'k k CORNELL LAW LIBRARY •^ :.^- ■ i^-ji &1I (Sinrmli ffiam ^rljaal Cibrari} Cornell University Library KF 2289.B71 Rules of law for the carriage and delive 3 1924 019 317 167 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019317167 EULES OF LAW rOB TBX CARRIAGE AND-. DELIVERY .E8 PEESONS AND PEOPEETT BY EAILWAYr \§QQ ^7 WITH TH« 4(^0UT^ LEADING RAILWAY STATUTES AND DECISIONS OF ILLINOIS, INDIANA, MICHIGAN, OHIO, PENNSYLVANIA, NEW YORK AND THE UNITED STATES. t PBBPABBD FOB EAELWAT COMPAOTES AKD THE LEGAL PROFESSION. By CHARLES C. BONNEY, USUBZB OF TBB njJSOIS BAB. CHICAGO: E. B. MYEBS, LAW BOOKSELLKB AND PUBLISHEB. 1864. , 8^ 'FEB 3 26 : 880 ^ U PREFACE. works on railways, carriers, contracts and bailments; and because the decisions given, seem sufficiently to sustain, amplify and explain them, and to show their application. It will not be expected that the first edition of such a work will be free from defects; and I inToke a friendly judgment on occasional departures from the general plan of the work; and matters in which improvements either pf form or of substance might be made. A distinct knowledge of duty and hability, naturally induces care and fidehty ; and I cannot resist the conviction, that a famil- iarity with the subject-matter of this treatise, by the non-profes- sional persons for whose use it is, in part, designed, would prevent many of the losses and accidents which now occur; and largely increase the efficiency and safety of the railway system of the country. To my professional brethren I submit the result of my labors, with the hope that it may be found sufficiently useful in the law office and at the bar, to secure the grateful reward of their approval. CHARLES C. BONNET. Chicago, August 16, 1864. COE'TEJS'TS, CHAPTEB I. The Oaeriasb of Passengers — General Eules„ . Fxei .13—20 1. The carrier's contract and control. 2. Payment of fare — public policy. 3. Duty and authority of conductor. 4. Providing means of transportation. 6. Treatment of passengers. 6. Conformity to time-tables and regu- lations. 1. Injury of mere strangers. Iiijury of stockholder. Negligence of injured party. Bight to make regulations and limit liability. Risks taken by passengers. Buying tickets. Key to the law of common car- riers. CHAPTER II. Passengirs' Baggage — General Rules 21 — 28 1. The contract of baggage. 2. What is included in the terms. 3. Articles enumerated from adjudged cases — the rule for passengers — merchandise. 4. Payment of fare. 6. Lien for passage money. 6. Custody of baggage — information of contents. 1. Taking to passenger's seat. 8. Notice that the carrier yriH not be liable. 9. Delivery at end of journey — pre- sumption of loss — warehousing. 10. Transportation over other lines of carriage. 11. Baggage check. CHAPTER III. Transportation of Property — General Rules 29 — 34 1. Duty to receive and carry property. 2. Time, place, and mode of receipt. 3. Compensation — lien. 4. Instructions from consignor. 6. Extent of liability. 6. Delivery to consignee. 1. Course if consignee dead, absent, or refuse. 8. Conflicting claims to the property. 9. Liability for carnage over other lines. 10. Railway company may keep ware- houses. / 11. Partial loss. 12. Limiting liability. 13. Public policy. IV CONTENTS. CHAPTER IT. OPERATINa THE RAILROAD — GENERAL RuLES ... .35—40 1. Condition of tho road and equip- ments. 2. Inspection before each journey. 3. Not liable for defects ■which could not have been discovered, and remedied. 4. Proper kind as well as quality of equipments. 5. Running regulations - exclusive pas- senger, and the like freight trains. 6. Explanation of cause of accident. 7. Not liable to one agent for default of another in same service. 8. Statute regulations not exclusive. 9. Rule where third persons are in the wrong — conduct in time of peril. CHAPTER V. Railway Statutes of Illinois .41—56 1. Refusal to pay fare — right to ex- pel passenger. 2. Regulation of trains, and extent of accommodations — damages. 3. Making up trains — penalty. 4. Bells, whistles, and signs. 5. Intoxication of engineer or con- ductor. 6. "Willful injuries made misdemeanors 1. Above provisions extended to all railroads in Illinois. 8. Displacing, etc., swich, signal, or rail, injuring track, obstructions, etc. , etc. , made criminal offenses. Contracts and connections with other railroads. ConsoUdation of different railroads. 11. Fences and cattle-guards — when company must build and maintain them — liability for damages — 9. 10. uninclosed lands — when land owners must erect and keep in repair — action for damages. 12. Penalty of unlawful intrusion on railroad premises — injury to fences, etc. 13. Fraudulent neglect to cancel or return railroad ticket — stealing or embezzlement thereof — fraud- ulent issue of same. 14. Breaking into railroad car mads burglary. 15. Unclaimed freight — railway com- pany may advertise and sell on certain conditions. 16. Act extended to all transportation companies. 17. Lien of operatives and others on property of railway companies, for labor, materials, suppUes,eto. CHAPTER TI. Decisions op the Supreme Court op Illinois 517 30 1. Delivery after temporary detention. 2. Police regulations. 3. Power of legislature to regulate corporations. 4. Baggage, and liability therefor. 5. Construction of charter. 6. Conduct of passengers. CONTENTS. 1. Passengers' right to seat and duty to keep it. 8. Animals on track — trespass. 9. Delivery of goods. 10. Negligence — burden of proof. 11. Degree of prudence required of a passenger. 12. Railroads not common highways. 13. Admissions by officer of company. 14. Uniformity of charges. 15. Means of transportation. 16. Partiality in business, n. Unreasonable delay. 18. Custom — private warehouses. 19. Tender, or payment of charges. 20. Facilities for buying tickets. 21. Crossing public highways. 22. Duty to adopt running regulations. 23. Carriers without provision of charter. 24. Bank bills, carriage by railroad. 25. Bight to act as warehouseman. 26. Delay in forwarding freight. 21. Instructions of consignor. 28. Injury by fault of fellow-gervante. 29. Subscription before charter. 30. Insolvency no defense. 31. Subscription in blank. 32. Change of charter. 33. Disposition of cattle killed, etc. 34. Service of foreign companies. 35. Liability for act of lessee. 36. Baggage check. 31. What property is real estate- 38. Power to execute mortgage. 39. Lessor's charter governs lessee. 40. Bight to negotiate commercial paper. 41. Baggage check — what it imports. 42. Ticketing over several lines. 43. Mutual care required. 44. Measure of care required. 45. Negligence — fire. 46. Defective bridge — accident — payment of fare. 4V. Liability of trustees in possession. 48. Killing stock — negligence. (See Appendix.) CHAPTER VII. Railway Statittes of Indiana 81 — 90 L Right and duty to carry persons and property — right to use steam, animal or other power — com- pensation therefor. 2. Regulation of time, manner, tolls, and compensation. 3. Conductor, and every other em- ploye, must wear official badge. 4. Refusal to pay fare — right to expel. 5. Times of trains — public notice — sufficient accommodations — per- sons, property, tolls, and fare. 6. Refusal to take, transport, and de- liver — damages and costs. 1. Formation of trains — accident — penalty. 8. Biding on platform, etc., when room inside — notice — accident — liability. 9. Uninclosed railroad — killing or injuring stock — ^misconduct, neg- ligence, accident. 10. Consolidation of stock — common name, etc. 11. Assaulting train a misdemeanor — penalty. 12. Injury to person — assault — mur- der — penalty. 13. Crossing tracks — stopping — other train in sight — injuries — pen- alties. VI CONTENTS. 14. False information — carelessness of conductor, brakeman or en- gineer — penalty. 15. Stopping on other railroad track — penalty, 16. Eeadjustment or capitalization — order of liens — debts for labor and supplies — damages for kill- ing stock, etc. n. Lessees, assignees, receivers — liability for stock killed. 18. Act does not apply to f«need rail- roads. CHAPTER Till. DbCISION-S OS THE SUPREME COURT OF INDIANA 91 — 100 measure of dam- 1. Non-delivery ages. 2. Act of God — inevitable accident — restriction of liability. 3. Inolosures — negligence — animals —act of May 11, 1852. 4. Servants, employes, passengers, accidents — liability — payment of fare. 5. Case approved — speed in town. 6. Fellow-servants — Non- liability of company. t. Baggage — money — theft. 8. Negligence — injury — fellow-ser- vant. -disregard of order — - employe — ^negligence 9. Passenger - accident. 10. Employer - — risks. 11. Carrier — delivery — waxehousiug. 12. Non-transportation — measure of damages. 13. Partial loss — Partial delivery — notice. 14. Fellow- employes — Negligence — liability. 15. Negligence of injured party. 16. Fellow-employe — negligence — liability. CHAPTER IX. Railway Statutes of Michigan 101 115 1. Rate of speed. 2. Powers and liabilities — Persons and property — motive power. 3. Regulations — compensation — amount of fare. 4. All employes must wear badges — no right to act without same. 5. Power to reduce rates of fare, etc. 6. Refusal to pay fare — right to ex- pel, etc. 1. Time of trains — notice — extent of accommodations — due pay- ment — partiality — penalty. 8. Refusal to take, carry and deliver 12. 13. 14. — all damages and costs, or pen- alty. Bell, whistle, penalty, and dam- ages. Sign-boards at crossings. Intoxication — liabiUty — misde- meanor. Fences— duty to build— liability — neghgence — animals on track. Common carriers — several com- panies forming one line — abridg- ment of liability prohibited. Consoli(Jation of raUroad compa- nies. CONTENTS. vu 15. Action for death of person. 16. Violation of regulations by em- ploye — penalty, fine, imprison- ment. 17. Obstruction of track — penalty. 18. Checking baggage — refusal, pen- alty — fare — witness. 19. TJnclaimed baggage — publication, sale at auction — perishable property — surplus proceeds. 20. Stopping at crossings — fidlure — penalty. 21. Formation of trains — penalty. 22. Owner of baggage — witness. 23. Malicious injury of road, etc. — penalty. Personal delivery within two miles of depot — option of carrier — other directions. Rates of fare — peninsular roads. 24. 25 CHAPTER X. Decisions of thb StrPKEME Coubt op Miohisan 116 — 124 , 1. Duty of carrier — hen, — agency — delivery. 2. Live stock on track — negligence. 3. Delivery — notice — storage — re- striction of liability. 4. Right to be carried — accommoda- tions — regulations — negro. 6. Carriers, warehousemen — chang- ing liability by contract — Ward's case. 6. Fences — contractor — injury — lia- bility. 7. "Warehousemen — carriers — liabil- ity. 8. Master, servant, employe — negli- gence. CHAPTER XI. Railway Statutes op Ohio 125 — 139 1. Injury of track, etc., or obstruc- tion of train — crime, miu'der, penalty. 2. Driving wagon, etc., on track — necessity, consent, penalty. 3. Injury of road, etc. — value — penalty. 4. Injury of equipments, buildings, etc. — value — penalty. 6. Value under thirty-five dollars — penalty. 6. Advisers, assistants and abettors — ofifense — penalty. 7. Rates chargeable for passengers and for freight. 8. Signs at crossings — liability for failure. 9. Rates chargeable for passengers and for freight. 10. Signs at crossings — liability for failure — company required to fence road. 11. Consolidation of companies. 12. Stopping at each station — penalty. 13. Notice to owner — time for remov- al — sale and disposition of pro- ceeds. 14. Crossings, signals, precedence. 15. Fencing railroads — crossings — cattle-guards — penalty — subse- quent acts. 16. Stock on track — penalty. 17. Prohibition of monopoly — equal rates — diverting freight — pen- alty. Injuring road or obstructing track — penalties. 18 VIU CONTENTS. 19. Unclaimed freight — advertisement — sale — disposition of proceeds — penalty for violation. 20. Through and way freight — dis- crimination prohibited. CHAPTEE XII. Decisions of the Supebme Ooubt op Ohio. . . .140—151 1. Eestriction of liability — notice — watch — baggage. 2. Advances — lien — warehousing — forwarding — agency. 3. Contract to receive and carry — lia- bility. 4. Baggage — witness — party — wife. 5. Fellow-employe — negligence — lia- bility. 6. Eestriction of liability — mistake — negligence — burden of proof. 1. Delivery subject to condition. 8. Common law — inclosures — track — stock — liability — accident — negligence. 9. Common law — principal and agent — conductor, brakeman, fellow- 10 servant-accident— Stevens case. Restricting liability— negligence — burden of proof. 11. Employer and contractor — injury — liability. 12. Duty of conductor — passengers — cattle. 13. Conductor, duty^— injury — liabil- ity of company. 14. Mutual negligence — ordinary care. 15. Defective cars — restriction of lia- bility — live stock. 16. "Who are feUow-servants. 11. Payment of fare — election of train — freight train. 18. Company — care — employes, pas- sengers. CHAPTER XIII. Railway Statutes of Pennsylvania 1. Malicious injury or obstruction of railroad — penalty. 2. Animals on track — penalty. 3. Obstructing public streets — ^penalty. 4. Unlawful disposition of property by carrier — penalty. 6. Cross-roads, causeways — damages. 6. "Willful injury — damages to rail- i road company — criminal prose- cution. 1. Public highway — rules and regu- .152—164 lations — rates of compensa- tion for passengers and freight. Carriage of gunpowder. Obstruction of private road or crossing — penalty. Lien of carriers, commission mer- chants and others — sale for non- payment of charges. Consolidation of railway compa- nies. Ticket agents — frauds — penalties. CHAPTER XIT. Decisions of the Supeeme Court of Pennsylvania 165 — 111 1. Non-transportation — measure of damages. 2. Baggage — contents — witness. 3. Baggage — money — witness. 4. False marking — loss — value — re- covery. CONTENTS. IX 5. Personal delivery — reasonable time, etc. 6. Offer to deliver — duty to store. 1. Limitation of liability — witness. 8. Fire before delivery — liability — place. 9. Baggage — mechanics' tools — jury. 10. Baggage — notice — liability — or- dinary care — public policy — presumption — ignorance — money. 1 1 . Limiting liability — care of injured goods. 12. Cattle — fences — obstructions — liability. 13. Perfect carriages — provision against danger. 14. Fellow-employes — non-liability of employer. - 15. Instructions — contract — liability. 16. Obstruction — injury — consent. 1 7 . Warehousing — liability. 18. Contract of carriage — cars — safe-guards — act of God — pre- sumptions — excuses. 19. Contract against liability. 20. ResponsibiUty of conductors and employers. 21. Private carrier — common carrier — usage — restriction of liability — burden of proof. 22. Time to alight — women and chil- dren. 23. Corporation/ liable for assault, Ubel, etc. — expelling passenger. CHAPTER XT. Railway Statutes of New York 1. Railroads common carriers — sev- eral lines, liability. 2. Right to take and carry — motive power — compensation — regula- tions. 3. Conductor and others must wear badge — refusal to pay fare, ex- pulsion. 4. Accommodations — notice of trains — neglect — damages. 5. Checking baggage — refusal — pen- alty — witness. 6. Formation of trains — violation a misdemeanor. 1. Sign-boards at crossings. 8. Intoxication of engineer or conduc- tor. 9. Injury of railroad, etc. — penalty. 10. Fences, gates and cattle-guards — damages — penalty — walking on track. 11. Biding on platform — injury. 12. Extension of act to all raUroads. 22. 23. 118—191 Bell or whistle — failure to sound — penalties. Fences, gates and cattle-guards — damages. Sale of unclaimed freight. Stealing tickets — forgery of same — penalties. Extortion of excessive fare — pen- alty. New Tork Central Railroad ticket offices. Higher rate for not purchasing ticket. Sale of unclaimed freight or bag- gage. License to sell tickets — prohibi- tion of unauthorized sale — places of sale and prices of tickets — penalties. Sleeping cars — fare ^ — tickets — liability of company. Railroad police — appointment and powers. CONTENTS. CHAPTBK XVI. Dboisi ons op the Supreme Couet op New Tork 198 — 211 1. Delivery of goods — placing in store. 2. Delivery to carrier — notice. 3. Passengers — :baggage — excuse for injury — restriction of liability. 4. Restricting liability — notice — agreement — information of con- tents — compensation. 5. Absence, death, refusal, or neglect of consignee — duty of carrier. 6. Injury of workmen — liability of company. 1. Carriage over several lines — lia- bility for loss. 8. Advances — lien — measurg of damages — bill of lading. 9. Restriction of liability, notice contract — duty to carry — com- pensation. 10. Specified time for delivery — vol- untary obligation — duty im- posed by law ^ act of God. 11. Delay without fault — unusual quantity of goods — specified time for delivery. 12. Concealed defects — tests — re- sponsibility. 13. Cattle on unfenced track — statute. 14. Ringing bell — statutory penalty. 15. Carrier and warehouseman — fire. 16. Transportation of animals — care required. 17. Gratuitous carriage of passenger — gross negligence. 18. Showing tickets — right to expel passenger. 19. FeUow-employes — superiors and equals — injuries. 20. Carriage over other lines — ticket - a token, not a contract. 21. Willful act of conductor — liabil- ity of company — the rule. 22. Fellow-workmen — duty to use improvements. 23. Delivery to subsequent carrier — liability of first. CHAPTER XYII. Decisions of the United States Sttpebme Court 212 — 218 1. Consignee — indorsement of bill of lading. 2. Carrier of goods — ^'of passengers — diligence required — qualifi- cation of agents — burden of proof — conduct of passenger. 3. Carriage of passengers — skill re- quired — stockholder — payment of fare — gross negligence — re- spondeat superior, disobedience by agent of orders — discipline — public policy. 4. Corporation liable for libel. 5. Freight — delivery in parcels — security for freight — storage. 6. Non-acceptance — storage — fast days. 1. Bill of lading — receipt in good or- der — losses from nature of property — burden of proof — liability of carrier. CONTENTS. XI APPENDIX. Additional Decisions 219 — 221 1. Restriction of liability by contract. 2. Liability for contractor's fault. 3. Delivery — notice — change of lia- bility from carrier to warehouse- man. 4. Expulsion for non-payment of fare. 5. Fencing act not unconstitutional. List of SiATniES 222 Table of Cases 223 — 226 Index to General Eules 221 — 236 Illinois Statutes 236—238 Illinois Decisions 239—242 Indiana Statutes 243 — 245 Indiana Decisions « 245 — 246 Michigan Statutes 246 — 249 Michigan Decisions 249 — 250 Ohio Statutes 250 — 252 Ohio Decisions 252 — 254 Pennsylvania Statutes 255 — 256 Pennsylvania Decisions 256 — 269 New York Statutes 259 — 262 New York Decisions 262 — 264 United States Decisions 264 — 266 Appendix — additional decisions 266 — 261 RAILWAY LAW. RULES FOR THE TRANSPORTATION OF PERSONS AND PROPERTY. CHAPTEE I. THE CARRIAGE OF PASSENGERS — GENERAL RULES. 1. The cakhieb's contkact and control. 2. Payment of fare — public policy. 3. Duty and authority of conductor. 4. Providing means op transportation. 5. Treatment of passengers. 6. Conformity to time-tables and regulations. 7. Injury of mere strangers. 8. Injury of stockholder. 9. Negligence of injured party. 10. Right to make regulations and limit liability. 14 TRANSPORT ATIOH" OF 11. kisks taken by passengers. 12. Buying tickets. » 13. Key to the law of common cahbiers. 1. The Carrier's Contract and Control. The carrier of passengers only undertakes to transport tliem without any negligence. He does not, like the carrier of goods, insure absolutely, against everything but the act of God or a public enemy. The reason is, that the carrier has an abso- lute control of the goods, but only a qualified con- trol of the passenger. 2. Pwymmi of Fa/re — Publio Policy. There has been some conflict of cases on this point, but the better opinion seems to be, that whether fare be paid, or the transportation be gratis, makes no material difference — and the reason is, not so much that a contract, resting on sufficient consideration has been made, as that pMic poliGy will not allow negligence which has caused injury, to go unpunished, because the friendship or interest of the carrier has led him to offer his passenger a free ride. 3. Duty and Authority of Conductor. It is the duty of the conductor to receive all passengers ; except that he may exclude persons of PEBSONS AND PEOPEETT. 15 bad behavior, and all who refuse to conform to reasonable regulations, seasonably communicated. Persons known to be of corrupt character, pros- titutes, vagrants, felons, and the like, and those whose design can be shown to be the injury of the carrier in his business during his journey, or by means of it, may lawfully be refused. But if a person of supposed bad character has paid his fare, and taken his seat, it would be imprudent and unsafe to interfere with him, so long as he conducts himself in an orderly manner. 4. Providmg Means of TrcmsportaMon. The carrier must, with due diligence, provide suitable means of transportation. If an extraordi- nary number of passengers apply for transportation, the carrier is entitled to a reasonable time to pro- vide additional cars ; and if the next train will depart nearly as soon as other cars would reasonably be supplied, the carrier may lawfully require those who cannot be accommodated, to wait tUl the following train ; but he should be careful then to provide sufficient cars to accommodate all who may apply, for if he be guilty of negligence, and a passenger be detained thereby, an action at law lies for the injury which may be occasioned by that neglect. 16 TRANSPORTATION OP 5. Treatment of Passengers. All the passengers should be treated with equal civility, and provided with equal accommoda- tions. AU who pay alike should be treated alike : but this rule does not forbid any special acts of courtesy, prompted by friendship ; nor does it in anywise conflict with the common custom to reserve the best cars and the most desirable seats for women and children, and their attendants. On the con- trary, it may almost be declared the legal duty of a conductor to see that where the train is crow^ded, the young and the strong be required to give place to the aged and the weak ; but he ought to be care- ful not to receive such passengers, after the train is so full that they can be accommodated only by dis- placing others who have regularly paid their fare and taken their seats. All are to be treated with every reasonable courtesy and convenience ; but what would be a full compliance with this rule toward an able-bodied man, might be altogether insufficient toward a lady, a child, or an infirm person. The carrier has no right to overload, and crowd passengers. When passengers take their seats, they are entitled to occupy them, as against the carrier and subsequent passengers. PERSONS AKD PEOPERTT. lY 6. Conformity to Time -Tables and Hegulations. It has been decided that a railway company is liable for non-conformity to its publislied time- tables and like regulations. If there be a custom of the carrier to allow certain intervals for refresh- ments, he has not the right at his pleasure, without reasonable notice, to vary that custom ; for this custom may have been the reason why the passenger selected the carrier who established it, in preference to some other, 7. Injury of mere Strangers. The carrier is also liable for any injury that may happen through his negligence to mere stran- gers, because it is the contract of the corporation with the State, that it will transact its business with a high degree of care for the person and property of every one along the line it is allowed to monop- olize. 8. Injury of Stockholder. The fact that the passenger is a stockholder in the railroad company, riding gratuitously, will not affect his right to recover damages for any injury he may receive through the negligence of persons in charge of the train. 2 18 TRANSPORTATION 01" 9. Negligence of Injured Party. It has sometimes been decided that a party- injured, forfeits his entire claim to redress, if his own negligence has contributed in the slightest degree to produce the injury. But it would be more safe to say, that where negligence of the injured party is charged, it is for the jury to deter- mine the mixed question of law and of fact, whether the party damaged has so conducted him- self that he ought not to recover ; and if he ought to have a verdict, what amount should be allowed him for his damages. 10. JRigM to make Segulations and limit Liability. A carrier of passengers may lawfully make any reasonable rules and regulations for the con- ducting of his business, and passengers will be bound to conform thereto, on proper notice. But a carrier cannot, by any mere notice, rule, regulation, or implied matter of any sort, limit the general measure of his liability for negligence. It is gen- erally conceded that he may do this by an express contract, but the common carrier is regarded by the law as an important and necessary public servant, and the public policy of the State, will not allow him to obtain a privilege of being careless of the PERSONS AND PROPERTY. 19 person or property of a citizen, by any etc parte proceedings, crowded upon him in the hurry of buying tickets and checking baggage. 11. Bisks taken hy Passengers. Every passenger takes upon himself all the unavoidable peril and inconvenience of the mode of travel he selects; and he, like the carrier, is bound to use all reasonable prudence for the prevention of accidents and injuries. He must be constantly attentive to the rules and regulations of the carrier, and especially to the warnings and signals given for his protection ; and must yield thereto a prompt and prudent compliance. 12. Buying Tickets. The company may charge those who neglect to buy tickets, a higher rate of fare, but to justify the company in making this discrimination in the fare, against a passenger who neglects to purchase a ticket at the company's office, the company must see to it that the fault was not that of its own agent, instead of the passenger. To justify this discrim- ination, every reasonable and proper facility must be afforded the passenger to procure his ticket. It must furnish a convenient and accessible place for 20 TEANSPORTATION OF the sale of tickets, witli a competent person in attendance, ready to sell them, and this should be open and accessible to all passengers for a reasonable time before the departure of each train, and up to the time of its actual departure. 13. ^61/ to the Law of Gommon Oarrim'S. The key to all the leading doctrines of law upon the subject under consideration, is to be found, not in the contract between the carrier and his passenger, but in that solemn obligation of higher dignity, the cont/ract between the common earner and the State. This explains, alike the extraordinary privileges conferred, and the commensurate diities imposed on railway companies by the law of the land. PERSOira AND PROPERTY. 21 CHAPTER II. PASSENGERS' BAGGAGE — GENERAL RULES. 1. The contract op baggage. 2. What is included in the teems. 3. Articles enumerated from adjudged cases — the rule foe passengers merchandize. 4. Payment of fare. 5. Lien for passage money. 6. Custody of baggage — information of contents. 7. Taking to passenger's seat. 8. Notice that the carrier will not be liable. 9. Delivery at end of journey — presumption in case of loss WAREHOUSING. 10. Transportation oyer other lines of carriage. 11. Baggage check. 1. The Contract of Baggage. The usual contract to carry the passenger, includes a contract to carry his ordinary baggage. In other words, a contract to carry the usual luggage of the passenger, is implied from the conamon course of that business. 22 TEANSPORTATION OF 2. What is included in the Terms. Baggage includes everything wliich the pas- senger may reasonably take on his journey for his pleasure, protection, comfort or convenience; but it does not include articles which are not for the use of the traveler as such. It is impossible to lay down any general rule by which the cases that arise in the course of human experience can be deter- mined. Each case must be governed by its own circumstances; and when questions arise, they wiU involve, in most cases, mixed matters of law and of fact, and must be solved by the jury, under the direction of the court. All things reasonable, are permitted between the parties — all things necessary for the protection of the public, are imperatively enjoined by the law. In the determination of a particular case, all the circumstances are to be con- sidered — in the establishment of rules of law for the conduct of business in which the whole com- munity have an interest, the individual parties to the controversy are not regarded by the courts. 3. Articles enumeToted from adjudged Cases — the Rule for Passengers — Merchandize, • Cases have been decided, in which writing apparatus, books for instruction or amusement by PEESONS AND PROPERTY. 23 the way, hunting or fishing tackle, pistols, carpen- ters' tools, wearing jewelry, reasonable sums of money and bank bills, and the like, have been held within the legal meaning of the term baggage. But the term baggage does not include an unreasonable and obviously unnecessary amount of money, wearing apparel, or other articles such as have been named; nor does it extend to merchandize, or to samples of goods. The rule for the guidance of the passenger, in this behalf, is to take as baggage^ simply what his convenience may require ; carefully avoiding every- thing which would seem like an attempt to impose an unwarrantable burden upon the carrier. What is properly freight, must be carried and paid for as such. 4. Payment of Fare. It need not appear that the passenger has paid his fare ; for, in the first place, payment of fare will be presumed; and, in the second, if the passen- ger has been carried, and has not paid his fare, he is liable to an action or to detention of his baggage for his default. 5. Lien fon^ Passage Money. The carrier has a lien upon the baggage for the unpaid fare. It is hardly necessary to say, that the carrier has no right to detain the person of the 24 TRANSPOETATION OF passenger, nor his wearing apparel in actual use; and, of course, if the carrier part with possession of the baggage, before payment, his lien is gone, and he must resort to the ordinary action at law. 6. Custody of Baggage — Information of Contents. The baggage must be fairly committed to the custody of the carrier, as the usual course of travel, and the nature of the articles comprising it, require ; and the passenger ought, in good faith, to give the person who receives his baggage, any information thereof, which may be necessary or expedient for its sure and convenient transportation. It is not strictly the duty of the passenger to inform the carrier of the contents of his baggage, unless inquiry thereof be made; but if this be done, then the passenger must answer truly. Y. Taking to Passenger^s Seat. Those things which are commonly taken by passengers to their seats, may lawfully be carried in that manner; in which case the liabilities of the carrier are somewhat diminished, and the duties of the passenger materially increased, because, under these circumstances, the carrier, instead of keeping the absolute control of the property, commits its PERSONS AND PEOPEETT. 25 immediate custody to tlie passenger himself. Here the rule is, that each must use all the diligence which the circumstances allow, for the protection of the property". The carrier is not absolved from his liar bUity by the taking of such, articles to the traveler's seat ; the carrier still has a qualified control of tlie goods, and it is his duty to exercise this control so far as may be necessary for their carriage in safety. 8. Notice that the Carrier will not he Liable. Although cases may be found somewhat to the contrary, it is well for common carriers to under- stand that the rule is now " well settled," that their general liability cannot be restricted by any mere notice they may give. Carriers may make any reasonable requisition, to insure the proper fulfill- ment of their duty; and after sufficient notice, may enforce such requisition ; but their rules and regula- tions must be consistent with, not contrary to, the great doctrines of the law, which underlie their duty. 9. Delivery at End of Journey — Presumption in Case of Loss — Warehousing. It is the duty of the carrier to deliver the baggage to the passenger at the end of the journey ; and of tke passenger to receive it within a reasonable time. 26 TRANSPORTATION OK Delivery upon a forged order or otherwise to a wrong person, will not protect the carrier ; "but to excuse him for the non-transportation and non- delivery of property, the failure must be occa- sioned by act of a public enemy, or by some inevita- ble accident, which no human sagacity and power could have foreseen and prevented. Under this rule, a common carrier is not liable for a loss by hurricane, tempest, lightning or frost, unless the negligence of the carrier contributed in some degree to produce the result. If the passenger unreasona- bly delay his application to receive his baggage, the carrier is discharged from the duties imposed upon him in that capacity, and subjected to the milder obligations imposed by the law on warehouse- men. A warehouseman is bound to take only common and reasonable care of the property com- mitted to his charge. He is not liable for losses by theft, fire, or the like, unless it appear that such loss might have been prevented by ordinary care, skill, and diligence. The passenger cannot be required to expose himself in a tumultuous crowd, or otherwise to take unusual risks, or make extraordinary efforts to claim his baggage, but is entitled to a reasonable and convenient opportunity. If baggage be lost, after it has been received by the carrier or his agent, the presumption of law is, that the loss PERSONS AND PROPEETT. 27 occurred tlirougli his negligence ; and the burden of proof is on him to establish, if he can, the contrary. 10. Transportation over other Lines of Carriage. Where different railways, forming a continuous line, run their cars over the whole line, and sell tickets for the whole route, and check baggage through, an action lies against either company for the loss of baggage. The English courts regard the company receiving the passenger and baggage, as carriers for the entire route. There are American cases to the contrary, but the Supreme Court of Illinois have declared in favor of the English rule ; and this rule is so evidently calculated to promote commercial intercourse, and protect the traveling public, that we may expect it to be adopted elsewhere throughout this country. It seems a change of cars along the route would make no difference. 11. Baggage Check. A check is not only prima facie evidence that baggage was delivered to the company, but it is also evidence that the party holding it has pur- chased the rights of a passenger. The delivery of a 28 TEANSPOETATION OF check to a passenger, is intended to relieve Mm from all care and superintendence of Ms baggage wMle on its journey, and devolves sucli care upon the agents of the several roads over which it passes, and must be considered as prima facie evidence of the delivery of the baggage. PERSONS AND PEOPEBTT. 29 CHAPTER III. TRANSPORTATION OF PROPERTY — GENERAL RULES. 1. Duty to eeceite and caret property. 2. Time, place, and mode of receipt. 3. Compensation — lien. 4. Instructions from consignor. 5. Extent of liability. 6. Delivery to consignee. 7. Course if consignee dead, absent, or refuse. 8. Conflicting claims to the property. 9. Liability for carriage oyer other lines. 10. Railway company may keep warehouses. 11. Partial loss. 12. Limiting liability. 13. Public policy. 1. Duty to Hec&ive and Carry Property. Tlie carrier must take the goods of all who offer; must care for, transport, and deliver them. But he may temporarily decline them, if his present means of carriage are adequate for ordinary business, 30 TRAWSPORTATION OP and are then fully employed ; or if, from tlieir nature, lie cannot carry tlie goods without danger to them, or to other property, or to himself; or if they are not such goods as it is his business to carry. 2. Time, Place, and Mode of JReceipt. The carrier must receive property for trans- portation in a convenient way, and at reasonable times and places. He must afford the public all reasonable facilities for the transaction of the busi- ness in which he undertakes to serve them. 3. Compensation — lAen. The carrier is entitled to a reasonable com- pensation for his service. He may demand such compensation according to the usual course of the business. He has a lien on the property for his proper charges, and by virtue thereof may detain the property to compel payment. If this be ineffec- tual, and there be no statute authorizing a sale, he may generally obtain a remedy under the direction of counsel, but a general rule cannot well be given for such a case. 4. Instructions from Consignor. If the consignor mark goods " with care " " keep dry," « this side up," or the like, all such PERSONS AND PEOPEETT. 31 reasonal^le directions must be observed by the carrier. 5. Extent of Lidbility. The common carrier is liable for all loss of, or injury to, the goods under his charge as such carrier, unless it happen from the act of God or of a public enemy. This rule makes him, generally, an insurer of the safe delivery of the property. He is respon- sible, wherever it is possible that the loss was caused either by his negligence or his design. 6. Delivery to Consignee. The carrier must deliver the property to the consignee, without unreasonable delay, according to the usual course of business, at the place of delivery. The delivery, like the receipt, must be at reasonable times and places, and according to the usual mode of business. What is reasonable must be determined by the circumstances of the case, or by an estab- lished usage. The mode of carriage — the nature and size of the parcel — the value of the property — its liability to injury, must all be considered. Where the delivery is not to the consignee or to his agent, immediate notice must be given. The Golden Rule governs the whole case. The aim of the law is exact justice. 32 TRANSPORT ATION OF 7. Cov/rse if Oormgnee Dead, Absent, or Befuse. If the person to wtom the goods are con- signed be dead, absent, or unable to receive them, or refuse so to do, " the carrier must keep them for the owner, with due care." But in such case, his contract as carrier is at an end; and his continuing liability is. that of a warehouseman, which binds him to the exercise of reasonable care. Or, he may deliver them to a public warehouseman, and give notice of having done so, to the consignor, and thus terminate his liability. 8. Conjiicting Claims to tJie Property. In case of conflicting claims, the carrier should require evidence from all parties of their alleged rights; and in case of doubt, he may require indem- nity from the party to whom he delivers the property. • 9. Liability for Carriage over other Lines. A common carrier jn)iy be liable for the transportation of goods beyond the terminus of his own route. Where several roads do a common business, and share the profits, all of them are liable for a loss on any part of the whole route. The weight of authority in this country, seems to be PERS0K8 AND PEOPEETT, 33 that the mere receipt of property directed "beyond his own terminus, does not make the carrier so liable; but that to create such liability, there must be an undertaking, express or implied, to transport the property over the whole route. The bill of lading commonly determines the question. 10. Haihoay Company may heep Wa/reJiouses. A railroad company may assume the double character of carriers and warehousemen ; and when they do this, they have a right to charge a reasonable compensation for warehouse service, before the con- tract of transportation begins, or after it has been discharged. But the carrier cannot act in both capacities as to the same property, at the same time. Property taken to be carried, is held by the carrier as a carrier; if received to store for future directions, the carrier holds it in the meantime, as a warehouseman. See Delivery. 1 1 . Pa/rtial Loss. In case of partial loss, the residue must be tendered in good condition, and with a sufficient identification. The consignor is not bound to take any and every remnant of his goods in whatever condition it may be identified and offered to him 3 34 TEANSPORTATIOBT OP short of absolute destruction. Common sense, and good conscience, point out the true rule. 12, Limiting IdabiUty. No notice or contract can protect the carrier against liability for negligence or misconduct. In other respects his liability may be modified by contract, in which term is included an actual notice assented to by the consignor. But the carrier can no more arbitrarily impose new terms and conditions of transportation, without consent of the patron, than he can altogether refuse to carry the goods. 13. Public Policy. Public policy is a universal rule of law, for the promotion of the right, and the suppression of the wrong. It embraces in one complex rule, the conclusions of the common sense of mankind. It enters into every law, and every contract, and exercises a controlling influence in their interpre- tation and application. PERSONS AND PROPERTY. 35 CHAPTER IV. OPEEATING- THE EAILEOAD — GENERAL EULES. 1. Condition of the road and equipments. 2. Inspection before each journey. 3. Nor LIABLE fob defects which could not have been discovered, and remedied. 4. Proper kind as well as quality of equipments. 5. EuNNiNG regulations — exclusive passenger, and the LIKE freight trains. 6. Explanation of cause of accident. 7. Not liable to one agent fob default op another IN SAME service. 8. Statute regulations not exclusive. 9. eule where third persons abe in the wrong con- duct in time of peril. 1, Condition of the Hood and Equipments. The law implies a warranty that the road itself is in good traveling order, and fit for use; and that the engine, cars, and equipments, are road- worthy and properly arranged. The engineer, conductor, brakemen, switch tenders, and other 36 TEAWSPORTATION OF employes, must "be competent, careful, and well supervised. 2. Inspection before eacJi ^Tourney. Every officer and agent of the railroad com- pany, should understand and remember that, in the language of the courts, "it most undoubtedly is the duty of the proper person in charge, to make a most careful and thorough examination of the vehicle and equipments immediately previous to each journey." 3. Not liable for Defects which could not have been Discovered and Hemedied. The proprietors are not liable for accidents to passengers in consequence of original internal defects, which could not have been discovered and remedied by the closest inspection, care and skill, either at the time of construction or subsequently. When the railroad company and their employes have fully done their duty, then if any accident occur, and injury come thereby, he upon whom the misfortune falls must bear his grievance meekly, for the law can afford him no redress. 4. Proper Kind as well as Quality of Equipments. It is the duty of the proprietors to see that all the furniture of the road is not only of the proper PEESONS AND PEOPEETT. 37 quality, but also of the proper Mnd. No excellence of workmansMp displayed upon a car, could com- pensate for an unpleasant tendency to run off the track. Both the plan and the execution should be right. If a bridge break, an injured party may not only raise the question whether a competent engineer was employed, but may also inquire whether the proper working plan was adopted, fit materials used, and the work well done. 5. Hwnning Segulations — Exclvsive Passenger, and the like Freight Trains. It is the duty of railroad companies to adopt such rules and regulations for the running of their trains, as will insure safety; and having adopted them, they must conform to them, or be responsible for all the consequences of a departure from them. The company, or its officers, have a legal right, not only to regulate the number, time, speed, etc., of trains, but they have also the right to establish trains exclusively for passengers, and exclusively for freight; and to require the public to arrange their business accordingly. In this manner, and to this extent, the common carrier may modify his duty to serve with all convenient speed, those who may apply for transportation of person or property. 38 TEASrSPOKTATION OF 6. Explanation of Cause of Accident. The mere fact that an accident has occurred, and damage resulted, makes a prima facie case for the injured passenger, or consignor. It is therefore important to be remembered, that the agents of the company should act with such care, and attend to their duties with such assiduity, that if an accident do happen, they may be prepared " to give some explanation of the cause by which it was produced," and to show that full diligence was used on their side. 7. JVot Uahle to one Agent far DefauU of another in same Service. It is a general rule of law, that the principal is not liable to one of his agents or servants, for an injury sustained by him, in consequence of the care- lessness of another agent or servant, while both are engaged in the same service. Attempts have been made to overturn or modify this doctrine, but they have not, thus far, been successful. The agent or servant in fault, is, of course, liable to his injured fellow agent or servant, for the damages which the latter may suffer by reason of his negligence or misconduct. PERSONS AND PEOPEKTY. 39 8. Statute Hegulations not Exclusive. A compliance with specific statutory regulations for the display of signs, giving signals, and the like, will not exempt the company from the obliga- tion of using reasonable care in other respects, when the circumstances of the case render it reasonable to use other precautions. 9. Rule xohere Third Persons are in tJie Wrong — Conduct in Time of Peril. Engineers and conductors must take care that they do not act without due caution, in cases where they have reason to believe that others are in the wrong. If persons or animals be wrongfully on the track, or elsewhere within the premises of the company, this will not warrant any carelessness on the part of the agents of the corporation. They must still proceed with all the prudence which the nature of the case allows, leaving the parties to the remedies provided by the law. Persons in appar- ently imminent peril, must exercise all the caution and diligence which the occasion appears to allow. They cannot be held to exercise the same delibera- tion and care, which might be expected of an employe on the road, whose experience has given him greater self-possession, and fertility of expedients 40 TEANSPOETATION OF on sucli occasions. Less would be required, in such a case, of a diHd, or a woman, than of a man. The law makes allowance according to the circumstances, and leaves it to the jury to say whether the party acted rashly, and under an undue apprehension of danger. In one word, nothing can excuse any degree of recklessness on the part of any person engaged in operating a railroad. PERSONS AND PROPERTY. 41 CHAPTEE V. RAIL"WAY STATUTES OF ILLINOIS — MISCELLANE- OUS SECTIONS OF ESPECIAL IMPORTANCE. I. ACT OP NOTEMBEE 5, 1849. 1. Refusal to pat fare — eight to expel passenger. 2. Regulation of thains, and extent of accommoda- tions DAMAGES. 3. Making up trains — penalty. 4. Bells, whistles, and signs. 5. Intoxication op engineer or conductor. 6. Willful injuries made misdemeanors. 7. Above provisions extended to all railroads in Illi- nois. n. ACT OP FEBRUARY 11, 1853. 8. Displacing, etc., switch, signal, or rail, injuring track, obstructions, etc., etc., made criminal of- fenses. in. ACT OP FEBRUARY 12, 1853. 9. Contracts and connections with other railroads. IT. ACT OP FEBRUARY 28. 1854. 10. Consolidation of different railroads. 42 TRANSPORTATION OF T. ACT OF FEBRUARY 14, 1855. 11. Fences and cattle-guakds. — when company- must build and maintain them liability foe damages uninclosed lands when land owners must erect and keep in repair action for damages. 12. Penalty of unlawful intrusion on railroad prem- ises injury to FENCES, ETC. VI. ACT OF FEBRUARY 14, 1859. 13. Fraudulent neglect to cancel or return railroad ticket stealing or embezzlement thereof fraudulent issue of same. 14. Breaking into railroad car made burglary. Til. ACT OF FEBRUARY 13, 1861. 15. Unclaimed freight — railway company mat adver- tise AND SELL ON CERTAIN CONDITIONS. 16. Act extended to all transportation companies. Tni. ACT OP FEBRUARY 22, 1861. 17. Lien of operatites and others on property of rail- way companies, foe labor, materials, supplies, etc. I. ACT OF NOY. 5, 1849. 1 . Befusal to pay Fare — Bight to expel Passenger. If any passenger shall refuse to pay his fare or toll, it shall be lawful for the conductor of the train and the servants of the corporation to put him out of the cars at any usual stopping place the conductor shall select. Sec. 34. PERSONS AND PROPBRTT. 43 2. Hegulation of Trains, and Extent of Accommo- dations — Da/mages. Every sucli corporation shall start and run their cars for the transportation of passengers and property, at regular times, to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all such passengers and property, as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at sidings and stopping places established for receiving and discharging way passengers and freight, and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of tolls, freight or fare legally authorized therefor. Sec. 35. In case of the refusal by such corporation, or their agents, to take and transport any passengers or property, or to deliver the same, or either of them, at the regular appointed time, such corporation shall pay to the party aggrieved, all damages which shall be sustained thereby, with costs of suit. Sec. 36. 3. Making up Trains — Penalty. In forming a passenger train, baggage, or freight, or merchandise, or lumber cars, shall not be 44 TRANSPORTATION OP placed in rear of passenger cars; and if they or any of them shall be so placed, and any accident shall happen to life or limb, the officer or agent who so directed or knowingly suffered such arrangement, and the conductor or engineer of the train, shall each and all be held guilty of intentionally causing the injury, and be punished accordingly. Sec. 37. 4. Bells, Whistles, and Siffm. A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled, at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistled until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corpora- tion owning the railroad, one-half thereof to go to the informer, and the other half to the State; and also to be liable for all damages which shall be sustained by any person by reason of such neglect. Sec. 38. Every such corporation shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained across each public road or street, where the same is crossed by the railroad on the same level. Said boards shall be elevated so as PEESONS AND PROPERTY. 45 not to obstruct the travel, and to be easily seen by travelers; and on eacli side of said boards shall be painted in capital letters, of at least the size of nine inches each, the words, Railroad crosskig — hole out for the cars ivhile the hell rings or the whistle sounds. But this section shall not apply to streets in cities or villages, unless the corporation be required to put up such boards by the officers having charge of such streets. Sec. 39. 5. Intoxication of Engineer or Conductor. If any person shall, while in charge of a locomotive engine running upon the railroad of any such corporation, or while acting as fconductor of any car or train of cars on any such railroad, be intoxi- cated, he shall be deemed guilty of a misdemeanor — [and punished by fine and imprisonment, in the discretion of the court.] Sec. 40. 6. Willful Injuries made Misdemeanors. If any person shall willfully do or cause to be done, any act or acts whatever, whereby any build- ing, construction, or work of any such corporation, or any engine, machine or structure, or any matter or thing appertaining to the same, shall be stopped, obstructed, impaired, weakened, injured or de- stroyed, the person or persons offending, shall be 46 TRANSPORTATION OP guilty of misdemeanor, and shall forfeit and pay to said corporation, treble the amount of damages sustained by means of such offense. Sec. 41. 7. Above Provisions Extended to all Rmhoads in Illinois. All existing railroad corporations within this State shall respectively have and possess all the powers and privileges, and be subject to all the duties, liabilities and provisions contained in this act, so far as they shall be applicable to their present conditions, and not inconsistent with their several charters ; and all railroad companies that are now constructing their roads, may acquire title to lands necessary for that purpose, under the provisions of this act. Sec. 45. II. ACT OF FEB. 11, 1853. 8. Dinplacing, etc., SwitcJi, Signal, or Hail, injuring Track, Obstructions, etc., etc , made Crimirud Offenses. If any person or persons shall willfully and mali- ciously displace or remove any switch, signal or rail, of any railroad, or shall break down, rip up, injure or destroy any railroad track, or railroad bridge, or any portion thereof, or place any obstruction what- ever on any such rail or railroad track, or bridge,or PERSONS AND PROPERTY. 4T switch, or place any false signal upon or along the line of any railroad track, with intent that any person or property, being or passing on and over said railroad, should be injured thereby, every such person so offending, upon conviction thereof, shall be punished by imprisonment in the 8tate Peniten- tiary not less than one year and not exceeding five years. Sec. 1. Section Two provides, that if any person, etc. actually 'suffer any bodily harm, or any property be injured, the penalty shall be not less than three nor more than ten years. Section Three provides, that in case of loss of life, etc., the crime shall be, murder, and the penalty death. ni. ACT OF FEB. 12, 1853. 9. Oontracts and Connections with oth&r Hoads. That all railroad companies incorporated, or which may be hereafter incorporated, under the authority of this State, the lines or routes of which railroads may connect with or cross each other, shall have the power to make contracts or arrangements with each other for the use of each other's engines, machinery or cars, as also for the mutual transportation of material, merchandise and passengers upon and along the lines of each other's roads, upon such terms aa 48 TRANSPORTATION OP may be mutually agreed upon between any such corporations. IV. ACT OF FEB. 28, 1854. 10. Consolidation of different Mail/roads. Tbat all railroad companies and plank road com- panies now organized, or hereafter to be organized, which now have, or hereafter may have, their termini fixed by law, whenever their said road or roads intersect by continuous lines, be, and the same are hereby authorized and empowered to consolidate their property and stock with each other, and to consolidate with companies out of the State, when- ever their lines connect with the lines of such com- panies out of this State. Seo. 1. The subsequent sections of the act prescribe the mode of the consolidation. V. ACT OF FEB. 14, 1855. ■ 11. Fences and Cattle-Gua/rds — when Company must Build and Maintain them — Liability for Damages — Unindosed Lands — when Land Own- ers must LJrect and Jceep in Repair — Action for Damages. That every railroad corporation, whose line of road, or any part thereof, is open for use, shall, within PERSONS AND PEOPERTY. 49 six months after the passage of this act, and every railroad company formed, or to be formed, but whose lines are not now open for use, shall, within six months after the lines of such railroad, or any part thereof, are opened, erect and thereafter main- tain fences on the sides of their road, or the part thereof so open for use, suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on to such railroad, except at the crossing of public roads and highways, and within the limits of towns, cities, and villages, with openings, or gates, or bars, at the farm crossings of such railroads, for the use of the proprietors of the lands adjoining such railroads, and shall also construct, where the same has not already been done, and hereafter maintain, at all road crossings now existing or hereafter estab- lished, cattle-guards suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on to such railroad, and so long as such fences and cattle-guards shall not be made after the time hereinbefore prescribed for making the same shall have elapsed, and when such fences and cattle-guards are not in good repair, such railroad corporation and its agents shall be liable for all damages which shall be done by the agents or engines of any such corporation, to any cattle, horses, sheep or hogs thereon ; and when such fences and guards shall have been 'duly made 4 50 TEANSPOETATION OP and shall be kept in good repair, such railroad corporation shall not be liable for such damages unless negligently or willfully done. No railroad corporation shall be required to fence the sides of its roads, except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting on to the track of the railroad from the lands adjoining the same; nor shall they be required to construct such fences on the sides of their railroads, where the same runs through unenclosed lands lying at a greater distance than five miles from any settlement. Nor shall the said companies be required to erect and maintain said fences through lands where the pro- prietors of said lands have already erected fences, or agreed with said companies so to do. Sec. 1. But it shall be the duty of every owner of land adjoining any railroad, who has received a specific sum as compensation for fencing along the line of land taken for the purpose of said railroad, and has agreed to build and maintain a lawful fence on the line of said road, to build and maintain such fence; and it shall also be the duty of every owner of land, adjoining every railroad, who has received compen- sation for building and maintaining a lawful fence on the line of said road, by way of damages, in the condemnation of land taken for the purposes of said road, under the laws of this State, to build and main- PEB80N8 AND PROPEETY. 51 tain such fence; and if said owner, Ms heirs, assigns, shall not build said fence within six months after he has been notified to do so by ,the said railroad corporation, or shall neglect to maintain said fences, if built, such corporation shall build and thereafter maintain' such fence, and may maintain a civil action against the person so neglecting to build or maintain said fence, to recover the expense thereof; and such railroad corporation shall not be liable to such owner or owners, their heirs or assigns, for any damages which shall be done by the agents or engines, loco- motives or cars, of any such corporation, to any cattle, horses, sheep or hogs of said owner or owners, their heirs, assigns or lessees, coming upon said road, by reason or on account of the failure of such owner or owners, their heirs or assigns, to construct or maintain such fence. Sec. 2. 12. Penalty of Unlawful Intrusion on Railroad Premises — Injwy to Fence, etc. If any person shall ride, lead or drive any horse or other animal upon such road, and within such fences and guards, other than at farm or road cross- ings, without the consent of the corporation; or who shall pull down, tear down, or otherwise render insufficient to exclude stock, any part of said fencing, he shall be liable to a penalty of not less than ten 53 TEANSPORTATION OF nor more than one hundred dollars, to be recovered in an action of debt, before any court having juris- diction in such cases, in the name of the company or corporation owning such road, and for its use, and also shall pay all damages which shall be sustained thereby to the party aggrieved. Sec. 3. VI. ACT OF FEB. 14, 1859. 13. Fraudulent Neglect to Cancel or Return Sail- road TicTcet — Stealing or Embezzlement tJiereof — Fraudulent Issue of same. That when any person in the employ of any rail- road company, whether such company is incorpor- ated by this or any other State, shall fraudulently neglect to cancel or return to the proper officer, company or agent, any coupon or other railroad ticket, with the intent to permit the same to be used in fraud or injury of any such company; or if any person shall steal or embezzle any such coupon or other railroad ticket, or shall fraudulently sell or put in circulation any such ticket, any person so offending shall, upon conviction thereof, be punished by imprisonment in the penitentiary, for the term of one year. Sec. 2. [Every servant, officer or person employed in any public department, station or office of the gov- PERSONS AND PROPERTY. 53 emment of ttis State, or any county of this State, or in any office of a corporate body, wlio shall embezzle, steal, secrete or fraudulently take and carry away any money, goods, chattels, effects, book or books of accord or of account, bond or bonds, promissory note or notes, bank bills or notes, or any other writing or security for the payment of money or property, of whatsoever description it may be, being the property of said State, county or cor- porate body, shall, on conviction, be punished by confinement in the penitentiary for a term not less than one year nor more than ten years. Rev. Stat., Chapter 30, Division 7, Section 66.] 14. Breaking into Railroad Cwr made Bwrgla/ry. If any person or persons shall willfully, mali- ciously or forcibly break and enter any school-house, or freight or passenger railroad car, with intent to commit robbery, larceny, or other felony, he shall be deemed guilty of burglary, and upon conviction thereof, shall be punished by confinement in the penitentiary, for a term not less than one year nor more than ten years. Sec. 3. 54 TRANSPORTATION OF TIL ACT OF FEB. 13, 1861. 15. Unclaimed Freight — Bail/way Oompany may Advertise and Sell on certain Conditions. Whenever freight forwarded upon any railroad to any point in this State, shall remain unclaimed, and the legal charges thereon unpaid, for the space of six months after its arrival at the point to which it shall have been directed, and the owner or person to whom the same is consigned cannot be found, upon diligent inquiry, or, being found and notified of the arrival of such freight, shall neglect to receive the same and pay the legal charges thereon, for the space of three months, then if there be no warehouse at the point to which said freight shall have been forwarded, which will receive the same and pay the legal charges thereon, it shall be lawful for such railroad company to sell such freight, at public auc- tion, after giving ten days notice of the time and place of said sale, by posting up notices thereof in three public places in the county where such sale shall be made, and out of the proceeds of such sale to pay the legal charges on said freight, and to pay the overplus, if any, to the owner or consignee of such freight, on demand. Seo. 1. PERSONS AND PKOPEETY. 55 16. Act extended to all Transportation Companies. The provisions of this act shall apply to all steamboat and transportation companies, or other corporations, who act as common carriers. Sec. 2. VIII. ACT OF FEB. 22, 1861. 1*7. Lien of Operatives and otli&rs on Property of Mailway Companies, for Labor, Materials, Sup- plies, etc. That all persons who may have furnished, or who shall hereafter furnish to any railroad corporation existing under the laws of this State, any fuel, ties, materials, supplies, or any other article or thing, necessary for the construction, maintenance, opera- tion or repair of such roads, by contract with said corporation, or who shall have done and performed, or who shall hereafter do and perform, any work or labor, for such construction, maintenance, operation or repair, by like contract, shall be entitled to be paid for the same as part of the current expenses of said road, and in order to secure the same, shall have a lien for three months after the right of action accrues, upon all the property, real, personal and mixed, of said railroad corporation, as against aU 56 TRANSPORTATION OF mortgages or other liens which accrued after the commencement of the delivery of said articles, or the commencement of said work or labor. Sec. 1. In case, within the three months hereinbefore limited, the party furnishing such article or thing, or performing such work or labor, shall commence suit for the recovery of such debt, in any court of record, then the lien hereby created, shall continue until the same has been decided by said court ; and, if the judgment be against said corporation, until an execution thereupon issued shall be satisfied or released by the plaintiff. Sec. 2. PEK80N8 AND PEOPERTY. 57 CHAPTER VI. DECISIONS OF THE SUPREME COURT OF ILLINOIS ON POINTS OF PRACTICAL INTEREST. 1. Delivery after temporary detention. 2. Police regulations. 3. Power of legislature to regulate cor- porations. 4. Baggage, and liability therefor. 5. Construction of Charter. 6. Conduct of passengers. 7. Passengers' right to seat, and duty to keep it. 8. Animals on track — trespass. 9. Delivery of goods. 10. Negligence — burden of proof. 17111.519; 15 11. Degree of prudence required of a pas- senger. 12. Railroads not common highways. 13. Admissions by officer of company. 14. Uniformity of charges. 15. Means of transportation. 16. Partiality in business. 17. Unreasonable delay. 18. Custom — private warehouses. 12 lU. 477. 13 il 550. 13 ii 550. 13 U 746. 14 11 275. 15 n 472. 15 n 472. 16 n 198. 16 (( 504. 15 ({ 468. 17 it 521. 17 it 551. 18 (( 298. 18 (( 464. 18 {( 489. 18 ii 490. 18 li 490. 18 a 490. 58 TRANSPORTATION OF 19. Tender, ok payment of charges. 18 111. 491. 20. Facilities for buying tickets. 18 lU. 460; 19 " 363. 21. Crossing public highways. 19 " 508. 22. Duty to adopt running regulations, etc. 19 " 517. 23. Carriers without provision or charter. 19 " 585. 24. Bank bills, carriage by railroad. 19 111. 585, 590, 594. 25. Eight to act as warehousemen. 26. Delay in forwarding freight. 27. Instructions of consignor. 28. Injury by fault of fellow-sebtants. 29. Subscription before charter. 30. Insolvency no defense to subscription. 31. Subscription in blank. 32. Change of charter. 33. Disposition of cattle killed, etc. 34. Services of foreign companies. 35. Liability fob act of lessee. 36. Baggage check. 37. What property is real estate. 38. Power to execute mortgage. 39. Lessor's charter governs lessee. 40. Eight to negotiate commercial paper. 41. Baggage check — what it imports, 42. Ticketing over several lines. 43. Mutual care required. 44. Measure of care required. 45. Negligence — fire. 46. Defective bridge — accident — payment op fare. 47. Liability of trustees in possession, 48. Killing stock — negligence. 20 in. 29. 20 " 377. 20 li 379. 21 i( 26. 21 t4 71. )N. 21 11 92. 21 n 98. 21 u 370. 21 u 649. 22 a 15. 22 li 109. 22 ^' 280. 23 lU. 313, 320. 23 HI. 311. 24 li 55. {. 24 " 181. 24 It 336. 24 K 336. 26 U 255. 26 1( 388. 28 it 9. 30 II 23. 30 it 353. 30 " 458. PERSOKS AND PROPERTY. 5d DECISION I. Lowe V. Moss, 12 III. B. ill. Delivery after Temporary Detention. A merchant shipped goods from St. Louis to Lasalle. The river froze, and the ice prevented the boat from going further than Hennepin that season. The merchant took a part of the goods at Hennepin. The rest were subsequently injured. The court held that the liability to deliver the residue of the goods is clear; that the freezing of the river may have been an excuse for storing them temporarily at Hennepin, but the carrier remained liable to deliver them at Lasalle, within a reasonable time after the obstruction was removed. [The freezing of the river is here regarded as an act of God.] DECISION n. Galena and Chicago Union Railroad Co. v. Loomis, 13 III. R. 550. Police Megulations. Railroad corporations are subject to police regula- tions, enacted for the protection and safety of the citizens of the country : and such corporations are liable to punishment for criminal offenses, commited in the exercise of their corporate powers. 60 TEAW8P0RTATI0K OF DECISION m. Galena and Chicago Union Railroad Co. v. Loomis, 13 III. JR. 550. Power of Legislature to Regulate Corporations. The Legislature has the power, by the enactment of general laws from time to time, as the public exigencies may require, to regulate corporations in the exercise of their franchises, so as to provide for the public safety, DECISION IT. Woods T. Devin, 13 III. R. 746. Baggage^ and Liability Therefor. The only excuses for non-delivery of baggage, are that the loss was caused by act of God or of the public enemy. The liability of the carrier commences with the delivery of the baggage to him or to his agent. The compensation for carrying the baggage, is included in the fare for the transportation of the person. Pre-payment of fare is not necessary to fix the liability of the carrier. The carrier is liable for a loss by theft. In this case, the " act of God " is treated as synonymous with inevitable accide7it. PERSONS AND PROPERTY. 61 Baggage does not include a large sum of money — nor a trunk full of mere merchandize — nor samples of merchandize for purposes of trade. But it has been held to include money for traveling expenses — a gold watch, though carried in a trunk — a wife's jewelry carried in like manner — a pair of pistols — hooks for instruction or amusement — a gun, and fishing tackle, and the like. The rule is, that the term baggage includes a reasonable amount of money for ti-aveling expenses, and such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement, or protection ; but it does not include money, merchandize, or other valuables although carried in the passenger's trunk, but designed for diiferent purposes. Kegard may be had to the object and length of the journey; the expenses attending it; and the habits and condition in life of the passenger. DECISION V. Newhall v. Galena and Chicago Union Railroad Co., 14 III. R. 275. Construction of Charter. The rule of strict construction applies to railroad charters; but this rule can only be applied in cases of ambiguity, or where a power is claimed by infer- 62 TRANSPORTATION OF ence or implication, and is not expressly given by the charter. There must be ambiguity to give room for construction. The corporation has no power unless it be expressly given, or unless it necessarily results from the express provisions of the charter. DECISION VI. Galena and Chicago Union Railroad Co. v. Yarwood, 15 III. R. 472. Conduct of Passengers. Passengers must conduct themselves with pro- priety — not violating any reasonable regulation of the train ; nor have they a right to interfere with the seats and accommodation possessed and secured by other passengers; they are not entitled to make the length and breadth of the train a common possession ; nor should they disturb the quiet and convenience of others, or interfere with the manage- ment of the train by passing from car to car, unless for reasonable refreshments and other reasonable purposes. DECISION vii: , Galena and Chicago Union Railroad Co. v. Yarwood, 15 III. R. 472. Passengers^ Might to Seat, and Duty to Keep it. the carrier has no right to overload and crowd passengers. "When passengers take their seats, they PEES0N8 AND PROPERTY. 63 are entitled to occupy them, as against the carrier and subsequent passengers. DECISION vm. Chicago and Mississippi Railroad Co. v. Paichin, 16 III. R. 198. Animals on Track — Trespass. Animals wandering upon the track of an unin- closed railroad, are strictly trespassers, and the company is not liable for their loss while on the track, unless the employes are guilty of willful or wanton injury, or gross negligence, evincing reckless or wanton misconduct. The conduct of the servant must evince a total want of care for the safety of the stock, whereby it is injured, to make the company liable for his negligence. In other words, a case of very gross negligence must be shown, and the burden of proof is on the plaintiff. DECISION IX. Chicago and Rock Island Railroad Co. v. Warren et al., 1 6 III. R. 504. Delivery of Goods. In case of partial loss, the residue must be tendered in good condition, with a sufficient identification. A shipper is not bound to take any and every remnant of his goods in whatever condition it may be identi- 64 TRANSPORTATION OP fled and offered to him, short of total destruction. There is a medium, defining mutual rights in this respect. DECISION X. Galena and Chicago Union Railroad Co. v. Ya/rwood, 17 III. R. 519, and 15 III. R. 468. Negligence — Burden of Proof. Proof that the plaintiff was a passenger, the accident and the injury, make a, prima facie case of negligence. The burden of explaining, is thrown upon the defendant. Negligence is a question of fact for the jury, not of law for the coui't. DECISION XI. Galena and Chicago Union Railroad Co. y. Yarwood, 17 III. R. 521. Degree of Prudence Required of a Passenger. Persons under the imminency of peril, may not be required to exercise all the presence of mind, and care of a prudent and careful man with impending danger. The law makes allowance, and leaves the circumstances to the jury to find if the party acted rashly and under an undue apprehension of the danger. PERSONS AND PROPERTY. 65 DECISION XII. (kniral M. T. Railroad Co. v. Rochafdhw^ 17 IlL B. 551, Hailroads not Common Highways. Railroads are not common higliways, in the sense of public wagon roads, upon which every one may transact his own business, with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the extent of their ability. DECISION XIII. Chioa^o, Burlington and Quincy Railroad Co. v. Coleman et al., 18 III. R 298, 299. Admissions hy Officer of Company. Admissions made by the president, or other officer of a railroad company, in the execution of the duties imposed upon him, and concerning a matter on which he is called to act, and which matter is within the scope of the authority usually exercised by him, are evidence against the corporation. DECISION XIY. Chicago^ Burlington and Quincy Railroad Co. v. Parks, 18 lU. R. 464. Uniformity of CJia/rges. Charges for passengers and freight, must be uniform; that is, the charges should be the same, for 66 TRAWSPORTATIOW OF all persons similarly situated, and for all freigMs of a like kind and quality, for a given service. The carrier may divide passengers and freiglit into differ- ent classes, with descriptive distinctions, and charge different rates for different classes, for a given service, but the charge should be uniform upon all persons and freights embraced within each class. The carrier may show favor to individuals and classes by carrying them free or for half price, but he cannot be allowed to arbitrarily oppress an individual, charging him an unusual price, simply because it is him. DECIS.ION XV. Oalena and Chicago Union Railroad Co. v. Rae el at, 18 IH. R. 489. Means of Transportation. The carrier must have the means and facilities for transporting with dispatch, the amount of freight ordinarily for carriage. He is not bound to provide in advance for, or anticipate, extraordinary occa- sions, or an unusual influx of freight to the road. DECISION XVI. Galena and Chicago Union Railroad Co. y. Rae et al., 18 III. R. 490. Partiality in JSusiness. The carrier is liable for the frauds and negligence of his agents and employes in the course of their PERSONS AND PKOPEETT. 67 employment; and if those in charge of the carrier's cars, whose duty it is to assign or give them out to be loaded with grain, through bribery, or from motives of partiality or oppression, give them to persons, by the course and usage of the business, or, in fact, not rightfully entitled to them, and thereby deprive another of the facilities for transportation which he ought to have, he is entitled to such damages as he may have sustained therefrom. DECISION XVII. Galena and Chicago Union Railroad Co. v. -Hae et al., 18 III. R. 490. Unreasonable Delay. If unreasonable delay be shown, the carrier, to discharge himself, must show a reasonable excuse, arising from accident, or other cause, not the conse- quence of negligence. DECISION xvni. Galena and Chicago Union Railroad Co. v. Rae et al, 18 III. R. 490. Custom — Private Warehouses — Caprice. The carrier is bound to receive property according to his custom and usage; and if that usage was to- run cars upon a side track to private warehouses, and there receive grain in cars,^ a tender accordingly, 68 TEAWSPOETATION OF or notice and readiness so to deliver, would impose an obligation on tlie carrier to take and carry tlie grain. Having adopted this mode, lie could not capriciously require tliat the graia should be delivered in a diflterent manner, or at a different place. DECISION XIX Galenaand Chicago Union Railroad Co. Y.Raeetal., 18 III. R. 491. Tender or Payment of Gha/rges. The person desiring the transportation, should be prepared to show a tender, or readiness and willing- ness to pay the customary price, according to the course and usage of the carrier in such cases. DECISION XX. Chicago, Burlington and Quincy Railroad Co. t. Parks, 18 III. R. 460. 8t. Louis, Alton and Chicago Railroad Co. y. Dally, 19 III. R. 363. .Facilities for Buying Tickets. The company may charge those who neglect to buy tickets, a higher rate of fare, but to justify the company in making this discrimination in the fare, against a passenger who neglects to purchase a ticket at the company's office, the company must see to it that the fault was not that of its own agent, PEKSONS AND PEOPEETT. 69 instead of tlie passenger. To justify this discrimin- ation, every reasonable and proper facility must be afforded the passenger to procure his ticket. It must furnish a convenient and accessible place for the sale of tickets, with a competent person in attendance, ready to sell them, which should be open and accessible to all passengers for a reasonable time before the departure of each train, and up to the time of its actual departure. DECISON XXt. Chicago and Rock Island Railroad Co. T. StiU, 19 III. R. 508. Crossing FubUc Highways. Railroad companies, in operating their cars, must be held, in crossing public highways and thorough- fares, to so regulate the speed of their trains, and to give such signals to persons passing, that all may be apprised of the danger of crossing the railroad track. And they should also keep a lookout, so as to see, and, as far as possible, prevent, injury to others exer- cising their legal rights. It is equally the duty of a person crossing the track of a railroad to be on his guard, and to see that he is not incurring danger to himself and his property. YO TEANSPOETATIOK OF DECISION XXII. Chicago, Burlington and Quincy Railroad Go. v. George, 19 III. B. 517. Ditiy to adopt Htmning Megulations^ etc. It is the duty of the railroad company to adopt such rules and regulations for the running of their trains, as will insure safety, and having adopted them, they must conform to them, or be responsible for all consequences resulting from a departure from them, DECISION xxni. Chicago and Alton Railroad Co. v. Thompson, 19 III. R. 584. Omriers without Provision of Ghart&r. Railroad companies are common carriers without any legislative declaration to that effect ; they are so in virtue of their uniform business. DECISION XXIV. Chicago and Alton Railroad Co. v. Thompson, 19 lU. R. 585, 590, 594. Bank Bills — Carriage hy Maihoad. Bank bills are not, in common parlance, supposed to be included in the phrase, " goods and chattels." PERSONS AND PROPERTY. Vl A contract to carry bank-bills cannot be implied from the nature of the business of railroad compa- nies, as carriers of " goods, freight, etc., and passen- gers :" an express contract should be proved. Treat- ing a box containing bank bills as of little value, CDucealing the unusual value of the contents from ■the carrier, is such a fraud upon him, as will defeat a recovery for the loss. DECISION XXV. Illinois Central Railroad Co. v. Alexander et aZ., 20 lU. iJL 29. Right to act as Warehomemm. A railroad company may assume the double character of carriers and warehousemen, and when they do this, they have a right to charge a reasonable compensation for warehouse service. DECISION XXVL Michigan Southern and Northern Indiana Railroad Co. v. Day, 20 lU. &317. Delay in Forwa/rdi'ng Freight. Unreasonable delay in the transportation of freight, will render the carrier liable for damages. 72 TEANSPOETATION OF DECISION xxvn. Michigan Southern and Northern Indiana Bailroad Go. t. Day, 30 III. B. 379. Instructions of CoTmgnor. The instructions of tte owner or freighter mu&t be obeyed; and this rule extends to the delivery a the property. If the carrier does this in good faithl he will be released from liability. DECISION xxvni. Illinois Central Raihoad Co. v. Cox, 21 lU. R. 26. Injury hy Fault of FeltoivServants. It is right and proper that one servant should not recover against the common master for the careless- ness of his fellow-servant, provided competent servants have been selected by the master. Each servant, when he engages in a particular service, calculates the hazards incident to it, and contracts accordingly. DECISION XSJX. Tonica and Peterslurg R%ilroad Co. v. McNeely, etc., 21 III. R. 11. Subscription before Ohart&r. A subscription made in contemplation of a charter to construct a railroad, or to accomplish any other PEESONS AND PEOPEETY. 1S legitimate object, is a valid contract between the parties, and as sucli may be enforced, tbe same as any otlier contract. The consideration is the mutual promise. DECISION XXX. Dill et al. V. Wabash Valley Railroad Co., 21 III. i2. 92. Insolvency no Defense to Subscription. The insolvency of a railroad company can consti- tute no ground for restraining the collection of subscriptions. The stockholders must nevertheless make payment for the benefit of creditors. DECISION XXXI. Tonica and Petersburg Railroad Co. v. Stein, 21 III. R. 98. Subscription in Blank. If a subscription in blank be incorrectly filled up, the truth may be pleaded and proved. DECISION XXXII. Supervisors of Fulton County v. Mississippi and Wabash Railroad Co., 21 III. R.S10. Change of Charter. Subscriptions for stock are discharged by a funda- mental, extensive and radical change of the charter of the company. Y4 TBAlfSPORTATION OF DECISION xxxin. Illinois Central Railroad Co. v. Finnigan et al., 21 III. R. 649. Disposition of Cattle Mlled^ etc. The owner of cattle killed must dispose of them to the best practicable advantage. He should make some effort to make them available ; for he has no right to abandon them wantonly, and then claim their full value. DECISION XX2IV. . Mineral Point Railroad Co. y. S^eep, 22 III. R. 15. Service of Foreign Companies. Railroad companies having their offices and officers in foreign States, but doing business and having agents in Illinois, may be served with process by leaving a copy with any clerk, cashier, secretary, engineer, conductor, or agent. DECISION XXXV. Chicago and Rock Island Railroad Co. v. Whipple, 22 III. R. 109. Liai>ility for Act of Lessee. Lessees occupy the relation of servants of the company, as to third persons. A railroad company PERSONS AND PROPERTY, ^5 cannot free tliemselves from liability by leasing their road to others. DECISION XXXYI. Davis V. Michigan Southern and Northern Indiana Railroad Co., 22 III. R. 280. Baggage Check. The delivery of a check to a passenger, is intended to relieve him from all care and superintendence of his baggage while on its journey, and devolves such care upon the agents of the several roads over which it passes, and must be considered as jprima fade evidence of the delivery of the baggage. DECISION xxxvn. Palmer v. Forles et al, 23 III. R. 313. Hunt, etc., v. Bullock et al, 23 III. R. 320. What Fropert'i/ is Heal Estate. Eolling stock, rails, ties, chairs, spikes, and all other material brought upon the ground of the company, and designed to be attached to the realty, should be considered as a part of the realty — but fuel, oil, office furniture, stationery, and the like, which are designed for consumption in the use, or may be sold and carried away, and used as well for other purposes as in the operation of the road, and 76 TEANSPOKTATION OF wMcli, when taken away, have no distinguisliing marks to show that they were designed for raiboad uses, are personal property. DECISION XXXYHI. Palmer y. Forbes et al, 23 III. B. 311. Pow&r to Execute Mortgage. Railroad companies can issue mortgages only in pursuance of a power conferred upon them by their charters, or some general statute. DECISION XXXIX. City- of Chicago v. Evans el al., 24 lU. R. 55. Lessor's Chm-ter Governs Lessee. When one company leases its road to another, the lessee must, in operating it, be governed by the charter of the lessor. The. lessee cannot use its franchise and charter privileges on the road of another company, but for the time being, must be governed by the charter of the road they were occupying. DECISION XL. M-ye V. Fucker et al, 24 III. B. 181. liighi to Negotiate Gommercial Papefr. That a railroad company can take a promissory note and negotiate it in the ordinary course of their PERSONS AND PKOPEETT. 77 business, cannot be questioned. It is a power inherent in all such corporations. An assignment purporting to be by an officer of the company, seems frwm fade sufficient. DECISION XLI. lUinois Central Railroad Co. v. Copeland, 24 III. R. 336. Baggage ChecJc — What it Imports. A check is not only prvma fade evidence that baggage was delivered to the company, but it is also evidence that the party holding it has purchased the rights of a passenger. DECISION XLn. Illinois Central Railroad Co. y. Copeland, 24 III. R. 336. Ticketing over Several Lines. Where different railways, forming a continuous line, run their cars over the whole line, and sell tickets for the whole route, and check baggage through, an action lies against either company for the loss of baggage. The English courts regard the company receiving the passenger and baggage, as carriers for the entire route. There are American cases to the contrary, but the Supreme Court of Illinois have declared in favor of the English rule — 78 TRANSPORT ATION OF and it seems a change of cars along tlie route would make no difference. DECISION xiiin. Chicago, Burlington arid Quincy Railroad Co. v. Dewey, Adminis- tratrix, etc., 26 III. R. 255. Mutual Care Requvred. To authorize a recovery of damages, it is not enough simply to show that the railway company were guilty of negligence, but it should also appear that the person injured was not guilty of negligence, in some degree comparable to that of the company. Where the party injured has acted with slight negligence., contributing to produce the injury, it must appear that the other party was guilty of gro^ negligence. The injured party need not be wholly free from negligence, if the other party has been culpable. DECISION XLIV. Chicago, Burlington and Quincy Railroad Co. v. Hazard, 26 III. R. 388. Measure of Care Heguired. All reasonable skill and diligence must be employed by both the carrier and passenger. PEKSONS AI^D PEOPERTT. 79 DECISION XLY. Bass V. Chicago, Burlington and Quincy Railroad Co., 28 III. R. 9. Negligence — Fire. It is negligence in a railroad company to suffer dry grass and rutbisli to be upon their right of way, or permit vegetation of any kind to grow upon it, to such a height and density as would conceal animals which might be there. If a fire be set by sparks from a passing engine, the presumption is, that any loss which may result, was occasioned by the negligence of the company, and it is incumbent on them to show that proper precautions had been taken by them. DECISION XLTI. Ohio and Mississippi Railroad Co. t. Muhling, 30 III. R. 23. Defective Bridge — Accident — Payment of Fare. If a trestle bridge be imperfectly and insecurely constructed, a railroad company is liable for injuries from an accident occasioned by such defect. That the person has paid no fare, can make no difference. The company had the right to demand the fare when he came upon the road, and to put him from the cars for a refusal to pay ; or they 80 TEAITSPORTATIOIT OP miglit have collected it afterwards, or have deducted it from their indebtedness to him; or if they carried him gratuitously it would make no difference. When upon a train, under such circumstances, the only inquiry is, whether he is lawfully there, not whether he has paid his money for the privilege. DECISION XLVn. WUkinson et al., Trustees of Terre Hizute, Alton and St. Louis Railroad Co., v. Fleming, 30 III. R. 353. LicAility of Trustees in Possession. If trustees take possession of a railroad, under a deed of trust, and hold themselves out to the world as doing business, and running the road in the name of the corporation, their property is responsible, and suit may be maintained against them by such name, accordingly. DECISION XLvrn. Great Western Railway Co. v. Morthland, 30 III. R. 468. Killing Stock — Negligence. If an animal go wrongfully on a railroad track, and be killed without carelessness on the part of those who have charge of the train, the owner has no remedy. PERSOlSrS AND PKOPEKTY. 81 CHAPTER VII. KAIL WAY STATUTES OF INDIANA — MISCELLANE- OUS SECTIONS OP ESPECIAL IMPORTANCE. I. ACT OF MARCH 4, 1853. 1. Eight and duty to caret pehsons and peopektt — RIGHT TO USE steam, ANIMAL OR OTHER POWER compensation therefor. 2. Regulation op tijie, manner, tolls, and compensation. 3. Conductor, and eteet/ other employe, must tear official badge. 4. Refusal to pay fare — right to expel. 5. Times of trains — public notice — sufficient accom- modations — persons, property, tolls, and fare. 6. Refusal to take, transport, and deliver — damages, AND costs. 1. Formation of trains — accident — penalty. 8. Riding on platform, etc., when room inside — notice accident LIABILITY. II. ACT OF MARCH 1, 1853. 9. UnINCLOSED RAILROAD KILLING OR INJURING STOCK misconduct, negligence, ACCIDENT. rn. ACTS JANUARY 25, AND FEBRUARY 23, 1853. 10. Consolidation of stock — common name, etc. 82 TEANSPOETATION OF IV. ACT OF MARCH 1, 1855. 11. Assaulting train a misdemeanor — penalty. 12. Injury to person — assault — murder — penalty. v. act of febeuart 21, 1857. 13. Crossing tracks — stopping — other train insight — injuries penalties. 14. False information — carelessness op conductor, bhakeman, or engineer penalty. 15. Stopping on other railroad track — penalty. YI. ACT OF MARCH 5, 1861. 16. Eeadjustment or capitalization — order oe liens — debts for labor and supplies damages foe kill- ing stock, etc. Vn. ACT OF MARCH 4, 1863. 17r Lessees, assignees, receitees — liability for stock KILLED. 18. Act does not apply to fenced railroads. I. ACT OF MARCH 4, 1853. 1 . ItigTit and Duty to cwrry Persons and Prop&rl/ij — Right to use Steams, Animal or other Power — Compensation therefor. Every such [railroad] corporation, shall possess the general powers and be subject to the liabilities and restrictions expressed in the following, that is to say ; PERSONS AND PROPERTY. 83 Eighth: To take, transport, carry and convey persons and property on their railroads by the force and power of steam, of animals, or any mechanical power, or by any combination of them, and receive tolls or compensation therefor. 2. Megulaiion of Tvme^ Manner, Tolls, and Com- pensation. Tenth: To regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor. Sec. 13. 3. Conductor, and every other Employe, must wear Official Badge. Every conductor, baggage master, engineer, brakeman, or other servant of any such railroad corporation, employed in a passenger train, or at stations for passengers, shall wear upon his hat or cap, a badge which shall indicate his office, and the initial letter of the style of the corporation by which he is employed. No collector or conductor without such badge shall demand or be entitled to receive from any passenger any fare or ticket, or exercise any of the powers of his office ; and no other of said officers or servants, without such badge, shall have any authority to meddle or interfere with any pas- senger or property. Sbo. 24. 84 TEAWSPOETATIOIir OF 4. Hefusal to pay Fa/re — Right to JExpel. If any passenger shall refuse to pay Ms fare or toll, the conductor of the train, and the servants of the corporation, may put him out of the cars at any usual stopping place. Sec. 28. 5. Times of Trains — Public Notice — Sufficient Accommodations — P&rsons, Property^ Tolls, and Fa/re. Every such corporation shall start and ,run their trains for the transportation of persons and property at regular times to be fixed by public notice, and shall furnish sufficient accommodations for the trans- portation of all such passengers and property as shall, within a reasonable time previous thereto offer, or be offered for transportation, at the place of starting and the junctions of other railroads, and at siding and stopping places, established for receiv- ing and discharging way passengers and freight, and shall take, transport and discharge such passengers and property, at, from and to such places, on the due payment of tolls, freight or fare therefor. Sec. 29. 6. Pefusal to Take, Transport, and Deliver — Damages, and Costs. In case of the refusal, by such corporations or their agents, so to take and transport any passenger PEES0N8 AND PKOPEETT. 85 or property, or to deliver the same at the regular appointed place, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit. Sec. 30. Y. Formation of Trains — Accident — Penalty. In forming a passenger train, baggage or freight, or lumber cars shall not be placed in rear of passen- ger cars; and if they, or any of them, shall be so placed, and any accident shall happen to life or limb, the officer or agent who so directed or knowingly suffered such arrangement, and the conductor or engineer of the train, shall each and all be held guilty of intentionally causing the injury, and be punished accordingly. Seo. 31. 8. Riding on Platform, etc., wlien Poom Inside — Notice — Accident — Liability. In case any passenger on any railroad shall be injured on the platform of a car, or on any baggage, wood or freight car, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars, then in the train, such company shall not be liable for the injury: Provided, said company at the time furnished room inside its passenger cars, sufficient for the proper accommodation of its passengers. Sec. 32. 86 TEANSPOETATIOIT OP II. ACT OF MAKCH 1, 1853. 9. Uninclosed Hcdlroad — KUUyig or Injwing Stock — Misconduct, Negligence, Accident. Whenever any animal or animals stall be killed or injured by the cars or locomotives or other carriages used on any nninclosed railroad in this State, the owner thereof may recover the value of the animal or animals destroyed or injury inflicted, ■without regard to the question whether such injury or destruction was the result of willful misconduct or negligence, or the result of unavoidable accident. Seos. 1, 2. III. ACTS OF JAK 25, AND FEB. 23, 1853. 10. Consolidation of Stock — Common Name, etc. The acts of January 25, and February 23, 1853, provide for the association of several railroads, common name, consolidation of stock, etc. lY. ACT OF MARCH 1, 1855. 1 1 . Assaulting Train a MisdemeoMor — Penalty. That any person who shall shoot a gun, pistol or other weapon, or throw a stone, stick, clubs or any other substance whatever, at or against any locomo- tive or car or train of cars containing persons, on PERSONS AND PEOPERTY. 8t any railroad in this State, eliall be deemed guUty of a misdemeanor, and upon conviction, shall be fined in any sum not less than ten nor more than one hundred dollars, and imprisoned in the county jail not less than ten days nor more than three months. Szo. 1. 12. Injv/ry to Person — Assault — Mv/rder — Penalty. In case any person on such locomotive, car, or train of cars, shall be injured or wounded, by any such act, the person so offending shall, on conviction, be deemed guilty of assault, with intent to commit murder, and be imprisoned in the State prison, for not less than one nor more than four years ; and if death ensue, such person shall be deemed guilty of murder in the first degree, and punished accordingly. Sec. 2. V. ACT OF EEB. 27, 1857. 13. Orossi/ng TracTcs — Stopping — Other Train in Sight — Injuries — Penalties. That if the engineer of any locomotive running upon any railroad Urack, upon and over which passengers are or may be transported, shall run his locomotive across or upon the track of any other railroad, upon and over which passengers are or may be transported, without first coming to a fuU stop, 88 TEANSPORTATION OF before crossing sucli other track, and without first ascertaining that there is no train or locomotive in sight, approaching such crossing, on such other track; or if he shall run or permit his locomotive to cross such track, when a locomotive is in sight, approach- ing such crossing on such other track, he shall, on conviction, be fined in any sum not less than one hun- dred dollars, and not more than one thousand dollars, and in addition thereto, shall be imprisoned in the county jail for any period not less than three months, nor more than one year, and if any person shall be injured or killed, by reason of such crossing, he shaU be imprisoned in the State prison for any period not less than two years, nor more than fourteen years. Sec. 1. 14. False Information — Carelessness of Conductor, Brakeman, or Engineer — Penalty. If any person shall falsely report to such engineer, that there is no train or locomotive approaching such crossing ; or if the conductor of any train shall order and direct the engineer to violate the provision of the first section of this act ; or if by reason of the gross carelessness or willful neglect of duty of the brakeman of any train of cars, such train or loco- motive shall run across or upon such crossing, such conductor or brakeman shall suffer the penalty PERSONS AND PROPEETT. 89 prescribed for the engineer, in the first section of this act. Sec. 2. If any such engineer shall permit his locomotive to run upon or across such other track, until the locomotive and train upon the other track has passed over such crossing, if the signal man from the loco- motive or train on the other track shall arrive at the crossing first, he shall, suffer the same penalty prescribed in the first section of this act. Sec. 3. 15. Stopping on other Hail/road Track — Penalty. It shall not be lawful for any locomotive or train to be stopped or remain stationary on any railroad crossing, unless the same is done by the united agreement and under specific regulations adopted by the directors of such crossing railroad, and if the provisions of this section shall be violated, the person, or persons so offending, shall suffer the same punish- ment prescribed in the first section of this act. Sec. 4, YI. ACT OF MAKCH 5, 1861. 16. Readjustment or Capitalization — Order of Liens — Debts for Labor and Supplies — Damages for Killing Stocky etc. In case of readjustment or capitalization of rail- road on sale, next in order of lien to the existing 90 TBANSPOETATION OP mortgage debt of the old road, sKall stand the amounts due persons for labor performed, and wood and other such materials furnished the old company in running the road, and damages for killing stock, and right of way; Provided^ that aU the property of said company shall be liable for damages recov- ered against said company for stock killed or injured by them, and exempt from mortgage liens. Sec. 4. TIL ACT OF MAECH 4, 1863. 17. Lessees, Assignees, Beceivers — LiahiliPy for Stoch Killed. That lessees, assignees, receivers and other persons running or controling any railroad in the corporate name of such company, shall be liable, jointly or severally with such company-, for stock killed or injured by the locomotives, cars or other carriages of such company, to the extent and according to the provisions of this act. Sec. 1. 18. Act does not apply to Fenced Mail/roads. This act shall not apply to any railroad securely fenced in, and such fence properly maintained by such company, lessee, assignee, receiver, or other person running the same. Seo. 7. PERSONS AlO) PEOPERTT. 91 CHAPTER VIII. DECISIONS OF THE SUPREME COUET OP INDIANA, ON POINTS OF PRACTICAL INTEREST. 1. non-delitery measure of damages. 2. Act of God — inevitable accident — restriction of liability. 3. InCLOSURES NEGLIGENCE ANIMALS ACT OF MAT 11, 1852. 4. SeETANTS, EMPLOYES, PASSENGERS, ACCI- dents liability payment of fare. 5. Case approted — speed in town. 6. Fellow-sertants — non-liability of com- pany. 1. Baggage — money — theft. 8. Negligence — injury — fellow-sertant. 9. Passenger — disregard of order — acci- dent. 10. Employer — employe — negligence — risks. 1 1 . Carrier — delivery — warehousing. 12. Non-transport ation — measure of dam- ages. 13. Partial loss — partial delivery — no- tice. 4 Ind. 262. 5 " 222. 5 " 111. 5 " 339, 6 " 141, 6 " 205, 6 " 242, 1 " 436. 474. 10 ({ 554. 12 11 55. 13 f them, and receive tolls and compensation therjfoi 3. HegulaUons — Compensation — Amount of Fa/re. To regulate the time and manner in which passen- gers and property shall be transported, and the tolls and compensation to be paid therefor; but such compensation for any passenger and his ordinary baggage, shall not exceed three cents a mile, unless by special act of the legislature. Sec. 17. 4. All Employes must wea/r Badges — no Might to Act without sa/m^. Every conductor, baggage master, engineer, brakeman, or other servant of such railroad corpo- ration organized under the provisions of this act, or otherwise created, employed in a passenger train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office, and the initial letters of the style of the corporation by which he shall be employed. No conductor or collector without such badge shall demand or be entitled to receive from any passenger, any fare, toll 104 TEANSPOETATION OP or ticket, or exercise any of tlie powers of his office; and no other of said officers or servants, without such badge, shall have any authority to meddle or interfere with any passenger, his baggage or pro- perty. Sec. 31. 5. Poxoer to reduce Rates of Fwre^ etc. Section 35 "provides that the legislature may reduce the rates of freight and fare, under certain circumstances. 6. Refusal to Pay Fare— Bight to Eo^el, etc. If any passenger shall refuse to pay his fare or toll, it shall be lawful for the conductor of the train and servants of the company to put him out of the cars at any usual stopping place, or dwelling-house the conductor shall select. Sec. 37. 7. Time of Trains — Notice — Extent of Accom- modations — Pile Payment — Pa/rtiality — Pen- alty. Every such corporation shall start and run their cars for the transportation of passengers and pro- perty at regular times, to be fixed by public notice, and shall furnish sufficient accommodation for the transportation of all such passengers and property PEESONS AND PEOPEETT. 105 as shall, within a reasonable time previous thereto, offer or be offered, for transportation at the place of starting, and the junctions of other roads, and at siding and stopping places established for discharg- ing and receiving way passengers and freight, and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of toll, freight or fare, legally author- ized therefor; and every such corporation shall transport merchandise, property and persons from the various stations upon said road, without par- tiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which said freight or property shall have been received, under a penalty for each violation of this provision, of one hundred dollars, to be recovered by the party aggrieved in an action of debt against such corporation. Seo. 38. 8. Hefusal to Take, Garry, and Deliver — all Damages and Costs, or Penalty. In case of the refusal, by such corporation or agents, so to take and transport any such passengers or property as aforesaid, or to deliver the same or either of them, at the regular appointed time, with- out a legal or just excuse for such default, such corporation shall pay to the party aggrieved all 106 TRANSPORTATION OF damages which shall he sustained therehy, with costs of suit, or the penalty prescribed in section 38 of this act, at the election of the party aggrieved. Sec. 39. 9. Bell^ Whistle^ Fendliy, mid Damages. A bell of at least thirty pounds weight, and a steam whistle, shall be placed on each locomotive engine, and said bell shall be rung, or whistle sounded, at the distance of not less than eighty rods of the place where the said road shall cross any other road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning such railroad; and the railroad corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect. Seo. 40. 10. Sign-hoards at Crossings. Every railroad corporation shall, and they are hereby authorized to cause boards to be placed, well supported by posts or otherwise, and maintained across each public road or street where the same is crossed by the railroad, and on the same level; the board shall be elevated so as not to obstruct the travel, and to be easUy seen by travelers, and on each side of said board shaU be printed in capital letters, of the size of not less than nine inches each. PERSONS AND PROPERTY. 10*7 — r the words, " Rail Road crossing; look out for the cars " ! But this section shall not apply to streets in cities and villages, unless the railroad corporation be required to put up such hoards by the officers having charge of such streets. Sec. 41. 1 1 . Intoxication — Liability — Misdemeanor. If any person shall be intoxicated, while in charge of a locomotive engine, running upon the railroad of any corporation in this State, or while acting as the conductor of any train of cars on any such railroad, he shall be liable for all damages incurred or pro- duced by either his neglect or inefficiency, and shall be deemed guilty of a misdemeanor. Sec. 42. 12. Fences — Duty to Build — lAoMlity — Negligence — Anvmals on Track. Section 43, provides that railroads formed under the act shall fence their roads ; that till then shall be liable for all damages resulting from neglect to do so ; and thereafter for such damages negligently or willfully done. It also prohibits persons from leading, riding or driving any animal on the track without consent, under penalty of ten dollars and damages. 108 TBANSPOETATION OF 13. Common Carriers — Several Companies form- ing one Line — Ahridgmmt of LiaMlity Pro- Minted. Any railroad company receiving freight for trans- portation, shall be entitled to the same rights, and subject to the same liabilities as common carriers, except as herein otherwise provided. Whenever two or more railroads are connected together by running arrangements, any company owning either of said roads, receiving freight to be transported by agreement to any place on the line of either of the said roads so connected, shall be liable as common carriers for the delivery of such freight at such -place. In case any such company shall become liable to pay any sum, by reason of the neglect or misconduct of any other company or companies, the company paying such sum may collect the same of the company or companies, by reason of whose neglect or misconduct it became so liable. No rail- road corporation created in this State shall be suffered to lessen, or directly or indirectly abridge their common law liability as such common carriers. Sec. 48. 14. Consolidation of Mail/road Companies, Section 60, provides for the consolidation of two or more companies. PERSONS AND PEOPERTY. 109 15. Action for Death of P&rson. Section 54, provides for an action where the death of any person has been cansed by the wrongfal act, neglect, or default of a railroad company or its agents. 16. Violation of Eegulations hy Employe — Pen- alty, Fine, Imprisonment. Any conductor, engineer, servant or other em- ploye of any railroad corporation, who shall willfully violate any of the written or printed rules thereof, in relation to the running of cars or trains for trans- portation of persons or property, shall be subject to a fine of not less than twenty-five, nor more than one hundred dollars, or to imprisonment in the county jail not more than six months. Sec. 57. IV. ObstrucHon of Track — Penalty. If any person shall, by the placing of any impedi- ment upon the track of any railroad, or by any other means whatsoever, throw from said track, any engine or cars used thereon, or attempt so to do, whether such engine or cars are thrown from said track or not, or shall by any other means whatso- ever, willfully endanger, or attempt to endanger the the lives of persons engaged in the work of said road, or persons traveling on the engine or cars of 110 TEAW8P0ETATI0N OF said road, lie shall be subject to imprisonment in the State prison during his natural life, or any number of years at the discretion of the court. Sec. 58. 18. Oheohing Baggage — Refusal^ Penalty — Fare — Witness. A check shall be fixed to every parcel of baggage when taken for transportation, by the agent or servant of such corporation, if there is a handle, loop, or fixture so that the same can be attached, upon the parcel of baggage so oflfered for transportation, and a duplicate thereof given to the passenger or person delivering the same on his behalf; and if such check be refused on demand, the corporation shall pay to such passenger the sum of ten dollars, to be recovered in a civil action ; and further, no fare or toll shall be collected or received from such passen- ger; and if such passenger shall have paid his fare, the same shall be refunded by the conductor in charge of the train; and on producing said check, if his baggage shall not be delivered to him, he may himself be a witness in any suit brought by him to prove the contents and value of such baggage. Sec. 59. ' PEESONS AND PEOPEETT. Ill 19. Unclaimed Baggage — Publication — Sale ai Atiction — Perishable Property — Swrplus Proceeds. Every railroad company which shall have had unclaimed freight not perishable, or unclaimed bag- gage, in its possession for a period of one year at least, may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transportation and storage of such freight, and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of six we^s from the first publication of notice of such sale, in at least one newspaper published in the city of Detroit, and also in one newspaper published at or nearest the place where such freight or baggage was directed to be left, and also at the place where such sale is to take place; and said notice shall contain a description of such freights or baggage, the place at which and the time when the same was left, as near as may be, together with the name of the person to whom consigned, if known; and the expenses incurred for advertising shall be a lien on such freight in a ratable proportion, according to the value of such article, package or parcel, if more than one ; in case such unclaimed freight shall be in its nature perishable, then the same may be sold as soon as may be on giving the notice required in 112 TEANSPOETATION OF this section, after its receipt at the place where it was directed to be left. Such railroad company- shall make an entry of the balance of the proceeds of the sale, if any, of each parcel of freight owned by or consigned to the same person,, as near as can be ascertained, and at any time within five years thereafter shall refund any surplus so retained to the owner of such freight or baggage, his or her heirs or assigns,- on satisfactory proof of such ownership. Sec. 60. 2 0. Stopping at Crossings — Fcdh/re — Penalty. Every passenger, freight or other train of cars, running upon any railroad, shall come to a full stop, before crossing any other railroad built or con- structed upon the same grade; and every engineer, conductor or other person having charge or control of such train of cars, who shall offend against the provisions of this section, shall forfeit for each offense the ^um of one hundred dollars, to be recovered by action of debt; and any railroad company who shaU, by their rules and regulations for running trains of cars upon such railroad, require any passen- ger, freight, or other train to cross any other railroad built or constructed upon the same grade, without coming to a full stop before such crossing, shall forfeit a like sum for every day such rule or regula- PEE80NS AND PROPERTY. ^ 113 tion shall continue in force, to be recovered as afore- said. Sec. 61. 21. Formation of Trains — Penalty. In forming a passenger train upon any railroad, organized under the provisions of this act, baggage, freight, merchandise or lumber cars, shall not be placed in rear of the passenger cars; and if they or any of them shall be so placed, the officer or agent who so directed or knowingly suffered such arrange- ment, shall be deemed guilty of a misdemeanor, and be punished accordingly. 8ec. 62, 22. Ownefr of Baggage — Witness. Section 1, of the act of April 2, 1849, provides that the owner of baggage lost by any railroad company, shall be a competent witness, in suits in relation to such baggage, between such owner and the railroad company or its agents, to prove the value of such baggage; but no judgment shall be rendered on such testimony alone for more than one hundred and fifty dollars. [Chap. 181 of compila- tion of 185Y.] 23. MaUdous Ir^y/ry of Boad, etc. — Penalty. Every person who shaU willfully and maliciously break down, injure, remove or destroy any public or toll bridge, or any railroad, or any turnpike gate, 8 114 TEANSPOETATIOK OP or any lock in any dam, or any lock, culvert or embankment of any canal, or who shall willfully and maliciously make any aperture or breach in any such embankment, with intent to destroy or injure the same, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding five hundred dollars, and impris- onment in the county jail not more than one year. Sec. 47. II. ACT OF FEB. 10, 1859. 24. Personal Delivery within two Miles of Depot — Option of Ca/rrier — Other Directions. Every railway company in this State is author- ized to make personal delivery of every parcel, package, or quantity of goods or property, if the consignee of such property shall reside within two miles of the terminus, or railway station or other terminus of the carriage of such property by the main line of such carrier, and they are hereby authorized to employ or own all the means neces- sary to perform such duty, and to place the men and vehicles therefor under the government and sole regulation of the superintendent or other proper officer of such companies. Such delivery shall be at the house, shop, office or other place of business of the consignee, according to the nature of such PEE80N61, AND PEOPERTT. 115 property, and where the owner or consignee desires to have the same: Provided, That in all cases where the consignor or consignee shall desire to have said property taken at the depot, station, or terminus of the carriage of the same, he shall be at liberty to do so, and on notice given, either by a party sending goods, or a party expecting to receive any, that he or they so desire, they shall remain in the usual manner, and for the usual time in the custody of said carrier, subject to the order of the owner thereof. Sec. 3. III. ACT OF MAKCH 15, 1861. 25. Bates of Fare — Peninsular Roads. The ninth diviaion of section IV, of the act of February 12, 1855, is amended so that railroads in the upper Peninsula having less than fifty consecu tive miles of road in actual operation, are excepted from its provisions, and allowed to charge different rates. 116 TEANSPOBTATION OF Douglass, 1. 2 Mich. 259. 2 " 538. 5 " 520. CHAPTER X. DECISIONS OF THE SUPEEME COURT OF MICHI- GAN, ON POINTS OP PEACTICAL INTEREST. 1. DUTT OF CAEBIEB LIEN AGENCY DE- LITEBY. 2. Live stock on tback — negligence. 3. DeLITEBY NOTICE STOBAGE EESTBIO- tion of liability. 4. Right to be caebied — accommodations eegulations negeo. 5. Oaebiees, wabehousemen — changing liability by contbact — waed's case. 6 " 243. 6. Fences — contbactob — injuey — liabil- ity. 7 " 410. 7. "Wabehocsemen — cabbiebs — liability. 7 " 515. 8. Masteb, sebtant, employe — negli- gence. 10 " 193. DECISION I. Fitch et al. v. Newberry et al., Doiig, R. 1. Duty of Garrier — lAen — Agency — Deli/oery. A common carrier is bound to receive and carry goods, only when offered for carriage by their owner PERSONS AND PROPEETT. 117 or his authorized agent; and then, only on payment for the carriage, in advance, if required. To justify a lien upon goods for their freight, the relation of debtor and creditor must exist between the owner and the carrier, so that an action at law might be maintained. If a carrier for part of a route, contract to cany over the whole, the carriers who assist in the trans- portation, are his agents, not those of the owner, and are bound by his contract. The property must not only be carried, but it must also be delivered. DECISION n. Williams v. The Michigan Central B. B. Co., 2 Mich. B., Gills, 259. Live Stock on Track — Negligence. One who allows his horses to stray away upon a railroad track, is guilty of a culpable degree of negli- gence. If live stock be killed in consequence of any negligence or fault of a railroad company or their engineer, without any negligence or fault on the part of the owner, he may recover. DECISION in. Michigan Central Railroad Co. v. Ward, 2 Mich. B., Gills, 538. Delivery — Notice — Storage — Sestriction of Lior hiUty. A carrier can discharge himself from liability for the non-delivery of goods, only by showing that he 118 TEAITSPORTATION OF is prevented by act of God or of a public enemy; a warehouseman may do so, by allowing that he exercised ordinary care and diligence. In the absence of any special contract or local custom, or usage of particular trades, it is incumbent on a common carrier, by the rules of the common law, to deliver the property personally to the con- signee, and until such delivery, he does not dis- charge himself from the obligations and duties the law has cast upon him. To this rule, there is an exception of all those common carriers whose modes of transportation render it impracticable to comply with it, including carriers by ship, boat and raUroad, who must neces- sarily stop at dock or depot. In these cases, the law requires, in lieu of personal delivery, a notice to the consignee, and nothing will dispense with such notice, [except the act or fault of the party entitled to have it given.] Section 16, of the charter of this company, pro- vides for notice to consignees, and for charging storage on property not duly removed, but held " awaiting delivery." Common carriers remain liable as cmriers till after such notice; and the charter of this company does not change this rule. PERSONS AND PEOPEETT. 119 A private person cannot by contract change tlie duties whicli the law imposes on common carriers; but lie may cease to act as in that capacity. But a railroad company, by the acceptance of their incor- poration, enter into a contract with the State, that they will become, and will continue and remain common carriers for the people of the State. Such a corporation has no power to change, by any bar- gain with a private person, the terms of its contract with the sovereign power. The charter of this company provides that it shall " transport merchandise and property on said road, without showing partiality or favor, and with all practicable dispatch." These provisions of the charter are regarded merely as in affirmance of the common law. [See Hale's case No. V, and statutes No. 13.J DECISION IV. Day V. Owen, 5 Mich. R., Cooley, 520. RigJit to he Carried — AGCommodations — Begula- tions — Negro. The plaintiff was a negro. The defendant would be liable for a general refusal to carry the plaintiff, unless he could show some good excuse, releasing him from the obligation. 120 TRANSPORT ATIOH" OF The rigJit to he cmried, cannot be touched by rules and regulations, but the prwileges and accommodor tion of passengers, while being transported, are subject to such rules and regulations as the carrier may think proper to make, provided they be rea- sonable. A refusal to alloTv the plaintiff the privilege of the cabin, on his tendering cabin fare, was nothing more or less than denying him certain aGCommoda- tions from which he was excluded by the rules and regulations of the boat. Rules and regulations may include everything calculated to render the transportation most com- fortable, and least annoying to the passengers generally, not to one, or two, or any given number at a particular time, but to a large majority of the passengers ordinarily carried. The reasonableness of a rule or regulation is a mixed question of law and fact, to be found by the jury, on the trial, under the instructions of the court. The law does not require a carrier to make any rules whatever, but it cannot deny him the right to do so if he deems it for his interest. PERSONS AND PROPERTY. 121 DECISION T. The Michigan Central R. B. Co. v. Hale, 6 Mich. B., Cooky, 243. Carriers, Wa/rehousemen — OJianging lAaMUty hy Contract — Ward's Case. Under the charter of this company, they are •warehousemen and discharged from their liability as carriers, from the time the property carried, is placed in the depot ready to be delivered; but they cannot charge storage, till after notice to the con- signee, twenty-four hours, Sundays excepted, at Detroit, and four days elsewhere. A railroad company cannot restrict their liability ■ by notice or any act of their own; but they may do so by contract. The company has not a right, but the citizen has a privilege to make such a contract, or he may compel the company to comply with the terms imposed by the law. Ward's case, 2 Mich. K. 538, is overruled in these respects. DECISION VI. Gardner v. Smith, 1 Mich. B., Cooley, 410. Fences — Contactor — Injury — Liability. The general railroad act requires railway compa- nies to fence their roads, and makes them and their agents liable for all damages from neglect to bmld such fence, etc. 122 TEANSPORTATIOIT OF This duty to erect fences, arises as soon as tlie company take possession of the road, and enter along the line for the purpose of constructing it. A contractor is an agent of the company within the meaning of the act; and liable to the owner of property injured, both as such agent, and as a con- tractor exercising the power of the company, over the road, for the purpose of its construction. In such a case, the owner might sue either the contractor or the company. DECISION vn. Michigan Southern and Northern Indiana Railroad Co. v. Shv/rtz, 7 Mich. R., Cooley, 515. Wa/reTumsermn — Carriers — Liability. A railroad company are not liable, as common carriers, for goods deposited in their warehouse to await the orders of the depositor. If so deposited to be transported to a given point, the liability, as carrier, commences immediately. On deposit to await orders, where no storage is charged, the company are liable only for want of common care; but the liability as carriers will com- mence as soon as the order to forward the goods is given. PERSONS AND PROPERTY. 123 DECISION Tin. The Michigan Central R. B. Co. v. Leahey, 10 Mich. R., Cooley, 193. Master, Servant, Employe — Negligence. A person wlio has contributed to his own injury, by his own negligence, and who might have escaped injury by the exercise of ordinary care, cannot recover. The law may now be regarded as settled, that a master is not liable to a servant for the neglect of his fellow-servant. The master is liable, only where his own personal neglect has directly contributed to the injury, or where he has not used ordinary dili- gence in employing competent servants. [One Hidden took a contract with the company to saw and pile wood at a station. Leahey was a common workman employed in that business by Hidden, and was injured by the cars running off the track. The company set up that the injury occurred through Hidden's fault. The company prayed the court below to instruct the jury, 1. That Hidden and Leahey were bound to use the satne care as the company, and if the neglect of either contributed proximately to the accident, the plaintiff could not recover, unless the company's servants acted wantonly or willfully. 124 TRANSPORTATION OF 2. That if the cars were thrown off the track by Hidden's fault, Leahey could not recover, unless the conduct of the company's servants was wanton or willful. The court below declined so to instruct, except with the qualification that it must appear that Leahey knew of Hidden's act (placing a plank on the track) and exposed himself to the danger. The plaintiff recovered a verdict, and the Supreme Court were equally divided on the question whether said instructions ought to have been given with the qualification or without it. So the judgment below was affirmed.] PEKSONS AND PKOPEETY. 125 CHAPTER XI. RAILWAY STATUTES OF OHIO— MISCELLANEOUS SECTIONS OP ESPECIAL IMPORTANCE. I. ACT OP MARCH 20, 1840. 1. Injury of track, kto., ok obstruction of train — crime, murder, penalty. 2. Dbiting wagon, etc., on track — necessity, consent, PENALTY. n. ACT OP MAECH 6, 1845. 3. Injury of road, etc. — value — penalty. 4. Injury of equipments, buildings, etc. — talue — pen- alty. 5. Value under thirty-fite dollars — penalty. 6. Adtisebs, assistants and abettors — offense — pen- alty. ,. ni. ACT OP FEBRUARY 11, 1848. 7. Rates chargeable for passengers and fob freight. 8. Signs at crossings — liability for failure. IT. ACT OP MAT 1, 1852. 9. Rates chargeable for passengers and for freight. 10. Signs at crossings — liability for failure — company required to fence road. IL Consolidation of companies. 126 TRANSPORT ATIOIf OF 12. Stopping at each station — penalty. T. ACT OP APRIL 8, 1856. 13. Notice to owner — time foe removal — sale and dis- position OP PEOCEEDS. VI. ACT OF APRIL 15, 1857. 14. Crossings, signals, peecedence. yn. ACT OF MARCH 25, 1859. 15. Fencing railroads — ceossings — oattle-guaeds — penalty — subsequent acts. 16. Stock on teack — penalty. Tin. ACT OF APRIL 11, 1861. 17. Prohibition of monopoly — equal rates — diteeting freight penalty. IX. ACT OF MARCH 16, 1863. 18. Injuring road or obstructing track — penalties. X. ACT OF MARCH 25, 1863. 19. Unclaimed peeight — advertisement — sale — disposi- tion op PEOCEEDS PENALTY FOE VIOLATION. xi. act of april 14, 1863. 20. Through and way freight — discrimination prohib- ited. I. ACT OF MARCH 20, 1840. 1. Injury of Track, etc., or Obst^^uction of Train — Crime., Murder, Penalty. Every person -who shall willfully and maliciously remove, break, displace, throw down, destroy, or in PERSONS ANB PEOPEETT. ISY any manner injure, any iron, wooden, or other rail, or any branches or branch ways, or any part of the tracks, or any bridge, viaduct, culvert, embankment, parapet, or other fixture, or any part thereof, attached to, or connected with, such tracks of any railroad in this State now in operation, or which shall hereafter be put in operation, or who shall willfully and maliciously place any obstruction or obstiu tions upon the rails or tracks of any such railroad, shall, on conviction thereof, be punished by imprisonment in the penitentiary, not exceeding three years nor less than one year; provided, how- ever, that if any person shall, by the commission of either of the aforesaid offenses, occasion the death of any person or persons, the person so offending shall be guilty of murder, in the first or second degree, or manslaughter, according to the nature of the offense, and, on conviction thereof, shall be punished as in other cases. Sec. 1. 2. J)rivingWagon^ etc., on Ttack — Necessity, Con- sent, Penalty. That every person who shall draw or drive any wagon, carriage, cart, coach, gig, or other two or four wheeled vehicle on or between the rails or tracks, or on or along the graded roadway of such road, (unless compelled by necessity so to do) with- 128 TBANSPOETATION OP out the knowledge and consent of tlie company owning or controling said road, shall, on conviction thereof before any justice of the peace, pay a fine not less than five nor more than twenty-five doUars, to be collected and paid over for the use of such railroad company. Sec. 2. II. ACT OF MAKCH 6, 1845. 3. Injwry of Boad, etc. — Value — Penalty. That every person who shall willfully and mah- ciously throw down, break, remove, displace, cut, split, burn, or in any other manner destroy or injure any of the rails, sills, cross ties, piles, bridges, culverts, viaducts, parapet or any other fixture, to the value of thirty-five dollars or upwards, or shall willfully and maliciously injure or destroy any embankment of any railroad within this State, now constructed or in process of construction, or any rail- road which shall hereafter be constructed, or in the process of construction, to the value of thirty-five dollars or upwards, shall, on conviction thereof, be punished by imprisonment in the penitentiary not exceeding three years nor less than one year. Sec. 1. 4. Injury of Eqm/pmmbs^ Buildings^ etc. — Value — Penalty. Every person who shall willfully and maliciously cut, break, burn, injure or destroy, any locomotive. PERSONS AND PEOPEETT. 129 car, or other machinery, now, or which may hereaf- ter be, in use upon any railroad within this State, or any wood house, car house, or water station erected for the accommodation and use of any rail- road within this State, to the value of thirty-five dollars or upwards (shall,) on conviction thereof, be punished by imprisonment in the penitentiary not exceeding three years nor less than one year. Seo. 2. 5. Yalue under Thirty five Dollars — PenalUj. Section 3, provides for the punishment by fine or imprisonment in the county jail for offenses under the preceding sections where the value of the pro- perty injured, etc., is less than thirty-five dollars. 6. AchiserSi Assistants, and Abettors — Offense — Penalty. Section 4, makes the punishment for such offenses, the same for accessories as for principals. III. ACT OF FEB. 11, 1848. 7. Hates chargeable for Pa^engers and for Freight. Such [railroad] corporation may demand and receive for the transportation of passengers on said road not exceeding three and one half cents per mile, and for the transportation of property not 9 130 TBANSPOETATION OF exceeding five cents per ton per mile, when the same are transported a distance of thirty miles or more; and in case the same are transported for a less dis- tance than thirty miles, such reasonable rates as may be from time to time fixed by said company. At any time after the expiration of ten years, from the time any such road may be put in operation, it shall be lawful for the General Assembly to pre- scribe the rates to be charged for the transportation of persons or property upon said road, should they be deemed too high, and may exercise the same power ten years thereafter : Provided, that no reduc- tion shall be made, unless the net profits of the company on an average for the previous ten years shall amount to ten per centum per annum upon its capital, and then so as not to reduce the future probable profits below the said per centum. Sec. 12. 8. Signs at Crossings — Liability for Failure. Every company organized under this act, shall be required to erect at all points where their road shall cross any public road, at a sufficient elevation from such public road, to admit of the free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the prox- imity of the railroad, and warn persons of the necessity of looking out for the cars; and any com'^ PERSONS AND PROPERTY. 131 pany neglecting or refusing to erect such sign, shall be liable in damages for all injuries occurring to persons or property from such neglect or refusal. Sec. 18. IV. ACT OF MAY 1, 1852. 9. Bates chargeable for Passengers and for Freight. Section 13, re-enacts the rates provided for in section 12, of the act of 1848. 10. Signs at Crossings — lAability for Failure — Company required to Fence Road. Section 18, re-enacts the provisions of section 18, of the act of 1848, with the following additional provision : Each railroad company shall be required to fence its road, with a good substantial wooden fence, under such rules as the county commissioners of the several counties through which the same may pass shall prescribe. 11. Consolidation of Companies. Sections 21, 22 and 23, provide for the consolida- tio"n of two or more railroad companies. 12. Stopping at each Station — Penalty. That every railroad company in this State, shall cause all its trains of cars for passengers, to entirely 132 TEANaPORTATIOIT OP stop upon each arrival at a station advertised by sucli company as a station for receiving passengers upon such trains, at least one half of one minute; and every company, and every person in the employ- ment of such company, that shall violate, or cause or permit to be violated, the provisions of this sec- tion, shall be liable to a forfeiture of not more than one hundred nor less than twenty dollars; to be recovered in an action of debt upon the complaint of any person before any justice of the peace of the county in which such violation shall occur ; and in all cases in which a forfeiture shall occur, under the provisions of this section, the company whose agents shall cause or permit such violation, shall be liable for the amount of such forfeiture, and in all cases the conductor upon such train, shall be held prima fade to have caused the violation of this section, which may occur upon the train in his charge; said forfeiture to be recovered in the name of the State of Ohio for the use of the common schools. Sec. 26. Y. ACT OF APEIL 8, 1856. 13. Notice to Owner — Time for Hemoval — Sale and Disposition of Proceeds. This act provides that all warehousemen, trans- portation companies, or railroad companies, shall PERSONS AND PBOPEKTT. 133 give notice, by letter or otherwise, to the owners, of the receipt of property, and that it is held subject to charges, in all cases where the owner's name and place of residence is plainly marked. If the pro- perty be not removed within thirty days after notice, the same may be sold at auction, on thirty days advertisement in two papers published and of general circulation in the county. The surplus of proceeds, after payment of charges and expenses, shall be held one year, and if not called for, shall then be paid into the county trea- sury, accompanied by a schedule of the property, and the particulars concerning the same. The owner may claim the money and prove his title within six months thereafter, at which time the funds not claimed shall be transferred to the school fund. See act of March 25, 1863. VI. ACT OF APEIL 15, 1857. 14. Crossings^ Signals, Precedence. When the tracks of two railroads cross each other at a common grade, the crossings shall be made and kept up, and watchmen maintained at the joint expense of the two companies owning said tracks; and all trains passing over said tracks, shall come to a stop within six hundred feet of such crossings, and not cross until signaled so to do by the watch- 134 TEANSPOETATIOir OP man, nor until the way is clear. And wlien two passenger or two freigjit trains come up at the same time, the train on the road first built shall have precedence, provided they are both main tracks over which all passengers and freights from said road are transported, but if one, only, is such main track, and the other is a side or depot track, then the train on the main track shall take precedence. But if they be a passenger and freight train, then the passenger train shall take precedence. Sec. 6. YII. ACT OF MAKCH 25, 1859. 15. Fencmg Bail/roads — Crossings — Cattle- G\ia/rds — Penalty — 8uhsegumt Acts. This act provides that every railroad company or other party having the control or management of a railroad, the whoje, or a part of which shall be located within this State, shall, and is hereby required, within two years after the passage of this act, or within two years' sifter commencing to run cars thereon for the transportation of passengers and freight, to construct and maintain good and suffi- cient fences on both sides of such road, or such part thereof as shall be in running order, and located within this State; and also to make and maintain a sufficient number of suitable crossings for the accom- modation of the public, and of persons living near PER80KS AND PROPERTY. 135 the line of sucli railroad, together with the necessary cattle-guards, to prevent cattle and other animals from endangering themselves, and the lives of pas- sengers, by getting upon such railroad, and such company shall be liable for all damages which may result to horses, cattle, or other domestic animals, by reason of the want or insufficiency of such fences, road crossings, or cattle-guards, or by any careless- ness or negligence of such company, party, or agent or agents thereof. When a railroad shall pass through or along the boundary of any inclosed field, the proprietor is required to construct one half the fence necessary to partition such inclosed lands from the railroad. And any person desiring private crossings or cattle- guards, shall be responsible for one-half the expense of constructing and maintaining the same. Seo. 1. Section 5, provides a penalty, not exceeding fifty dollars per day, for neglect or refusal to construct such fences, etc., or to keep the same in repair. The act of March 26, 1860, extends the time for enclosing railroads, etc., so far as relates to those in operation when the act of 1859 took effect, to three years after the passage of the last mentioned act. The act of March 28, 1862, extended the time for railroads which do not pay a dividend on their stock, to two years from March 1, 1862. 136 TEANSPORTATIOB" OF The act of Marcli 30, 1864, further extended the time for such non-paying railroads, to one year from the first day of March, 1864. 16. Stock on Track — Penalty. The riding, leading, or driving any domestic animal within any railroad inclosure, without proper consent, is prohibited, under a penalty of not more than ten dollars for each offense. Sec. 1 . YIII. ACT OF APEIL 11, 1861. 17. Prohibition of Monopoly — Equal Pates — Dive/rtrng Freight — Penalty. Section 1, requires all railroads to carry freight or passengers offered, and forbids agreements with other lines not to carry between common points. Section 2, provides that branch lines shall be charged equal rates for carriage over the trunk road. Section 3, forbids the diverting of freight from the line to which it is directed, to another, under penalty of three-fold freight to the injured line, and one hundred dollars fine and thirty days imprison- ment. Section 4, allows an injunction, on complaint. PERSONS AND PEOPEETY. 137 IX. ACT OF MAKCH 16, 1863. 18. Injuring Hood or Ohstructing Track — Perv- alties. This act provides that every person who shall willfully and maliciously remove, break, displace, throw down, destroy or injure any railroad or any work or fixture, etc., or place obstruction on same, shall be imprisoned in the penitentiary not less than one, nor more than twenty years. If death ensues, the offense is murder or manslaughter, and to be punished accordingly. Sec. 1. This act is amendatory of the act of March 26, 1860, which is amendatory of section 1, of the act of March 20, 1840. X. ACT OF MAEOH 25, 1863. 1 9 . Undairhed Freight — Advertisement — Sale — Disposition of Proceeds — Penalty for Violation, This act requires railroad companies to keep a register of unclaimed property, in all cases of refusal, owner unknown, or neglect to remove for sixty days. This register must contain all the particulars of time, place, description, supposed value, etc. Such list must be sent quarter-yearly to the State auditor. 138 TRANSPORT ATION OF The auditor may order delivery to sheriff or county auditor. The State auditor shall advertise within sixty days, for six months; after which, if the property be not claimed, the property shall escheat to the State, and be disposed of accordingly. Perishable property may be sold in sixty days after notice, but jewelry not in less than a year. The proceeds shall be paid to the county treasurer, and the State audi- tor shall pay the freight and charges due to rail- roads, out of the fund ; but in no case more than the property brought above expenses. The owner may reclaim, and have warrant on treasury for sur- plus, at any time within five years. If railroad companies carry such property out of the State, or neglect or refuse to comply with act, they forfeit not exceeding double the value of the property, or the amount of the injury thereby. The act is extended to all express companies, com- mon carriers, forwarding and commission merchants, wharfingers and warehousemen. PEE80N8 AND PEOPEETT. 139 XI. ACT OF APRIL 14, 1863. 20. Through and Way Freight — Discrimination Prohibited. This act requires as ample facilities for local and way freight as for through freight pro rata^ so that there shall be no discrimination in favor of either class of freight, against the other. 140 TRANSPORTATION OF CHAPTER XII, DECISIONS OF THE SUPEBME COURT OF OHIO, ON POINTS OF PRACTICAL INTEREST. 1. EeSTEICTION of liability NOTICE WATCH BAGGAGE. 10 Ohio, 145. 2. AdTANCES LIEN WAREHOUSING FOE- wahding agency. 11 " 303. 3. Contract to receive and carry — lia- bility. 20 " 54. 4. Baggage — witness — party — wife. 20 " 318. 5. Fellow-employe — negligence — liabil- ity. \ 20 " 415. 6. Restriction of liability — mistake — negligence BURDEN OF PROOF. 2 Ohio S. 131. 7. Delivery subject to condition. 2 " 142. 8. Common law — inclosureb — track — stock LIABILITY ACCIDENT NEGLI- GENCE, a " 172. 9. Common law — principal and agent — conductor, brakeman, fellow-ser- vant accident STEVENS CASE. 3 " 201. 10. Restricting liability — negligence — burden of proof. 4 " 362. PERSONS AND PROPERTY. 141 11. Employer and contractor — injury — LIABILITY. 4 Ohio S. 399. 12. Duty of conductor — passengers — cat- tle. 4 " 474. 13. Conductor, duty — injury — liability of company. 5 " 541. 14. Mutual negligence — ordinary care. 8 " 570. 15. Defective cars — restriction of liabil- ity — LITE stock. 10 " 65. 16. Who are fellow-sertants. 11 " 417. 17. Payment of fare — election of train — freight train. 11 " 457. 18. Company — care — employes, passen- gers. 12 " 475. DECISIOlir I. Jones Y.Yoorhees, 10 Ohio R., Wilcox, 145. Hesiriction of lAaMUi/y — Notice — Watch — Bag- gage. A common carrier cannot limit his liability by a notice to the owner of property to be carried. Whatever forms the necessary appendages of a traveler, may be legitimately considered as baggage. A traveler's watch may be carried in his trunk. However valuable an article of baggage may be, the owner is not bound to disclose such peculiar value, unless inquiry is made. 142 TRAWSPOETATIOM" OF DECISION n. Bowman v. Hilton, 11 Ohio R., Stanton, 303. Advances — Iden ^- Wa/rehoumig — Forwwrclmg — Agency. In case of carriage over several lines, and under several contracts, a carrier who in good faith, and with a reasonable prudence, makes advances to a prior carrier, has a lien on the property for his com- mission and advances, notwithstanding the goods have been damaged in the hands of such prior carrier. In such a case, the first carrier is discharged when he has deposited the property with a respon- sible warehouseman; or has delivered it to the next carrier in order. The warehouseman may discharge himself by forwarding the property according to the established usage and custom. In such cases, the forwarder is the agent of the consignor, not of the prior carrier. DECISION m. Montgomery v. Kent et al, 20 Ohio B., Lawrence, 54. Oontraci to Heceive and Ca/rry -^ lAahiUty. The liability of a common carrier does not attach, till the property is actually received. PERSONS AND PROPERTY. 143 For a refusal to receive, he is liable as an ordinary- person for breach of contract. DECISION IT. The Mad River and Lake Erie Railroad Co. v. Fulton, 20 Ohio R., Lawrence, 318. Baggage — Witness — Party — Wife. In case of a loss of ordinary baggage, carried in a trunk, the passenger or his wife may prove the description and value of the contents of the trunk. DECISION V. The Little Miami R. R. Co. v. Stevens, 20 Ohio R., Lawrence, 415. Fellow-Employe — ' Negligence — Liahllity. Where an engineer was under the control of the conductor of the train, and had not been informed of a change in the time of the trains, and followed the directions of the conductor, and there was a collision by which he was injured, the company was held liable, and he recovered a heavy verdict. DECISION TI. Davidson v. Graham et al, 2 Ohio State R., Warden, 131. Restriction of Lialility — Mistake — Negligence — Burden of Proof. In Ohio, a common carrier cannot restrict his liability by notice, verbal, written, or printed, even 144: TRAITSPORTATIOIT OF when brought to the knowledge of the owner of the property. There is no principle of public policy to prevent the carrier from restricting his liability for losses which do not arise from any neglect or fault on his part. He may therefore make such restric- tion by an express contract. But he cannot make a valid contract against his liability for any loss which may happen by any neglect or misconduct on his part. And the law holds him to extraordinary diligence, which is such as very careful and prudent men take in their own affairs. This degree of diligence cannot be reduced by contract. In all cases of loss, the burden of proof is on the carrier, to show, if he can, that he is not liable. DECISION VII. Owen V. Johnson, 2 Ohio State B., Warden, 142. Delivery mhject to Condition. If a carrier receive goods to be delivered on performance of any precedent act, he is bound to hold the property and enforce performance of the condition. PERSONS AND PROPEETY. 145 DECISION Tin. Kerwhacher v. The Cleveland, CohmibvjS and Ohio Railroad Co., 3 Ohio State B., Warden & Smith, 172. Common Lcm — InclostJi/res — Track — Stock — lAa- hility — Accident — Negligence. The common law is in force in. Ohio, only so far as it has been adopted by the courts. There is no law in Ohio requiring an owner to keep his cattle within an inclosure, and it is not unlawful or wanting ordinary care to allow them to run at large. But if they be dangerous or mischievous, he is bound to confine them. The owner of open lands may drive cattle off, or may inclose his premises. The owner of cattle running at large takes the risk of all unavoidable accidents. A railroad company has an undeniable right to the exclusive and unmolested use of its track. But if such company leave their road uninclosed, they take the risk of intrusions from animals running at large. Where negligence of the same nature on the part of both parties has produced the injury, there is no redress. Where negligence of one is the immediate, and of the other the remote cause of the injury; or 10 146 TEANSPORTATIOK OF where no care of tlie latter could have prevented the injury, lie may recover. And even a party who is guilty of negligence, may recover for mali- cious, willful, or wanton injuries. In the case above supposed, the railroad company would be bound to use ordinary care and caution. DECISION IX. The Cleveland, Colwnbus and Cmcinnati Railroad Co. v. Keary, 3 Ohio State B., Warden & Smith, 201. Gommon Law — Prmcvpal and Agent — Conductor., BraTcenum, Fellow-Servant — Accident — Stevens Case. The court profess to administer the common law of England, so far as its principles are not incon- sistent with the genius and spirit of the institutions of Ohio. It is of public policy and convenience that the principal is held to warrant the fidelity and good conduct of his agent in all things within the scope of his agency. The conductor of a railway train is its master. He is not a fellow-servant with the brakeman, for the latter is under his control. If, therefore, a brakeman be injured, through the fault of the conductor, the company is liable. The case of Stevens, No. V, ante, is affirmed. PERSONS AND PEOPEETY. 147 DECISION X. Graham et al. v. Davis et al, 4 Ohio State B., Warden, 362. Restrictmg lAabiUty — Negligence — Burden of Proof. A common carrier is incapable, by any act of his own, of limiting, or evading tlie responsibility ■vvhicli the law attaches to his office. The carrier, by agreement with the owner may exonerate himself from responsibility for losses arising from causes over which he has no control, and to which his own fault or negligence has in no way contributed. Any negligence in the carriage of passengers may well deserve the epithet of gross.. The burden of proof is upon the carrier to show, in case of loss, not only an exception within which the loss may fall, but also that no negligence or want of care on his part contributed to the result. DECISION XI. Carman et al. v. The Steuhenville and Indiana Railroad Co., 4 Ohio State R., Warden, 399. Employer and Contractor — Injwry — Liability. If an employer retains the power of superintend- ing the work, and directing it to be done in such a 148 TEANSPOETATION OF manner as lie sees fit, the decided weight of authority is, that it becomes his duty to see it done in a careful and skillful manner, and if he fails in this, he fails to perform his duty to third persons, and is liable for the injuries they may sustain. DECISION sn. The Cleveland, Columbus and Cincinnati Railroad Co. v. Elliot, 4 Ohio State B., 474. Duty of Conductor — Passenger — Cattle. The paramount duty of the conductor of a train, is to watch over the safety of the persons and pro- perty in his charge; subject to which it is his duty to use reasonable care to avoid unnecessary injury to animals straying upon the road. DECISION Sin. The Mad River and Lake Erie Railroad Co. v. Barber, 5 Ohio State R., Critchfield, 541. Conductor, Duty — Injury — Liability of Company. The relation of a conductor to the company is different from that of a subordinate hand, or of a passenger. He has the actual control of the train, and is bound to reasonable care and diligence in the management of the train, and also in the due inspection of the cars, machinery and apparatus. In case of any insufficiency or delinquency of hands, PERSONS AND PEOPEBTY, 149 or any defect in tlie cars or macMnery, he should report tlie same to tlie company, and forthwitli take the necessary and proper precautions for the safety of the train, and the persons upon it. In case of an injury to the conductor from any cause, he cannot recover of the company, unless they were guilty of actual fault or misconduct, either in the act which caused the injury, or in the selec- tion and employment of those by whose fault the injury occurred. But he may waive his right by consenting to run a train which is insufficiently provided. DECISION XIV. The Cleveland, Columhus and Cincinnati Railroad Co. v. Terry, 8 Ohio State B., Critchfield, 570. Mutual Negligence — Ordinary Care. In case of mutual negligence contributing directly to the injury, there can be no recovery. If the injured party did not, under all the circumstances, exercise reasonable care, he cannot recover. As to third persons, not passengers, a railroad company is bound to exercise ordinary care and prudence. 150 TEANSPOETATIOW OF DECISION XV. Welsh et al. v. The Pittsburgh, Fort Wayne and Chicago Railroad Co., 10 Ohio State R., Critchfield, 65. Defectwe Ga/rs — Hestriction of lAahility — U/ve Stock. A railroad company is liable for a loss of cattle through defective car-doors, notwithstanding an express contract to the contrary. DECISION XVI. Manville v. The Cleveland and Toledo Railroad Co., 11 Ohio State R., Critchfield, 417. Who a/re Fellow-Servants. All who are engaged in the common service of operating the railroad, may properly be regarded iiiS, fellow-servants, [unless one is subject to the con- trol of the other, so that as between them, one is not a servant but the representative of the company.] DECISION XVII. The Cleveland, Columlus and Cincinnati Railroad Co. v. Bartram, 11 Ohio State R., Critchfield, 457. Payment of Fa/re — Flection of Train — Freight Train. Fare must be paid or tendered to one authorized to receive it. PEESONS AND PEOPEETY. 151 A passenger cannot compel a company to carry him on a freight train, contrary to their rules and regulations. If a passenger freely elect to go by freight train, and he admitted therein, his right of election, having been exercised, is exhausted, and unless extraordi- nary circumstances require, he cannot, after having started on his journey by such train, leave it and take another, without the consent of the proper agent of the company. DECISION xvni. The Columlms and Xenia Railroad Co., and the Little Miami Hail- road Co. V. Weih's Adm'x, 12 Ohio State B., Critchfield, 475. Company — Ca/re — Employes, Passengers. A railroad company is bound, as to passengers, to use the highest degree of care to provide suitable equipments — as to its employes, it is bound to use all reasonable care in that behalf. If a brakeman be injured by neglect of the company to exercise such care, he may recover — if by negligence of a fellow-servant, such servant, and not the company, is liable. 152 TRANSPORTATION OP CHAPTEK XIII. RAILWAY STATUTES OF PENNSYLVANIA — MIS- CELLANEOUS SECTIONS OF ESPECIAL IMPOET- ANCE. I. ACT OF APRIL 16, 1838. 1. Malicioits injtjbt ob OBSTEtrciioN of railroad — pen- alty. 2. Animals on track — penalty. n. ACT OF MARCH 20, 1845. 3. Obstructing public streets — penalty. ni. ACT OF APRIL 11, 1846. 4. Unlawful disposition of property by carrier — pen- alty. iv. act of febritart 19, 1849. 5. Cross-roads, causeways — damages. 6. "Willful injury — damages to railroad company — criminal prosecution. 7. Public highway — bulks and regulations — rates of compensation for passengers and freight. V. ACT OF APRIL 22, 1850. 8. Carriage of gunpowder. PERSONS AND PEOPBETT. 153 VI. ACT OF APBIL 12, 1851. 9. ObSTETJCTION of PBITATE BOAD OB crossing PENALTY. VII. ACT OF MARCH 16, 1858. 10. Lien of oabriees, commission meechants and othees — sale fob non-payment of chaeges. Vni. ACT OF MAT 16, 1861. 11. Consolidation of railway companies. rx. ACT OF MAT 6, 1863. 12. Ticket agents — feauds — penalties. I. ACT OF APEIL 16, 1838. 1. Malicious Injury or Obsi/raction of Hail/road — Penalty. If any person shall willfully and maliciously set fire to, destroy or injure any part of a locomotive or stationary engine, engine house, bridge, culvert, trestle work or other building or structure belong- ing, or appurtenant to any railroad constructed or located by this commonwealth, or by any company authorized by law to construct a railroad; or shall willfully and maliciously obstruct any such railway or do any damage to the materials or any part thereof, or shall put any timber, stone, iron or other matter thereon, or do any other act in relation to such railroad, whereby the lives of persons or pro- perty employed or transported on the same shaU be 154 TEANSPOETATION OF endangered, such, person or persons shall, upon conviction of sucli offense, before any court of com- petent jurisdiction, be sentenced to pay the damages caused by such offense, and to be imprisoned in the jaU of the proper county or in one of the peniten- tiaries in the State, for any term not exceeding five years. Sec. 8. If any person shall wantonly derange or displace the fixtures or machinery of any locomotive or sta- tionary engine, or inclined plane used or employed on any railroad as aforesaid ; or shall put in motion any machine, engine, car or other vehicle upon or belonging to any such railroad, without the consent of the person having the charge of the same, or shall destroy or injure any fence or wall or cross road passing over or under such railroad, such per- son or persons shall forfeit any sum not exceeding one hundred dollars, and pay all damages caused by such offense; such person or persons may also be prosecuted criminally, and on conviction of the said offenses or either of them, be sentenced to imprison- ment not exceeding twelve months in the jail of the proper county. Sec. 9. 2. Anvmals on Track — Penalty. If any person shall willfully and wantonly, with- out the consent of the person having charge of any PEES0N8 AND PEOPEETY. 155 sucli railroad, lead, drive, or cause to be led or driven, any horse, mule, ox, sheep, swine or other cattle on such railroad, or upon the banks or sideways thereof, or haul any other vehicle than railroad cars upon any such railroad except at places constructed for crossing the same, or use any animal or vehicle on such railroad, contrary to the regulations of the canal commissioners or of the board of managers or directors, as the case may be, such person or persons shall forfeit twenty-five dollars, and pay all damages arising from such offense. Sec. 10. II. ACT OF MAECH 20, 1845. 3. Obstructing Public Si/reets-^ Penalty. Section 1, provides that no railroad company shall block up the ci'ossings of public streets or roads; in case any servant or agent of any railroad company does block up such street or road, he shall be subject to a penalty of twenty-five dollars, and if not able to pay such penalty, the railroad company employing him shall pay it. III. ACT OF APEIL 17, 1846. 4. Unlawful disposition of Property by Carrier — Penalty. If any person or persons engaged in transporting coal, iron, lumber, or other articles of merchandise 156 TEANSPORTATION OP or any property wliatsover upon, any river, railroad or canal within this commonwealth, shall sell, dis- pose of, or pledge the same, or any part thereof, without the consent of the owner or owners thereof, such offense shall be deemed a misdemeanor; and on conviction therefor shall be punished by fine, not less than fifty nor exceeding five hundred dollars; and suffer imprisonment in the county jail in which the offense is committed, for a term not less than twenty days nor more than one year, at the discre- tion of the court. Seo. 1. Section 2, provides that after July 1st, 1846, persons who shall purchase merchandise consigned to persons in this State or in adjoining States, without the knowledge and consent of the owners, knowing the same to have been consigned by a captain of a canal boat or other person engaged in transportation of such property, shall be liable to pay to such owners double the value of the property so bought. IV. ACT OF FEB. 19, 1849. 5. Cross-roads^ Causeways — Damages. Section 12, provides that when any newly con- structed road necessarily crosses an established road, the crossing shall be so constructed as not to inter- fere with the business of such established road; that railroad companies shall construct and maintain PEE80NS AND PEOPEKTY. 157 causeways for tlie accommodation of the owners of the land through which such road passes; and that such railroad companies shall be liable for all dam- ages occasioned by their neglect. 6. Willful Injury — Da/mages to Bail/road Gonh- pany — Criminal Prosecution. K any person shall willfully and knowingly break, injure or destroy any railroad authorized by special act of assembly, or any part thereof, or any edifice, device, property, or work, or any part thereof, owned or used by such company in pursu- ance of this act, he, she or they so offending, shall forfeit and pay to such company, three times the actual damage so sustained, to be sued for and recovered before any tribunal having cognizance thereof, by action in the name and for the use of the company. Seo. 15. If any person or persons shall willfully or mali- ciously remove and destroy any part of the road, property, buildings or other works, belonging to such company, or place, designedly and with evU intent, any obstruction on the line of such railroad, so as to jeopard the safety and endanger the lives of persons traveling on or over the same, such person or persons so offending, shall be deemed guilty of a misdemeanor, and shall, on conviction, be 158 TRANSPORTATION OF imprisoned in the county jail or penitentiary, at the discretion of the court, for a term not more than three years: Provided^ that nothing herein contained shall prevent the company from pursuing any other appropriate remedy at law in such cases. Sec. 16. 7. Public Highway — Pules and Pegulations — Pates of Compemation for Passengers and Freight. Upon the completion of any railroad authorized as aforesaid, the same shall be esteemed a pubhc highway for the conveyance of passengers, and the transportation of freight, subject to such rules and regulations, in relation to the same, as to the size and construction of wheels, cars and carriages, and all other matters and things connected with the use of said railroad, as the president and directors may prescribe and direct: Provided, that the said com- pany shall have the exclusive control of the motive power, and may, from time to time, establish, demand and receive such rates of toll or other compensation for the use of such road, and of said motive power, and for the conveyance of passengers, the trans- portation of merchandise and commodities, and the cars or other vehicles conveying the same or other- wise passing over or on said railroad, as to the presi- dent and directors shall seem reasonable : Provided, PERSONS AND PROPERTY. 159 how&ver, n&vertheless^ That said rates of toll and motive power charges, so to be established, de- manded or received, when the cars used for such conveyance or transportation shall be owned or furnished by others, shall not exceed two and one- half cents per mile for each passenger, three cents per mile for each ton of two thousand pounds of freight, three cents per mile for each passenger or baggage car, and two cents per mile for each burden or freight car, every four wheels to be computed a car; and in the transportation of passengers no charge shall be made to exceed three cents per mile for through passengers, and three and a half cents per mile for way passengers. Seo. 1 8. V. ACT OF APKIL 22, 1850. 8. Carriage of Gfunpowder. Section 9, of the act of April 22, 1850, provides that no gunpowder shall be transported over any railroad, canal or slack water, unless the same shall be conspicuously marked " gunpowder." Persons violating this section are liable to indict- ment, and punishable by fine and imprisonment or either of them. Fine, five hundred dollars ; impris- onment, six months. 160 TEANSPOETATION OF YI. ACT OF APKIL 12, 1851. 9. OhstmcUon of Prwate Hoad or Grossing — Penalty. Any cliartered railroad company in tMs common- wealth obstructing or impeding the free use or pas- sage of any private road or crossing place, by standing burden cars or engines, or placing other obstructions on any railroad wherever any private road or crossing place may be necessary to enable the occupant or occupants of land or farms to pass over any railroad with horses, cows, hogs, sheep, carts, wagons and implements of husbandry, shall for every such offense, after any agent or other person in^the employment of any railroad company, sha-H have received at least fifteen minutes' verbal notice to remove burden cars, engines or other 'obstructions from any private road or crossing place that may pass over any railroad, 'be liable for a penalty of thirty dollars, which shall be for the use of the person or persons aggrieved, and which shall be recovered before any justice of the peace in the same manner that debts not exceeding one hundred dollars are by law recoverable. And in all suits or actions that may be brought against any railroad company for the recovery of said penalty of thirty dollars, the serfice^f legal process on any agent or PERSONS AND PROPERTY. 161 other person in the employment of any railroad company shall be as good and available in law as if made on the president thereof. Sec. 2. VII. ACT OF MARCH 16, 1858. 10. Lien of Cwrri&rs^ Oommission Merchants and others — Sale for Non-payment of (Jliarges. Commission merchants and factors, and all com- mon carriers or other persons having a lien upon goods, wares and merchandise, for or on account of the costs and expenses of carriage or storage, or any other charge arising from the transportation of such property, in case the owners or consignees shall not pay or discharge the amount due for such cost, expense, carriage,, storage, or other charges, herein- before named, may, after the expiration of ninety days from the notice hereinafter provided, proceed to sell the same, or so much thereof as may be necessary to discharge said lien, at public auction: Pr(yoided^ That notice of sale shall be given as required for sheriffs' sales of personal property, and that thirty days' notice of said lien be given to the owner or consignee of the property, if they can be found, and in case they cannot be so found, that the same shall be advertised weekly in some newspaper published in the proper city or county to which the goods, wares or merchandize have been consigned, 11 162 TEAWSPOETATIOK OF for four consecutive weeks before the sale; the residue of money arising from such sale, after deducting the cost of transportation charges and storage, advertising and sale, to be held subject to the order of the owner or owners of such property. Sec. 1. YIII. ACT OF MAT 16, 1861. 11. OonsoUdaUon of Railway Companies. This act authorizes a merger by one railroad com- pany of its corporate rights, powers and privileges, " into any other railroad company connecting there- with;" so that the same may be transferred to and vested in the company into which such merger shall be made. IX. ACT OF MAY 6, 1863. 1 2 . Ticket Agents — Frauds — Penalties. Section 1, of this act requires the owners of conveyances for the transportation of passengers, to furnish their ticket agents with certificates of authority to act as such agents, duly attested by the corporate seal, if any, and the signature of the owner or officer whose name is signed upon the tickets. Section 2, prohibits all persons not so authorized from selling any such tickets, whether the railroad, steamboat, or other public conveyance be situated, PERSONS AND PEOPEETT. 163 operated or owned, wifhin or without the limits of tMs commonwealth. Section 3, makes a violation of section 2, punish- able by fine not exceeding five hundred dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Section 4, requires ticket agents to exhibit such authority, on request, to persons desiring to pur- chase tickets, and to any ofiicer of the law; also to keep the same posted in a conspicuous place in their offices, for the information of travelers. It shall be the duty of the owner or owners of railroad, steamboat, and other public conveyances, to provide for the redemption of the whole or any parts or coupons of any ticket or tickets, as they may have sold, as the purchaser for any reason has not used, and does not desire to use, at a rate which shall be equal to the difference between the price paid for the whole ticket, and the cost of a ticket between the points for which the proportion of said ticket was actually used; and the sale by any person, of the unused portion of any ticket, otherwise than by the presentation of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this act, and shall be punished as is hereinbefore pro- vided; Provided, That this act shall not prohibit 164 TEANSPOETATION OF any person wlio has pnrcliased a ticket from any agent authorized by this act, with the hona fide intention of traveling upon the same, from selling any part of the same to any other person, if such person travels upon the same. Sec. 5. PEESONS AND PROPEETT. 165 CHAPTER XIV. DECISIONS OF THE SUPEEME COURT OP PENNSYL- VANIA, ON POINTS OF PRACTICAL INTEREST. 1. NON-THANSPOBTATION — MEASTTBE OF DAM- AGES. 10 "Watts, 418. 2. Baggage — contents — witness. 10 " 335. 3. Baggage — money — witness. 2"W.&S.230. 4. False marking — loss — talue — eecot- EBT. 3 " 21. 5. Personal dkliteet — reasonable time, ETC. 5 " 128. 6. Offer to deliver — duty to store. 6 " 66. 7. Limitation of liability — witness. 6 " 498. 8. Fire before deliteby — liability — PLACE. 9Pa.S.R.114. 9. Baggage — mechanics' tools — jdby. 14 " 133. 10. Baggage — notice — liability — obdin- ABY care PUBLIC POLICY PRESUMP- tion — ignorance — money. 16 " 67. 11. Limiting liability — care of injured GOODS. 18 " 231. 12. Cattle — fences — obstructions — lia- bility. 19 " 298. 23 U 384. 23 u 532. 24 (C 468. 25 u 338. 166 TEAWSPOKTATIOIir OF 13. Peefect cakeiages — pbotision against DAJsraEE. 21 Pa. S. E. 204. 14. Fellow-employes — non-liabilitt op em- ployee. 15. Insteuotions — conteact — liability. 16. ObSTEUCTION INJUEY CONSENT. 17. "Warehousing — liability. 18. Conteact of caeeiage — cabs — safe- guaeds act of god presumptions — excuses. 30 " 238. 19. Conteact against liability. 30 " 246. 20. Eesponsibility of conductoes and em- ployees. 31 " 358. 2.1. PbitAte caeeiee — common cabeiee — usage — bestbiction of liability — burden of proof. 32 " 212. 22. Time to alight — women and childeen. 32 " 292. 23. Cobpobation liable fob assault, libel, etc. — expelling passengeb. 42 " 365. DECISION I. 0' Connor Y. Foster, 10 WatU, 418. NbfirTra/nsportation — Measure of Da/mages. In case of a breacli of contract to receive and carry grain, the measure of damages is tie difference between the market value at the place of receipt, with the freight added, and the market value at the place of delivery. PEE80N8 AND PEOPEETY. 167 BBCISION II. Clarh & Co. V. Spence, 10 Watts, 335. Baggage — Contents — Witness. The owner is a competent witness to prove the contents of a trunk of lost baggage. DECISION III. David V. Moore, 2 WatU & S., 230. Baggage — Money — Witness. The passenger is not a competent witness to prove that there was money in a trunk of baggage which has been lost, nor the amount. DECISION IV. Relf Y. Rapp, 3 Watts & S., 21. JFalse Marking — Zoss — Value — Becovery. False marking of baggage is a fraud on the car- rier, and will prevent a recovery for loss. If there be no mark or inquiry to show or ascer- tain the contents, the carrier is liable, no matter how great the value may be. If a box be marked as containing glass, while in fact it contains jewelry, the owner cannot recover for a loss of the jewelry. 168 TRANSPORTATION" OF DECISION V. Hill T. Humphreys, 5 Watts & S., 128. Personal Delivery — Reasonable Time^ etc. If a carrier undertake to make personal delivery, he must do so in reasonable time, place and manner. Wketter he has done so is a question for the jury, under all the circumstances attending the transac- tion. A tender of delivery out of business hours is not reasonable. DECISION VI. Hemphill v. Chenie, 6 Watts dt S., 66. Ofer to Deliver — Duty to Store. An offer to deliver does not discharge the carrier. If the property be tendered and refused, the carrier should store them in a warehouse, with orders to deliver on payment of charges. The rule of delivery on wharf in case of carriage between maritime ports does not apply to internal commerce. DECISION VII. Bingham v. Rogers, 6 Watts & 8., 498. Limitation of Liability — Witness. It seems to be settled, though many learned judges have expressed their regret, that carriers by PEE80W8 AND PEOPEETT. 169 land may, by a special contract, limit their respon- sibility, tbougb not entirely tbrow it oflF, in case of gross negligence or fraud. The owner is not a witness to prove the loss of anything but baggage. DECISION Tin. Graff y. Bloomer, 9 Pa. State R, 114. Fwe before Delivery — lAdbiliiy — Place. The liability of a common carrier, as such, con- tinues until a delivery at the exact place of delivery according to the contract, and covers a loss by fire at an intermediate warehouse. DECISION rx. Porter et al. v. Hildehrand, 14 Pa. State R., 133. Baggage — Mechanic^ Tools — Jury. What is reasonable baggage is a question for the jury. Mechanics may carry a small and select por- tion of their tools as baggage. Baggage is not confined to clothing, but includes many other articles of comfort and convenience. 170 TKANSPOETATION OF DECISION X. Camden and Arriboy Railroad Co. y. Baldauf, 16 Pa. State R., 67. Baggage — Notice — Liability — Ordvna/ry Ca/re — Public Policy — Presumption — Ignorance — Mo- ney. The responsibility of a common carrier 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, and that the notice is brought home to the employer, and that he was fully informed of its terms and effect. But a common carrier cannot, even by a special agreement with the owner, relieve himself from the duty to take at least ordinary care of the baggage or other goods of a passenger. Such an agreement would be void as against the policy of the law. In case of loss, the presumption is against the car- rier, and he is liable unless he show a sufficient excuse. Such notice will not bind one who is ignorant of the language. Under the circumstances of this case, there was a recovery for specie as freight or baggage. PEES0N8 AND PEOPEKTY. 171 DECISION XI. Chouteaux v. Leech & Co., 18 Pa State R., 231. lAmiting Liability — Care of Injured Goods. Slight evidence is sufficient to set aside any provi- sion in a bill of lading, wMcli is intended to relieve a carrier from his ordinary responsibility. If goods get wet in consequence of accident, the carrier is bound to use some exertion to prevent the effects of the injury — as to open and dry furs. DECISION xn. New York and Erie Railroad Co. v. Skinner, 19 Pa. State R., 298. Cattle — Fences — Ohstruct/ions — I/lability. An owner of cattle may let them go at large in a woodland, or waste field. It is negligence to let them go elsewhere. A railway company is not bound to fence its track. Every obstruction of a railway, is unlawful, mis- chievous, and abatable at the cost of the author or owner of it, without regard to his ignorance or intention. An owner of cattle killed or injured on a railway, has no recourse to the company or its servants, but he is liable for the damage done by them to the company or the passengers. 1Y2 TEAJSrSPOETATIOIT OF DECISION xm. New Jersey Railroad Co. v. Kennard, 21 Pa. State S., 204. Perfect Oarriages — Provision against Dang&r. A carrier of goods is 'bound to provide a perfect carriage, to guard beforehand against every appar- ent danger, and to omit no precaution that may conduce to tlie safety of passengers. DECISION XIV. Ryan v. The, Cumberland Valley R. R. Co., 23 Pa. State R., 384. FeUow-Errvployes — Nbn-IdabiUty of JErrvploy&r. Where several persons are employed in the same general service, and one is injured from the careless- ness of another, the employer is not responsible. A laborer on a gravel train, is a fellow-servant with the engineer and conductor. DECISION XV. Pennsylvania Railroad Co. t. McCloshey^s AdmW, 23 Pa. State R., 532. Instructions — Contract — LiaMUty. It is not negligence for a passenger to obey spe- cific directions of a conductor, instead of general directions, of which he has been informed. PERSONS AND PEOPERTT. 173 No contract can exempt a railroad company from liability for gross negligence. DECISION XAa. The Little Schuylkill, etc., Railroad Co. v. Norton, 24 Pa. State R, 468. OhstrucUons — Injury — Consent. If a third person be injured while engaged in obstructing a railroad track, lie cannot recover; and tlie consent of an agent, or the superintendent, would make no difference. [The principle seems to be, want of authority in the agent ; and public policy making void the consent.] DECISION xvn. Clark et al. v. Needles, 25 Pa. State R, 338. Warehonsinff — LiabiUty. If goods be stored as an incident to their trans- portation, the carrier is hable as a cmrier for any loss, as by fire. If stored to await the orders of the owner, the carrier is liable for such loss, only as a wa/rehousemcm. 174 TRANSPOETATIOTJ" OF DECISION xvni. Sullivan v. The Philadelphia and Reading Railroad Co., 30 Pa. State R., 238. Contract of Carriage — Ca/rs — 8afegua/rds — Act of God — PresumpUons — Excuses. The contract for the carriage of a passenger, includes the passenger's consent to the carrier's reasonable rules ; also, the carrier's engagement to provide a safe road and staunch and road-worthy cars; to guard beforehand, against every apparent danger, and to perform the contract by tried, sober and competent men. In case of injury, the carrier is liable, unless he show that it resulted from inevitable accident, com- monly called the act of God ; or was caused by something against which no human prudence or foresight could provide. The presumptions of law are to be declared by the court, the repelling circumstances to be found by the jury. DECISION XIX. Goldey v. The Pennsylvania Railroad Co., 30 Pa. State R., 246. Contract against Lialility. A common carrier cannot relieve himself, by con- tract, from the duty to exercise ordinary care; the PEES0N8 AND PROPERTY. 1*75 most he can do is to relieve himself of the presump- tion of law, and require negligence to be proved. DECISION XX. Ranch V. Lhyd et al., 31 Pa. State B., 358. JResponsibility of Conchtdors and Errvploy&rs. From the beginning to the end of a trip, whatever the motive power employed, the conductor and nobody else is the responsible party, in possession of the train; and if one be injured through his misconduct or neglect, his employers are respon- sible. A child is held to exercise the discretion of a child, not the judgment of a man. [In this case, a train obstructed a highway — a child tried to creep under the cars and was injured, and the court held the employers of the conductor liable.] DECISION X2I. Verner et al. v. Sweitzer, 32 Pa. State R., 212. Private Carrier — Common Ca/rrier — Usage — He- sPricUon of Liability — Burden of Proof. A private carrier is bound to use ordinary care, that is, such care as every prudent man usually takes of his own affairs under like circumstances. A common carrier is bound to answer for every loss 1Y6 TEANSPOETATION OF wMcli is not occasioned by act of God or public enemy. One wlio undertakes to carry for all persons indif- ferently, is a common carrier. The usage of trade and business in particular localities, has much to do in fixing the liabilities of carriers. The implied liability of a common carrier may be reduced to the liability of a private carrier by express contract or general notice. But such notice must be brought home to the patron in such a man- ner that he cannot overlook it, without gross negh- gence. Putting the object of a check or ticket in large letters, and the restriction of the general liability in small letters, is not sufficient. In case of loss by private carrier, the presumption is against him, and he must show that he used ordinary diligence. DECISION xxn. The Pennsylvania Railroad Co. v. Kilgore, 32 Pa. State R., 292. Time to Alight — Women and Children. If a railroad train starts from a station before all the passengers to that place have had a convenient opportunity to alight, and any injury be caused by starting too soon, the company are liable. PERSONS AND PEOPKRTT. 177 More time and better opportunity are required for women and children, than for men. DECISION XXIII. Pennsylvania Railroad Co. v. Vandiver, 42 Pa. State R., 365. Corporation Liable for Assault, Lihel, etc. — SJx- pellmg Passenger. A corporation is liable, like a natural person, for wrongs done by its agents in the course of its busi- ness, and of their employment; as for libel, assault and battery, and the like. If unnecessary violence, or any malice or wanton- ness be used in putting off a passenger who has not paid his fare, the company will be liable for the injury which may be caused thereby. 12 1*78 TRANSPORT ATION OP CHAPTER XV. EAILWAY STATUTES OF NEW YORK — MISCELLA- NEOUS SECTIONS OF ESPECIAL IMPORTANCE. I. ACTS OF 1841, CHAP. 210. 1. Railboads common cabbiebs — setebal lines, liabil- ity. II. ACTS OF 1850, CHAP. 140. 2. Eight to take and cabby — motive foweb — compen- sation BEGULATIONS. 3. conductob and otheks must weab badge eefttsal to pay fabe, expulsion. 4. Accommodations — notice of teains — neglect — dam- ages. 5. Checking baggage — befusal — penalty — witness. 6. Fobmation of tbains — violation a misdemeanoe. 7. sign-boabds at ceossings. 8. Intoxication of engineeb ob conductob. 9. Injuby of bailboad, etc. — penalty. 10. Fences, gates and cattle-guabds — damages — psw- alty walking on teack. 11. Riding on platfoem — injuby. 12. Extension of act to all eailboads. ni. ACTS OF 1854, CHAP. 282. 13. Bell or whistle — failure to sound — pbnaltibs. PEJBSONS AND PROPEETT. 179 14. Fences, gates and cattle-guards — damages. 15. Sale of unclaimed freight. IT. ACTS OF 1855, CHAP. 499. 16. Stealing tickets — fobgeht of same — penalties. V. ACTS OF 1857, CHAP. 185. 17. Extortion of excessite fare — penalty. VI. ACTS OP 1851, CHAP. 228. 18. New York Central Railroad ticket offices. 19. Higher rate for not purchasing ticket. TIL ACTS OP 1851, CHAP. 440. 20. Sale of unclaimed freight ob baggage. Vin. ACTS OF 1851, CHAP. 410. 21. License to sell tickets — prohibition of unauthor- ized SALE — places of sale and prices of ticketb — penalties. rx. ACTS OF 1858, CHAP. 126. 22. Sleeping cabs — fare — tickets — liability of com- pany. X. ACTS OP 1863, CHAP. 346. 23. Railroad police — appointment and powers. I. ACTS OF 1847, CHAP. 270. 1. Bail/roads Common Carriers — Several Lines, lAcMlity. Any railroad company receiving freight for transportation, shall be entitled to the same rights, and be subject to the same liabilities as common 180 TEANSPOETATION OF carriers. Whenever two or more railroads are con- nected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of the said roads so con- nected, shall be liable as common carriers for the delivery of such freight at such place. In case any such company shall become liable to pay any sum by reason of the neglect or misconduct of any other company or companies, the company paying such sum may collect the same of the company or com- panies by reason of whose neglect or misconduct it became so liable. Sec. 9. [Revised Statutes, fifth edition, 1858, Part I, Chapter XVIII, Title XIII, page 681, et seq. 990.] II. ACTS OF 1850, CHAP. 140. 2, BigJit to Take and Ca/rry — Motwe Power — OompmsaUon — Regulations. Every corporation formed under this act, shall have power; Y. To take and convey persons and property on their railroad by the power or force of steam, or of animals, or by any mechanical power, and to receive compensation therefor. 9. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor; but such PERSONS AND PROPERTY. 181 compensation for any passenger and his ordinary- baggage, shall not exceed three cents per mile. Seo. 28. Section 33, provides that the legislature may reduce or alter the rate of freight, fare, etc., on such railroads; provided, that the same shall not be reduced below a profit of ten per cent per annum, upon the capital actually expended, without the consent of the corporation : nor unless it shall have been ascertained that the net annual income of the corporation exceeds ten per cent, per annum on the capital actually expended. 3. Conductor and others must wear Badge — Befur sal to Pay Fare — Expulsion. Every conductor, baggage master, engineer, brakeman or other servant of any railroad corpora- tion employed on a passenger train or in stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office, and the initial letters of the style of the corporation by which he is employed. No conductor or collector without such badge shall be entitled to demand or receive from any passenger, any fare or ticket, or exercise any of the powers of his office; and no officer or servant with- out such badge shall have authority to meddle or 182 TKANSPORTATION OF interfere with any passenger, his baggage or pro- perty. Seo. 30. If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling- house, as the conductor shall elect on stopping the train. Seo. 35. 4. Accommodations — Notice of Trains — Neglect — Damages. Every such corporation shall start and run their cars for the transportation of passengers and pro- perty, at regular times, to be fixed by public notice; and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, and the junctions of other railroads, and at usual stopping places established for receiving and dis- charging way passengers and freights for that train; and shall take, transport and discharge such passen- gers and property, at, from and to such places, on the due payment of freight or fare legally author- ized therefor; and shall be liable to the party PEES0N8 AND PROPEETY, 183 aggrieved, in an action for damages for any neglect or refusal in the premises. Sec. 36. 5 . Chechi/iig Baggage — Befusal — Penalty — Wit- ne&s. A clieck shall be affixed to every parcel of bag' gage, when taken for transportation by the agent or servant of such corporation, if there is a handle, loop or fixture so that the same can be attached upon the parcel so offered for transportation, and a duplicate thereof given to the passenger or person delivering the same on his behalf; and if such check be refused on demand, the corporation shall pay to such passenger the sum of ten dollars, to be recovered in a civil action ; and further, no fare or toll shall be collected or received from such passen- ger, and if such passenger shall have paid his fare, the same shall be refunded by the conductor in charge of the train ; and on producing said check, if his baggage shall not be delivered to him, he may himself be a witness in any suit brought by him, to prove the contents and value of said baggage. Seo, 37. 6. Formation of Trains — Violation of Act a Misdemeanor. In forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear 184 TEAWSPOETATION OF of the passenger cars; and if they or any of them shall be so placed, the officer or agent who so directed, or knowingly suffered such arrangement shall be deemed guilty of a misdemeanor and be punished accordingly. Seo. 38. Y. Sign-Boards at Crossings. Every such corporation shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained across each traveled public road or street where the same is crossed by the railroad on the same level; said boards shall be elevated so as not to obstruct the travel, and to be easily seen by travelers; and on each side of such boards, shall be painted in capital letters of at least the size of nine inches each, the words " Railroad crossing, look out for the cars." But this section shall not apply to streets in cities or villages, unless the corporation shall be required to put up such boards by the officers having charge of such streets. Sec. 40. 8. Intoodcation of Engineer or GondiLctor. If any person shall, while in charge of a locomo- tive engine running upon the railroad of any such corporation, or while acting as the conductor of a car or train of cars, on any such railroad, be intoxi- PERSONS AST) PEOPEETY. lg.S cated, he stall be deemed guilty of a misdemeanor. Sec. 41. 9. Injwy of Mail/road, etc. — ■ Penalty. If any person or persons sliaU willfully do, or cause to be done, any act or acts whatever, whereby any building, construction or work of any railroad corporation, or any engine, machine or structure, or any matter or thing appertaining to the same, shall be stopped, obstructed, impaired, weakened, injured or destroyed, the person or persons so offending shall be guilty of a misdemeanor, and shall forfeit and pay to the said corporation treble the amount of damages sustained by such offense. Sec. 42. 10. Fences^ Gates and Cattle- Gua/rds — Damages — Penalty — Walking on Track. Section 44, provides that railroads shall construct and maintain fences along the line of road, and gates and cattle-guards at necessary places. Corpo- rations shall be liable for damages to cattle, etc., when the injury results from negligence or willful- ness. Any person leading animals along the inclo^ sure formed by such fence without consent of corpo- ration, shall be liable to a penalty of ten dollars. It shall not be lawful for persons not employed on such railroad, to walk along the track thereof,, unless the same is laid along a public road. 186 TEANSPOETATIOIT OF 11. HiMng on Platform — Injmry. In case any passenger on any railroad shall be injured, while on the platform of a ear, or in any bag- gage, wood or freight ear, in violation of the printed regulations of the company posted up at the time in a conspicuous place, inside of its passenger cars then in the train, such company shall not be liable for the injury; provided said company at the time furnished room inside its passenger cars, sufficient for the proper accommodation of the passengers. Sec. 46. 12. Extmsion of Act to all Mailroads. All existing railroad corporations within this State, shall respectively have and possess all the powers and privileges contained in this act, and they shall be subject to all the duties, liabilities and pro- visions, not inconsistent with the provisions of their charter, contained in the foregoing sections 28, (except subdivision 9,) 30, 33, 35, 36, 37, 38, 40, 41, 42, 44 and 46, of this act Seo. 49. PERSONS AND PEOPBETY. 187 III. ACTS OF 1854, CHAP. 282. 13. Bell or W/mtle — failure to Sound — Penal- ties. Section Y, provides that every locomotive run on any railroad shall be provided with a bell or steam whistle, which shall be sounded eighty rods from the place where such railroad crosses any public road on the same level. Any corporation violating this provision is subject to a fine of twenty dollars. Engineers violating it are liable to a fine of fifty dollars or imprisonment in county jail not exceeding sixty days. 14. Fences — Gates and Cattle- Gttards — Damages. Section 8, provides that every railroad corpora- tion shall erect and maintain fbnces on the sides of their roads, with gates at farm crossings, and cattle- guards at all road crossings. So long as such fences and cattle-guards shall not be made, such corporation shall be liable for all damages to cattle, horses, sheep or hogs, which shall be done by the agents or ser- vants of such corporation: after such fences and cattle-guards are erected, such corporation shall not be liable for damages unless negligently or willfully done. A sufficient post and wire fence of the requi- site height shall be deemed a lawful fence, but no 188 TRANSPORTATION OF railroad corporation shall be required to erect fences, etc., where the same are not necessary to keep ani- mals from adjoining lands off the track of such railroad. 15. 8ale of Unclaimed Freight. Section 10, provides that freight which has remained unclaimed in the possession of the railroad company for one year, may be sold at auction upon a publication of four weeks before the time of sale, in the State newspaper, and in a newspaper pub- lished at or nearest the place at which such freight was to be left, and also at the place where such sale is to be made ; such notice shall contain a description of the freight, the place where and the time when left, with the name of the owner or consignee when known. Section 11, provides that perishable property may be sold at once, on giving the notice required in section 10. Section 12, provides that the balance of the proceeds of such sale (after paying charges and expenses,) shall be retained for the owner or con- signee of such freight, and refunded at any time within five years, on satisfactory proof of ownership. PEES0N8 AND PEOPEETT. 189 IV. ACTS OF 1855, CHAP. 499. 16. Stealing Tickets — Forgery of Same — Pen- alties. Every person who shall be convicted of stealing, taking and carrying away any railroad passenger ticket or tickets, prepared for sale to passengers, previous to or after the sale thereof, being the personal property of any railroad company, or of any other corporation or corporations, or of any person or persons, shall be adjudged guilty of grand or petit larceny as prescribed in the next following section. Sec. 1. If the price or prices authorized to be charged for such ticket or tickets on a sale thereof, shall exceed the sum of twenty-five dollars, such price or prices shall be deemed the value of such ticket or tickets, and the offense of stealing, taking and carrying away the same, shall be adjudged grand larceny, and the person convicted of the same, shall be imprisoned in a State prison for a term not exceed- ing five years ; but if such price or prices shall only amount to twenty-five dollars or under, the offense of stealing, taking and carrying away such ticket or tickets, shall be adjudged to be petit larceny, and the person convicted of the same shall be punished by imprisonment in the county jail not 190 TEANSPOETATION OP exceeding six montlis, or by a fine not exceeding one hundred dollars, or by both, such fine and im- prisonment. Sec. 2. Railroad passenger tickets of any railroad com- pany, as well before the same shall have been issued to its receivers or other agents for sale, as after, and whether indorsed by such receivers or other agents or not, are to be deemed railroad tickets within the meaning of this act. Sec. 3. Every person who shall be convicted of having forged, counterfeited or falsely altered any railroad ticket mentioned or referred to in either of the preceding sections of this act, or of having sold, exchanged or delivered for any consideration, any such forged or counterfeited railroad ticket, knowing the same to be forged or counterfeited, with intent to injure or defraud, or of having offered any such forged or counterfeited railroad ticket for sale, exchange or delivery for any consideration, with the like knowledge and intent, or of having received any such forged or counterfeited railroad ticket upon a sale, exchange or delivery for any considera- tion, with the like knowledge and intent, shall be adjudged guilty of forgery in the third degree, and shall be punished in like manner as prescribed by law in cases of conviction of forgery in the third degree. Sec. 4. PEKSOIT8 AND PEOFEETT. 191 Every person wlio shall have in, his possession any snch forged or connterfeited railroad ticket, as mentioned or referred to m the next preceding section, knowing the same to he forged, counter- feited or falsely altered, with intention to injure or defraud by uttering the same as true, or by causing the same to be uttered, or by the use of the same to procure a passage in the cars of the railroad company by which such ticket purports to have been issued, shall be subject to the punishment provided by law for forgery in the fourth degree. Seo. 5. Y. ACTS OF 1857, CHAP. 185. 17. JExtortion of Mccessive Fare — Penalty. Any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received by the party paying the same ; but it shall be lawful and not construed as extortion, for any railroad company to take ths legal rate of fare for one mile for any fractional distance less than a mile. Sec. 39. YI. ACTS OF 1857, CHAP. 228. 18. JV&w York Oenl/ral Railroad Ticket Officer. Section 1, provides that the New York Central Railroad Company shaU keep its ticket offices open 192 TEAirSPORTATTON OV at every station on its road for at least one hour previous to the starting of eacli passenger train from sucli station; provided, that such offices shall not be required to be kept open between the hours of nine o'clock p. m. and five o'clock a. m., except at Albany, Schenectady, Utica, Syracuse, Rochester, Buffalo and Suspension Bridge. 19. Higher Bate for not Purchasing Tickd. If any person shall, at any station where a ticket office is established and open, enter the cars of said company as a passenger thereon, without having first purchased a ticket for that purpose, it shall be lawful for said company to demand and receive from such person, a sum not exceeding five cents, in addition to the usual rate of fare for the distance such person may desire to be transported. Sec. 2. VII. ACTS OF 1857, CHAP. 4i0. 20, Sale of Unclaimed Freight or Baggage. Every railroad company which shall have had unclaimed freight or baggage, not perishable, in its possession for the period of at least one year, may proceed and sell the same at public auction, after giving notice to that effect in the State paper once a week for not less than four weeks, and for a like period in a newspaper other than the State paper, PERSONS AND PROPERTY. 193 published at tte place designated for the sale, and also in one published in the city of New York, (said notice shall contain as near as practicable, a descrip- tion of such freight or baggage, the place and time when left, together with the name of the owner of the freight or person to whom consigned, if the same be known.) All moneys arising from the sale of freight or baggage as aforesaid, after deducting therefrom charges and expenses for transportation, storage, advertising, commissions for selling the property, and the amount previously paid for the loss or non-delivery of freight or baggage, shall be deposited by the company making such sale, accom- panied with a report thereof, and proofs of adver- tisement, with the comptroller, for the benefit of the general fund of the State, and shall be held by him in trust for reclamation by the persons entitled, or who may become entitled to receive the same. No sale as herein provided, shall be valid unless a copy of the notice above specified, shall be served upon the comptroller for at least two weeks prior to the time designated for such sale. Sec. 3. In case such unclaimed freight or baggage shaU, in its nature, be perishable, then the same may be sold as soon as it may be, at the best terms that can be obtained. Sec. 4. 13 194 TEANSPOETATION OP VIII. ACTS OF 1857, CHAP. 470. 21. License to Sell Tickets — Prohibition of Un- authorized Sale — Places of Sale and Prices of Tickets — Penalties. No person other than the agents or employes of railroad, steamboat or steamship companies of this State, duly appointed for that purpose by a proper authority in writing, shall offer for sale or sell, within this State, any ticket or tickets, or any printed or written instrument issued by, or purport- ing to have been issued by any railroad, steamboat or steamship company in this State or elsewhere, for the transportation of any such passenger or passen- gers upon any such railroad, steamboat or steamship, or any instrument wholly or partly printed or written, delivered for the purpose or upon the pretense of the procurement to such passenger or passengers,, of any such ticket or tickets, or in any other manner, charge, take or receive any money as a consideration or price for such passage, or for the procurement of such passage ticket or tickets, and no ticket or tickets, or other evidence as afore- said, shall be sold or offered for sale by the said agents or employes, except at the offices designated for that purpose by the said companies respectively. PEESONS AND PEOPEETY. 195 and at prices not exceeding their regular established rates. Seo. 1. Section 3, provides that the violation of this act shall be punished by fine of not less than one hundred dollars, or by imprisonment of not less than three months, or by both. IX ACTS OF 1858, CHAP. 126. 22. Sleeping Ga/rs — Fcere — Tickets — Liability of Compamy. Any patentee of a sleeping car, or his legal representative, may place his car on any railroads of this StatCj with the assent of the companies own- ing the same. Such patentee, or his legal represent- ative, may charge for use of said car in all cases to each passenger occupying the same, forty cents, which sum shall entitle a passenger to the use of a berth for one hundred miles; and the said' patentee, or his legal representative, may charge at the rate of three mills for every additional mile, but in no case shall the charge exceed eighty cents. Seo. 1. The railroad companies permitting the use of such cars, shall, nevertheless, keep sufficient first class cars of other Idnds for the convenient use and occupation of all passengers not wishing to use a sleeping car. And the tickets issued for the use of sleeping cars, shall have plainly written or printed 196 TEANSPOETATION OF thereon, "sleeping car;" and all persons using a sleeping car, shall be furnished with such tickets. Sec. 2. No railroad corporation shall be interested in the additional sum paid for the use of berths in sleeping cars, pursuant to the provisions of this act. Sec. 3. Nothing in this act contained, shall be so con- strued as to exonerate any railroad company from the payment of damages for injuries in the same way and to the same extent, they would be required to do by law, if such cars were owned and provided by the company. Sec. 4. X. ACTS OF 1863, CHAP. 346. 2 3. Mail/road Police — Appointment and Powers. Any railroad corporation on which road steam is used as the motive power, may apply to the Gover- nor to commission such persons as the said corpo- ration may designate, to act as policemen for said corporation. Sec. 1. The Governor, upon such application, may appoint such persons, or so many of them as he may deem proper, to be such policemen, and shall issue to such person or persons so appointed, a com- mission to act as such policemen. Sec. 2, Every policeman so appointed shall, before enter- ing upon the duties of his officfe, take and subscribe PERSONS AND PEOPEETY. 19Y the oatli prescribed in the twelfth article of the constitution; such oath, with a copy of the com- mission, shall be filed with the Secretary of State, and a certificate thereof by said secretary be filed with the clerk of each county through or into which the railroad for which such policeman is appointed, may run, and in which it is intended the said police- men shall act; and such policemen shall severally possess aU the powers of policemen in the several towns, cities and villages in which they shall so be authorized to act as aforesaid. Sec. 3. Such railroad police shall, when on duty, severally wear a metallic shield, with the words " Eailway Police," and the name of the corporation for which appointed, inscribed thereon; and said shield shall always be worn in plain view, except when em- ployed as detectives. Sec. 4. 198 TEANSPOETATION OP CHAPTER XVI. DECISIONS OF THE SUPREME COURT OP NEW YORK, ON POINTS OP PRACTICAL INTEREST. 1. Deliteet of goods — PLAciNO IN STQBE. 15 Johns. R. 42. 2. Delitebt to cabbieb — notice. 6 Cow. R. 757. 3. PaSSENOEBS BAGGAGE EXCUSE FOR INJUBY HESTEICTION OP LIABILITY. 13 "Wend. R. 611. 4. Restricting liability — notice — agbee- MENT — INPOBMATION OF CONTENTS — compensation. 19 " 234. 5. Absence, death, refusal, oe neglect OF CONSIGNEE DUTY OP CABEIEE. 1 Denio R. 45. 6. Injuey OF WOEKMEN — LIABILITY OF CO. 4 Selden R. 17. 7. Caeeiage oteb setebal lines — liability FOE loss. 4 " 37. 8. AdTANOES LIEN MEASUBE OF DAM- AGES BILL of LADING. 5 " 559. 9. Resteiction of liability, notice, con- tract DUTY to cabby COMPENSA- TION. 1 Keman R. 485. 10. Specified time fob deliteey — tolun- TABY obligation DUTY IMPOSED BY law — ACT OF God. 2 " 99. PERSONS AND PROPERTY. 199 11. Delay without fault — unusual . . 143 Brakeman and conductor, .... 146 Burden of proof, ...... 147 Carrier, discharge of liability, . . . , 142 Commencement of liability, .... 142 OHIO DECISIONS. 253 Carrier, when liability begins, Carrier, refusal to receive. Conductor and engineer. Contract, restriction of liability, Condition of delivery. Common law. Cattle, inclosure o^ . Conductor and brakeman, Conductor, duty of, . Cattle — passengers. Conductor, injury of. Care, ordinary, . Cars, defective. Care in carriage of passengers. Care toward employes. Discharge of carrier's liability. Diligence, extraordinary, Defective cars, . 142 143 143 143 144 145, 146 145 146 148 148 148 149 150 151 151 142 143 150 Engineer and conductor. Employer and contractor. Election of train. Forwarding property. Fellow-workmen, injury, Fellow-servants, Fare, payment of, . Freight train — passengers. Inquiry, contents of baggage, Inclosure of cattle, Inclosure of track, . Injuries, wanton, malicious, Injury by contractor's fault. Liability, restriction of, . Lien — advances. . 143 147 . 150 142 143, 151 146, 150 . 150 150 . 141 145 . 145 146 . 147 141, 143, 147, 150 . 142 254 . INDEX TO FAGS Liability — master, servant, ..... 143 Liability, conductor, company, . . . .148 Misconduct of carrier, . . . . .143 Mutual negligence, ..... 149 Negligence, fellow-workmen, .... 143 Notice cannot restrict liability, .... 143 Negligence of carrier, ..... 143 Negligence of both parties, . . . 145, 149 Negligence, immediate, remote, .... 145 Negligence, contract, passengers, . . . 147 Proof, burden of, . . . . . 143, 147 Principal and agent, . . . . .146 Public policy, ...... 146 Passengers — cattle, ..... 148 Payment of fare, . . . . . .150 Eestricting liability, . . . 141, 143, 147, 150 Receipt of property, . . . .142 Refusal to receive for carriage, . . . .143 Servant, injury of, . . . . . . 143 Stock, carriage of, . . . . .150 Track, exclusive right to, . . . . . 445 Third persons, ...... 149 Train, election of, . . . . . , 150 Watch, baggage, ..... 141 Warehouseman, liability, ..... 142 Wife, witness, baggage, .... 143 Witness, loss of baggage, ..... 143 Workman, injury of, . . . . . 143 Warranty of agent's fidelity, . . . .146 PEimSXlVANIA STATUTES. 255 PENNSYLVANIA STATUTES. FAax Animals on track, ...... 154 Advertisement of sale, . . . . .161 Authority to sell tickets, . . . . .162 Carrier, unlawful disposal of property, . . . 155 Crossroads and causeways, ..... 156 Compensation, rates of, . . . . . 158 Carriers, lien of, . . . . • .161 Commission merchants, lien ofj . . . . 161 Consignee, notice to, . . . . .161 Consolidation of companies, . . . .162 Damages, crossings, causeways, . . . .156 Damages, three-fold, ..... 157 Fare and freight, rates of, . . • • .158 Frauds of ticket agents, . • ■ .162 Gunpowder, carriage of, . . • • • 1^* 158 153 Highway, public, , . . • • Injury of railroad, . • • • • Injuries, willful, .••••• Lien of carriers and others, . . • .161 157 161 161 Malicious injuries, . • • • • Non-payment, sale for, . . • • Notice for sale, .••••' Obstruction of railroad, . • • • ' -.f^^ Obstructing public streets, . • • ' ico Obstructing private road, . • • • ■ 256 INDEX TO Penalty for malicious injury, Penalty — animals on track, Public streets, obstructing, . Penalty, obstructing streets. Property, unlawful disposal of, Penalty for unlawful sale. Penalty for willful injuries, . Public highway. Private road, obstruction of. Penalties — ticket agents, Passenger, when may sell ticket. Railroad, injury or obstruction, . Eules and regulations. Rates of fare and freight. Remedy, summary, . Railways, consolidation of, FAGB 153 154 155 155, 160 155 155 157 158 160 162 162 153 158 158 160 162 Sa.e for non-payment, Sale of tickets, prohibition, 161 162 Track, animals on, . Ticket agents, frauds of. 154 162 PENNSYLVANIA DECISIONS. Act of God, loss by. Assault, corporation liable for. Baggage, loss of, witness, . Baggage, money, witness, Business hours, delivery in. Baggage, mechanics' tools, Baggage, liability for. Burden of proof. 174 177 167 167 168 169 170 170 PENNSYLVANIA DECISIONS. 257 Consignor, fraud o^ Charges, delivery on payment o^ Contract to limit liability, . Care of injured goods, Cattle, going at large, Cattle, injury o^ Cattle, damage by, . Contract of carriage. Carrier's duty, Conductor, responsibility of. Carelessness of conductor, . Child, care required o^ . Carrier, private, Common carrier, liability. Common carrier, who is. Children, time to alight. Corporation, liable for torts, Damages, measure of. Delivery to consignee. Delivery, time of. Delivery, offer o^ . Duty to store. Delivery on payment. Delivery, place of) Danger, provision against, . Expulsion, unnecessary violence. False marking. Fraud in marking, Fire, loss by, Fencing railroad. Fellow-employes, injury ofj . Ignorance of language, . Injured goods, care of, Injury of fellow-workman, 17 PASS 167 168 168 171 171 171 171 174 174 175 175 175 175 175 176 176 177 166 . 168 168 . 168 168 . 168 169 172, 174 177 . 167 167 169, 173 171 . 172 170 . 171 172 258 INDEX TO Jewelry, false mark, Jury, questions for, Loss of baggage, witness, . Loss by fraud of consignor. Liability, limitation o^ Limitation of liability. Liability for loss by fire , Liability, restriction of . Loss by act of God, Libel, corporation liable for, Money, loss of. Non-transportation, measure of Notice to limit liability, Negligence, liability for gross. Negligence, proof of. Offer to deliver, . Owner, witness. Obstruction of railroad, . Personal delivery, . Public policy, Proof, burden of, Provision against danger. Passenger, directions to. Passenger, contract to carry, Private carrier, Public enemy, loss by, . Eefusal to carry, damages, . Eeiusal to receive, Eestricting liability, Railroad, inclosure of. Railroad, obstruction o:^ Rules and regulations, . Restriction in small letters, . 168, 170, PAOK , 167 168 ,169 . 167 167 168 , 170 . 168 , 170 1 . 169 172, 174 , 176 174 , 176 ■ 177 • 167 . 166 170 176 . 172 • 174 168 ( . 168 171, 173 , , 168 170 , , 170 17.2 . 172 174 . 175, 176 175 , , 166 168 171, 172, 174 171 . 171 174 , , 176 NEW YOKK STATtTTES. 259 Storage, duty of, . Storage, loss by fire, Third persons, injury of, Time to alight, . Torts, liability for, . Usage of trade, . Value, information o^ Vehicles, perfect, Violence, unnecessary. Witness, loss of baggage, Witness, when owner is. Women and children, time to alight. 168 173 173 176 177 176 167 172 177 167 168 176 NEW YORK STATUTES. Accommodations, extent of, . Animals on track. Act extended to all roads, . Badges, who must wear, Baggage-master, badge, Baggage — check for, . Bell or whistle, failure to sound, Carriers, railroads are, . Connecting roads, . Common line. Compensation, rates of, Conductor must wear badge, Checking baggage, . Crossings, sign-boards at. Conductor, intoxication of, . Cattle-guards, gates and fences, . 182 185 . 186 181, 197 . 181 183 . 187 179 . 180 180 . 180 181 . 183 184 . 184 185. 187 260 INDEX TO FAes Duty to take, carry and deliver, . . .182 Damages by neglect, . . . . .182 Damage, penalties' for, ..... 185 Expulsion for refusal to pay, . . . ,182 Engineer, intoxication of, . . , .184 Extension of act to all roads, . . . .. 186 Extortion, penalty for, . . . , . 191 Fare, authority to collect, . . . .. 181 Fare, refusal to pay, expulsion, . . . .182 Freight or fare, payment of, .... 182 Formation of trains, ..... 183 Fences, gates and cattle-guards, . . , 185, 187 Freight, unclaimed, sale of, . . . . 188, 192 Forgery of tickets, . . . . .189 Fare, excessive, forfeiture, . . . . .191 Fare, not buying ticket, . . . . 192 Gates, cattle-guards and fences, . . . 185, 187 Intoxication of conductor or engineer, . . .184 Injury of railroad, . . . . .185 Injury, riding on platform, ..... 186 Liability, sleeping cars, . . . . .195 License to sell tickets, . . . . .194 Motive power, . . . . . ,180 Notice of trains, etc., . . . . .182 Neglect of company, damages, .... 182 New York Central ticket offices, . . . .191 Penalty for not checking baggage, . . . 183 Penalty for injuring road, ..... 185 Persons on railroad track, . . . . 185 NEW YORK STATUTES. 261 Penalty for walking on track, Platform, riding on. Penalty, bell, -whistle, Property, unclaimed. Penalties, larceny or forgery of tickets, Penalty for extortion, Price of tickets. Penalty, violation of ticket act, . Police for railroads, . KaUroads common carriers, Right to take and carry, Rules and Regulations, . Rates of compensation. Reasonable time, Railroad, injury of, . Riding on platform. Railroads, act extended to. Railroad police, . Several lines, liability. Sign-boards at crossing, . Sale of unclaimed property, Stealing tickets, Sale of tickets, . Sleeping cars, Trains, formation of, Track, persons or animals on, Tickets, larceny or forgery of, . Ticket offices, N. Y. C. R. R. Ticket, higher fare for not buying. Tickets, license to sell, Tickets, prices of, Usual places, Unclaimed property, . PAOX , 185 186 , 18V 188, 192 . 189 191 , 194 194 196 179, 180 180 180 180, 181 182 , 185 186 , 186 196 179 184 188 192 , 189 194 ' 195 183 , 185 , 189 , 191 , 192 , 194 194 , 195 182 188, 192 262 INDEX TO Violation of ticket act, PASS 194 Witness, contents, value, baggage, Whistle or bell, failure to sound, 183 187 NEW YOKK DECISIONS. Agreement restricting liability, . Absence of consignee. Advances, lien, damages, Action, who may bring. Accommodations, extent of, Animals, carriage of. Baggage, liability for. Bill of lading. Bell, duty to ring. Consignee, delivery or tender to. Carrier, receipt of goods by. Contents, information of. Compensation, measure of. Consignee, absence, death or refusal of, Carrier and warehouseman, Consignee, right of, Concealed defects. Care required of carrier. Cattle on imfenced track, Carriage of animals, Common line. Carriage over other lines. Conductor, willful act of, Delivery of goods, . Duty to carry, . 201, 204 . 202 , 203 . , 203 , 205 • 207 200 , 203 • 207 199 , 200 , 201 201 204 , 202 202 207 , 203 , 206 . 206 , 206 207 , 209 - , 209 • 210 199 , 200 201 , 204 NEW TOEK DECISIONS. 263 Death of consignee, Damages, advances, lien. Delivery, time for, . Duties imposed by law, . Defects concealed, . Damages, live stock, Duty to use improvements, . Delivery to second carrier, PASS 202 203 204 204 206 20Y 211 211 Excuses for delay, . Expulsion for not showing ticket, Evidence of contract. Employes' fault, injury by. Fences, cattle on track. Fire, loss by, . Fellow-employes, Gratuitous carriage, Injury of passenger. Information of contents. Injury of workmen. Improvements, duty to use. Lien, advances, damage. Lading, bill of, . Liability for employes' fault, Master and servant, Notice, limiting liability. Negligence, what is gross, Owner, accompanying property. Other lines of railway, . . 205 208 . 210 210 . 206 207 209, 210 208 . 200 201 . 202 210 . 203 203 . 210 210 200, 204 208 . 201 209 264 INDEX TO PAGE Passengers, injury of, .... . 200 Presumption of law, . . . , .201 Penalty for not ringing bell, . . . .207 Passenger riding free, . . . . .208 Receipt of goods by carrier, .... 200 Restricting liability, .... 200, 201, 204 Refusal of consignee, . . . . .201 Railways, several lines, ..... 203 Ringing bell, penalty, ..... 207 Storage of goods, . . . . . 199 Storing goods, duty of, . . . . .202 Several lines, ...... 203 Stock, damage to, . . . . . .207 Superiors and equals, ..... 209 Subsequent carrier, delivery to, . . . .211 Time for delivery, .... 204, 205 Tests, duty to apply, . . . - .206 Tickets, duty to show, ..... 208 Ticket a token, not a contract, . . . .209 Voluntary obligations, . . . . .204 "Warehousemen and carriers, . . . 202, 207 "Workmen, injury o^ . . . . . 202 UNITED STATES DECISIONS. Act of God, ...... 213 Agent of owner, consignee, . . . . 213 Agents, qualification o^ . . . . .213 Bona fide purchaser, . . . . .213 Bill of lading, indorsement o^ . . . .213 UNITED STATES DECISIONS. 265 Burden of proof, Bill of lading, . Consignee, agent of owner, . Consideration, purchase for. Carrier of goods. Carrier of passengers, Conduct of passenger. Corporation liable for libel, Consignee, refusal of. Carrier, liability of, Diligence required, . Disobedience bj agent, . Discipline, necessity of. Enemy, public. Expense of storage, Evidence of condition of property, . Excuses for loss, Pare, payment of, . Freight, delivery in parcels, Past days, delivery on, God, act of, . Gross negligence, what is, . Hohdays, delivery on, . Indorsement of bill of lading, Insurer, how far carrier is. Lading, bill of, . Libel, corporation liable for, Losses, nature of property, . Liability of carrier, PAQB 213, 217 217 . 213 213 213 213, 214 . 213 216 . 217 217 . 213 214 . 214 . 213 216 . 217 217 . 214 216 . 217 213 . 214 217 213 213 . 213 216 . 217 217 266 INDEX TO APPENDIX. Master and servant, Notice of adverse interest, Notice to receive property, . Non-acceptance, storage. Nature of property, losses from. Purchaser, bona fide, Public enemy, damage by, . Proo^ burden ol^ Passenger, conduct of. Payment of fare, Public policy. Property, delivery in parcels. Property, storage o:^ Presumption in case of loss, PA6E 214 213 . 216 217 . 217 213 . 213 213, 217 . 213 214 . 214 216 . 216 217 Respondeat, superior, Receipt in good order, . Servants, qualifications of, . Skill required of carrier, Stockholder, carriage of. Security for freight. Storage of property, "Workmen, qualifications of, "Warrantor, how far carrier is. 214 217 213 214 214 216 216 213 213 APPENDIX. Contract to restrict liability. Contractor's fault, injury by, Consignee, notice to, Carriers and warehousemen. Constitutional — fenciug act is, . 219 220 220 220 221 INDEX TO APPENDIX. 267 PAOI Delivery, notice, . . . . . .220 Damages, mitigation o^ . . . . . 220 Expulsion for non-payment, . . . .220 Fare, expulsion for non-payment, . . . 220 Fencing act constitutional, . . . . .221 Injury, by contractor's fault, . . . . 220 Liability, restriction of, . . . . .219 Liability for contractor's fault, . . , . 220 Notice to consignee, . . . . .220 Restricting liability, . . .219 "Warehouseman, when carrier becomes, . . 220 KF 2289 B71 Author Vol. Bonney, Charles Car roll Title Kules of law for the c^ ?^ni!'?^ ^ delivery of persons f^'-^nr r ^'^"'-• ^ h