as prayed by the defendant, and also in the charge of its own to the jury. The view taken by the court below will appear from the in- structions refused and given, which are set out in the statement of the case and need not be here repeated. By recurring to the court's charge in chief, it will be seen that it made the defendant's liability turn upon the question whether the step, which caused the accident, was loose. The jury were told in the charge that, if one of the steps was loose and not nailed down, SAFETY OP PASSENGERS ENTERING CARS. 529 by reason of which the accident happened, the defendant is liable unless the plaintiffs own want of care contributed to the injury ; and such want of care does not exist if the jury find that an ordi- narily prudent person would have gone down the steps of the plat- form, and would not have waited until the passenger cars were opposite the passenger depot. See paragraphs 4, 5, 6, and 7 of the charge. These instructions assume and necessarily imply, that the plain- tiffs had the right to enter the cars when and where they attempted it, if an ordinarily prudent person would have pursued the course which the plaintiffs did, that is, if such persons would have gone down the steps and not have waited for the cars to be drawn up to the platform opposite the passenger depot. The law on this subject is this : — Eailroad companies are held to a strict rule of accountability for the safety of passengers. This is salutary and right. To enable them properly to discharge this duty, they have the power to make reasonable rules and regulations. They may make such rules and regulations respecting the time, mode, and place of entering cars. These when hnown to the passenger, whether they have ever been written or published, or are posted up or not, he is bound to conform to ; and he cannot violate them, and pursue another course, and hold the company liable for damages thus occasioned, and which would have been avoided by conforming to the rules and regulations of the company, even though the jury may believe that an ordinarily prudent person would or might have adopted the same course. A railroad company has a riglit to require all passengers about to enter their cars, to do so only when the cars are brought up to the platform for that purpose. We cannot say that it is a rule of law that the mere existence of a platform in front of a depot is necessarily notice to the passenger that the train will be drawn up at that place to receive him, and that the company requires that he shall wait and enter the cars at that place, and is prohibited from entering them elsewhere. In many places passengers are required or allowed by the com- panies to enter trains elsewhere than from the platform in front of the passenger station or depot. In many places also railroad com- panies fail to discharge a duty wliich they owe to the travelling public, by leaving them, without any assistance, to find out as best TOL. II. 31 530 DUTY OP CARRIERS TO INSURE THE they cau where the train is which they wish to take, how to reach, and when and where to enter it. Pew persons travelling in strange places and on strange roads but have experienced the embarrass- ment arising from the failure of the company to have sign-boards, or officers or agents in attendance to give information of this character. See observations of Maule, J., to the jury in Martin v. R. R. Co., 81 Eng. C. L. on pp. 186, 187. A company may require trains to be entered at a particular place, as, for instance, in front of the passenger depot. Often, however, there is no such requirement, and passengers are allowed, or at least not forbidden, to enter elsewhere. Applying these general principles to the case in hand, we are of opinion that the instructions asked by the defendant were faulty, in so far as they assume, as a matter of law, that it is the duty of a passenger, irrespective of any knowledge on his part of any rule or regulation, to wait, before entering the cars, until the train is drawn up in front of the passenger depot or platform. If he knew that it was to be thus drawn up, and that passengers were expected and required to wait until this should be done before entering the cars, he could not, with such knowledge, be justified in seeking to enter the cars in an unusual place and at an unusual time, and hold the company for damages thus occasioned. Why ? Because he is not in the line of his duty and in the exercise of his lawful rights at the time. If the plaintiffs attempted to enter the cars at a place which they knew, or, from the nature of the circumstances surrounding them, ought to have known, was not prepared or designed for receiving passengers, and at which they knew, or from the circumstances ought to have known, the company did not allow passengers to enter, the company would not be liable as common carriers upon tlieir contract — however it might be if they had not been declared against in this capacity — for an injury happening in the prosecution of such an attempt. Why ? The answer is, that, in making such an attempt, the plaintiffs would not be in the line of their duty, or in the exercise of any right conferred upon them by their contract witli the company. Applying the general principles before expressed to the charge of the court, — and it is obvious that the minds of the jury were not directed to the proper grounds on which the defendant's liability or non-liability would depend, — the jury should have been di- SAFETY OP PASSENGERS ENTERING CARS. 531 reeled to ascertain from the evidence whether the railroad company had designated or set apart the platform as the place where it re- quired all passengers to enter the cars. If so, and this was known to the plaintiffs, and they, in disregard of such requirement, and in advance of time and without justifi- cation for so doing, sought to enter the cars at another place, and in so doing the wife met with the injury for which she sues, the company is not liable in this action as common carriers ; and this is the capacity in which it is sued. If, on the other hand, there was no rule or regulation known to the plaintiffs requiring them to enter at the platform, and they, in good faith, and using reasonable care, were seeking to find and enter the cars, the defendant would be liable for an injury caused by the defective platform or steps leading to it, since the plaintiffs, it being dark or nearly so, would have a right to presume that the platform and its approaches were in a safe condition. We will not undertake to lay down any rule applicable to the ever varied circumstances of all cases which may arise. The gist of such an action as the present, if no known rule or regulation of the company, reasonable in its character, has been violated, is neg- ligence ; and what constitutes negligence so as to give an action, it is impossible to define in a rule which shall comprehend all cases. The recent adjudications in the cases below cited have been care- fully examined, and they warrant us in laying down the general principles before expressed. Upon reason, that is, enlightened common sense, applied to the relation which railway companies sustain to the public, and applied to the nature of man and the mode in which the business of carrying passengers is practically and usiially transacted, and upon the authority of decided cases, we are justified in laying down the following general rule as to the duty of such companies, to wit, that they are bound to keep in a safe condition all portions of their platforms and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where pas- sengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go. Burgess v. R. R. Co., unfenced hole in station ground near depot building, 96 Erig. C. L. 923 (1858) ; Martin v. R. R. Co., 532 DUTY OF CARRIERS TO INSURE THE defective liglit in station grounds where passengers would naturally go, 81 id. 179 (1855) ; Cornman v. R. E. Co., 4 Hurl. & Nor. 781 (1859) ; remarks of Martin, B., and Watson, B., as to open place in platform ; Grafter v. E. E. Co., 12 Jur. N. S. 272 ; s. c. 1 Law E. C. P. 300 (1866) ; Longmore v. E. E. Co., 19 C. B. N. S. 188 ; s. c. 115 Eng. C. L. 183 (1865) ; Sawyer v. E. E. Co., 27 Verm. 377 ; Murch v. R. R. Co., 9 Poster, 9, 39, 40, remarks oiBell, J. ; Prost v. E. E. Co., 10 Allen, 387 (1865). Por the error before mentioned in the instructions of the court, the judgment is reversed, and the cause remanded for a new trial in acordance with the rules and principles of law herein expressed. We have studied the foregoing opinion with an extraordinary degree of attention and interest, because it affects a very difficult question in the law of passenger transportation, and one that is, in some sense, fundamental to the re- sponsibility of the company, the security of passengers, in a somewhat wide field. If passengers can only claim immunity from injury in going, in the most direct path, to the passenger station, and from thence, in the most usual route, into the carriage, the responsibility of the company is considerably narrowed from what it has hitherto been generally understood to b?. There is unquestionably some reason to rejoice that the extreme degree of care which the law imposes upon passenger carriers, in regard to all the appli- ances of the transportation and its incidents, is to be restricted within such limits as will fairly and reasonably answer the necessities and conveniences of the busi- ness. If the passenger station and all its accessories are complete and perfect in all their detail, probably nothing more can be required of the company in that regard. If the passenger, for his own convenience, desires to be carried upon a freight train or an engine, upon an emergency, unless the one or the other, or both modes of transportation are made habitual and constant with the company ; that is, so long as the mode of transportation is exceptional with the company, the obligation, rights, and duties of the respective parties must depend upon the contract, and the reasonable implications and expectations growing out of it. But in such a case the passenger for a single instance, and while entering upon the cars at a freight station even, at his own request, has the right to expect that the surroundings of the freight station shall be reasonably safe and reliable, to bear such weight and pressure as may be expected daily to be placed upon them. And if one, under those circumstances, had been injured precisely as this plain- tiff was, there could be no question whatever of his right to recover. But the present case is, in some respects, not so favorable for the plaintiffs as that would have been. If the plaintiffs had been permitted to take passage upon' a freight train, and were approaching the goods station for that purpose, and the steps forming the approach or one of the approaches had failed in the way it did here, no one could question the liability of the company for the injury. -The steps were made by the company or their agent, to be used in the ordinary mode, by all kinds of persons having occasion to use them ifor reaching or leaving the SAFETY OP PASSENGERS ENTERING CARS. 533. freight station. The plaintiffs in the case supposed, being rightfully in the use of them, at the time, would have the right to expect that they would prove safe for that use, and if they failed to do so it was the fault of the company, and they would clearly be responsible. And in the present case there seems to be but one question which can fairly admit of any doubt, and that is, how far the plaintiffs may fairly be regarded as rightfully in the use of the steps at the time the injury occurred. This must of necessity be mainly a question of fact. Where the goods station and the passen- ger station are so nearly together, and connected by the same continuous plat- form, as in the present case, it is but natural to expect that emergencies must occasionally occur, where passengers would be likely to pass these steps situated" as they were, along the same platform. And if so, it would certainly be their duty to passengers, as well as to the consignor and consignee of goods, to keep the entire platform safe for all ordinary use, which passengers or the owners of freight might fairly be expected to demand and exercise for their reasonable con- venience, and all persons in the lawful use of any portion of such platform had the right to demand this reasonable security in such use. It is perhaps not reasonable to expect the approaches to a freight station to be constructed and guarded with the same degree of extreme caution which would be demanded at a passenger station. 1. Because there is not the same necessity in the former case as in the latter. The one is not expected to be used at all hours of day and night by the same number of persons of all ages and condi- tions as the other must be. 2. The law imposes no such extreme degree of responsibility in the one case as in the other. We are not prepared to say, if the damage in the present case had occurred from the want of a baluster or rail- ing at the steps, or from the want of warning where the offset was, or from any other defect which might be properly required to be supplied at a passenger station, where all the passengers might be expected to go, but which would not at all be expected at a goods station, although liable to be occasionally used by passengers, that, in such-a case, the plaintiffs could claim any indemnity against the company. But this injury occurred from no such defect or omission, but from one that was fatal to the very structure for all uses, which rendered it a mere trap or delusion, and equally unsafe for all uses. If, then, the jury regarded the plaintiffs, under the instructions of the court, which seem to be unexceptionable upon this point, as rightfully in the use of these steps and fairly to be regarded as rightfully in the place where the injury occurred there can be no question whatever they were fully entitled to demand indemnity of the company. There are a considerable number of cases bearing more or less upon the question of the duty of the company to render stairways and passages reasonably safe, when falling in the direct and natural way of passen- gers. The English courts do not in such cases seem inclined to require any extreme degree of caution on the part of the company, such as the accident mi^ ht reveal the convenience and security in having. Grafter v. Metropolitan Rail- way, Law Rep. 1 C. P. 300; s. c. 12 Jur. N. S. 272; Longmore v. The Great Western Jlailway, 19 C. B. N. S. 183; Rigg v. Sheffield & L. Railway, 12 Jur. N. S. 624. The last reported case seems to have been made to turn to some extent upon the regulations of the company in regard to the time and mode of passengers tak- 534 DUTY OF CARRIERS TO INSURE THE ing the cars. We should regard any such regulations, unless in some way made known to persons purchasing tickets, or reasonably advertised to all, by the arrangements of the station house and the platform, so that all passengers would be likely to notice them, as not being of obligation upon passengers who in point of fact had no knowledge of them. Railway companies who desire passengers not to leave the station-house and waiting-rooms until the departure of the trains, must take the ordinary precautions to prevent it. That is universal upon the continent of Europe, and to some extent in this country. And it is the only effectual mode of securing the observance of any such regulation. If passengers see other passengers passing out at pleasure, upon and along the platform connected with the station, they will naturally, and by consequence, rightfully understand that it is permitted by the company. Any regulations, therefore, forbidding the passengers to pass out of the station before the arrival and de- parture of the trains, when every moment its violation and disregard is permitted, must be regarded as waived and abandoned. And so in regard to the passengers being permitted to traverse the entire range of a continuous platform like the one here, having an offset and steps, it must depend very much upon the appar- ent openness of the passage and its proximity to the passenger train, and the occasions one might have to adopt that course of passing. It is not very uncommon for passengers to be allowed to enter the carriages, at any time suiting their own convenience, and when that is habitually permitted, the passenger is certainly not in fault for attempting to do what othfers are con- stantly permitted to do without rebuke or remonstrance. Every time any such thing is suffered it is an open declaration of the company that it is regular and right to do so ; and they cannot, afterwards, when some accident occurs, in con- sequence of the continuance of the same practice, shield themselves on the ground that the course pursued was irregular, or contrary to their regulations. The most satisfactory, and the only conclusive evidence of the regulations of a cor- poration, as of the principles of a man, is that which is to be fairly inferred from his or its daily life and conduct. But when a passenger assumes to enter the cars, at an exceptional place or in an exceptional manner, he must be able to satisfy the triers, that circumstances existed, without his fault, which fairly justified him in attempting such an excep- tional course. And of this the jury must be regarded as the only judges, whtre there is any evidence tending to prove a justification. There seems to have been in the present case good reason for the departure from the usual course. An uninhabitable waiting-room is the same as none at all. And if railway passenger carriers expect passengers to remain within the waiting-rooms until the carriages are drawn up to the platform, they should first render them habitable, and then enforce the regulation upon all by keeping the doors closed. And if they allow passengers to wander at will upon the platforms, connected with their station- houses, they must construct them in such a manner as to be ordinarily safe for that use. Or if in any portion they are not so constructed, or for any reason it is not expected passengers will use them throughout their full extent, in all such rightful emergencies as may seem to demand such use they should take some positive and sensible means of securing their exclusion from the prohibited por- tion. Passengers will naturally take any open passage leading to the place which they design or desire to reach. And if any such passages remain open about SAFETY OF PASSENGERS ENTERING CARS, 535 passenger stations, -which passengers, on any emergency, not produced by their own fault, will be likely to take, the company should be held responsible for the consequences until they take the precaution to fence off such passage. This is upon the same principle, that one who has an open well or any other dangerous place about his premises is bound to fence'it off, or he will be held responsible for any injury'occurring to any person rightfully there. Barnes v. Ware, 2 Car. & K. 661. This general subject was largely discussed in a recent case in the House of Lords. The Mersey Docks and Harbor Board «. Penhallow, Law Rep. 1 Ho. Lds. 93 ; s. c. 12 Jur. N. S. S71. See also as bearing upon the same question, Metcalfe v. Hetherington, 6 H. & N. 719 ; Coe v. Wise, 10 Jur. N. S. 1019. There have been a number of decisions in the English courts, and some in our own courts, within the last few years, in regard to the use of the platforms about passenger stations and the responsibility of the companies in regard to them, the result of all which seems to be that it is the duty of the companies to keep them in safe condition, and to make them so that passengers can safely take and leave the cars from them. In Shepperd v. The Midland Railw., 20 W. R. 706, the plaintiff while waiting for the arrival of the train, it being very cold, continued to walk back and forward upon the platform in front of the station, and coming upon a strip of ice, nearly an inch thick and extending half across the platform, he slipped and fell and dislocated his shoulder. There was no evidence how the ice originated or how long it had been there, except the surmise that it came from the leaking of the waterpipes. The court held the evidence of negligence on the part of the company sufficient to warrant a verdict against them. Martin, Baron, said: "Railway servants ought to be alert during cold weather to see whether there is ice upon the platform, and to remove it or make it safe by sand- ing it or otherwise." And in Caswell v. Boston & Worcester Railw., 98 Mass. 194, it was held to be entirely proper for passengers to be upon th§ platforms about the station, and that if one while there became justly alarmed for her safety by a train approaching in an unusual direction, by reason of the displacement of a switch through the fault of the company's servants, and having reason to believe from the conduct of the employes of the company and others about the station that there was imminent danger, and, in running to escape it fell and was injured, that the company were liable. And in Col. & Ind. Central Railw. v. Farrell, 31 Ind. 408, where the train overshot the platform and stopped while one of the carriages was over a culvert, the conductor crying the name of the station and the plaintiff being a passenger for that station, and by reason of the darkness not being able to see where the carriages were, was injured in gettiug out, the com- pany were held responsible. And in the very late -case of Cockle v. London & South Eastern Railw., L. R. 7 C. P. 321, in Exchequer Chamber, and in Praeger ». Bristol & Exeter Railw., 24 Law Times, N. S. 106, the companies were held responsible when passengers were injured in alighting from the cars in the dark where the carriages were not brought fully up to the platform. In the former cases of Bridges v. North London Railw., L. R. 6 C. P. 459, note 6, affirmed in Exchequer Chamber, L. R. 6 Q. B. 377, and in Siner u. Great Western Railw., L. R.SExch. 160, under a somewhat similar state of facts, the evidence was held insuf- ficient to charge the companies. But in Cockle's case, which is the latest English 536 DUTY OP CARRIERS TO INSURE THE case, the court held that passengers were justified in getting out of the carriages when they come to a full stand, and in expecting to alight upon the platform, and if that was not practicable in any case, and there was no light to enable the passenger to see his peril, it was the duty of the company to give warning to the passengers. 2. Pennsylvania Bailw.Y. Zehe 8f Wife, 8 Am. Law Reg. 27 ; s. c. 33 Pmn. St. 318. 1859. It is the duty of passenger carriers by railway to provide a safe and sufficient road and all its equipments, together with sufficient and competent servants to conduct the business in the safest manner, and to see that all their servants are in the exercise of the utmost watchfulness, care, and diligence during the transit, together with safe means of tailing and leaving the carriages. And there is a correlative duty on the part of the passenger to use these provisions in a careful and prudent manner, and not to depart from the known or obvious rules and requirements of the company. Where the passenger fails to do this, as by leaving the carriages on the opposite side from the platform, and thereby loses his life or suffers damage, no recovery can be had against the company. The damages recoverable by parents for the loss of a son through the negligence of passenger carriers extensively discussed by Thompson, J. The facts will sufficiently appear in the opinion by — Thompson, J. This was an action brought by the defendants in error, artd plaintiffs below, against the Railroad Company, for neg- ligently causing the death of their son Peter, whom, with his father, they had conveyed in their cars from Irwin's station, in Westmore- land county, to Brinton's station, in Allegheny county, where he was killed on the track of the company's road, by being run over by the train going east. The gravamen of the charge in the plain- tiff's narr. is, that " the company did not use due care, diligence, and skill, in allowing the said Peter Zebe time and opportunity to get off and away from the said cars, when they arrived at Brinton's station ; but on the contrary, immediately on the arrival at the said station, and before the said Peter had time to get away from the said cars, the said company carelessly and negligently caused an engine or locomotive to be run alongside of the said cars which the said Peter was attempting to leave, so that the said engine or loco- motive caught the said Peter," and passing over him, he was killed. The case involved questions of negligence on the part of the com- pany, as to proper conveniences for the exit of passengers from the SAFETY OP PASSENGERS LEAVING CARS. 537 train, and also on the part of the plaintiff and the deceased in the act of leaving the cars ; and also whether the accident occurred be- fore or after the relation of carrier and passenger had ceased or not. There seems to have been no controversy about two facts in the case : first, that the company had a convenient platform at the sta- tion for passengers to leave the cars upon going west ; second, that the deceased and his father, instead of leaving the cars by passing on to the platform, left it on the other side, which brought them, immediately on reaching the ground, on the other or southern track of the road, where the boy was killed. The plaintiffs in error complain that several points put by them, calculated and intended to present their views on the question of their liability, were not sufficiently answered by the court, so as to give the advantage and benefit which they claim the law would give them under the facts in the case. The first and second assignment of error is that the court did not distinctly and explicitly answer their first point. It cannot be denied, after the many decisions upon the question, that an omission or refusal to answer a point put by a party, rele- vant and material to the issue, is error. 1 S. & R. 449 ;• 2 ib. 298; 6 W. & S. 58; 3 Pa. 318; and in Hood v. Hood et al., decided at this term, wherein the doctrine is elaborately examined. The law of the courts requires points put to be substantially an- swered, 3 Barr, 244, provided always that they are relevant, and not unconnected with the facts in the case. 12 Harris, 72. There have been many cases in which answers have been condemned for want of sufficient perspicuity or conciseness ; and this shows the importance of preserving the rule that requires of the judge full and substantial answers to the points. In fact, the importance of the rule cannot be over-estimated, when we regard our short and simple pleading, which rarely brings the law of the case on the record. The only method in most cases a party has left to bring before the court, and from thence to this court for review, a proposition of law, is by presenting it as appoint to be charged upon ; and when clearly responded to, it greatly-aids the jury in coming to conclu- sions in the case, or if distinctly negatived, the party has no trouble in having it reviewed. It is, therefore, necessary that the point, if relevant, be substantially answered ; otherwise it will be error. The qualification of the rule to relevancy excludes, of course, ab- 538 DUTY OP CARRIERS' TO INSURE THE stract propositions, or such as, if answered as prayed for, would not have benefited the party. In looking into the testimony in the present case, we think there was sufficient evidence to authorize tlie defendants to ask for in- structions on the effect of it as regards the act of the plaintiff and the deceased in leaving the cars and placing themselves on the south track of the road. If they did voluntarily and negligently place themselves there, when there was a safe place of exit, and the full opportunity to make it, surely the defendants would not be liable, as common carriers, if instead of leaving by the usual mode of step- ping on the platform, they negligently and voluntarily placed them- selves on the other track. This was the law of the plaintiff's point. It is true it was faulty in the assumption of the facts of which it was predicated. But, as to this, no objection was made by the court, and a distinct answer was not refused for this reason. Nor could it well have been for such a reason, as it was capable of as distinct an answer on the law, giving at the same time the facts to the jury, as if it had been hypothetical in form. It sliould have been as dis- tinctly answered, if answered at all, as if put hypothetically. But it was not, and we do not find it sufficiently affirmed in relation to the facts on which it was based in any part of tlie charge. True, it might be deduced from observations in other connections and relations to other facts. But this is not quite enough. It ought to have been answered in the relation in which it was put, somewhere. Tlie party was entitled to this. The jury could not, without much greater skill in construing language than generally falls to their lot, have told whether the point was affirmed or negatived. The point asserted immunity to tlie company, if the plaintiff and his son voluntarily placed tliemselves on the other track, unless in case of gross negligence on the part of the company. The answer, instead of affirming this, if the facts were true, treated of the duty of the company to convey safely and to provide a safe mode of exit from the cars, and added, " if they left the train in the usual way, and were properly regardful of their own safety, and did every thing that their own duty required of them, and in thus leaving the train and before they found a place of safety, they were injured by the negligence of the company, then we think that passengers in that condition, although separated from the train, would have a right to recover for such negligence. This is not the case of a stranger, unconnected with the train, placing himself voluntarily on the SAFETY OP PASSENGERS LEAVING CARS. track." This was clearly an insufficient answer ; in fact, in addi- tion to the just complaint of insufficiency, it introduced an element which it is difficult to tell the effect of in such a case, and that was in leaving it to be inferred that there was no place of safety pro- vided for leaving the cars ; for the court say, " if they did every thing that duty required of them in thus leaving the train, and before they found a, place of safety, ^^ they were injured by the neg- ligence of the company, a recovery miglit be had. From this lan- gua^ge a jury might have inferred, and perhaps did, that acting as carefully as tliey could, there was no place of safety provided for leaving the cars. An intimation like this, although not intended, might have a very mischievous effect. This assignment of error we think is sustained. 2. The second, third, and fourth assignment, like the first, is to the insufficiency of the answer to defendants' second point. This point asserted the principle that if the accident occurred after the plaintiff and deceased had left the cars, the liability of common carriers was ended, and having been killed after this, the action could not be sustained, unless the death was the result of gross negligence or wanton injury. There was sufficient testimony in the case to justify the defendants in making the point, and the court should have given a distinct response to it, although like the last one it was faulty in form. Notwithstanding this, the court essayed an answer by saying : " This point is answered in our answer to the first point of the defendant as above." How answered, affirma- tively or negatively, we cannot say ; and we think a jury could not haye derived much instruction from it. As we have already said, the party was entitled, either directly in answer to this point, or in the 'body of the charge, to a distinct response to the proposi- tion. The gravamen of the complaint was against the defendants as common carriers, and as such they were counted against. If this relation had ended when the accident occurred, the plaintiffs could not have recovered, and the evidence shows this to have been a debatable point in the case. A very different rule of responsibility exists where such an accident occurs during the continuance of the relation of common carriers, and after it lias entirely ended, and it was important that the jury should have been instructed clearly as to this, so that they might not disregard the distinction upon the idea that the company were answerable at all events, under the evidence, and that the objection was merely technical. Special 540 DUTY OF CABRIERS TO INSURE THE care is the duty of the court in all cases where there is much to excite sympathy and lead away the judgment from the application of well-settled principles of law. Adherence to these principles under all circumstances is the only security we can have. A dis- regard of them is an injury to the people, by rendering less secure the safeguards of the law upon which all must rely in the hour of trouble. We think the answer is insufficient. The fifth, sixth, seventh, eighth, and tenth assignments of error may be considered together. In their third and fourth points^the plaintiffs in error prayed the court to charge, that as common car- riers they were only bound to provide for the safe transportation of passengers, and for their safe egress from the line of the road, and if in this instance they had done so, and if the plaintiff and the deceased did not avail themselves of the mode of exit provided, but left at an improper time, or by an improper way, the protection of the company ceased, and if the accident occurred in consequence of this, it was the result of the risk voluntarily assumed by them, and being guilty of negligence themselves they cannot recover. In response to these prayers for instructions, the court very properly left the fact to the determination of the jury, whether the company had provided a safe means of transportation and the neces- sary platform accommodations for the safe exit or discharge of pas- sengers, adding, " if so, then the company had done all that could be required of them, so far as the passenger train was concerned." This was all very right, but following this instruction, the court submitted another inquiry to the jury, which it seems to me was inconsistent with the clear idea thus expressed, and that was whether the plaintiff and the deceased had " an equal right to get off the cars on the one side or the other, or was it their duty in view of all the circumstances to get off on the platform." And again, " if the jury believe they had a right to get off on that side," the opposite to the platform, and they violated no duty in doing so, then no carelessness could be attributed to them. The law implies in the contract of conveying passengers by rail- road companies, that they shall provide a safe and sufficient road and cars, competent and careful conductors and hands, and safe and convenient means of egress and regress from the line of their road. There must be no negligence on their part. There is also on the part of the passenger an " implied contract that he will and does assent to all the company's reasonable rules and regulations for entering, SAFETY OF PASSENGERS LEAVING CARS. 541 occupying, and leaving their cars, and if injury befall him by rea- son of his disregard of regulations which are necessary to the con- ducting of the business, the company are not liable in damages, even though the negligence of their servants concurred with his own negligence in causing the mischief." Sullivan v. The Phil- adelphia and Reading R. R. Co., 6 Casey, 234, per Woodward, J. Here are reciprocal duties defined ; resting upon principles most reasonable, and o'f the clearest justice, and nothing but special cir- cumstances, or the most pressing exigencies which are now foreseen, could justify a departure from them. Nothing of the kind marked the case in hand. But the court submitted the question to the jury whether the parties in this case had not a right to leave the cars, either by the safe means provided by the company, or by a way not provided. The abstract question of their right to do so is one thing, and need not be disputed, but the liability of the company by rea- son of their doing so is quite another thing. The regulation of the company for leaving the cars by the platform was apparent from its existence, and having been placed there and used for the purpose, this was the usual egress from the train. Without proof of any necessity, coupled with the proposition of their right to leave the cars at either side, the jury were by the instructions of the court allowed to find on the opposite of the principle laid down in the case of Sullivan v. The Philadelphia and Reading R. R. Co., which de- clares that passengers are bound to conform to the regulations of the company on " entering, occupying, and leaving the cars." The duty being fixed by the relation of the parties to each other, the contract must be performed by both. A departure by either could be justified only by a paramount necessity. The question, then, for the jury should have been, first, as to the performance of the duty by the company in providing safe cars, and safe means of egress from them, and secondly if this were so, was it the fault of the company that the injury occurred, and to establisli this more was necessary to be proved than that the plaintiff and the injured son voluntarily chose to depart from the cars by an unusual way. There should have been proof of some existing necessity for doing so to excuse them from negligence and the consequences of it. Then the question miglit have been left to the jury as to the propriety of their violating the regulations of the company. A voluntary disregard of regulations provided for their safe exit by the platform was a disregard of their obliga- 542 DUTY OF CARRIERS TO INSURE THE tions to the company, and if this were so, the plaintiffs ought not to recover. We hold, on these principles, that the company's lia- bility could not be fixed for the injury consequent on a choice of the passenger in disregard of the provisions made by them for his safety and convenience. It was, we think, error in the court to submit the question of the right of the parties to leave the cars at either side, in absence of the proof of a justifying necessity in doing so. It was not negligence on the part of 'the company that they did not, by force or barriers, prevent the parties from leaving at the wrong side. People are not to be treated like cattle ; they are presumed to act reasonably in all given contingencies, and the company had no reason to expect any thing else in this case. There was error in this portion of the charge. The eleventh assignment of error regards the question of dam- ages. The court instructed the jury on this subject, by saying, " If the jury found for the plaintiff, the question is one for the jury entirely." There was no prayer for instructions, yet this will not prevent a party dissatisfied with the charge from having it reviewed and errors corrected if they exist in the charge as given. It is obvious that this general and unrestricted reference of the question of damages to the jury gave them the fullest latitude of construc- tion in assessing them. It left them to base that assessment upon such standard as each juror might set up for himself, or any common one that might happen to suit the feelings, tastes, or judgment of all in the particular case, never again, perhaps, to be the rule in any future case, however similar in circumstances. Rights should be better defined. And although from the inherent difficulty in estimating the value of life, when called upon to compensate for its loss, we cannot lay down what may properly be called rules to guide in making the estimate, yet it is our duty to announce such prin- ciples of coinpensation as we think the legislature intended by the act in question, that there may be some approximation to uniformity of results in such cases. The act of the 15th of April, 1851, provides " that whenever death shall be occasioned by unlawful violence, or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned." The act of the 26th of April, 1855, changed the law, so far as the personal representatives SAFETY OP PASSENGKR9 LEAVING CABS. 543 were concerned, and conferred the right of recovery only upon parents for the loss of children, and upon children for the loss of parents, and reciprocally upon husband and wife. These acts con- fer a new right unknown to the common law. It existed in the civil law, and was an institution of the old Saxon code. So, too, it is to be found in the Scottisli law, under the head of " Assythements for homicide." But as the compensation under all these laws rested upon very precise regulations generally, peculiarly applicable to the times, circumstances, estates, and conditions of the deceased and the parties entitled, we derive no lights from them. In 1846, the statute of 9 and 10 Vic. cap. 93, was passed in England, providing for the recovery of damages " whensoever the death of a person shall be caused by wrongful act, neglect, or default" against the party occasioning the same. The damages, it has been held, are for the death of the party, as it is with us. Under this statute, providing for compensation for the same thing as does ours, namely, the death of the decedent, we have one case which turns on the subject of the rule of damages. It is the case of Blake v. Midland Railway Co., 15 Bng. L. & Eq. 437. The case had been tried before Baron Parke, at Derbyshire Assizes, and came before the Queen's Bench in banc on a rule to show cause why a new trial should not be granted, on the ground of a misdirection in regard to the principle upon which the damages should have been assessed. In granting the new trial, the doctrine is held that the jury, in estimating damages under that statute, " are to be confined to injuries of which a pecuniary estimate can be made, and cannot take into consideration the mental suffering occasioned to the sur- vivors by the death," and that notliing may be allowed as solatium, that being incapable of a pecuniary estimate, nor for the sufferings of the injured party. The difficulty of estimating the value of the life, and the consequent damage to the survivors in the loss of it, is conceded in the case, but the reasoning of the learned judge is forcible in illustrating the greater difficulty which would have to be encountered in estimating damages for what cannot be measured by any pecuniary standard, such as grief, loss of society, and the thou- sand nameless things which make up the estimate in which the deceased may have been held by the survivors, entitled to damage under the law. And hence the conclusion, that the provision giving damages for the death was only such as could be tested by a pecu- niary estimate, not speculative or fanciful. " The measure of 544 DUTY OF CARRIERS TO INSURE THE damages," said the learned judge, " is not the loss or suffering of the deceased, but the injury resulting from his death to his family." Our statute, although differing, in the absence of details from the British statute, is a provision for compensating precisely the same sort of injury, the damage occasioned to the survivor by the death of the deceased, and hence we may avail ourselves of the light shed upon the subject by the learned court in the case cited. In Erfg- land, under this construction of their statutes, damages seldom exceed one or two hundred pounds sterling. One great merit in the rule and what undoubtedly was the legislative' intent, tiiere as with us, is that it is a rule of .equality, compensating the rich and poor, the refined and cultivated, and those less so, by the simple standard of pecuniary loss. The case of the Pennsylvania Railroad Co. v. M'Closkey's Ad- ministrators, 11 Harris, 526, while it adheres to the rule of giving damages only upon such bases as are susceptible of a pecuniary estimate, seems to regard the value of the life lost as the basis of the estimate, rather than the injury resulting from it to the survivor entitled to sue. This conclusion flowed from the form of, and par- ties to the action, and naturally led to the result. It was a suit by the personal representatives for the benefit of the estate. Treated in tliis light, and as the plaintiffs, the administrators, were not damaged by the death, but were recovering for the estate, the only estimate, it seems to me, that could be made, was of the value of the life. The wrong done to it survived, by virtue of the statute, to the estate, and gave the personal representatives their right of recovery co-extensively with its value. But for some reason, a wise one of course, this, law was in 1855 altered, and the right to sue was conferred on parents for the loss of children, and children for parents, and reciprocally between husband and wife. This was a new and independent right, given by positive law, not cast by sur- vivorship as for an injury to the decedent. It is for the wrong done to them. In this view of the law, we think the rule which should have been observed in this case differs from that in the Pennsylvania Eailroad Co. v. M'Closkey's Administrators, and more resembles the case of a father suing for injury to his child. In the case of the Pennsylvania Railroad Co. v. Kelly, 7 Casey, 372, the rule of damages in such a case was considered ; and in delivering the opinion of the court, Mr. Justice Woodward says : " The damages must be compensatory merely, and that compensa- SAFETY OP PASSENGERS LEAVING CARS. 545 tion must have regard to the plaintiff's loss of his services, and to the expense of nursing and medical treatment." " The father was entitled to the services of his child during minority, and by just so much as this injury impaired the value of this right, was he entitled to compensatory damages ; " and it was added " that it was proper for the jury to understand, that the suffering endured by the boy, and the disfiguration of his form, and whatever was merely per- sonal to him, should not enter into the father's damages, because for them the son would have a right of action." This is a rule on a very kindred subject, and is scarcely distinguishable from cases like the present, except in extent of injury, and is in essence the principle of the cases already cited. Prom the authorities and reasons given, the jury, instead of the unrestrained license given them in the charge, in the assessment of damages, should have been instructed that if the plaintiffs were entitled to recover, it was for the damage done in producing the death of their son, and this was to be estimated by the pecuniary value to them of his services during his minority, together with expenses of care and attention to the deceased, arising out of the injury, funeral expenses, and medical services, if any. Tiiis is the only pecuniary damage done to them, and this the law allows them to recover, if entitled on the facts to recover at all. This excludes damages for the suffering of the deceased, which was personal to himself and did not survive, as well as for solace, which are inca- pable of appreciation so as to be compensated. No money could be the measure of the affliction, no road, great or small, but would fall beneath the weight of such a rule if applied, and for an injury hap- pening by a mere oversight, amounting of course to negligence by some agent in the transit of the cars, it would be a severe penalty to visit the company with extravagant and exterminating damages. But they should be held to a strict accountability to the extent that a fair interpretation of the statute will allow. In making the esti- mate of the value of the life, and consequent damage by the death, much is- still left to the sound discretion of the jury. Whatever is susceptible of a pecuniary estimate is included within it, and what we have seen was not to be included must be excluded. We are speaking only of cases of death by negligence, unaccompanied by wantonness, violence, or gross negligence, evincive of moral turpi- tude. In such cases no doubt but merely compensatory damages may be exceeded. It is not intended to vary the rule on this sub- TOL. H. ' 35 546 DUTY OF PASSENGERS IN RAILWAY TRAINS ject existing in case of other personal wrongs, but leave it with such attendant circumstances to the sound discretion of courts and juries. The thirteenth assignment of error is to the rejection of Shattuck as a witness. We are not convinced that there was error in this ruling, nor is it material to decide the matter, for, as the case goes back for a re-trial, tlie company will perhaps think it their duty to avoid an exception on this ground by executing a release to him. The other assignments of error not noticed are not sustained, but, for the reasons given, this judgment must be reversed. Judg- ment reversed and venire de novo awarded. XI. The Duty op Passengers in Railway Trains to keep their Persons within the Carriage, and not expose them to the Peril op such Obstructions as are Liable constantly to OCCUR. Pittsburgh Sf Gonnellsvtlle Railw. v. M' Glurg, 7 Law Reg. N. S., 277'; s. c. 56 Perm. St. Reports, 294. 1867. The question here discussed is one of considerable interest, not only with reference to the particular question involved, but also in regard to the general subject of the duty of passengers upon railways to conform to all those ordinary precautions against injury which are indicated by special notifications of the company, as, for instance, the prohibition against standing upon the platforms of carriages, or attempting to pass from one carriage to another, when the train is in motion, as well as such other precautions as are naturally indicated to all persons of maturity and reasonable dis- cretion by the very nature of the transportation and the imminent perils so liable to be incurred by exposing any portion of the per- son beyond the line of the carriages. It is the duty of courts, where there is no controversy in regard to the facts or in re- gard to whether the conduct of the plaintiff constituted culpable negligence, to decide the question of negligence as one of law. If the plaintiff suffer his arm to remain outside the carriage window, and thereby suffer TO KEEP THEIR PERSONS WITHIN THE CARRIAGE. 547 damage, he cannot recover; and if there is no controyersy about the facts, it is the duty of the court so to decide, as matter of law. If there are any special reasons why the carrier should have exercised extraordinary watchfulness in regard to a passenger exposing himself, that must be shown as part of the plaintiff's case in order to rebut the general presumption of culpable negligence on his part. The opinion of the court was delivered by — Thompson, C. J. The plaintiff below, as we learn from the very brief history of the case by the plaintiff in error, no portion of the testinaony being given, was injured while a passenger in the cars of defendant, by reason of the protrusion of his elbow beyond the sill of the car window, next to which he sat during the journey, or part of it, and thus coining in contact with a car standing on a switch on the defendants' road. The plaintiff had a verdict on the ground of negligence on part of the company, as we are informed, in carrying the plaintiff, by reason of which he was hurt, but in what the negligence consisted it is not easy to say, as neither the narr. nor its substance is given. Was it for negligence in con- structing the switch ? Or was it because the defendant had not barricaded its car windows ? We do not know ; but still, perhaps, we may be able to discuss the only point of importance presented, withoitt knowing this. Assuming the fact, or claiming that negligence on part of the company in performing their duty towards the plaintiff in carrying him had been proved, his counsel prayed the court below to charge as follows : " A passenger on a railway car who has unconsciously suffered his elbow to slip beyond the window sill is not necessarily guilty of negligence. N. J. Railroad Co. v. Kennard, 9 Harris, 203." This learned judge unqualifiedly affirmed, doubtless on the authority of the case referred to in the point. He did right in following the precedent cited, even if wrong ; he was bound to do so. If, therefore, there was error in the instruction it was not his fault. That unconsciousness, arising from insensibility, the result of disease or injury, might qualify what would otherwise be negli- gence, may be conceded, but that would arise from the difference in the degree of care required on the part of the carrier. If a passenger were known to be afflicted with epileptic fits, or was entirely insane, it would be reasonable to require of the carrier 548 DUTY OP PASSENGERS IN RAILWAY TRAINS more care and attention than in the case of ordinary passengers ; but then the carrier must know the condition of the passenger, and that extra care and control were necessary, and his duty. This, however, we need not discuss, for nothing like this existed in this case. We must-regard the remark, ',' unconsciously suffering his elbow to slip out beyond the window sill," to mean inattentively. In that sense it was negligently suffered to slip. Of course, this was negligence in se, unless he was under no obligation to take care of himself. But no case asserts that, and every case the con- trary. Out of the omission to do so springs the doctrine of con- tributory negligence which defeats a plaintiff, and which is so firmly established as a principle of law that nobody dreams of doubting it. We liave the case then broadly, I think, that negli- gence is not to be inferred when injury accrues from an exposure of an elbow or an arm out of a car window, while the train is moving, if it be not wilfully done. This cannot be maintained on any reasonable principle, we think. When a passenger on a railroad purchases his ticket it entitles him to a seat in the cars. In the seat, no part of his body is exposed to obstacles outside of the car. He is secure there, ordinarily, from any contact with them. Where he is thus provided with a seat, safe and secure in the absence of accident to the train, and the carrier has a safe and convenient car, well conducted and skilfully managed, his duty is performed towards the passenger. The duty of tlie latter on entering arises, namely, that he will con- form to all the reasonable rules and regulations of the company for occupying, using, and leaving the cars ; and, after doing so, if injury befall him by the negligence of the carriers, they must answer; if he do not so conform, but is guilty of negligence there- in, and if injured, although there may be negligence on part of the carriers, their servants and agents, he cannot recover. Sullivan v. Reading Railroad Co., 6 Casey, 234 ; Penna. Railroad Co. v. Zebe and Wife, 9 id. 318, and other authorities. In the latter case we said what is quite apposite in this : " We hold on these principles that the coi^pany's liability could not be iixed for the injury con- sequent on a choice of the passenger in disregard of the provisions made by it for his safety. It was, we think, error in the court to submit the question of the right of the parties to leave the cars at either side, to the jury, in the absence of proof of justifying neces- sity for so doing. It was not negligence on part of the company TO KEEP THEIR PERSONS WITHIN THE CARRIAGE. 549 that 'they did not by force of barriers prevent the parties from leav- ing at the wrong side. People are not to be treated as cattle ; they are to be presumed to act reasonably in all given contingencies, and the company had no reason to expect any thing else in this case." Here the duty of care on the part of the passenger is asserted ; and it was a care in which two passengers, the plaintiff and son, instead of leaving the cars by the platform at the station, left on the opposite side, and the son was killed by a passing train on the other track. We held that this was negligence in se on part of the passengers, and in the absence of circumstances justifying the exit on that side of the car, the court erred in not charging that it was negligence in law. The authority of this case has not been shaken in this particular. We have repeatedly held that it is the duty of courts in cases of clear negligence arising from an obvious disre- gard of duty and safety, to determine it as a question of law. Cat- awissa Railroad Co. v. Armstrong, 2 P. P. Smith, 282 ; Penna. Railroad Co. v. Ogier, 11 Casey, 71 ; Penna. Railroad Co. v. Zebe, 9 id. 318. Numerous other authorities might be cited for this. Where the inference from the facts is necessarily that there is neg- ligence, the court ought to determine the negligence as a matter of law. Of course the assertion of the principle in this way presup- poses ifo answer to the facts, so as to rebut the inference to be drawn, and implies that this may be done in all cases, if there be facts to that effect. A passenger, on entering a railroad car, is to be presumed to know the use of a seat, and the use of a window ; that the former is to sit in, and the latter is to admit light and air. Bach has its separate use. The seat he may occupy in any way most comfort- able to himself. The window he has a right to enjoy, but not to occupy. Its use is for the benefit of all, not for the comfort g,lone of him who has by accident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority, and if he allows it to protrude out of it and is injured, is this due care' on his part ? He was not put there by the carrier, nor invited to go there ; nor misled in regard to the fact that it is not part of his seat, nor that its purposes were not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and where they are liable to be broken without his ability to know 650 DUTY OP PASSENGERS IN RAILWAY TRAINS whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the position voluntarily or thoughtlessly taken, in a window, by contact with outside obstacles or forces, it cannot be otherwise characterized than as negligence, and so to be pronounced by the court. This is undoubtedly the rule in Massachusetts. Todd v. The Old Colony Kailroad Co., 3 Allen, 18 ; and again in same case, 7 Allen, 207. In that case the point was distinctly presented whether it was negligence to ride with an arna or an elbow out of a car window, and it was declared that it should have been so ruled by the court instead of being referred to the jury ; and the court below was reversed for not so ruling. See opinion of C. J. Bigelow in the last case. So in substance is Holbrook v. The Utica & Sch. Railroad Co., 12 N. Y. 236. It is true, the judge below having given a very decided opinion on the fact of negligence, sitting with an elbow on the window, and that it was negligence, the Court of Errors and Appeals refused to interfere ; taut Ruggles, J., indicated his opinion to be in favor of the doctrine. We held in the North Penna. Railroad Co. v. Heilman, 13 Wright, 60, that a failure of a traveller when crossing a railroad track, to look out for passing trains, is negligence in law, and so to be pronounced. This was fully in accord with what we had repeatedly held, that what " in a given state of facts constitutes negligence is generally a question of law," per Woodward, C. J., in Catawissa Railroad Co. V. Armstrong, 2 P. F. Smith, 286 ; and in Penna. Railroad Co. v. Ogier, 11 Casey, 71, we said there may undoubtedly be cases in which the only facts proved may present so clearly and incontest- ably features of negligence in regard to the specific ground of com- plaint, that it may become the duty of the courts to pronounce it such as matter of law." There are many cases in other states in support of this rule. In the absence of some justifying necessity, or incapacity to take care of himself on part of the passenger, no one can doubt, I think, from the reason of the thing, in view of the nature of the vehicle used, being a railroad car, that to extend an arm or a hand beyond the window-sill is dangerous, and is recklessness or negligence. Wherever the facts present such a case singly, and without any controlling or justifying necessity, we think the court ought to declare the act negligence ; and as there was nothing like this shown in the case before us, we think the court ought not to have TO KEEP THEIE PERSONS WITHIN THE CARRIAGE. 551 affirmed plaintiff's point. Unconsciously exposing himself did not help the plaintiff's case, as it was not shown that this unconscious- ness was not the result of a want of prudent attention to his situa- tion on part of the plaintiff. It would be a novel answer to the allegation of negligenbe, to allege that the plaintiff slept in such a position as he was in when hurt, and that would be a condition of unconsciousness. Sleeping where due care would require one to be awake, or in dangerous circumstances, is negligence, and no answer to the company can be given to the act. Of course these views are predicated of a case in which there are no facts to qualify or justify the act. It is possible that a state of facts might be found to show an exception to the rule, and where that occurs the rule ceases. But none such appears as this case presented. It must be admitted that the case of New Jersey Railroad Co. v. Kennard, 9 Harris, 203, announces a different rule. There the plaintiff's elbow came in contact with a post or upright of a bridge. The case was not put upon the ground tliat there was negligence on the part of the company in constructing the bridge, but upon the ground that the company wore negligent in not placing bar- riers around the window to prevent passengers from exposing their limbs outside. The learned judge, Gibson, J., instructed the jury that a car which was not so provided was not, to use his peculiar expression, " road-worthy." Predicated of this idea, lie held that passengers had a right to ride as they pleased, and to sit with their elbows on the window-sills, and beyond it, if they chose. In fact, he seems to have required no duty of care on part of the passenger in this particular ; for, had he, it seems t6 me, he would, even on his own theory of the duty of the company in barricading their windows, have come to the conclusion if the want of it was negli- gence, it was also negligence on part of the passenger not to take greater care on account of the want of the precaution, and that would have been cpntributory negligence, which would have pre- vented the plaintiff from recovering. The case was affirmed in a per curiam opinion, for the reasons given by the learned judge below, but with a reservation of approv- al of that which was really the ground on which the case was put. " The language of the learned judge who presided at the trial seems to be too broad as a general principle, where he says that no car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them. But in its ap- 552 DUTY OF PASSENGERS IN RAILWAY TRAINS plication to a road, which, in places, is so narrow as to endanger projecting limbs, the instruction is proper." It is not iinjust to this per curiam to say that it repudiated the main ground on which the case was put in the court below, and affirmed it on a principle not in the case at all, namely, the narrowness of the passage-way under the bridge. The bridge was not built by the railroad com- pany ; as it was over a canal, it was probably built by the canal company. The passage-way was wide enough for the cars to pass conveniently, but that is nothing to the purpose ; the narrowness of the passage-way was not the ground of the recovery. Tlie report of the case says the " whole question was whether the defendants were obliged to construct their cars with slats, bars, wire gauze, or other barricades, so that a passenger could not put his arms out of the windows. If the defendants did not do so, whether they are liable." It is evident the case was very little considered, and, in the presence of authorities cited, ought not now to be regarded as the law. It is very remarkable that it should have been said in the opinion that the doctrine of barricades about the car windows was too broad, as a general principle, but just in its application where the passage-way was so narrow as to endanger projecting limbs. This was a limitation of the principle impracticable in practice. The windows would necessarily be the same on the en- tire road, if made to suit any peculiar portion of it. In this again is shown that it was not a case which had been considered much. In conclusion, we have simply to reasfeert that where a traveller puts his elbow or an arm out of a car window, voluntarily, without any qualifying circumstances impelling him to it, it must be re- garded as negligence in se ; and when that is the state of the evi- dence, it is the duty of the court to declare the act negligence in law. We think the court erred in answering the plaintiff's point in the affirmative, and the defendant's in the negative, and for these reasons the judgment must be reversed. Judgment reversed, and venire de novo awarded. It will be seen by the foregoing opinion that it overrules the case of N. J. Kailw. V. Kennard, 21 Penn. St. 203, and adopts -views more in accordance with the case of Laing v. Colder, 8 Penn. St. 479. And the same view is maintained by the Supreme Court of Indiana, in J. & C. Railw. v. Rutherford, 7 Am. Law Keg. N S. 476 ; s. c. 29 Ind. 82. We can entertain no possible question that these later oases are entirely sound, and that the case of N. J. Railw. v. Kennard TO KEEP THEIR PERSONS WITHIN THE CARRIAGE. 553 was decided upon mistaken grounds. If passenger carriers were to be held re- sponsible for injuries to their passengers, from such gross negligence on their part as this case affords evidence of, there would be no safety in undertaking the busi- ness. No degree of care and skill on their part would afford any guaranty against being mulcted in unlimited damages by the rashness or want of consideration on the part of juries, so long as the plaintiff was allowed to recover, notwithstanding his own want of prudence. The rule is without exception, in all the well-consid- ered cases, that the plaintiff cannot recover for any damage he may sustain, where his own want of ordinary care contributed directly towards it, however great or extreme may have been the negligence on the part of the defendant. In Todd V. The Old Colony Railw., 3 Allen, 18; s. c. 7 Allen, 207, it was held to be culpable negligence for a passenger to ride with his elbow or arm out of the car window, and tha!t it should be so decided by the courts as matter of law. The opinion of Mr. Chief Justice Bigelow upon this point in the last case cited is so comprehensive and so unexceptionable, that we can find nothing more to our purpose. " The only error in the instructions of the court related to that part of the case which involved an inquiry into the position of the plaintiff's arm at the time of the accident. If he was then riding in the car with his elbow or arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care, which would prevent him from maintaining his action. Looking at the mode in which railroads are constructed, with posts and barriers which are placed very near to the track on which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure of the body or limbs to outward objects in passing, we can see no ground on which it can be contended that a person travelling on a railroad is exercising reasonable care in placing his arm in such a position that it protrudes from a window and may come in contact with external obstructions. Certainly, if it is a want of due care to attempt to leave a car when the train is in motion, although going at a slow rate of speed, as has been heretofore determined by this court, it is no less a want of proper care to ride in a car with an arm or leg exposed to collision against passing trains or the necessary structures on the sides of the track. Nor was it the province of the jury to determine, as a matter of fact, whether the plaintiff used due and reasonable care, if it was proved that his arm or a portion of it was outside of the window at the time of the accident. If there was no dispute or controversy about this fact, and the position of his arm was the cause of or contributed to the accident, the plaintiff failed to prove an essential element to the maintenance of his action. In such a state of the evidence, it was the duty of the court to decide on its legal effect, and to say to the jury that the plaintiff had failed to make out his case. Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64 ; Gavett V. Manchester & Lawrenfce Railroad, 16 Gray, 601 ; Gahagan v. Boston & Lowell] Railroad, 1 Allen, 187; Cotton v. Wood, 8 C. B. N. S. 568. We are therefore of opinion that the defendants were entitled to a more explicit instruc- tion in answer to their second prayer than was given by the court, and that on thiS|ground the verdict rendered in favor of the plaintiff must be set aside, and a new trial granted." See also Catawissa Railw. v. Armstrong, 49 Penn. St. 186 ; s. c. fl2 id. 282. 654 QUESTIONS OF NEGLIGENCE: WHEN DECIDED XII. Questions of Negligence: when to be decided by the Court, as Matter of Law, and when to be referred to THE Jury as Matter op Pact. 1. Gaynor v. Old Colony and Newport Railway, 100 Mass. Reports, 208. 1868. Questions of negligence are always to be submitted to the jury, unless where the facts are undisputed and the result of those facts unquestionable, either as proviug or disproying such negligence. Where the facts, being conceded, the inference in regard to negligence is still doubt- ful, depending upon the general knowledge and experience of men, it is the judg- ment and experience pf the jury, and not of the judge, which is to be appealed to. Where the plaintiflf, being a passenger upon the defendants' train, stepped from the carriage upon a narrow platform on the opposite side from the station, and in attempting to cross a side track to reach the street in that direction was injured by an engine backing upon him, and the situation and use of the premises were such that according to the general knowledge and experience of mankind it natu- rally invited passengers desiring to reach the streets on that side of the main track to pass over the side track, as the plaintiff did, it was proper to be sub- mitted to the jury whether the appearances were such as to justify the plaintiff in passing where he did, and whether in doing so he exercised proper care and prudence, and if so, whether the defendants were guilty of negligence in leaving such apparent passage for passengers no more protected, or in the management of the engine at the time of the injury. The facts in the case sufficiently appear from tlie foregoing notes and tlie opinion of the court by — Colt, J. It is for the plaintiff by affirmative evidence to establish, to the satisfaction of the jury, in cases of this descrip- tion, his own freedom from negligence contributing to the injury of which he complains. Courts must take notice of that which is matter of common knowledge and experience, and when the plain- tiff's case fails to disclose the exercise of ordinary care, as judged of In the light of such knowledge and experience, he shows no right to a recovery. Ordinarily, however, it is to be settled as a question of fact, in each case as it arises, upon a consideration of all the circumstances disclosed, in connection with the ordinary conduct and motives of men, applying as the measure of ordinary care the rule that it must be such care as men of common pru- BY THE court; WHEN BY THE JURY. 555 dence usually exercise in positions of like exposure and danger. When the circumstances under which the plaintiff acts are com- plicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, it is plainly to be sub- mitted to the jury. What is ordinary care in such cases, even though the facts are undisputed, is peculiarly a qiiestion of fact, to be determined by the jury under proper instructions. It is the judgment and experience of the jury, and not of the judge, which is to be appealed to. The refusal of the judge to withdraw the case from the jury cannot in any case be construed as an indica- tion that in his opinion the jury ought to find in the plaintiff's favor upon this question. On the contrary, it is his duty to sub- mit it to the jury, if there is any evidence to justify a finding, although in his opinion its preponderance should be against the plaintiff. Pox v. Sackett, 10 Allen, 535 ; Warren v. Fitchburg Railroad Co., 8 Allen, 227 ; Meesel v. Lynn & Boston Railroad Co., ib. 234 ; Reed v. Deerfield, ib. 523 ; Gahagan v. Boston & Lowell Railroad Co., 1 Allen, 187. A majority of the court are of opinion that the question of the plaintiff's negligence in this case should have been submitted to the jury. There are elements disclosed which distinguish it from the simple case of a person crossing a railroad track without the permission of the corporation, and who may be regarded as a mere ti-espasser. The plaintiff was a passenger ; the defendants had provided platforms for passengers to alight upon, on both sides of the track upon which the train in which he arrived stood ; the plaintiff stepped from the car to the narrow platform which was constructed between the tracks and on, the opposite side from the passenger-house. Two streets. Ferry and Eagle, crossed the tracks obliquely within a few rods of the north side of the station buildings ; and these streets crossed each other at right angles near the track. Prom the point at which the plaintiff started to cross, there was an open space extending along both streets for some distance ; and embracing a tract of land north of a building which until within a few months had been used as a passenger- house ; and across which access was formerly had by hacks and carriages to the old house. There was at the time no railing or fence which would hinder passengers coming from or going to that part of Ferry Street from crossing by a shorter route this open space and one track, .whenever the train stood upon the track 556 QUESTIONS OF NK6LIGENCE : WHEN DECIDED nearest the present passenger-house ; there was nothing to sepa- rate this open space from the located limits of the highway ; and, assuming the truth of the plaintiff's evidence, it was in fact used by passengers from that quarter, who crossed the open area and tracks to and from the narrow platform. The plaintiff gives a rea- son for desiring to go across to the north side of the old station- house. The night was very dark. Other passengers were standing upon the same platform, and were there when he stepped from the cars. He looked up and down the track, to see if any thing was coming. There were no lights ; no indications to him of an ap- proaching engine. As he stepped upon the track, some one hal- looed and laid his hand upon him, and at the same instant lie was struck by an engine backing down upon him. No one can be said to be in the exercise of due care who places himself upon a railroad track without the assurance from actual observation that there is no approaching train. But the degree of caution which he must exercise in crossing will be affected always by the circumstances of time and place. He has a right to rely to some extent upon proper precautions, and the usual signals of warning to be given by an engine or train passing a station where passengers are leaving another train upon its fresh arrival. So in passing a highway crossing, though bound to the exercise of due care, arid not excused by the want of it in the other party, yet it is to be considered that certain signals are usually given by the train at those places, and these usual concomitants may to some extent be regarded in determining the degree of care. It seems to us that there are other considerations in this case, touching the plaintiff's cajre, which are peculiarly proper to be regarded by the jury. It is claimed by the plaintiff that the arrangement, situation, and use of the premises by passengers, was such as to afford an invitation or allurement, by implica- tion, to him and others, to pass from the station across the track in the way attempted. And without doubt, if the situation and aspect of the place were such that, in connection with the actual use, the jury would be justified in regarding them as holding it out to the plaintifiF as a suitable place for him ou leaving the cars to cross, and he was thereby induced to attempt it, the measure of care required of him would be satisfied with far less vigi- lance and caution. On the other hand, the law requires no one to provide protection or safeguards for mere trespassers or wrong- BY THE COURT ; WHEN BY THE JURY. 557 doers, nor indeed for those who enter by mere permission, with- out inducement held out by the owner. Such go at their own risk, and enjoy the license subject to its perils. Towards them there exists no unfulfilled obligation or duty on the part of the owner. These suggestions are sufficient to justify the conclusion to which we arrive, that this point should have been submitted to the jury. We do not overlook the facts which already appear, from which it may be argued that the plaintiff was not in the exercise of due care ; but it is not necessary that they be commented on here, and we express no opinion upon their weight. The jury will be required to give them due consideration when they settle the fact. It is obvious that little light can be derived, upon the question of law here discussed, from previous decisions. What consti- tutes due care must depend upon the circumstances of each case. It cannot be defined as a matter of law. The case of Bancroft v. Boston & Worcester Eailroad Co., 97 Mass. 275, relied on by the defendants, differs from this. In that case, the plaintiff's intestate stepped from a safe platform and attempted to cross the track un- necessarily and knowing that the train which he left must obstruct his view towards the point from which trains in that direction approached the station. And in Pennsylvania Railroad Co. v. Zebe, 33 Penn. 318, cited as like this, the platform for passengers occupied only the side towards the station, and the plaintiff, step- ping out of the cars on the other side, stepped directly down upon the track ; nor does it appear that there was any open space or highway crossing in the vicinity, as in the case at bar. Willis v. Long Island Railroad Co., 34 N. Y. 679; Vinton v. Schwab, 32 Verm. 614 ; Elliott v. Pray, 10 Allen, 378 ; Pordham v. London, Brighton & South Coast' Railway Co., Law Rep. 3 C. P. 368. Upon the other branch of the case, the evidence tending to show negligence of the defendants should have been submitted to the jury. The plaintiff was a passenger, and while that rela- tion existed the defendants were bound to exercise towards him the utmost care and diligence in providing against those injuries which can be avoided by liuman foresight. He was entitled to tliis protection, so long as he conformed to the reasonable regu- lations of the company, not only while in the cars, but while upon the premises of the defendants ; and this requires of the defend- 558 QUESTIONS OP negligence: when decided ants due regard for the safety of passengers, as well in the loca- tion, construction, and arrangement of their station buildings, platforms, and means of egress, as in their previous transportation. It is argued in this case that the platforms were not properly constructed, lighted, or guarded, and that the defendants were guilty of negligence in backing down the engine without proper lights or signals. The bare statement of these matters shows that it is appropriately the province of the jury to settle them. Warren v. Fitcliburg Railroad Co., 8 Allen, 227 ; Bilbee v. London, Brighton & South Coast Railway Co., 18 C. B. N. S. 584 ; John- son V. Hudson River Railroad Co., 20 N. Y. 65. Case to stand for trial. We have found nothing in the reported cases so folly and clearly expressing what we regard as the true distinction between the proper offices of the court and jury in regard to questions of negligence, as in the preceding opinion of Mr. Justice Colt. At a somewhat early day we had occasion to discuss the bearing of questions of negligence upon trials in court before a jury, in cases of bail- ment, and examined the authorities somewhat extensively to that date. Those views have now become more general in the courts than at that time ; and as they tend in some respects to explain and enforce the same line of decision with the preticding case, we venture to insert the opinion here, as containing our own views upon the question. 2. Briggs v. Taylor, 28 Vermont Reports, 180. 1855. Where the facts are not In controversy, and, according to the uniform experience and conduct of reasonable and prudent men, show either negligence or the contrary, it is the duty of the court to decide the question as matter of law, and it is error to submit it to the jury, unless they decide it as the court should have done. The ordinary distinction of negligence into three degrees, slight, ordinary, and gross, has no clearly defined legal import, and cannot be applied intelligibly to cases before a jury. The true measure of diligence and duty, in all cases of bailment, where the party is only liable in case of negligence, is that which prudent and careful men exer- cise in the conduct of their own affairs of equal importance. The greater or less degree of diligence required of bailees, under different circum- stances or in different kinds of business, is to be measured by the nature of the affair in hand and the difficulty of securing success, as well as the extent of the calamity in case of failure. Note. — This rule as applied to passenger transportation, it will be seen, must require the most perfect apparatus, as well as the most intense watchfulness and diligence in the performance of the duty. BY THE COURT ; WHEN BT THE JURY. 659 The facts will sufficiently appear in the opinion of the court by- Eedpield, C. J. In regard to the carriage, and the wagons and sled, which were not past use, although the carriage was an old one, and the wagons and sleds were described by the witnesses, as being " not very new nor very old," it seems to us there was no testimony in the case tending to show that an officer who held them under attachment would be fully justified in letting them stand out-doors all winter. We could scarcely conceive of a state of facts justifying such a course, short of absolute necessity, which, it would seem, would never occur where boards could be obtained. And where there is no testimony, tending to excuse an officer in such case, it becomes a mere question of damages. Questions of negligence are said in the books to be mixed questions of law and fact, but where there is no testimony tending to show negligence, or where a given course of conduct is admitted, which results in detriment, and no excuse is given, the liability follows, as matter of law, and there is nothing but a question of damages for the jury. We do not think a judge is ever bound to submit to a jury ques- tions of fact, resulting uniformly and inevitably, from the course of nature, as that such carriages will be injured more or less by ex- posure to the weather during the whole winter, or that a judge is bound to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature or the con- duct of business becomes a rule of law. But while there is any uncertainty, it remains matter of fact, for ' the consideration of a jury. It could not be claimed, that it should be submitted to a jury whether cattle should be fed or allowed to drink, or cows be milked. As, from the determination of the first point, a new trial be- comes necessary, it will be of some importance to inquire in regard to the proper mode of defining the duty of the officer in keeping goods attached on mesne process. It is usually defined in practice, in this state certainly so far as we know, much as it was in this case, by the use of the terms, " ordinary and common care, diligence, and prudence." And it is probable enough these terms might not always mislead a jury. But it seems to us they 560 QUESTIONS OP negligence: when decided are somewhat calculated to do so. If the object be to express the medium of care and prudence among men, it is certain these terms do not signify a fixed quality of mediocrity even. For if so, ttiey would not be susceptible of the degrees of comparison, as more ordinary and most ordinary, which medium and middle and mean are not. The truth is, that ordinary and middling and medi- ocrity even, when applied to character, do import, to the mass of men, certainly, a very subordinate quality or degree ; something quite below that which we desire in an agent or servant, and which we have the right to require in a public servant especially. A man who is said to be middling careful, or ordinarily careful, is understood to be careless and is sure never to be trusted. We have been at some pains to look into the English books upon this point, and, although there may be some exceptions, the general rule certainly is, among the English judges, to express common care and ordinary care by terms less liable to misconstruction, and, as we think, likely to be more justly appreciated by juries. In, Duff V. Budd, 3 Brod. & Bing. 177, the rule is laid down by Dallas, C. J., to the jury, in these words: "Gross negligence is where the defendant or his servants have not taken the same care of the property as a prudent man would have taken of his own,^^ and the judgment is affirmed by the full bench. In Riley v. Home, 5 Bing. 217, Best, C. J., says of a carrier : " The notice will protect him, unless the jury think that no prudent person, having the care of an important concern of his own, would have con- ducted himself with so much inattention or want of prudence." In Batsou v. Donovan, 4 Barn. & Aid. 32, the same learned judge lays down the rule thus : " They must take the same care of it that a prudent man does of his own property. This is the law with respect to all bailees for hire or reward." In Wyld v. Pick- ford, 8 M. & W. 443, Parke, B., seems to claim a distinction be- tween gross negligence and ordinary neglect, but admits that ordinary neglect may be correctly defined in the above cases. But in Hunter v. Debbin, 2 Q. B. 664, Benman, C. J., said in regard to gross negligence : " It might have been reasonably expected that something like a definite meaning should have been given to the expression ; " " in none of the numerous cases referred to on the subject is any such attempt made, and it may well be doubted whether between ' gross negligence ' and negli- gence merely any intelligible distinction exists." But the Eng- BY THE court; WHEN BY THE JURY. 561 lish cases all seem to agree in defining ordinary negligence as that which a prudent man does not allow in the conduct of his own affairs, and most of the later cases, where the question has arisen, both English and American, repudiate the old attempt to distinguish three distinct degrees of diligence and the correlative degrees of negligence. In Wilson v. Brett, 11 M. & W. 113, Baron Molfe makes some very pertinent remarks upon this sub- ject. " I said I could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative fepithet." And in Austin v. The Manchester Eailroad, 11 Bng. L. & Eq. 513, Oresswell, J., refers to the lan- guage of Lord Denman, quoted above, with approbation, and iu the Steamboat New World v. King, 16 Howard, U. S. 474, Mr. Justice Curtis seems to adopt a similar vjew in regard to these distinctions being more or less unintelligible, and in practice often leading to misconstruction and misunderstanding. It seems, too, that these distinctions are repudiated by many of the continental jurists in Europe, as producing more uncertainty than they cure. 6 TouUier's Droit Civile, 239, 11 ; id. 208. And although it seems we have adopted these distinctions in the degrees of diligence and negligence from the Roman civil law, I do not find the com- mentators on that law adopting our loose manner of expressing what is required of a bailee for hire. Domat, part 1, book 1, tit. 4, § 8, art. 3, thus expresses the care of such bailees : " He who undertakes to keep cattle, ought to preserve that which is intrusted with all the care that is possible to be taken by per- sons who are the most watchful and diligent." And this is really synonymous with the rule adopted by the English courts. Mr. Justice Stort/, Bailments, § 11, in order to maintain the old definition of three grades of diligence, defines it much in the manner it was done in the present case. " Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns," which certainly leaves upon the mind a different impression from the definition of Domat and the English judges, and we cannot but regard it as one calculated to mislead juries ; and this very writer, in § 13, adopts the diligence of "prudent men," as the measure of common diligence, and it seems to us nothing short of this will do justice in a case like the present. It may with some plausibility be said, that one who employs a VOL. II. 36 562 QUESTIONS OF NEGLIGENCE: WHEN DECIDED man known to the employer to be habitually indifferent to the management of his own concerns, has no right to expect him, all at once, even for reward, to assume a wholly different character, and the jury would be likely so to decide, the question being ordi- narily one of fact, when the testimony raises any doubt; and when one employs a man of skill and talent in the management of his own affairs, he may justly expect him to exert the same skill and talent to the same extent in the management of the busi- ness which he undertakes for others ; and in the case of a public officer who is selected for his fitness for the pai^ticular trust, every one may justly expect all the care and diligence which men en- tirely competent and careful could reasonably be expected to exert in their own business of equal importance. The absurdity of this measure of duty in a public officer will become sufficiently obvious if we advert to the form of the oath or of the official bond of public officers. What should we think of having one sworn or giving bond to perform his duty as com- mon men ordinarily do such things ? This certainly sounds very different from the official oath, " that you will faithfully execute the office to the best of your judgment and ability," and an offi" cial bond obliges officers to the strictest, most faithful perform- ance of all their duties. Any other standard would sound absurd, and it is obvious to us, that the case of Bridges v. Perry, 14 Vt. 262, was not intended to impose any different rule of liability upon officers in keeping property. As said in , Drake on Att. § 273, " The officer must comply with all the requisitions of the law " (one of which is to keep safely property attached on mesne pro- cess, and restore it when required by law), " or show some legal excuse for not doing so." Hence in Sewall v. Marston, 9 Mass. 630, an officer was held bound to keep property attached on mesne process, five years before, ready for sale on the execution, and in Tyler v. Ulmer, 12 Mass. 163, it was held an officer could not in such case excuse himself for not producing cattle by show- ing that, from the scarcity of fodder, they could not have been kept alive. Any injury or loss, in such cases, renders the of^cev prima facie liable, and imposes upon him the burden of showing some valid excuse. Logan v. Matthews, 6 Penn. St. 417 ; Story on Bail. § 411 ; Piatt V. Hubbard, 7 Conn. 501 ; Burt v. Miller, 13 Barb. 482. There is undoubtedly some contradiction in the cases in regard BY THE COURT ; WHEN BY THE JURY, 563 to the burden of proof of negligence in the ordinary case of bail- ments for hire ; but there can be no doubt, we think, in regard to the question in the present case. Tiiis is expressly so laid down in Bridges v. Perry. The court in that case, as will be obvi- ous from a careful examination, had no purpose of excusing this class of officers from any degree of care and diligence which care- ful men would expect under the circumstances. And this, it seems to us, is the true measure of liability in all cases of bailment. The bailee is bound to that degree of diligence which the manner and the nature of his employment makes it rea- sonable to expect of him ; any thing less than this is culpable in him, and renders him liable. The conduct of men in general in the region where the attachment was made may be some guide to what ought to be required of the defendant in keeping prop- erty attached. We mean, of course, prudent and careful men, for no one is expected to go very essentially beyond the common cus- tom of the country in such matters, as it must be attended with extraordinary expense, and a question might thereby arise as to the propriety of incurring such expense. It has been made a question by some writers and some judges, whether the mere fact of a passenger suffering damage upon a railway train without his own fault, raises a presumption of neg- ligence on the part of the carrier. There can be no question, we think, that such is the law, where it appears that the damage arose from something connected with the apparatus of transpor- tation or any obstruction upon the track. When it is considered that such perfection of apparatus, and such care in using it, is re- quired of passenger carriers by railway that damage could never happen to passengers except by the negligence of the passenger or the carrier, unless by some very unusual occurrence, it would seem almost absurd to claim that no presumption of negligence arose from the occurrence of injury to the passengers where they were not in fault. But as such injuries odcur almost as often from the fault of the passengers as of the carriers, it would seem not unreasonable not to presume against the carrier until the pas- senger is shown to be without fault. And we would not claim that any presumption of fault on the part of the carrier fairly 564 QUESTIONS OP negligence: when decided arises when there is nothing to indicate how the injury occurred, as if a passenger were found seriously injured, or killed, and no apparent cause of the injury or death. But such cases do not occur with such frequency as to embarrass the application of the general rule, that where the injury appears to iiave occurred from a collision or overturn of the carriages, or a broken axle or wheel, or any other failure in the road or machinery, or for want of a clear track, the presumption of negligence on the part of the car- rier arises at once ; and that unless there is something to indicate that the passenger may have been in fault, the presumption of negligence on the part of the carrier will justify a recovery of dam- ages against him unless he show some excuse. This point is illustrated to some extent in the following case : — 3. Sullivan v. Philadelphia Sf Reading Railw., 6 Am. Law Reg. 342. 1858 ; s. c. 30 Pmn. St. 234. When passenger carriers by railway in the course of the transportation inflict damage or injury upon a passenger, without fault of his, the law implies prima facie, negli- gence, and throws on him the onus of showing it did not exist. The passenger is bound to conform to all the reasonable rules, regulations, and re- quirements of the carrier ; and unless he do so, he cannot recover for any damage he may sustain resulting in any degree from such omission on his part. But the presumption of negligence above stated, being one of fact, can only be made by the jury, as a deduction from all surrounding circumstances. Bailway companies, acting as passenger carriers, are bound to exclude cattle ii-om coming upon their track in such mode as they may deem most eligible ; and if they fail to do so, must respond in damages to their passengers who suffer detri- ment from the intrusion of cattle upon the line. And until measures are adopted to exclude cattle from the line, and especially at . points where it is known that they are accustomed to go upon it, it is the special duty of the company to drive their engines at such moderate speed that no damage will occur from that cause. This was a writ of error to the Common Pleas of Chester County, and the facts will sufficiently appear from the opinion of the court by- WooDWARD, J. When a railroad company undertakes the trans- portation of a passenger for an agreed price, the contract includes many things. On the part of the passenger, his consent is implied to all the company's reasonable rules and regulations, for entering, occupying, and leaving their cars ; and if injury befall him by rea- son of his disregard of regulations which are necessary to the con- duct of the business, the company are not liable in damages, even BY THE court; WHEN BT THE JURY. 565 though the negligence of their servants concurred with his own negligence in causing the mischief. On the part of the company, the contract implies that they are provided with a safe and sufficient railroad to the point indicated ; that their cars are stanch and road-worthy ; that means have been taken beforehand to guard against every apparent danger that may beset the passenger ; and that the servants in charge are tried, sober, competent men. When, in performing this contract, they hurt a passenger without fault of his, the law raises prima facie a presumption of negligence, and throws on the company the onus of showing it did not exist. This may be shown, and the legal pre- sumption repelled, by proving that the injury resulted from inevi- table accident, or, as it is commonly called, the act of God, or that it was caused by something against which no human foresight and prudence could provide. What these can do for the safety of the passenger, the law requires the transporting company to do. But as presumptions of law are always for the court to pronounce, so are the repelling circumstances relied on for the jury. The legal presumption, which is only an inference from general ex- perience, remains of force until a countervailing presumption of facts is established ; and as this is a conclusion drawn from partic- ular circumstances, it is for the jury to consider these circum- stances, and to determine what is the reasonable deduction. Yet the court below not only failed to presume negligence from the fact of the injury, but instructed the jury that if they believed the testimony in the cause there was no negligence on the part of the defendant or its agents. ' Again, even more pointedly, the learned judge said : " No proof of negligence has been exhibited against the agents and engineer which would authorize me to submit it to the consideration of the jury." This was withdrawing from the jury a case that ought to have been submitted with very different instructions. The plain- tiff was in no fault ; he had taken his seat within the car, and in all respects he had demeaned himself as an orderly passenger. Yet he was injured by the overthrow of the car In which he was seated. Here was a breach of the company's contract, and here was what has Several times been said by this court to be evidence of the company's neglect. 8 Barr, 4.83 ; ,12 Harris, 469. Then, if the court thought there was evidence which was calculated to repel this prima fade presumption of negligence, they should have submitted it to the jury. 566 QUESTIONS OP negligence: when decided "Whether that spot in the road was not so commonly infested with cows as to require a fence or cattle guard of some sort ; whether the speed of the cars was not too great for a curve, exposed at all times to the incursions of cattle ; whether the engineer dis- covered the cow as soon as he might, and used his best endeavors to avert the collision, — in a word, whether the accident was such as no foresight on the part of the company or its servants could have prevented, — these were questions, and grave ones, too, that ought to' have been submitted to the jury. The learned judge, after stating correctly the extreme care and vigilance which the law exacts of railroad companies, asks if they are required to provide suitable fences and guards to keep cattle oif the road. In answering his question in the negative, the judge seems to have misapplied the reasoning of Judge Q-ibson in Skin- ner's case, 7 Harris, 298 ; 1 Am. Law Reg. 97. That was an action by the owner of a cow killed on a railroad to recover her value from the company ; and the doctrine laid down was that the owner was a wrong-doer in suffering his cow to wander on a road engaged in transporting passengers, and was rather liable for dam- ages than entitled to recover them. The owner of the cow could not insist that the company should fence their road for the protection of his stock. It was his business to keep his cattle within his own bounds. Now, such reasoning between a railway company and a trespasser commends itself to every man's understanding, because it tends to the security of the passenger. If farmers caimot make companies pay for injuring cattle, but they involve themselves in liability for suffering their cattle to run at large, passengers are all the more secure from this kind of obstruction. But when, notwithstanding this strong motive for keeping cattle off the road, a cow is found there, and causes an injury to a pas- senger whom the company have undertaken to carry safely, is it an answer to the passenger suing for damages that the owner of the cow had no right to let her run at large ? Grant that she was un- lawfully at large, and grant the owner is bound to indemnify the company for the mischief she caused, yet, as between the com- pany and its passenger, liability is to be measured by the terms of their contract. Having undertaken to carry safely, and holding themselves out to the world as able to do so, they are not to suffer cows to en- danger the life of the passenger, any more than a defective rail or BY THE court; WHEN BY THE JURY. 567 axle. Whether they maintain an armed police at cross-roads, as is done by similar companies in Europe, or fence, or place cattle- guards within the bed of their road, or by other contrivance ex- clude this risk, is for themselves to consider and determine. We do not say they are bound to do the one or the other, but if, by some means, they do not exclude the risk, they are bound to re- spond in damages when injury accrues. Perhaps the passenger would have his remedy against the owner of the cow ; it is clear, from Skinner's case, that the company would, but the passenger has unquestionably a remedy against the company. If he be injured by reason of defective machinery, nobody would think of setting up the liability of the mechanic who furnished the bad work as a defence for tire company against the claim of the passenger. Yet it would be a defence exactly analogous to that which satisfied the court in this case. We do not wish to be understood as laying down a general rule, that all railroad companies are bound independently of legislative enact- ment to fence their roads from end to end, but we do insist that they are bound to carry passengers safely, or to compensate them in damages. If a road runs through a farmer's pasture grounds where his cattle are wont to be, possibly as between the company and the farmer the latter may be bound to fence, but as between the company and the passenger the company are bound to see that the cattle are fenced out. If cattle are accustomed to wander on uninclosed grounds through which the road runs, the company are bound to take notice of this fact, and either by fencing in their track or by enforcing the owner's obligation to keep his cattle at home, or by moderating the speed of the train, or in some other man- ner to secure the safety of the passeitger. That is their paramount duty. To enable them to perform it the law entitles them to a clear track. 7 Harris, 298 ; 12 Harris, 496. Neither cows nor man, not even the servants of the company engaged in the company's work, are permitted to obstruct it. And because their right to a clear traofe is absolute, their duty to carry safely is imperative. If they tolerate obstructions, they must avoid the danger by reduced speed and increased vigilance, or answer for the consequences. This doctrine in Skinner's case, designed for the safety of the passenger, was so applied in this case as to compromise it. Herein was manifest error. The case must go back to be tried on the 568 HOW FAE CABRIERS ARE BOUND TO EXCLUDE question whether there was any thing in the particular circum- stances of the accident to repel the prima facie presumption of negligence. It is impossible to regard the accident as inevitable. If cattle were in the habit of coming upon the road at that place, or if there was -nothing to prevent them, it was a contingency that the company were bound to anticipate and provide against. The judgment is reversed, and a venire de novo awarded. The three preceding cases show the views now best established in this coun- try, both in regard to what constitutes negligence and the mode of proof, in actions against railways and others standing in fiduciary relations. It consists in any degree of failure in the performance of duty. It may be proved by the cir- cumstances attending an injury or from the preponderance of evidence against and in defence of the party. It is more commonly an inference of fact to be made by the jury, as before stated. But there is one class of cases already defined, where the question becomes one of law. The cases bearing upon the character and proof of negligence are collected and commented upon in 2 Redf. Railways, § 193, p. 223, et seq. See also Mayov. Boston & Maine Railw., 104 Mass. 137 ; Southworth v. Old Colony Railw., 106 Mass. 342 ; Allyn v. Boston & Albany Railw., id. 77, and cases cited in the opinion. XIII. How FAR Passenger Carriers by Railway are bound to EXCLUDE FROM THEIR CARRIAGES PERSONS OP BaD CHARACTER AND Conduct. Pittsburgh, Ft. Wayne ^ Chicago Railw. v. Hinds ^ Wife, 7 Am. Law Reg. N. S. 14. 1867"; s. c. 53 Penn. St. 512. This case presents so unusual a state of facts, and, at the same time, one liable sometime to occur, although rarely and at long in- tervals, that we deem it one of marked interest, both to the public and to railway companies. The female defendant had her arm broken while a passenger on the plaintiffs' train, by reason of a fight among persons who had forced themselves into the carriages at a station near an agricultural fair upon the line. The person who began the fight jumped upon the train after it was in motion. The others engaged in the affray came upon the train without any tickets, so far as appears, and without any forcible resistance or formal pro- PERSONS OP BAD CHARACTER AND CONDUCT. 669 test on the part of the conductor at the time they entered. He testi- fied that he did not take any fare of them, or in any way recognize them as passengers. They seem to have been a set of drunken row- dies, whom peaceable persons avoided as long as they could, and whom the conductor naturally hoped to keep quiet and peaceable till they should voluntarily leave the train. Perhaps it was the most hopeful mode of treatment in order to avoid commotion, not to have resisted their coming upon the train. If that had been done, the same conflict would probably have occurred which after- wards did occur in the cars. The facts in the case sufficiently ap- pear in the opinion of the court by — Woodward, 0. J. The action is for an injury sustained by the plaintiff's wife whilst she was a passenger in the cars of defendant ; and what is peculiar in the case is the fact that the injury was not occasioned by defective machinery or cars or road, or by any thing that pertained properly to their business as transporters, but was caused by the fighting of passengers among themselves. Drunken and quarrelsome men intruded into the ladies' car in great num- bers whilst the train stopped at Beaver station ; and in the dis- graceful fight which ensued among them the plaintiff's arm was broken, and for this the railroad company is sued. Had the suit been against the riotous men who did the mischief, the right of recovery would have been undoubted, for it is not more the duty of railroad companies to transport their passengers safely than it is the duty of passengers to behave in a quiet and orderly manner. This is a duty which passengers owe both to the company and to fellow-passengers, and when one is injured by neglect of this duty the wrong-doer should respond in damages. But in such a case, is the company liable ? There is no such privity between the company and the disorderly passenger as to make them liable on the principle of respondeat superior. The only ground on which they can be charged is a vio- lation of the contract they made with the injured party. They undertook to carry the plaintiff safely, and so negligently performed this contract that she was injured. This is the ground of her ac- tion ; it can rest upon no other. The negligence of the company or of their officers in charge of the train is the gist of the action, and so it is laid in the declaration. And this question of negligence was submitted to the jury in a manner of which the company have 570 HOW PAR CARRIERS ARE BOUND TO EXCLUDE no reason to complain. The only question for us as a court of error, therefore, is whether the case was, upon the whole, one that ought to have been submitted. The manner of the submission having been unexceptionable, was there error in the fact of sub- mission ? The learned judge reduced the case to three propositions. He said the plaintiff claims to recover, — 1st. Because the evidence shows that the conductor did not do his duty at Beaver station by allowing improper persons to get on the cars. 2d. Because he allowed more persons than was proper under the circumstances to get on the train, and to remain upon it. 3d. That he did not do what he could and ought to have done to put a stop to the fighting upon the train which resulted in the plaintiff's injury. As to the first of the above propositions, the judge referred the evidence to the jury especially with a view to the question whether the disorderly character of the men at Beaver station had fallen under the conductor's observation so as to induce a reasonable man to apprehend danger to the safety of the passengers. The evidence on this point was conflicting, but it must be as- sumed that the verdict has established the conclusion that the conductor knew that drunken men were getting into the cars. Let it be granted also as a conclusion of law that a conductor is culpably negligent who admits drunken and quarrelsome men into a passenger car. What then ? The case shows that an agricultural fair was in progress in the vicinity of Beaver station ; that an excited crowd assembled at the station, rushed upon the cars in such numbers as to defy the resist- ing power at the disposal of the conductor, and that the man who commenced the fight sprung upon the platform of the hindmost car after they were in motion. Of what consequence, then, was the fact that the conductor knew these were improper passengers ? It is not the case of a voluntary reception of such passengers. If it were, there would be great force in the point, for more improper conduct could scarcely be imagined in the conductor of a train than voluntarily to receive and introduce among quiet passengers, and particularly ladies, a mob of drunken rowdies. But the case is that of a mob rushing with such violence and in such numbers upon the cars as to overwhelm the conductor as well as the passengers. PERSONS OP BAD CHARACTER AND CONDUCT. 571 It is not the duty of railroad companies to furnish their trains with a police force adequate to such emergencies. They are bound to furnish men enough for the ordinary demands of transportation, but they are not bound to anticipate or provide for such an unusual occurrence as that under consideration. When passengers purchase their tickets and take their seats, they know that the train is furnished with the proper hands for the con- duct of the train, but not with a police force sufficient to quell mobs by the wayside. No such element enters into the implied contract. It is one of the incidental risks which all who travel must take upon themselves, and it is not reasonable that a passenger should throw it upon the transporter. These observations are equally applicable to the second proposi- tion. The conductor did not " allow " improper numbers, any more than improper characters, to get upon the cars. He says he took no fare from them, and in no manner recognized them as passen- gers. To allow undue numbers to enter a car is a great wrong, almost as great as knowingly to introduce persons of improper character, and, in a suitable case, we would not hesitate to chastise the practice severely. But this is not a case in which the conductor had any volition whatever in respect either to numbers or characters. He was simply overmastered ; and the only ground upon which the plaintiff could charge negligence upon the company would be in not furnishing the conductor with a counter force sufficient to repel the intruders. This was not the ground assumed by the plaintiff, and it would scarcely have been maintainable had it been assumed. Taking the case as it is presented in the evidence, we think it was erroE for the court to submit the cause to the jury on these two grounds. But upon the third ground we think the cause was properly submitted. If the conductor did not do all he could to stop the fighting, there was negligence. Whilst a conductor is not provided with a force sufficient to resist such a raid as was made upon the train in this instance, he has, nevertheless, large powers at his disposal, and? if properly used, they are generally sufficient to preserve order within the cars, and to^ expel disturbers of the peace. His official character and position are a power. Then he may stop the train and call to his assistance the engineer, the firemen, all the brakes- men, and such passengers as are willing to lend a helping hand, 572 HOW PAR CABBIER8 ARE BOUND TO EXCLUDE and it must be a very formidable mob indeed, more formidable than we have reason to believe had obtruded into these cars, that can resist such a force. Until at least he has put forth the forces at his disposal, no conductor has a right to abandon the scene of con- flict. To keep his train in motion and busy himself with collecting fares in forward cars whilst a general fight was raging in the rear- most car where the lady passengers had been placed, was to fall far short of his duty. Nor did his exhortation to the passengers to throw the fighters out come up to the demands of the hour. He should have led the way, and no doubt passengers and hands would have followed his lead. He should have stopped the train and hewed a passage through the intrusive mass until he had expelled the rioters, or have demonstrated, by an earnest experiment, that the undertaking was impossible. Such are the impressions which this novel case has made upon our minds. We think there was error in submitting the case upon the first two propositions, but none in submitting it on the third ; and if the record showed that the jury decided it upon this latter ground, the judgment could be affirmed. But inasmuch as the error we find upon the record may have infected the verdict, the judgment must be reversed, and a venire de novo awarded. It seems to us that the foregoing opinion has too much the air of giving counte- nance to railways excusing themselves from affording protection to their passen- gers, through inability or imbecility on the part of their employes. Common carriers of goods are excused from their responsibility only on the ground of resistance from the public enemy or an organized rebellion. And passenger carriers are bound to keep their track clear of all obstructions, and it is not very obvious hoTf they can excuse themselves from preserving quiet and good order among their passengers, or responding in damages arising from any failure to per- form that duty. So long as they have at their command the entire police force of the country, including the posse comitatus of the county, and, if need be, the militia, it would seem almost frivolous to excuse them for allowing a band of drunken rowdies intruding into their cars and maiming their passengers. It would no doubt be a painful resort, but one unquestionably legal, for such a mob to be met at their entrance into the passenger carriages by such irresistible argu- ments as fire-arms and cold steel afford, when all others fail. No man is bound to wait the good-will of such barbarous rowdyism to find out whether it will be- come necessary to resort to fatal weapons to insure personal security. Before that issue could be determined it might be too late to save even life. One who puts himself outside the pale of civilization has no ctaim to demand such treat- ment as belongs to civilized life. If a conductor is instructed that he may law- fully use his dirk or his revolver upon such persons, the same as he would upon a burglar or an assassin, in order to defend his passengers, he might not have PERSONS OP BAD CHARACTER AND CONDUCT, 573 cause to do so. It is probable that the mere expedient of providing anotlfcr carriage, and the proper degree of resolution on the part of the conductor, and, if necessary, the immediate return to the station, and the unflinching per- sistence in remaining there till he could rid himself of these brutes, or brutal men, — any, or certainly all these, would no doubt have saved the unfortu- nate catastrophe of breaking the defendant's arm. And we should be sorry to give any countenance to the opinion that railway passenger carriers may shelter them- selves from responsibility for injury to their passengers by reason of disorder in their carriages which they are unable to quell. The thing may be so sudden and overwhelming as to aflFord no opportunity to defend the passengers from its con- sequences. But no ordinary drunken row ought to afford any excuse or apology. The latter portion of the opinion of the learned judge, defining the manner in which the conductor should deport himself in quelling the conflict is very just and convincing, and we should extend the same views to every portion of the case. PART III. CONSTJTUTIONAL QUESTIONS. CONSTITUTIONAL QUESTIONS. How PAR THE Legislature may control Existing Corpora- tions, AND WHAT AMOUNTS TO AN InPI^INGEMBNT OP THEIR ES- SENTIAL Franchises. 1. Boston Sf LoweU Railw. v. Salem S; Lowell, Boston Sf Maine, and Lowell (§• Lawrence Railways, 2 Gray's Reports, 1. 1854. This is one of the earliest and most elaborate and able of the cases and opinions bearing directly upon the question of the in- violable franchises of railway corporations, and how far the com- bination of other lines of railway, and thus creating a rival line, will amount to an infringement of an existing exclusive grant. This subject is extensively discussed in our principal work on Railways, and the cases very thoroughly referred to and com- mented upon, and some portions of the leading cases and opin- ions given. ' But as we shall in future editions of that work be compelled to exclude quotations from opinions in this and other portions of the work, to some extent, in order to give room for the numerous late cases, we deem it best to preserve a few leading opinions here. An exclusive grant to a corporation by the legislature of one of the states, to build and operate a railway between two cities within its limits for a term of years, is a contract within that provision of the United States Constitution prohibiting the states from passing any law impairing the obligation of contracts. The granting subsequently to one or more corporations the privilege of building railways, so near the same line that by their combination a rival line will be created between the same cities, amounts, when they are so combined, to an in- fringement of the former exclusive grant, and cannot be lawfully maintained in that form. Bill for an injunction against defendants for unlawfully dis- turbing plaintiffs in the enjoyment of their franchise. The case VOL. II. 37 578 HOW PAR THE LEGISLATURE MAT shows that in 1830 plaintiffs' corporation was chartered to con- struct a railroad from Boston to Lowell, with capital stock of $500,000, and it was provided that the legislature might regulate the tolls to a certain extent, and purchase the railroad itself after ten years. By § 12 it was provided, "that no other railroad than the one hereby granted shall, within thirty years from and after the passing of this act, be authorized to be made leading from Bos- ton or Charlestown, or Cambridge, to Lowell, or from Boston, Charlestown, or Cambridge, to any place within five miles of the northern termination of the railroad hereby authorized to be made." The plaintiffs proceeded and built the road, and have ever since maintained it. Since plaintiffs' road was constructed, the three corporations, defendants, have been created, and, by permission of the legislature, have formed junctions at the towns of Tewksbury and Wilmington, so that a line of railroad communication has been established between Lowell and Boston, through Oliarlestown, only one and three-fifths miles longer than plaintiffs', and at no point more than three miles and one-third distant therefrom, having one ter- minus at Lowell, within half a mile of the northern terminus of plaintiffs' road, and a station-house at Charlestown for passengers, and a southern terminus in Boston one half mile nearer the centre of business in Boston than the southern terminus of plaintiffs' road. Shaw, C. J., after determining that the court have jurisdiction, said : — The next question material to be considered is, what are the rights of the plaintiffs under their act of incorporation ? This was one of the earliest acts providing for the establish- ment of railroads in this commonwealth for the transportation of passengers and merchandise, so early, indeed, and with so little foresight of tiae actual accommodations as they were afterwards provided and found necessary, that it was rather regarded as an iron turnpike, upon which individuals and transportation com- panies were to enter and run with their own cars and carriages, paying a toll to the corporation for the use of the road only, and the act authorized the corporation to make suitable rules and reg- \ilations as to the form of cars, the time of running, &c., which CONTROL EXISTING CORPORATIONS. 579 might be found necessary to render such use of the railroad safe and beneficial. Of course neither the government nor the undertakers had any experience, and could not form an accurat^e or even approximate estimate of the cost of the work, or the profits to be derived from it. And it appears by the act itself and its various additions, that the capital was increased from time to time, from 1500,000 to $1,800,000. With this want of experience, and with an earnest desire on the part of the public to make an experi- ment of this new and extraordinary public improvement, it would be natural for the government to offer such terms as would be likely to encourage capitalists to invest their money in public im- provements, and after the experience of capitalists in respect of the turnpikes and canals of the commonwealth which had been authorized by the public, but built by the application of private capital, but which, as investments, had proved in most cases to be ruinous, it was probably no easy matter to awaken anew the confi- dence of moneyed men in these enterprises. In construing this act of incorporation, we are to bear in mind the time and circumstances under which it was made, but more especially to take into consideration every part and clause of the act, and deduce from it the true meaning and intent of the parties. The act, like every act and charter of the same kind, is a contract between the government on the one part, and the undertakers accepting the act of incorporation on the other, and therefore what they both intended by the terms used, if we can ascertain it, forms the true construction of such contract. It conferred on the persons incorporated the franchise of being and acting as a corporation, and the authority to locate, construct, and finally complete a railroad at or near the city of Boston, thence to Lowell. That this was regarded as a public improvement, and intended for the benefit of the public, is manifest from the whole tenor of the act, more especially from the authority to take prop- erty on paying a compensation in the usual manner, which would otherwise be wholly unjustifiable. It is equally manifest from the whole tenor of the act, and the nature of the subject, that the work would require a large outlay of capital. How, then, are the undertakers to be compensated for the work thus provided for the public at their expense? This is answered by § 5, which provides that a toll is granted for the sole benefit of such corporation, upon all passengers and property of all 580 HOW FAR THE LEGISLATURE MAT descriptions, which may be conyeyed or transported on such road, at such rates as the company in the first instance shall fix. This is in every respect a public grant of a franchise which no one could enjoy but by the authority of the government. This grant of toll is subject to certain regulations within the power of the govern- ment, if it should become excessive. We are then brought to § 12, upon .which the stress of the argument in the present case has seemed mainly to turn. It pro- vides that no other railroad than the one hereby granted shall, within thirty years, be authorized to be made leading from Boston, Charlestown, or Cambridge, to Lowell, or from Boston, Charles- town, or Cambridge, to any place within five miles of the northern terminus of the railroad hereby authorized, that is, the termination at Lowell. The question is, does this provision confer any ex- clusive right, interest, franchise, or benefit on this corporation ? It is found in the same act, the whole is presented at once, to the consideration of the corporators, to be accepted or rejected as a whole, and this would of course constitute a consideration in their minds in determining whether to accept or reject the charter. If it adds any thing to the value and benefit of the franchise, such enhanced value is part of the price which the public propose to pay, and which the undertakers expect to receive as their compen- sation for furnishing such public improvement. This is a stipulation of some sort, a contract by one of the con- tracting parties to and with the other ; in order to put a just construction upon it, we must consider the character and relations of the contracting parties, the subject-matter of the stipulation, and its legal effect upon their respective rights. It was made by government in its sovereign capacity, with sub- jects who were encouraged by it to advance their property for the benefit of the public. It was certainly a stipulation on the part of the government regulatuig its own conduct and putting a restraint upon its own power to authorize any other railroad to be built with a right to levy a toll, but without an authority from the government no other company or person could be authorized so to make a railroad and levy toll, and of course no other road could be lawfully made. It was therefore equivalent to a covenant for quiet enjoyment against its own acts and those of persons claiming under it. This is in fact all that the government could stipulate. It could not CONTROL EXISTING COBPORATIONS. 581 covenant for quiet enjoyment against strangers and intruders, against the unauthorized and illegal disturbance of their rights by , third persons ; against those they would have their remedy in the general laws of the land. But it has been argued that this stipulation as it appears in the charter is a mere executory covenant or undertaking, and is not an executed contract. But we think it 'may be both ; so far as it confers a present right, it is executed ; so far as it amounts to a stipulation that the covenanter will not disturb the enjoyment of the right granted, it may be deemed executory. So a deed conveying land transfers on its delivery all the title and interest the grantor can confer, and is also a stipulation that the benefit granted shall not be revoked or impaired. And this is held to apply to grants of government as well as to those of individuals. Fletcher v. Peck, 6 Cranch, 87. He who has the power of conferring a right or a franchise lying solely in grant, and who stipulates for a valuable consideration that another shall have and enjoy it undisturbed and unmolested by any act or permission of his, in effect grants such right or fran- chise. But more especially, when such right is conferred by the community in the form of a statute having all the forms of law, and sanctioned by the government acting in behalf of all the people and having power to bind them by law, such right would seem to be clothed with as much solemnity, and' to have the same effect and force as if it were the grant of an exclusive right in terms. We are therefore of opinion that under this form of words no other railroad should be authorized to be made for thirty years, the gov- ernment, as far as it was in their power, intended to engage with the corporation that no other direct railroad between Boston and Lowell should be legally made, leaving them to guard themselves from unauthorized and illegal disturbance by the general laws in the course of the ordinary administration of justice. This is strengthened by the consideration that, as their whole remunera- tion would depend upon tolls, uncertain in amount, it was intended that they should be to some extent secure against any authorized road taking the same travel and of course the same tolls. There is a provision in the close of this section twelve which in our judg- ment adds some weight to this conclusion. This is a right reserved to the commonwealth after a certain term of years, to purchase the railroad and all the rights of the corporation on reimbursing them 582 HOW PAR THE LEGISLATURE MAT the whole cost, with ten per cent profit, and then follows this pro- vision : " And after such purchase the limitation provided in this section (that no railroad sliall be authorized to be made) shall cease and be of no effect." From this provision it is manifest that the restriction, as it is termed, was imposed on the government, and of course upon all the subjects for the benefit of this corpora- tion ; and after the government should have succeeded to their rights by purchase, then there would be no longer any occasion to impose any restriction on the government: it might do what it would with its own, and it would be at liberty to make any other grant or not at pleasure. This carries a strong implication that until such purchase, and so long as the income from tolls would enure to the benefit of the proprietors, the exclusive right, so far as these restrictions upon other railroads to take the same travel and the same tolls make it exclusive, should stand part of the charter. But it is strongly urged that if the legislature intended to grant such exclusive right, and the terms of the whole act taken together will bear and require that construction, and they did grant such exclusive right, and did restrain succeeding legislatures from making any grant or contract inconsistent with it, the provision itself was beyond the power of the legislature, and void. We readily concede that, for general purposes of legislation, the legislature rightly constituted has full power to make laws, to re- peal former laws, and, of course, the last legislative act is binding, and necessarily repeals all prior acts which are repugnant. But in addition to the law-making power the legislature is the representative of the whole people, with authority to control and regulate public property and public rights, to grant lands and franchises, to stipulate for purchase and obtain all such property, privileges, easements, and improvements as may be necessary or useful to the public, to bind the community by their contracts therefor, and generally to regulate all public rights and interests. It is under this authority that lands are granted, either in fee or upon any other tenure, that the uses of navigable streams and waters are regulated, the right to build over navigable waters, to erect bridges, turnpikes, and railroads, and other similar rights and privileges are granted and justified ; of the necessity and conven- ience of all roads and other public works and improvements, of their fitness and the best modes of providing them, the established CONTROL EXISTING CORPORATIONS. 583 government of the state, acting by the legislature for the time being, must necessarily judge and determine. They must decide wheth&r it is best to provide for them by funds from the public treasury, or to procure individuals to ad- vance their own funds for the purpose, to be reimbursed by tolls, and to make just and adequate provisions incident to each. Sup- posing ferries or bridges are obviously necessary over a long and ■ iDroad river, it is equally obvious that no public convenience would require them to be built parallel and close to each other ; on the contrary, such erections would be an unnecessary waste of prop- erty. Would it not be for the legislature to decide within what stated and fixed distance from each other convenience would re- quire them ? If they were erected by funds drawn directly from the state, the legislature would plainly have the power to deter- mine such distances, and provide that no one .should be built within the distances thus fixed. May they not, with a due regard to the public exigencies and public interests, do the same thing when such public works are erected by individuals at the instance and procurement of the government, for public use ? Were it otherwise, and were all such grants and stipulations repealable by a subsequent legislature, because they are in the form of laws, then the unlimited power of the legislature to alter and change the laws, sometimes called, rather extravagantly, the omnipotence of parlia- ment, would be a source of weakness and not of strength. In making such grants and stipulations, no doubt great caution and foresight are requisite on the part of the legislature, a just estimate of the public benefit to be procured, and the cost at which it is to be obtained ; and, as great changes in the state of things may take place in the progress of time, a great increase of travel, for instance, on a given line, which changes cannot be specifically foreseen, it is the part of wisdom to provide for this, either by lim- itation of time, reservation of a power to reduce tolls, should they so increase at the rates first fixed as to become excessive, or of a right to repurchase the franchise upon equitable terms, so that the contract shall not only be just and equal, in the outset, but, within reasonable limits, continue to be so. In the charter of the Boston and Lowell Railroad Corporation, the government reserved the right both to regulate the tolls and purchase the franchise, upon terms fixed, afid making part of the contract. When such a con- tract has been made on considerations of an equivalent public bene- 584 HOW FAR THE LEGISLATURE MAT fit, and when the grantees have advanced their money to the public upon the faith of it, the state is bound by the plain principles of justice faithfully to respect all grants and rights thus created and vested by the contract. Such a power of regulating public rights is everywhere recognized as one distinguishable from that of legis- lation, a power incident and necessary to all well-regulated govern- ments, and, when rightly exercised, is within the constitutional power of the legislature, and binding upon the government and' people. The court are of opinion that these principles are well established by authorities. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35 ; Livingston v. Van Ingen, 9 Johns. 507. In the case of Charles Eiver Bridge v. Warren Bridge, both in this court and in the Supreme Court of the United States, it was not, doubted that a state would be bound by a grant of an exclusive right to a bridge or ferry, made in terms by the legislature ; on the contrary, the validity of such grant was implied. The controversy turned on the question, whether, by the simple grant of a toll- bridge or ferry, from one terminus to another, any exclusive grant could be implied to take toll for that line of travel, so as to bar the legislature from granting a right to build a bridge to and from other termini on the same line of travel. 7 Pick. 844 ; 11 Peters, 420. In Fletcher v. Peck, 6 Oranch, 135, the court say : " Where a law is in its nature a contract, where absolute rights have been vested under that contract, a repeal of that law cannot divest those rights." So any law granting privileges to others repugnant to these previously granted, which if available would be a repeal by implication, is obnoxious to the same objection. That which can- not be repealed in express terms, cannot be repealed by implica- tion, by the enactment of laws repugnant to the provisions of the former act. The same defect of power which invalidates the one has the same effect upon the other. But it is earnestly insisted that the grants to the defend- ants' corporations do warrant and justify them in setting up the line of transportation by railroad by the union of the several sec- tions of their respective railroads, and that it may be regarded as lawfully done under the right of the government to appropriate private property for public use. It is fully conceded that the right of eminent domain, the right of the sovereign, exercised in due form of law, to take private prop- CONTROL EXISTING CORPORATIONS. 585 erty for public use, when necessity requires it, of which the govern- ment must judge, is a right incident to every government, and is often essential to its safety. And property is nomen generalissimum and extends to every species of valuable right and interest, and includes real and per- sonal property, easements, franchises, and incorporeal heredita- ments. Even the term " taking" which has sometimes been relied upon as implying something tangible or corporate, is not used in the Massachusetts bill of rights, but the provision is this: "Whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Art. 10. Here again the term " appro- priate " is of the largest import, and embraces every mode by which property may be applied to the use of the public. Whatever ex- ists, which public necessity demands, may be thus appropriated. It was held in the Supreme Court of the United States, that a franchise to build and maintain a toll-bridge might be so appropri- ated, and that the right of an incorporated company to maintain such a bridge under a charter from a state, might, under a right of eminent domain, be taken for a highway. West River Bridge V. Dix, 6 How. 507. The same point was afterwards decided in the same court in the case of a railroad. Richmond, &c., Railroad v. Louisa Rail- road, 13 How. 83. Such appropriation is not regarded as impairing the right of property or the obligation of any contract ; on the con- trary, it freely admits such right, and in all just governments pro- vision is made for an adequate compensation which recognizes the owner's right. Nor does it appear to us to make any difference whether the land, or any other right or interest thus appropriated, be derived directly from the government or be acquired otherwise, for the rea- son already stated, that it does not revoke the grant or impair or annul the contract, but recognizes and admits the validity of both. If, for instance, a government, through its authorized agent, had contracted to convey land to an individual, and afterwards, and before the title passed, it should be necessary to appropriate such land to public uses, such taking would not impair the obligation of the contract; the individual would have the same right to com- pensation for the loss of his equitable title to the land as he would 686 HOW PAR THE LEGISLATURE MAT have had for the land itself, if the title to it had passed. If, there- fore, in the great advancement of public improvements, in the great changes which take place in the number of inhabitants, in the number of passengers and quantity of property to be transported, or in great and manifest improvements in the mode of travel and locomotion, it becomes necessary to appropriate in whole or in part a franchise previously granted, the existence of which is recognized and admitted, we cannot doubt that it would be competent for the legislature in clear and express terms to authorize the appropria- tion of such franchise, making adequate compensation for the same. But we cannot perceive in the acts of incorporation of the three defendant corporations, or in any of the acts in addition thereto, any act of the government taking or appropriating any of the rights, franchises, or privileges of the plaintiffs' corporation, under the right of eminent domain. The characteristics of such an appro- priation are known and well understood. It must appear that the government intend to exercise this high sovereign right by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting such intent. It must also appear by the act that they recognize the right of private property and mean to respect it, and under our constitu- tion the act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. If the government authorizes the taking of property for any use other than a public one, or fails to make conpensation, the act is simply void, no right of taking as against the owner is con- ferred, and he has the same rights and remedies against a party acting under such authority as if it had not existed. In general, therefore, where any act seems to confer an au- thority on another to take property, and the grant is not clear and explicit, and no compensation is provided by it for the owner or party whose rights are injuriously affected, the law will conclude that it was not the intent of the legislature to exercise the right of eminent domain, but simply to confer a right to do the act, or ex- ercise the power given, on first obtaining the consent of those affected. CONTROL EXISTING CORPORATIONS. 587 2. Thorpe v. Rutland and Burlington Railway, 27 Vermont Reports, 140. 1854. There is nothing in the United States Constitution which abridges or impairs the fall power of the state legislatures to impose any burdens or restrictions upon existing corporations within their limits," which may become requisite to the fullest and most complete exercise of the functions of regulating the internal police of the state. Discussion of the proper limitation of the essential franchises of corporations, and how far it is competent for the state legislatures to impose new burdens and restrictions, under their inherent and unimpaired right to regulate and control their internal police. The facts in the' case sufficiently appear in the opinion of the court by — Ebdpield, C. J. I. The present case involves the question of the right of the legislature to require existing railways to respond in damages for all cattle killed or injured by their trains until they erect suitable cattle-guards at farm-crossings. No question could be made where such a requisition was contained in the charter of the corporation, or in the general laws of the state at the date of the charter. But where neither is the case, it is claimed that it is not competent for the legislature to impose such an obligation by statute, subsequent to the date of the charter. It has never been questioned, so far as I know, that the Ameri- can legislatures have the same unlimited poY*er in regard to legis- lation which resides in the British parliament, except where they are restrained by written constitutions. That must be conceded, I think, to be a fundamental principle in the political organizations of the American states. We cannot well comprehend how,'upon prin- ciple, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several state legisla- tures, saving only such restrictions as are imposed by the Constitu- tion of the United States, or of the particular state in question. I am not aware that the constitution of this state contains any restric- tion upon the legislature in regard to railway corporations, unless it be that where " any person's property is taken for the use of the public, the owner ought to receive an equivalent in money ; " or that there is any such restriction in the United States Constitution, 588 HOW PAR THE LEGISLATURE MAT except that prohibiting the states from " passing any law impair- ing the obligation of contracts." It is a conceded point, upon all hands, that the parliament of Great Britain is competent to make any law binding upon corpo- rations, however much it may increase their burdens or restrict their powers, whether general or organic, even to the repeal of their charters. This extent of power is recognized in the case of Dartmouth Col- lege V. Woodward, 4 Wlieat. 518, and the leading authorities are there referred to. Any requisite amount of authority, giving this unlimited power over corporations to the British parliament, may readily be found. And if, as we have shown, the several state leg- islatures have the same extent of legislative power, with the limi- tations named, the inviolability of these artificial bodies rests upon the same basis in the American states with that of natural persons, and there are, no doubt, many of the rights, powei's, and functions of natural persons which do not come within legislative control. Such, for instance, as are purely and exclusively of private con- cern, and in which the body politic, as such, have no special interest. II. It being assumed then, that the legislature may control the action, prescribe the functions and duties of corporations, and im- pose restraints upon them to the same extent as upon natural persons, that is, in all matters coming within the general range of legislative authority, subject to the limitation of not impairing the obligation of contracts, provided the essential franchise is not taken without compensation, it becomes of primary importance to determine the extent to which the charter of a corporation may fairly be regarded as a contract within the meaning of the United States Constitution. Upon this subject, the decisions of the United States Supreme Court must be regarded as of paramount authority. And the case of Dartmouth College v. Woodward, being so much upon the very point now under consideration, and the leading case, and authori- tative exposition of the court of last resort upon that subject, must be considered as the common starting-point, the point of divergence, so to speak, of all the contrariety of opinion in regard to it. Mr. Chief Justice Marshall there says : " A corporation is an artificial being — the mere creature of the law ; it possesses only CONTROL EXISTING CORPORATIONS. 589 those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence." The decision throughout treats this as the fundamental idea, the pivot upon which the case turns. The charter of a corporation is thus regarded as a contract, inasmuch as it is an implied undertaking on the part of the state, that the corporation, as such, and for the purposes therein named or implied, shall enjoy the powers and franchises by its charter conferred. And any statute essentially modifying these corporate franchises is there regarded as a viola- tion of the charter. But when we come to inquire what is meant by the franchises of a corporation, the principal difficulty arises. Certain things, it is agreed, are essential to the beneficial existence and successful operation of a corporation, such as individuality and perpetuity, when the grant is unlimited; the power to sue and to be sued, to have a common seal and to contract ; and, in the case of a railway, to have a common stock, to construct and main- tain its road, and to operate the same for the common benefit of the corporators. Certain other things, as incident to the benefi- cial use of these franchises, are necessarily implied. But there is a wide field of debatable ground outside of all these. It is conceded that the powers expressly, or by necessary implication, conferred by the charter, and which are essential to the successful operation of the corporation, are inviolable. But it has sometimes been supposed that corporations possess a kind of immunity and exemption from legislative control, extend* ing to every thing materially affecting their interest, and where there is no express reservation in their charters. It was upon this ground that a perpetual exemption from taxation was claimed in Providence Bank v. Billings, 4 Pet. 514, their charter being gen-' eral, and no power of taxation reserved to the state. The argument was, that the right to tax either their property or their stock was not only an abridgment 'of the beneficial use of the franchise, but, if it existed, was capable of being so exercised as virtually to de- stroy it. This was certainly plausible, and the court do not deny the liability to so exercise the power of taxation as to absorb the entire profits of the institution. But still they deny the exemp- tion claimed. Chief Justice Marshall there says : " The great object of an incorporation is to bestow the character and proper- ties of individuality on a collected and changing body of men. Any privileges which may exempt it from the burdens common 590 HOW PAR THE LEGISLATURE MAT to individuals do not flow necessarily from the charter, hut must he expressed in it, or they do not exist." This is sufficiently explicit, and upon examination will be found, I think, to have placed the matter upon its true basis. In reason, it would seem that no fault could be found with, the rule here laid down by the great expounder of American constitutional law. As to the general liability to legislative control, it places natural persons and corporations precisely upon the same ground. And it is the true ground, and the only one upon which equal rights and just liabilities and duties can be fairly based. To apply this rule to the present case, it must be conceded that all whicli goes to the constitution of the corporation and its bene- ficial operation is granted by the legislature, and cannot be re- voked, either directly or indirectly, without a violation of the grant, which is regarded as impairing the contract, and so pro- hibited by the United States Constitution. And if we suppose the legislature to have made the same grant to a natural person which they did to defendants, which they may undoubtedly do (Moor V. Veasie, 32 Me. 343 ; s. c. in error in the Sup. Ct. U. S., 4 Pet. 568), it would scarcely be supposed that they thereby parted with any general legislative control over such person, or the busi- ness secured to liim. Such a supposition, when applied to a single natural person, sounds almost absurd. But it must, in fact, be the same thing when applied to a corporation, however e-xtensive. In either case, the privilege of running the road, and taking tolls, or fare and freight, is the essential franchise con- ferred. Any act essentially paralyzing this franchise, or destroy- ing the profits therefrom arising, would no doubt be void. But beyond that, the entire power of legislative control resides in the legislature, unless such power is expressly limited in the grant to the corporation, as, for instance, by exempting their property from taxation, in consideration of a share of the profits, or a bonus, or the public duties assumed. And it has been questioned how far one legislature could, in this manner, abridge the general power of every sovereignty to impose taxes to defray the ex- pense of public functions. Brewster v. Hough, 10 N. H. 138 ; Mechanics and Traders' Bank v. Debolt, 1 Ohio, N. S. 691 ; Toledo Bank v. Bond, id. 622. It seems to me there is some ground to question the right of the legislature to extinguish, by one act, this essential right of sovereignty. I would not be sur- CONTROL EXISTING CORPORATIONS. 591 prised to find it brought into general doubt. But at pres- ent it seems to be pretty generally acquiesced in. State of New Jersey v. Wilson, 7 Cranch, 164; reaffirmed in Gordon V. Appeal Tax Court, 3 How. U. S. 133. But all the decisions in the United States Supreme Court, allowing the legislature to grant irrevocably any essential prerogative of sovereignty, require it to be upon consideration ; and in the case of corporations, contem- poraneous with the creation of the franchise. Richmond Rail- road Co. V. The Louisa Railroad Co., 13 How. 71. Similar decisions in regard to the right of the legislature to grant perpetual exemp- tion from taxation to corporations and property, the title to which is derived from the state, have been made by this court. Herrick V. Randolph, 13 Vt. 525 ; and in some of the other states, Landon V. Litchfield, 11 Conn. 251, and cases cited, O'Donnell v. Bailey, 24 Miss. 386. But these cases do not affect to justify even this express exemption from taxation being held inviolable, except upon the ground that it formed a part of the value of the grant, for which the state received or stipulated for a consideration. But in the present case the question arises upon the statute of 1850, requiring all railways in the state to make and maintain cattle-guards at farm-crossings, and, until they do so, making them liable for damage done to cattle by their engines, by reason of defect of fences or cattle-guards. The defendants' charter required them to fence their road, but no express provision is made in regard to cattle-guards. There is no pretence of any express exemption in the charter upon this subject, or that such an im- plied exemption can fairly be said to form a condition of the act of incorporation, unless every thing is implied by grant, which is not expressly inhibited, whereas the true rule of construction in regard to the powers of corporations is, that they are to take noth- ing by intendment, but what is necessary to the enjoyment of that which is expressly granted. In addition to the cases already cited, we may here refer to the language of the ^^opinion of Grrier, Justice, in Richmond Railroad Co. t). Louisa Railroad Co., 13 How. 71, citing from the former decisions of the court with approbation, " that public grants are to be construed strictly, that any ambiguity in the terms of the grant must operate against the corporation and in favor of the public, and the corporation can claim nothing but what is clearly given by the act." This being the definitive determination of the court of last resort, upon this 692 HOW PAR THE LEGISLATURE MAT subject, in so recent a case, should be regarded as final, if there be any such thing anywhere. And the language of Taney, Chief Justice, in Charles River Bridge v. Warren Bridge, 11 Pet. 548, is still more specific, and in my judgment eminently just and conservative : " The continued existence of a government would be of no great value, if by implications and presumptions it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to privileged corporations." The conclusion of this learned judge and eminent jurist is, that no claim in any way abridging the most unlimited exercise of the legislative power over persons, natural or artificial, can be successfully asserted, except upon the basis of an express grant, in terms, or by neces- sary implication. But upon the principle contended for in Providence Bank v. Bil- lings, mpra, and sometimes attempted to be maintained in favor of other corporations, most of the railways in tliis state would be quite beyond the control of the legislature, as well as to their own police, as that of the state generally. For in very few of their charters are these matters defined, or the control of them reserved* to the legislature. Many of the charters do not require the roads to be fenced. But in Quimby v. The Vermont Central Railroad Co., 23 Vt. 387, it was considered that the corporation were bound, as part of the compensation to land-owners, either. to build fences or pay for them. The same was also held in Morse V. Boston & Maine Railroad, 2 Cush. 536. Any other construction will enable railway corporations to take land without adequate compensation, which is in violation of the state constitution, and would make the charter void to that extent. So, too, in regard to farm-crossings, the charters of many roads are silent. And it has been held that the provision for restoring private ways does not apply to farm-crossings. But the railways, without exception, built farm-crossings, regarding them as an economical mode of reducing land damages, and they are now bound to maintain them, however the case might have been if none had been stip- ulated for, and the damages assessed accordingly. Manning V. Eastern Counties Railway Co., 12 M. & W. 237. So, too, many of the charters are silent as to cattle-guards at road- crossings, but the roads generally acquiesced in their necessity, both for tlie security of property and persons upon the railway CONTBOL EXISTING CORPORATIONS. 593 and of cattle in the highway. For it has been held that this pro- vision is for the protection of all cattle in the highway. Pawcet V. The York and North Midland Eailroad Co., 2 Law & Eq. 289 ; Trow V. Vermont Central Railroad Co., 24 Vt. 487. Thus making a distinction in regard to the. extent of the liability of railways for damages arising through defect of fences and farm-crossings and cattle-guards, at those points, and those which arise from defect of fences and cattle-guards at road-crossings, the former being only for the protection of cattle rightfully in the adjoining fields, as was held in Jackson v. R. & B. Railroad Co., 25 Vt. 150, and the other for the protection of all cattle in the highway, unless, perhaps, in some excepted cases, amounting to gross negligence in the owners. And there can be no doubt of the perfect right of the legislature to make the same distinction in regard to the extent of the liability of railways in the act of 1850, if such was their purpose, which thus becomes a matter of construction. But the present case resolves itself into the narrow question of the right of the legislature, by general statute to require all rail- ways, whether now in operation or hereafter to be chartered or built, to fence their roads upon both sides, and provide sufficient cattle-guards at all farm and road crossings, under penalty of paying all damage caused by their neglect to comply with such requirements. It might be contended that cattle-guards are a necessary part of the fence at all crossings, but that has been questioned, and we think the matter should be decided upon the general ground. It was supposed that the question was settled by this court, in Nelson v. V. & C. Railroad Co., 26 Vt. 717. The general views of the court are there stated as clearly as it could now be done ; but as the general question is of vast importance, both to the roads and the public, and has again been urged upon our consideration, we have examined it very much in detail. We think the power of the legislature to control existing rail- ways in this respect may be found in the general control over the police of the country, which resides in the law-making power in all free states, and which is, by the fifth article of the bill of rights of this state, expressly declared to reside perpetually and inalienably in the legislature, which is, perhaps, no more than the enunciation of a general principle applicable to all free states, and which cannot, therefore, be violated, so as to deprive the legislature of the power, even by express grant to any mere public or private YOL. II. 38 594 HOW PAR THE LEGISLATURE MAY eorporation. And when the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to rail- ways, to be carried into effect by their by-laws and other regula- tions, it is, of course, always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures cannot divest themselves of, if they would. This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the pro- tection of all property within the state. According to the maxim, Sic utere tuo ut alienum non lasdas, which, being of universal application, it must, of colirse, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. So far as railways are con- cerned, this police power, which resides primarily and ultimately in the legislature, is two-fold : 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with tliem, or come upon, their grounds, through their general stat- utes and by their officers. We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of whicli they are to judge, and in all doubtful cases their judgment is final, require the several railways in the state to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the Eng- lish railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all their railroads to come to a stand before passing draws in bridges ; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reason may all railways be required so to conduct themselves, as to other persons, natural or corporate, as not unreasonably to injure them or their property. And if the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often required of natural persons under such cir- cumstances. There would be no end of illustrations upon this subject, which, in the detail, are more familiar to others than to us. It may be CONTROL EXISTING COEPOEATIONS. 595 extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety beams in case of the breaking of axle-trees, the number of brake- men upon a train with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and many similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co., 16 Barb. 353. 2. There is alfeo the general police power of the state, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and pros- perity of the state, of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm, that the right to do the same in regard to railways should be made a serious question. This objection is made generally upon two grounds : 1. That it subjects corporations to virtual destruction by the leg- islature ; and 2. That it is an attempt to control the obligation of one person to another, in matters of merely private concern. The first point has already been somewhat labored. It is ad- mitted that the essential franchise of a private corporation is rec- ognized by the best authority as private property, and cannot be taken without compensation, even for public use. Armington v. Barnet, 15 Vt. 745 ; West River Bridge Co. v. Dix, 16 Vt. 446 ; s. c. in error in the United States Sup. Ct., 6 How. 507 ; 1 Shel- ford (Bennett's ed.), 441, and cases cited. All the cases agree that the indispensable franchises of a corpo- ration cannot be destroyed or essentially modified. This is the very point upon which the leading case of Dartmouth College v. Wood- ward was decided, and. which every well-considered case upon the subject in -this country maintains. But when it is attempted upon this basis to deny the power of regulating the internal police of the • railways, and their mode of transacting their general business, so far as it tends unreasonably to infringe the rights or interests of others, it is putting the whole subject of railway control quite above the leg- islation of the country. Many analogous subjects may be adduced to show the right of legislative control over matters chiefly of private 596 HOW PAR THE LEGISLATUEE MAT concern. It was held, that a statute making the stockholders of existing banks liable for the debts of the bank was a valid law as to debts thereafter contracted, and binding to that extent upon all stockholders subsequent to the passage of the law. Stanley v. Stanley, 26 Maine, 191. But where a bank was chartered with power to receive money on deposit and pay away the same, and to discount bills of exchange and make loans, and a statute of the state subsequently made it unlawful for any bank in the state to transfer, by indorsement or otherwise, any bill or note, &c., it was held that the act was void, as a violation of the contract of the state with the bank in granting its charter. Planters' Bank v. Sharp, and Bald- win V. Payne, 6 How. 301, 326, 327, 332 ; Jameson v. Planters' and Merchants' Bank, 23 Ala. 168. It is true that any statute destroying the business or profits of a bank, and equally of a rail- way, is void. Hence a statute prohibiting banks from taking interest, or discounting bills or notes, would be void, as striking at the very foundation of the general objects and beneficial purposes of the charter. But a general statute reducing the rate of interest,, or punishing usury, or prohibiting speculations in exchange or in depreciated paper, or the issuing of bills of a given denomination, or creating other banks in the same vicinity, have always been re- garded as valid. And while it is conceded the legislature could not prohibit existing railways from carrying freight or passengers, it is believed that, beyond all question, it may so regulate these matters as to impose new obligations and restrictions upon these roads materially aifecting their profits, as by not allowing them to run in an unsafe condition, as was held as to turnpikes. State v. Bos- worth, 13 Vt. 402. But a law allowing certain classes of persons to go toll free is void. Pingrey v. Washburn, 1 Aiken, 268. So, too, chartering a railway along the same route of a turnpike is no violation of its rights. White River Turnpike Co. v. Vermont Cent. R. Co., 21 Yt. 590 ; Turnpike Co. v. Railway Co., 10 Gill & John- son, 392. Or chartering another railway along the same route of a former one, to whom no exclusive rights are granted in terms, . Matter of Hamilton Avenue, 14 Barb. 405 ; or the establishment of a free way by the side of a toll-bridge, Charles River Bridge v. Warren Bridge, 11 Peters,. 420. The legislature may no doubt prohibit railways from carrying, freight which is regarded as detrimental to the public health or morals, or the public safety generally, or they might probably be CONTROL EXISTING CORPORATIONS. 597 made liable as insurers of the lives and limbs of passengers as they virtually are of freight. The late statute, giving relatives the right to recover damages where a person is killed, has wrought a very important change in the liability of railways, ten times as much, probably, as the one now under consideration ever could do. And I never knew the right of the legislature to impose the liability to be brought in question. But the argument that these cattle-guards at farm-crossings are of so private a character as not to come within the general range of legislative cognizance seems to me to, rest altogether upon a misapprehension. It makes no difference how few or how many persons a statute will be likely to affect. If it professes to regu- late a matter of public concern, and is in its terms general, applying equally to all persons or property coming within its pi-ovisions, it makes no difference in regard to its character or validity whether it will be likely to reach one case or ten thousand. A statute requiring powder-mills to be built remote from the villages ^r highways, or to be separated from the adjoining lands by any such muniment as may be requisite to afford security to others' property or business, would probably be a valid law if there were bvit one powder-mill iir'the state, or none at all, and notwithstanding the whole expense of the protection should be imposed upon the pro- prietor of the dangerous business. And even where the state legis- lature have created a corporation for manufacturing powder at a given point, at the time remote from inhabitants, if, in process of time, dwellings approach the locality, so as to render the further pursuit of the business at that point destructive to the interests of others, it may be required to be suspended or removed, or secured from doing harm, at the sole expense of such corporation. This very point is, in effect, decided in regard to Trinity churchyard, which is a royal grant for interment, securing fees to the proprie- tors, in the case of Coates v. The City of New York, 7 Cow. 604 ; and in regard to The Presbyterian Churchyard in their case v. The City of New York, 5 Cow. 538. Soo, too, a statute requiring division fences between adjoining land proprietors, to be built of a given height or quality, although differing from the former law, would bind natural persons and equally corporations. But a statute requiring land-owners to build all their fences of a given quality or height would no doubt be invalid, as an unwarrantable interfere