j3^ QJnrnrll ICam ^rlyonl Sjibtaty KF 1091.888""""'"""^'-"'""^ The elements of the law of bailments and Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018926604 \%^-^^^ c^c^bte.^^^, 9V ■ BANKS BROTHERS, New York. Albany. 1896. Copyright 1896, BY BANKS & BROTHERS. TO CALIPH OMAR. Omar, who burned (if thou didst burn) The Alexandrian tomes, I would erect to thee an urn Beneath Sophia's domes. Would that thy exemplary torch Might bravely blaze again. And many manufactories scorch Of book-inditing men ! Especially I'd have thee choke Law libraries in sheep, With fire derived from ancient Coke, And sink in ashes deep. Destroy the sheep — don't save my own - I weary of the cram, The misplaced diligence I've shown — Bat kindly spare my Lamb. And spare, oh, spare this suppliant book Against a time of need ; Hide it away in humble nook To serve for legal seed. The man who writes but hundred pages Where thousands went before. Deserves the thanks of weary gages, And Omar should adore. PREFACE The tradition that the Caliph Omar burned the Alex- andrian library has probably no historical foundation, but if he did burn it, he undoubtedly burned a great deal of tedious and useless stuff. For some years, and especially since I have become a librarian, there has been stealing over me a feeling that if some modern Omar would burn up all the law books, he would do the world a good seir- vice. Their numbers, and especially the repetitions of them, have grown to be an incubus upon the legal pro- fession. Although I have had a guilty hand in editing, compiling and writing more than two hundred of them, I would gladly add them to Omar's pile, on the condition that all others went up in smoke. It is probably true that the legal profession were wiser and abler a century ago, and that causes were better argued and better decided, ' when there were very few law books, than now when there are fifty thousand, and when the genius that establishes principles yields to the industry that hunts for cases and wins by virtue of the last one. Although I have taken blame to myself, as above set forth, yet I may honestly claim that in one 'view I am not entirely blameworthy, for I have tried to do something to reduce the bulk of law books, by compressing the sub- stance of many into a few pages. Of this effort I am not wholly ashamed, and if Omar were in a good-natured mood on his arrival, I should ask him to spare my little manuals on Domestic Relations, Sales, Criminal Law and Parol, Evidence, and a number of similar essays by other authors, on the ground that they do not take up too much room either physically or mentally, and leave some play VI PREFACE. for thought. These may be regarded as attempts at codi- fication. The present manual is of this class. Designed primarily for students and instructors, it may possibly appeal to the busy and over-burdened lawyer, who is always in a hurry, and who desires to ascertain the rules and principles rather than to chase the developments of them through all their windings and into all their little recesses. This book con- tains the meat of more than a score of text-books, and is furnished with citations to the leading and the most re- cent adjudications, and endeavors to keep pace with the novelties of the branch of the law in questions. It is not intended to supersede, but to accompany and to aid — as a kind of tender to the big and slow hulks which are so slow to arrive because they carry so much weight I believe I have here stated all that it is essential for a lawyer to know — certainly all that it is discreet for a beginner to attempt to acquire — of the matters in discussion. It might easily have been made three times as large, but I have studiously kept in view the possible reappearance of Omar, and kept it small. Contrary to the custom of law writers in their prefaces, I am not aware of any faults in it ; if I were I should endeavor to correct them. But I dare say there are faults in it, and if so I shall beg that in- dulgence which is always due to the writer who has done his best and is not too proud to own his fallibility. IRVING BROWNE. Buffalo, January 1, 1896. CONTENTS, Definitions CHAPTER I. PAGE. 1-5 CHAPTER II. TDeposit - - - - - D 1/ CHAPTER III. Mandate or Commission - " 18-20 CHAPTER IV. Loan - - " 21-25 CHAPTER V. Pledge 26-37 CHAPTER VI. Hire for Personal Use " " " 38-44 CHAPTER VII. Keeping or Storage - - - - 45-56 CHAPTER VIII. Hiring for Labor or Services ... 57-72 CHAPTER IX. Innkeepers ... 73-90 CHAPTER X. Common Carriers — who are- ... 91-94 CHAPTER XI. Common Carriers of Goods — obligation to receitb goods — WHEN IT attaches - - - 95-104 CHAPTER XII. Common Carriers op Goods — contract op carriage, ex- press OR IMPLIED - - - - 105-122 CHAPTER XIII. Common Carriers of Goods — duties in transportation 123-129 VIIL CONTENTS. CHAPTER XIV. PAGE. Common Cakriers op Goods — delivekt - - - 130-143 CHAPTER XV. Common Carriers of Goods — lien for freight '- 144^148 CHAPTER XVI. Common Carriers of Passengers — obligation to carry, and who are passengers - - 149-152 CHAPTER XVII. Common Carriers of, Passengers — duty of carrier as TO his vehicles, roadway and appliances 153-156 CHAPTER XVIII. Common Carriers of Passengers — contract, express or implied TICKETS CONNECTING CARRIERS - - 157-164 CHAPTER XIX. Common Carriers of Passengers- — duty' toward pass- enger PERSONALLY - 165-175 CHAPTER XX. Common Carriers of Passengers — duty and liability of passenger 176-165 CHAPTER XXI. Common Carriers of Passengers — baggage and other PROPERTY r - - 186-194 CHAPTER XXII. Common Carriers — presumptions and burden op proof — REMEDIES — damages — CONFLICT OF LAWS - - 195-207 TABLE OF GASES. A. PAGE. Abraham v. Nunn 2S Acheson v. N. Y., etc 129 Adams v. Clem 78 Adams V. Lancashire Ry. Co 183 Adams V.N.J. St. Co 189 AdLams Express Co. v. Darnell 106,135, 136 Adams Express (Jo. v. Harris 122, 146 Adams Express Co, v. Nock 97, 122 Adams Express Co. v. Stettaners 120 Mtrm Insurance Go. v. Alton City Barjk 69, 70 ^tna Insurance Co. v. Wheeler 117 Agnew V. Steamer Contra Costa , 112 Ainsworth v. Bowen 30 Akersloob v. Second Ave, R. Co 167 Alabama, etc., R. Co. v. Carroll 207 Alabama, etc , R. Co. v. Kidd 53 Alair V. Northern Pac. R. Co 119 Albin V. Presley 85 Alden v. Carver 147 Alden v. N. Y. C. R. Co 155 Aldrich v. Boston, etc., R Co 50 Alexandria, etc., R. Co. v. Burke 32, 35 Allen V. Dykers ' 34 Allen V. Merchants' Bank 59, 69, 70, 71 Allen V. Sackrider 91 Allen V. Smith 75 Allen V. Williams 66 Ailing V. B. &A. R. Co 187, 188, 190 American Cent. Co. v. Cross 187 American Ex. Co. v. Haggard 131 American Ex. Co. v. Haire..... 71 American Ex. Co. v. Hockett ; 130 American Ex, Co. v. Second Nat. Bank.... 114 American Ex. Co. v. Smith Ill, 126, 128, 124 X TABLE OF CASES. PAGB. American St. Co. v. Bryan 189 Ames V. Jordan 39 Ames V. Palmer 144 Amesy. Union Ry. Co ._ 200 Andrewsv. Capitol, etc.,R. Co 182 Angus V. Dicker^on 38 Annas v. Milwaukee, etc., R. Co 162, 163 Arcade Hotel Co. v. Wiatt 74 Arctic Fire Insurance Co. v. Austin 93 Armistead v. Wilde 86 Armour V. M. C. R. Co 102 Arnold V. Illinois Cent. R. Co 164 Arnold v., Pennsylvania R. Co 178 Atchison, etc., R. Co. v. Cochran 159 Atchison, etc., R. Co. v. Gants 178, 179 Atchison, etc., Ry. Co. v. Roach 191 Atchison, etc., R. Co. v. Shean , 174 Atchison, etc., R. Co. v. Weber 169 Atkinson v. Sellers ; 75 Atlas Bank V. Doyle 35, 36 Atlantic Express Co. v. Wilmington, etc, R. Co 96 Atwater v. Sawyer 79 Atwood V. Reliance T. Co 118 Aubery v. Fiske 62 Audenreid V. Philadelphia, etc., R. Co 95 Auerbach v. N. Y. Central, etc., R. Co 160 Avinger v. S. C. Ry. Co 100 Ayrault v. Pacific Bank 59 Ayres v. Chicago, etc., R. Co 203 B. B. & L. R. Co. V. Proctor 160 Baltimore & 0. R. Co. v. Campbell 191, 192 Baltimore & 0. R. Co. v. Harris 164 Baltimore & 0. R. Co. v. Worthington 158 Babcock V. Herbert 92 Babcock V. Lake Shore, etc., R. Co* 122 Backhouse v. Sneed 123 Badlam V. Tucker 27, 31 Baehr v. Clark 24 Baetjer v. La Compagnie ^ 206 Bailey V. Adams , 61 Bailey v. Bensley 3 TABLE OF CASES. XI PAGE. Bailey V. Colby 41 Bailey V. Damon 14& Bailey V. H. R. R. Co 143 Baker v. Drake 28, 32 Baldwin v. American Ex. Co 130 Baldwin V. Bank of Louisiana 70 Baldwin V. Liverpool, etc., S. Co 104, 118, 146 Ball V. Liney 53 Ball V. Stanley 30 Ballentine v. North. Mo. R. Co 98, 107 Ballon V. Earle 119, 121 Baltimore, etc., Insurance Co. v. Dalrymple 32 Baltimore & Ohio R. Co. v. O'Donnell , 128 Baltimore & Ohio R. Co. v. "Wilkens 102 Baltimore, etc., R. Co. v. Kemp 201 Baltimore, etc., Ry. Co. v. Meyers 183 Baltimore & P. R. Co. v. Swann 168 Baltimore, etc., R. Co. v. Sulphur Springs, etc.. District 108 Baltimore, etc., R. Co. v. State 182 Baltimore, etc., S. Co. v. Brown 117 Baltimore S. P. Co. v. Smith 200 Bamberg V. S. C, etc., R. Co 112 Bancroft v. Merch. D. T. Co 122, 137 Bank v. Cummings 70 Bank v. Zent 10 Bank of Batavia v. N. Y., etc., R. Co 102 Bank of Kentucky v. Adams Ex. Co 199 Bank of Lindsborg v. Ober 70 Bank of LouisvilUe v. First Nat. Bank 69, 70 Bank of Metropolis v. N. E. Bank 28 Bank of Old Dominion v. Dubuque, etc., R. Co 33 Bank of Oswego v. Doyle 53 Bank of Rutland v. "Woodruff 32 Bank of Utica v. Smedes 59 Bank of "Water Valley v. So. Ex. Co 129 Bansemer V. Toledo, etc., R. Co 127, 130 Barber v. Abendioth 55 Bardwell V. M. & 0. R. Co 181 Baring v. Corrie 66 Barker v. Roberts 3, 4 Barker V. Schooner 146 Barnard V. Koffe 66 Barney v. Burstenbinder 97 Xll TABLE OF CASES. PAGE. Barrett v. Black 55 Barrett v. Market St., etc., R. Co. 167 Barron v. Eldredge 103 Barry V. Longmore 56 Barry v. Oyster Bay, etc., Co 166 Bartlett v. Camley 145 Bartlett V. Johnson ,. 34 Barton v. St. Louis, etc.,'R. Co 184 Bartram.v. McKee 146 Bass V. Chicago, etc., R. Co. , 168 Bass V. Pierce 48 Bassett v. Spofford 144, 200 Bates V. Stanton 54, 62 Baxendale v. East. Counties R. Co 100 Beach v. Raritan, etc., R. Co 40 Beard V. Illinois Central R. Co, 111,123, 196 Beardslee V. Richardson 12, 20 Belden v. Perkins 34 Belger v. Dinsmore 92, 104 Bellerv. Block 64 Beller v Schultz 23 Benbow v. N. C. R. Co 130 Bendetson v. French 78, 89 Bennett V. American Express Co 101, 103, 113, 139 Bennett Y. Byram 128 Bennett v. Filyaw 114 Bennett v. N. Y. Cent. R. Co 160 Bennett v. O'Brien 21 Benny v. Rhodes ^... 65 Berg V. Atchison, etc., R. Co 96 Bergheim v. Gt. E. Ry. Co 189 Berkshire Woolen Co. V. Proctor 75,76, 86 Berry v. Cooper 197 Betterton v. Roope...i 35 Bickford v. Met. S. Co 147 Biddle v. Bond 54, 61 Bigelow V. Heaton 147 Binns v. Pigot 76 Bird V. Cromwell 124 Birge v. Wanhop 43 Birney V. N. Y., etc., Tel. Co 93 Bissel V. Price 146 Bissell V. N. Y. C. R. Co 162 TABLE OF CASES. XlU PAGE. ^issell V. Pearce 48 Black V. Goodrich Tr. Co 162 Black V. "Wabash, etc., R. Co 120 Black V. Wilmington, etc., R. Co 102 Blackmar v. Thomas...., 65 Blackstock v. N. Y. C, etc., R. Co 128 Blackwell v. Wiswali 39 Blair v. Erie Ry. Co 151 Blake v. Burlington, etc., Ry. Co 182 Blakemore v. Bristol, etc., R. Co 25 Blandv. So. P.R. Co.. 177, 180 Bland v. Womack 19 Blin V. Mayo 52, 55 Bliven V, H. R. R. Co 16, 54, 62, 113, 139 Block V. Fitchburg, etc., R. Co 116 Blood V. Palmer 64 Blossom V. Dodd 120, 191 Blossom V. Griiffin 103 Blower V. Gt. W. Ry. Co 112 Blumantle v. Fitchburg R. Co 187,188, 190 Blumenthal V. Brainerd 106, 107, 131, 133 Blythe v. Denver, etc., Co 1 107 Bodwell y. Bragg 87 Boggs v. Martin 146 Boies V. Hartford & N. H. R. Co 52 Bomar v. Maxwell 190 Bonce v. Dubuque St. Ry. Co 92 Boson V. Sandford 79, 100 Bostwick V. Baltimore, etc., R. Co 121 Bovee V. Town of Danville 203 Bowling V. Arthur , 70 Bowman v. Hilton 145 Bowman V. Teall 23,92,107, 128 Bowman v. Wood , 32 Boyce v. Anderson 112 Boynton v. Payrow 26,27, 32 Bradford v. Railroad 114,116, 127 Bradley v. Cunningham , 46 Bradley v. Spofiford 16 Bradley v. Waterhouse 108 Bradshaw v. S. B. R. Co 176 Bradstreet v. Everson ' 68 .Brahur v. Adkins 56 Xiv TABLE OF CASES. PAGB.. Brandon v. Scott. 16> Branley V. Southeastern Ry. Co 100 Brashear V. Houston, etc., E. Co 174 Brennan V. Fairhaven, etc., R. Co 150 Bretz V. Diehl 4 Brewer v. N. Y., etc., R. Co 151 Brewster v. Warner •...• 43 Bricker v. Philadelphia, etc., R. Co 150 Briddonv. Gt. N. R. Co 128 Briggs V. Boston, etc., R. Co 145, 147 British, etc.. Insurance Co. v. Gulf, etc., Ry. Co 122 Britt V. Aylett 43 Brittan v. Barnaby 147 Britton v. Atlanta, etc., Co 168, 172 Broadwood V. Granara 90 Brock V. Gale 187, 202 Bronnenburg v. Charman , 12 Brooke v. N. Y., etc., R. Co 102 Brown v. Adams Express Co 197 Brown v. Billington 4 Brown v. Chicago, etc., R. Co 204 Brown v. East. R. Co 193 Brown y. Hitchcock 3, 4 Brown v. N. Y. C. R. Co 154 Brown v. Runals 34 Brown y. Schock ; 61 Brown y. Warren 27 Browning v. Goodrich Tr. Co 196 Brunswick, etc.. Trans. Co. v. Tiers 103 Bryan y. Baldwin 32, 33 Bryant y. Rich 171 Bryce v. Brooks 66 Bryson y. Raynor 30, 33 Buck y. PennsylvaniEj, R. Co 119 Buckland y. Adams Express Co 92, 106 Bullard y. Billings 34 Bunnell y. Stern 6, 46 Burbank y. Illinois Central R. Co 166 Burch V. Baltimore, etc., R. Co 178 Burdict y. Murray 30 Burgess y. Clements 85 Burgess y. Gun 145 Burk V. Dempster 5, 6, 12 TABLE OF CASES. XV PAGE. Burniiam v. Grand Trunin Ry. Co 164, 177 Burnell V. N. Y. Cent. R. Co 194 Burrell v. North 101 Burrouglis v. Norwich, etc., R. Co 114, 115 Burrows V. Trieber 80, 84, 86 Burt V. Douglas, etc., Ry. Co 155 Burtis V. Buffalo, etc., R. Co 114 Burton v. Wilkinson 16, 53, 62 Bush V. Cole 63 Butler V. Railroad Co 134, 203 Butterfield v. Lathrop 3 Buttman V. Dennett 6 C. Cailiff V. Danvers 51 Cairns v. Robins 61 Calye's case 12, 82, 85 €aldwellv. Hall 15 Caldwell V. N. J. St. Co 154 Caldwell V. So. Ex. Co Ill Caldwell v. Tutt 49 Oamden, etc., R. Co. v. Baldauf 120 Camden, etc., Co. v. Burke 123 Camden, etc., R. Co. v. Forsyth 122 Camden, etc., R. Co. v. Hoosey 182 Candee v. Pennsylvania R. Co 159 Canfield V. Baltimore, etc., R. Co 127 Cantwell V. Pacific Express Co. 128 Capehart v. Seaboard, etc., R. Co 118 Car Co. V. Lowe 12 Carlisle v. Wallace :... 58 ■Carpenter v. Branch 21 Carpenter v. N. Y. C, etc., R. Co 189, 190, 196 Carroll V. Missouri Ry. Co 162 Carroll v. S. I. R. Co 151 Carston V. Northern Pacific R. Co 205 Carter v. Hobbs 74 Carter v. Peck 159 Cartwright v. Chicago, etc., R Co 174 Cartwright v. Wilmerding 27 Case V. Allen 48 Casey v. Cavaroc 26 Cashill V. Wright 82 XVI TABLE OF CASES. PAGE.. Cashman v. Root 2S-_ Cecil V. Preuch 47 Cent., etc., Co. v. Georgia, etc., Exch 128 Cent., etc., Co. v. Kent 109 Cent. Lith., etc., Co. v. Moore 4, 47, 58 Cent. R. V. Combs 191 Cent. R. & B. Co. v. Lampley 93 Cent. R. &B. Co. v. Letcher 180 Cent. Ry. Co. v. Peacock 172 Chafeev. Postal Teleg. Co 38 Chamberlain v. Masterson 11 Champion V. Bostwick 116, 159 Chandler v. Belden 146 Chapman v. Brooks 36 Chapman V. Turner 34 Charleston V. London, etc., R. Co 172^ Chase v.. Washburn 49 Chattahooche National Bank v. Schley 8, 9 Chattanooga, etc., R. Co. v. Lyon 205 Cheesman v. Exall..., , 54, 141 Cheney V. B. & M. R. Co 161 Cherokee Packet Co. v. Hilson 166 Chevallier V. Straham , 91, HO- Chicago & A. R. Co. v. Arnol 175 Chicago & A. R. Co. V. Michie 184 Chicago & Alton R. Co. v. Shea 103' Chicago, B. & Q. R. Co. v. Mehlsack 185 Chicago, etc., R. Co. v. Boyce 187, 194 Chicago, etc., R. Co. v. Chapman 119 Chicago, etc., R. Co. v. Dawson 98 Chicago, etc., R. Co. V. Erickson 95 Chicago, etc., R. Co. V. Fahey 191 Chicago, etc., R. Co. V. Flexman 171 Chicago, etc., R. Co. .v. Mehlsack 150 Chicago, etc., R. Co. v. Moss 197 Chicago, etc., R. Co. V. People 96, 100 Chicago, etc., R. Co. v. Pillsbury 171 Chicago, etc., R. Co. v. Pondrom 184 Chicago, etc., R. Co. v^ Randolph 181 Chicago, etc., R. Co. V. Sawyer 107, 139 Chicago, etc., R. Co. v. Thompso^ 104 Chicago, etc., R. Co. v. Wallace 96 Chicago, etc., R. Co. v. Witty 121 TABLE OF CASES. XVU PAGE. Chicago & N. W. Ry. Co. v. Williams 168 China Mutual Insurance Co. v. Force 206 ChoUette V. Omaha, etc., R. Co 159 Chouteau v. Allen °^ Chouteau V. I,eech 91> 124 Christenson V. American Express Co. 92 Churchill V. Chicago, etc., R. Co 161 Cincinnati, etc., R. Co. v. Carper 151 Cincinnati, etc., R. Co. v. Cole 179 Cincinnati, etc., R. Co. V. Cooper 170 Cincinnati, etc., R. Co. v. Eaton 203 Cincinnati, etc., R. Co. v. McCool 51 Cincinnati, etc., R. Co. v. Pontius 191 Citizens' Bank v. Howell 69 Citizens' Bank v. Nantucket Steamboat Co , 92 Citizens' Nat. Bank v. Hooper 30 City Bank v. Babco'ck 32 City of Chicago v. Hulbert 37 City of St. Louis v. Siegrist 74 Claflin V. Meyer...., 44, 50, 51 Clapp V. Nelson 23 Clark V. Barnwell 123 Clark V. Burnsi 73, 188 Clark V. Earnshaw 45, 58 Clark V. U. S 38 Clark V. Wilmington, etc., R. Co 176 Clarke V. Rochester, etc., R. Co 112 Clemson v. Davidson 145 Cleveland, etc., R. Co. v. Closser 98 Cleveland, etc., R. Co. v. Ketcham 151 Clute V. Wiggins ' 80, 84 Clyde V. Hubbard 115 Coal Co. V. Richter !. 12 Cobb V. Gt. W. R. Co 172 Cobban v. Downe 55 Coffin V. Henshaw 16 Coger V. N. W., etc., Co 168 Coggs V. Bernard 7, 18, 21, 22, 29, 30, 38, 41, 91, 106, 107 Cohen v. Frost 188 Cohen v. Hunn 101 Coit V. Humbert 36 Cole V. Goodwin 104, 118, 119, 149 Cplegrove v. N. Y., etc., R. Co 182 XVlll TABLE OF CASES. PAGE. Coleman v. Shelton 29 Collier V.Valentine,. 108 Collius V. Bennett 16 Collins V. Burns 53 Collins V. Lofftiis 24 Collins V. Railroad Co 190 Colt V. McMechen 23, 106, 107 Colyar v. Taylor 16 Com. V. B. & M. R 181 Com. V. Power 79 Com. V. Schultz 179 Combs V. Tuchelt.. 26 Comrs. V. Liueberger 72 Commercial Bank v. Martin 28 Commercial Bank of Selma v. Hurt 65 Concord, etc., R. Co. v. Porsaith , 98 Conditv. Grand Trunk R. Co 109, 128 Condon v. Marquette, etc., R. Co 137 Cougar V. Chicago, etc., R. Co 113 Conger v. H. R. R. Co 128 Conner v. Winton 13, 18, 19 Connolly V. Railroad Co 170 Connolly V. Warren 187 Connor v. Citizen St. Ry. Co 181 Conrad V. Atlantic Insurance Co 28, 66 Conrad v. Fisher 27, 55 Conradt v. Clauve 47 Constable v. National S. Co 126, 137, 138, 119 Converse V. Norwich, etc., R. Co 116 Conway V. Lewis 66 Conwell V. Smith 1, 61 Conyngham's Appeal 34 Cook V. Chicago, etc., Ry. Co 98 Cookv. Holt 17, 53, 62 Cook V. Kane 89 Cooley V. Perrine 66 Cooper V. Ray 31 Cooper V. Simpson 28, 32 Copeland V. Draper 44 Cortelyou v. Lansing 31, 34 Coskery V. Nagle 77 Costello V. TenEyck 48 Coudran V. Chic, etc., Ry. Co 185 TABLE OF CASES. XIX PAGE. Coup V. Wabash, etc., Ry. Co p 96 Coupd Co. V. Maddick 40 Coupland v. Housatonic R. Co j 112 Covington Stock Yards Co. v. Keith 112 Coward V. EastT., etc., R. Co 187, 191 Cowden V. Pac. Coast St. Co 100 Cowing V. Snow 30 Cowles V. Pointer 51 Cox V. O'Riley 55 Craig V. Childress 106 Creamer v. West End S. R. Co 165, 175 Creed V. Penn. R. Co 150 Croaker v. Chic, etc., R. Co 171 Crocker v. Gullifer 44 Crocker v. Monrose 28 Crommelin v. N. Y. & H. R. Co 145 Cromwell v. Stephens 73 Cronkite v. Wells 101 Croom V. Chic, etc., R. Co 169 Crosby ;r. Pitch... 92, 107, 109, 125 Cross V. Andrews 82 Cross V. Lake S., etc., R. Co 165 Cross V. O'Donnell 95 Crouch V. L- & N. W. Ry. Co 97 Cullen V. Lord 25, 40, 44 Cumberland v. Peunell 72 Cumins v. Wood 23, 44, 52, 61 Cumnock v. Newburyport Sav. Inst 30 Curling y. Long 145 Curtis V, Del., etc, Ry. Co 186 Curtis V. Murphy 74, 79 Cushman v. Hayes 32 Cutler V. Bonney ■ 81 Cutts V. Brainerd 117 Daggett V. Shaw ; 106 Dahlbergv. Minn., etc., Ry. Co 184 Dale V. See 58 Daly V. Butchers', etc.. Bank 69 Davis V. Garrett 23, 125 Davis V. Gay 7, 12, 47 Davis V. Kansas Cy. etc., R. Co 168 Davis V. Kobe 65, 66 Davis V. Mich., etc, R. Co 187 XX TABLE OF CASES. r.voK.. Davis V. N. Y., etc., R. Co 207 Davis V. Wabash, etc., R. Co 198 Davfsori v. Chamney 81, 82 Da-wsoii V. Real Estate Bank 56 Day V. Ridley 200 Daylight Burner Co. v. Odlin 135 Dean v. Driggs 102 Dean v. Keate 38 Dean v. Vaccaro 137, 138 De Fonclear v. Shottenkirk 14 De Kay v. Chic, etc., R. Co .152, 174 Del., etc., R. Co. v. Trautwein 165, 175 De Lisle v. Priestman 32 Demingv. Gd. T. Ry. Co 202 Denew v. Daverell , 59 Dennis V. Huyck 49, 52 Denny v. N. Y. Cent. R. Co 108, 127 Denton v. Chicago, etc., R. Co 51 Deshler v. Beers 65 De Tolleuere v. Fuller 38, 39 Detroit v. Port Wayne, etc., R. Co 167 Devereux v. Barclay 53 Devereux v. Buckley 127 De Voin V. Mich. Lumber Co ,. 39 Dewey v. Bowman 27 Dewire v. Boston, etc., R. Co 182 Dexter v. Syracuse, etc., R. Co 186 Dias V. Chickering 65 Dice V. Willamette, etc., Co 173, 175 Dicker^on v. Rogers 73, 74 Dickerson v. Wason 68 Dickinson v. Cruise , 43 Dickinson v. Winchester 77 Dietrich V. Penn. R. Co 161 Diller v. Brubaker 32 Dillingham v. Anthony 170 Dirigo Tool Co. v. WoodruflF. 26 Dixon V. Chic, etc, R. Co 96 Dixon V. Richmond, etc., R. Co 196 Dixon V. Yates 54 Dodge V. Bartol 123 Dodge V. Boston &B. S. S. Co 152, 155 Dodge V. Myer 64 TABLE OP CASES. XXI PAGE. Dole V Olmstead : 50 Domestic, etc., Co. v. Watters 90 Donald y. Suckling 31 Donovan V. Hartford St. R. Co 165 Doolittle V. Shaw 40 Doorman v. Jenkins 19 Dorchester, etc., Bank v. New England Bank 69 Dorr V. N. J. S. Nav. Co 118, 119 Doss V. Mo. etc., R. Co 166, 181 Doty V. Strong 97, 100, 122 D6ugherty V. Mo. R. Co 195 Dowdv. Chic, etc., R. Co 166 Downs V. N. Y. C. R. Co 176 Dows V. Nat. Ex. Bank 27 Doyle V. Chic, etc, R. Co; 195 Drake v. Dartmouth 175 Drapery. Rice 66 Drovers' Nat. Bank v. Anglo-American, etc., Co 59 Ducker v. Barnett 52 Dudley v. Camden, etc, F. Co 189 Duff V. Alleghany R. Co 151 Duffiev. Matthewson 171 Dufolt V.Gorman 146 Dufour V. Mepham 53 Dugan V. Sprague , 32 Dun V. Seaboard, etc., R. Co 184 Dunbar V. Boston, etc., R. Corp 143 Dunbier v. Day 84, 86 Duncan v. Brennaii 28 Dunham v. Boston, etc., R. Co 127 Dunlap V. Gleason .' 5, 44 Dunn V. Branner 12 Dunseth v. Wade 199 Durgin v. Am. Ex. Co 119 Dwight V. Brewster 91 Dwinelle v. N, Y. C. R. Co 170 Dyer v. Gr. T. Ry. Co 146 E. Eagle V. White 136 Eagle Packet Co. v. De Fries 175, 195 East Haddam Bank v. Scovil 69 Easton v. Clark 65 XXll TABLE OF CASES. PAGE. Eastman V. Patterson 47 Eastman v. Sanborn o 21, 39 East Tenn., etc., R. Co. v. Johnston 124 EastTenn., etc., R. Co. v. Kane 173 East Tenn. R. Co. v. Kelly 136 East Tenn. R. Co. v. Rogers 114 Eaton V. Del., etc., R. Co 150 Eaton V. Lynde 60 Eddy V. Livingston - 12, 18 Edson V. Weston 12, 53 Edwards V. Lake S., etc., Ry. Co 160 Edwards v. Sherratt ;. 97 Edwards v. White Line Tr. Co 113, 139 Elcox V. Hill 87, 88 ' Elliott V. Newport S. R. Co 182 Elliott V. Rossell 124 Ellsworth V. Tartt 116 Elmore v. Naugatuck R. Co 114, 115 Elmore v. Sands 160 Empire Trans. Co. v. Wallace 126, 129 Empire Trans. Co. v. Wamsutta Oil Co 121 English V. Del., etc., Co 179 Erie Ry.Co. v. Wilcox... 96, 113, 118, 121 Eppendorf V. Brooklyn, etc., R. Co 181 Epps V. Hinds 84 Esmay v. Fanning 21 Evans v. EitchburgR. Co 112 Evans V. Mason 40 Evans v. Memphis, etc., R. Co 167. Evans v. Ry. Co 206 Everettv. Coffin 146, 147 Everett v. Saltus 146, 147 Everett v. So. Ex. Co .' 104 Everhart v. Terre Haute, etc., R. Co 150 Evershed v. London, etc., Ry. Co 100 Ewart V. Street 124 Ewing V. French 3 Exchange Nat. Bank v. Third Nat. Bank 71 Ex. Co. V. Caldwell 118 Express Co. v. Greenhalgh 141 Express Co. v. Kountze Bros 125 Ex-parte Benson 98 Ex-parte Plessy 168 TABLE OF CASES. XXlll PAGB. F. & M Bank v Champlain T. Co 96 Fabens v Mercantile Bank 69 Fairbanks v. Sargent 36 Fairfax v N. Y. C, etc., R. Co 194 Farber V. Mo. P. R. Co 171 Farish&Co. V. Reigle 155, 195 Farkas V. Powell 39, 40 Farlow v. Kelley 184 Farmers and Mechanics' Bank V. Champlain Trans Co 133, 138 Farnham v, Camden, etc., R. Co 198 Farrant V. Barnes 97 Farwellv. Imp. Trad. Bank 36, 68 Faucett v.. Nichols 87 Faulkner v. Hart 136 Fay V. Gray 31 Fay V. Pac. Imp. Co 73, 75, 81, 87 Fearn V. West. J. F. Co, ; 156, 199 Feital V. Middlesex R. Co 195 Felder v. Columbia, etc., R. Co 191 Fennell v. McGowan ; 27 Fenner V. Railroad Co 134 Fergussonv. Brent 106, 124 Field V. Brackett 23 FieldingsV. Mills 61 Fifth Nat. Bank v. Providence Warehouse Co 53 Filer V. N. Y. C. R. Co 181 Finn v. W. R. C(? 200 Finucane v. Small 45 First Nat. Bank V Graham 8, 9, 56 First Nat. Bank v.. Marietta, etc., R. Co 189 First Nat. Bank v. Nelson.; 26 First Nat. Bank v. O'Connell 35 First Nat. Bank v. Rex 8 First Nat. Bank v. Sprague 69 First Nat. Bank of Batavia v. Ege 66 First Nat. Bank of Elgin v. Schween 64 Fish V. Chapman 91, 92, 95, 104, 118, 122 Fish V. Clark 91 Fisher v. Clisbee 189 Pisher v. Cobb 17 Fisher v. Kyle 43 Fisk V. Newton 130, 137 Pitch V. Newberry 95, 144 XXIV TABLE OF C^.SES. PAGE. Fitchburg R. Co. v. Gage 100 Fitzgerald v. Adams Ex. Co , 96 Fitzgerald v Blocher 33 Fitzgerald v. Grand Trun6 Ry. Co 98 Flanigan v. Crull 64 Fletcher v. Dickinson 33 Fletcher V. Howard 26 Flint V. Bell 47 Flint, etc., R. Co. v. Weir 186, 201 Florida S. R. Co. v. Hirst . 151 Flower V. Penn. R. Co 152 Flowers v. Sproule 31, 34 Fluker V. Georgia, etc., Co 166 Fonseca V. Cunard S. Co 163 Forster v. Fuller 59. Forth V. Simpson, 49 Forward v. Pittard 103, 106, 107, 124 Fosdick V. Greene ; 24 Foss V. Boston, etc., R. Co 169 Foster V. Cleveland, etc., R. Co 205 Foster v Essex Bank 7, 8, 9, 15, 16 B'oster V. Pettibone 3,4, 57 Fowle V. Ward 37 Fowler v. Lock 44 Pox V. Young 39 Francis v. Cockrell , 154, 156 Francis V. Dubuque, etc., R. Co 135 Francis v. St. Louis T. Co 204 Fredericks V. North. C. R. Co 173 Freeman v. Detroit, etc., R. Co 163 Friend v. Woods 107 Frizzell V. Rundle & Co 63 Frost V. Plumb 43 Frothingham v. Jenkins 145 Fuller V. Bradley 148 Fuller V. Coates 85, 87 G. Gage V. Morse 138 Gay V Moss '. 30, 82 Galena, etc., R. Co. v. Rae 101, 127, 144 Gallin V. L. & N. W. R. Co 162 Gait V. Adams Ex. Co 121 TABLE OF CASES. XXV PAGB. (a-alveston, etc., R. Co v. Donahoe 172 Gardner V. N. H., etc., Co 151 Garlick v. James 27 Gartoii V. B. & E. R. Co.... 101 Gashweiler V. Wabash, etc., R. Co 131 Gass V. N. Y., etc., E. Co.... 104 Gee V. Met. Ry. Co 183 Geismer v. Lake Shore, etc., R. Co 107, 110, 128 Georgia, etc., R. Co. v. Asmore 180 Georgia, etc., R. Co. v. Eisken 204 'Georgia, etc., R. Co. v. Eskew 176 Georgia Railroad v. Haydon 205 Georgia R. Co. v. McCurdy 181 Georgia Nat. Bank v. Henderson 59 Gerber v. Monie 62 German Nat. Bank v. Burns 59, 71 Germania F. Ins. Co. v. Memphis, etc., R. Co 119 Germantown, etc., Ry. Co. v. Walling 182 Germantown Pass. Co. v. Brophy 184 Geron v. Geron 29, 30 Gibbon v. Paynton 103 Gibbons v.Farwell 113, 139, 140 Giblin v. McMullen 8 Gibson v. Culver 130, 138 Gibson v. Inglis 55 Gilbert V. Hoffman 79 Giles V. Fauutleroy 78, 86 Gillett V. Mawman 59 Gilliam V. So. R. Co 172 Gillinghamv. Ohio R. R. Co 171, 172 Gilmer V. Morris 34, 37 Gilmore y. Carman 107 Gilpin V. Howell... 30 Gilson V. Gwinn 144 Gilson V. Martin 29 Gleason v. Beers 59 Gleason V. Goodrich Trans. Co 186, 188 Glenn v. Jackson 77 Glover V. Burbidge 15 Goldsmidt v. Worthington M. E. Church 32 Goodall v. Richardson....... 35 Goodloe V. Memphis, etc., R. Co 171 Goodrich v. Thompson 68, 125 XXVI TABLE OF CASES. PAGE. Goodsell V. Taylor 92 Goodwin V. Bait., etc., R. Co 139 Goociwiii V. Mass., etc., Co 28 Gordon v. Hutchinson 92 Gore V. Norwich, etc., T. Co 188 Gorham Manufacturing Company v. Fargo. 103 Gould V. Hill 118 Grace v. Adams 119, 120 Graeflfv. Phila., etc, R. Co 173 Graham v. Davis & Co 119, 197 Grand Rapids, etc., Railroad Company v. Huntley 155 Grant V. Ludlow's Adm'rs 22 Grant v.Norway 102 Graves V. Hartford, etc., S..Co 131, 133 Graves V. Smith i 17, 68 Graves v. Ticknor 18 Graville V. Manhattan R. Co 182 Gray v. Jackson 114 Gray v. Merriam... 11 Great "Western Railway C6. v. Blake 153, 159 Green v. Boston, etc., R. Co 203 Green v. Hollingsworth 21, 28 Greggv. 111. Cent. R. Co 147 Griggs V. Day 35 Griggsby v. Chappell 93 Grinnell v. Cook 60, 76, 77, 89, 90 Griswi Id v. Railroad Co 161 Griswold v. Taylor 43 Grossman v. Dodd 193 Grosvenor v. N. Y C. R. Co 101 Guelich v. National St. Bank 69 Guillaume v. Hamburg, etc., Co 121, 143 Gulf C. & San Francisco Railroad Company v. Campbell 185 Gulf," etc., Railroad Company v. Daniels 164 Gulf, etc.. Railroad Company v. Levi 106, 110, 111, 128 Gulf, etc., Railroad Company v. Looney 160 Gulf, etc., Railway Company v. McGown 161 Gulf, etc., Railway Company v. Trawick 112 Gulf, etc., Railroad Company V. Wilson 151 H. Hadd V. U. S., etc., Ex. Co 120 Hadley v. Baxendale 202 TABLE OF GASES. XXVll PAOE. Hadley y, Clark 128 Hadley v. Cross 44 Hadley v, Upshau 86 Hagebush v. Ragland 21 Haggerty V. Flint, etc., R. Co 177 Haines V. Chic, etc., R. Co 187 Hale V. Barrett 145, 148 Hale V. Gd, Trunk E. Co...: 166 Hall V Corcoran...... • 43 Hall V. Pike , ,„.., 75 Halljday V. Holgate , 31 Halliday v. St, Loujg, etc,, R. Co... 122 Halty V. M^rkel, ,,, 47 Halyard v, Declielman 60 Harnilton v. Elstner ,...,,,,,,..,,.., 51 Hamilton y, State Bank ....,.,,,...,.,., 32 Hamlin v. Gft. N, R, Co 158 Hammond v. McClures , 147 Hammond V. K E, R, Co 151 H^ncb V. Ripley , 48 Hancock V. Rand..., 12, 75 Handy. Bayneg..., , 109, 125, 200 H^ndford v. Palmer , , 38 H^nna V. HpUon , 35 Hanna v. Phelps ,,...,,. 60 Hansen V. Flint, etc., R, Co.. 117 Hanson V- European, etc., Ry, Co .,,, 171 Hanson V. Mansfield, etc,, Co 150 Hardegg v, Wjllards „ ..,,, 65 Hardenbergh V. St. Pattl, etc., R. Co 168, 178 Hardman v. Willcock.,,,, ,„ 53, 141 Harker v. Dement , 141 Harper Bros, v. Railroad Co 199 Harrington v. Snyder 42 Harris v. Gt. W. Ry, Co 193 Harris V. Hannibal, etc., R. Co 183 Harris v. Howe 158,159, 160 Harris v. Moody 123 Harris v. Nicholas , 42 Harris v. Rand 107 126 Hart V. Rens., etc., R. Co 117 Hart V. Skinner , 39 Hart V. Ten Eyck 30 32 XXVIH TABLE OF CASES. PAGE. Harter v. Blanchard 17 Hartop V. Hoare 14 Harvey V. Conn. R. Co 97, 100, 122, 202 Harvey V. Epes 40 Harvey v. Merrill 68 Harvey V. Rose 92, 93, 189 Hastings v. Pepper .,., 124 Hatchett V. Gibson 50, 55 Hawkins V. Front St. C. R. Co 182, 199 Hawkins v. Hoffman 201 Hawley V. Kansas, etc., Co 100 Hawley v. Screven 114, 191 Hawley v. Smith 85 Hayes v. Wells, Fargo Co 95, 104, 143 Haynie v. Waring 12, 18 Hays v. Millar 93 Head v. Geo. etc., Ry. Co 177 Healey v. Gray ,. 76 Hegeman v. West. R. Corp 154 Heinlein V. Boston, etc.,- R. Co 166 Heirn V. McCaughan 149, 205 Hemphill V. Cheney ; 55 Henderson V. Stevenson 192, 193 Hendricks v. The Morning Star 126 Hensel v. Noble 60 Hermann V. Goodrich 131 Herring v. Skaggs 66 Hershberger v. Lynch 39 Hibernia Bldg. Assn. v. McGrath 12, 18 Hickey v. Morrell 50 Hickman v. Thomas 76 Hickoxv. Naugatuck R. Co 103 Higgins V. Cent., etc., R. Co 207 Higgiiis V. Moore 66 Higgins V. Watervliet T.Co 178 Highland Av. & B, R. Co. v Burt 175 Highland Av. & B. R. Co. v. Donovan 182 Higley v. Gilmer 150 Hill V. Denver, etc., R. Co 144 Hillv. Finnegan .' 33 Hill V. Humphreys 136 Hill V. Leadbetter 146 Hill V. Owen ■. 84 TABLE OP CASES. XXIX PAGE. Hill V. Syracuse, etc., R. Co 120 Hilliard v. Richardson..,. 39 Hill M. Co. V. B. & L. R. Co 131, 133 Billyard v. Crabtree 61 Hilton V. Adams 8^ Hilton V. Vanderbilt 66 Hoadley V. North Trans. Co 127 Hoar V. Me. Cent. R. Co 151 Hobbs V. London, etc., Ry. Co e 203 Hodges V. Hurd 20 'Hoeger v. Chic, etc., Ry. Co 187, 194 Hoffbauer v. Delhi, etc., R. Co 177, 180 Hoffman v. Carow »•••• 63 Holbrook V. Utica, etc., R.Co 184 Holbrook V. Wright 52, 54, 61 Holder v. Soulby 11> 73 H'olderness v. Collinson 56 Holladay v. Kennard Ill Hollins V. Fowler 63 HoUister V. Nowlen 149 Honeyman v. Oregon, etc., R. Co 187 ,Hoodv. N. Y.,'etc.,R.Co , 159 Hooper V. Chic, etc, R.Co 137, 200 Hooper V.Wells, Fargo & Co , 67, 106 Hoover v. Wise 69 Home V. Meakin 44 Home V. Midland Ry. Co.. 202 Hot Springs R. v. Trippe 117 Houser v. Tully 84 Houston, etc., R. Co. v. Adams 143 Houston, etc., R. Co. v. Clemmons 182 Houston, etc, Ry. Co. v. Hill 204 Houston, etc., Ry. Co. v. Leslie 181 Houston, etc., R. Co. v. Moore 150 Houston, etc., R. Co. v. Smith 100 Houton V. Holliday 29 Howard V. Babcock 21 Howe Machine Co. v. Pease 85 Howard v. Steamship Co 180, 143 Howell V. Jackson 79 Howth V. Franklin 73, 81, 84 Hubbell V. Blandy 16 Hulett V. Swift 80, 81 XXX TABLE OF CASES. PAGB, Hull V. Chic, etc., R. Co 19&- Humphreys v. Perry..., ,...,., 190 Hungood V. Tons of Coal 138 Hunsaker v. Sturgis , 29 Hunt V. Haskell 139, 14f$ Hurst V. Gt. W. R. Co , 158 Hussey v. The Saragossa 197 Hutton V. Arr^ett.... , 30 Hyatt ■7. Taylor 88 Hyde V. Planter's Bank. 70 Hyland v. Paul 23 I. I. & G, N. Ry. Co. Y. Polliard 183 111. Cent. R. Co. v. Copeland 187 111. Cent. R. Co. v. FranTjenberg Il4 111. Cent. R. Co. v. Green... 183 111. Cent. R. Co, v. Handy 189 111. Cent. R. Co. V. Minor 172 111. Cent. R, Co. V. Mitchell 137 111. Cent. R, Co. v. Read 161, 163 111, Cent. R. Co. v. Slatton 180 Indiana Cent. Ry, Co. v. Hudelspn 165 Indiana Cent, R, Co. v. Mundy 161 Indianapolis, etc., R. Co. v. Allen 119 Indianapolis, etc., R. Co. v. Birney 204 Indianapolis, etc.', R. Co. v. Pitzer 178 Ingalls V. Bills..... , 44, 154 Ingallsbee v. Wood 76 Ingledew V. North. R. Co 203 Insurance Company v. Railroad Co 116 International, etc.. Railroad Company v. Cock 151 International G. N. Ry. Co. v. Hassell 178 International, etc., R. Co. v. McRae... 124 International, etc., Ry. Co. v. Prince 151 International Ry. Co. v. Terry. 204 International, etc., R. Co. v. Wilkes 176 Irish V. No. Pac. R. Co 181 Iron Railway Company V. Mowery 181, 195 Irons V. Kentner 4, 50 Irvin V. Nashville, etc., R. Co 116 Isaacson v. N. Y. C. R. Co 191 Isham V. Post.., 19, 59 TABLE CF CASES. XXXI J. PAOB. Jackson V. R. Co • 132 Jackson v. Robinson • 38 Jackson v. Rogers < • 100 Jackson v. Union Bank .'. *...« 69 Jacobs V. Tutt - 190 Jacobus V. St. Paul, etc., R. Co 161, 182 Jacquet V. His Creditors 26 Jalie V. Cardinal •■•■<< • 75 James' Appeal * .....>< — i.>i 28 Jameson v. Livingston > i.k..> 19 Jarvis v. Rogers ^ >...•••■ .«..i>i...,... >><. .i a.n 11 Jeflersonville R. Co. v. White 53 Jenkins v. Bacon n. •.>... a. >■•.. 17 Jenkins V. Motlow •.... 18, 91 Jennings y. Reynolds .......<..... 11 Jerome v. McCarter .;....... 27 Jerome v. Smith i 176 Jewell V. Chic, etc., Ry. Co » 180 Jewett V. Olsen 118, 139 Jewett V. Warren > 27 Johns V. Charlotte, etc., R. Co .>.., 174 Johnson V. Ala., etc., R. Co 121, 124 Johnson v. Concord R. Co 161 Johnson V. Louisville, etc., R. Co 179 Johnson v. Midland R. Co 98 Johnson v. N. Y. Cent. R. Co 125, 126 Johnson'v. N. Y. Cent. Trans. Co 124 Johnson V. Pensacola, etc., R. Co 10 Johnson v. Reynolds 12, 75 Johnson v. Richardson , 81, 85, 87 Johnson & Miller v. Buck 64 Johnston V. Whittemore 43 Joliet Iron Company v. Scioto F. B. Co 35 Jones V. Gilmore 127 Jones V. Hatchett 51 Jones V. Hawkins 36 Jones V. Kemp 4, 50 Jones V. McNeil 30 Jones V. Morgan ; 50 Jones v. Thurmond 34 XXXll TABLE OF OASES. PAGE. Jones V. Witter 36- Jordan v. Fall River R. Co * 187 Jordon V. Railroad Co 190 Joslin V. Grand Rapids Ice Co 39 Jourdan V. Reed 12 Judson V. West. R. Co 113 K. Kalamazoo, etc., Company v. Sootsman ,., 167 Kansas City, etc., Railroad Company v. Higdon 187 Kansas City, etc., Railroad Company v. Morrison 187 Kansas City, etc., Railway Company v. Riley..... 17ft Kansas City, etc.. Railroad Company v. Rodebaugh... 163, 191 Kansas Pacific Railway Company v. Nichols 112, 122 Keeleyv. B. & M. R. Co ." , 160 Kellogg V. Sweeney 86, 87 Kelly V. Manhattan R. Co 175 Kelton V. Taylor : 59' Kemp V. Farlow 22" Kendall V. London, etc., Ry. Co 112" Kentv. B. &A. R. Co 163 Kentv. Midland R. Co.... 114 Kentv. Shuckard 86 Kentucky, etc., Bridge Company v. Louisville, etc., R. Co.. ..93, 98- Kentucky, etc., Railroad Company v. Thomas' Admr 182' Kessler v. N. Y., etc., R. Co ■. 16(h Ketchum V. Am., etc., Ex. Co 197 Kettell V. Wiggin 12ft Kettle V. Bromsall 15, 19^ Keyserv. Harbeck 144 KifF V. Old C, etc., Ry. Co 139- Killmer v. N, Y. Cent., etc., R. Co 99, 101 Kimball V. Rutland, etc., R. Co 122 Kincheloe v. Priest 20, 61 King V. G-reen 34 King v. N. Y. Cent. R. Co 172 King V. Richards .' 54, 144 Kinney V. Cent. R. Co 161 Kinney v. Kruse 35 Kinsley V. L. S. etc., Ry. Co.. 189 Kirkland V. Dinsmore 119, 120 Kissam v. Jones 44 Kisten V. Hildebrand 73, 81 TABLE OF CASES. XXXIU PAGE. Kitchell V. Vandar 30 Klauber V. Am. Ex. Co 123 Knapp V. Curtis 51 Knowles V. Atlantic, etc., R. Co : 12,13, 136 Knowlton V. Erie Ry. Co 163 Knox V. Rives 91, 96 Kohnv. Packard 130,131,137, 138 Kohn V. Richmond, etc., R. Co 141, 142 Kowing V. Manley 17 Krudler V. Ellison '. 200 ' . L. Ladue V. Griffith 127 Lafayette & I. R. Co. v. Sims 183 Laffrey v. Grummond 194 Lafitte V. N. 0. Cy. etc., R. Co 170 Lake v. Greenaugh 90 Lake Erie, etc., Ry. Co. v. Fix 176 Lake Shore, etc., R. Co. v. Brown 101 Lake Shore, etc., Ry. Co. V. Foster 102, 186 Lake Shore, etc., Ry. Co. v. Pierce 177 Lake Shore, etc., Ry. Co. v. Salzman 169 Laingv. Colder ,,. 118, 191 Laird V. Eichold 81, 83 Lamb v. Camden, etc., R. Co 198 Lamberton v. Windom 35 Lambeth V. N. C. R. Co 181 La Motte v. Archer 61 Lampley v. Scott 12, 18 Lancaster Co. Nat. Bank v. Smith 9 Lancaster Mills v. Merch. C. P. Co 50, 199 Lane v. Cotton 19 Lane v. Old Col. Railroad 145 Laugher v. Pointer 39 Laughlin v. Railway 196, 201 Lawrence v. Green , 195 Lawrence V. Howard 11, 77 Lawrence v. McGregor 125 Lawrence V. Maxwell 28, 30 Lawrence v. Stonington Bk , 69 Lawrence v. Winona, etc., R. Co 137 Lawson V. Chic, etc., Ry. Co 151, 163 Leach v. French...,...., , 39 XXXiV l*AflLE OF ClASHSi PAGE. Le Bawoti v. E. B. P. Oo ii......*..iiii.. 156 Lebeau v. Gen. 8. N. Oo 104 Le Blanche v. LoHddli, etc., Ry. Go ;... 303 Leek V. Maestaei* < i.... 58 Ledyard V. HibbaM 4, 50 Lee V. Saltet 147 Letnoii V. Chanslor : 92^ 150 Lemont v. Wash., etc., R. Co 169 Lenoi v. U. S. liiS. Oo 12.^ LeOnatd V. Hendricbson 106 Leonard v. N. Y., etc., Tel. Co 93, Levering v. Union Trans. & Ins. Oo 197 Lewis V. Mott 31, 34 Lewis v.N.Y. Cent. S.O. Co 189 Lewis & Oo. V. Ludwick 128 Libby V. Me. Cent. R. Co 155 Lichtenhein v. Boston R. Co 53 Lillis V. St. Louis, etc., R. Co......... 160 Lindsley v. Chic, etc., R. Co 112, 197, 199 Line V. Mills 41 Little V. Boston, etc., R. Co 118 Little V. FaSSet 24 Little V. Hackett 185 Littlejohn V. Jones 91 Little Rock, etc., R. Co. v. Lawton 166 Little Rock, etc., Ry. v. Miles 182 Little Rock, etc., R. Co. v. Talbot 198 Liverpool, etc., S. Co. v. Phcenix Ins. Oo 206 Lloyd V. Guibett 206 Lloyd V. West Branch Bank 5, 12, 13 Lobdell V. Merch. Bank , 35 Lockhart v. West & A. R. R 24 Lockwood V. Bull 38 Loftus V. Union Ferry Co ; 165 London, etc., F. Ins. Co. v. Rome, etc., R. Co..... 102 Long V. Chic, etc., R. Co 166 Longv. Penn. R. Co 107, 108 Look V. Cottistock 30 Loorais V.Bragg 5 Lord V. Jones 60, 61, 74 Lorent v. Kentring 139, 146 Lough V. Outerbridge 99 Louisville, etc., R. Oo. v. Ballard 205 TABLE OF CASES* XXXV PASB. louisville, etc., Ry- Co. v Bigger 112 Louisville, etc., R. Co. v. Crunk... 166 1/Guisville, etc., R. Co. v- Flanagan i...... 101 Louisville, etc., R Co. v. Garrett 176 Louisville, etc., R. Co. v. Gilbert » 119, 131 Louisville, etc., R. Co. v. Hailey .'.... - 150 Louisville, etc., R. Co. v. Harris , 160 Louisville, etc., R. Co. v. Hedger 112 Louisville, etc., R. Co. v. Katzenberger .....<...... 19B Louisville, etc., R. Co, v. Logan , 169 Louisville, etc., R. Co. v. Lucas •. 155 Louisville, etc., R. Co. v. Patterson 168 Louisville, etc., R. Co. v. Snyder 155, 195 Louisville, etc., R. Co. v. Thompson 196 Louisville, etc., R. Co. v. Weaver ..». 191 Louisville, etc., R. Co, v, Wilson , 98 Loveland v. Burke 138 Lovett V. Hobbs 98 Low V. Martini. «< <....... 52 Lowenburg v. Jones... ,........„ > 191 Lowry v. Polk County. ,...i,..i.. 71 Lucas V. Milwaukee, etc., R. Co.. 150 Lucketts V. Townsend.... 27, 30, 34 Lundy v. Cent. P. R. Co : 160 Lusk V, Belote 75 Lynar v. Mossop , 76 Lynn V. So. Pac. R. Co 183 Lyon V. Mells 123 Lyon V. Smith 73 Lyons &.Co. v. Hill & Co 135 M &0. Ry. V. Hopkins 161 McAndrews v. Whitlock 131 McArthur v. Sears..... 107 McCarthy V. Wolfe 47 McCarthy v. Young 25 McCarty v. R. Co 132 McClure v. Phila., etc., R. Cc 161, 177, 178 McConnico v. Curzen... 66 McCreary v. Gaines 65 McDaniels v Robinson 75,76,77,81, 82 McDonald v. Edgerton 76 McDowell v. Chic. Steel Works 33 McDuffee V. Portland, etc., R. Co 95, 100 XXXVl TABLE OF CASES. PAGE. McElroy V. Nashua, etc., R. Corp 154 McEntee v. N. J. S. Co 143 McEvers v. Steamboat Sangamon 41 McEwen v. Jeffersonville R. Co 135 McPadden v. Mo. P. Ry. Co 120 McFarland v. Wheeler.... 146 McGill V. Rowand 186 McGowan V. Morgan's Co 167 McGraft v. Rugee 66 McGraw v. Bait., etc., R. Co 119, 127 McHugh V. Schlosser 79 Mclntyre v. Carver 60 Mack V. Snell 3, 4, 58 McKay v. Draper 62 McKee V. Owen 79, 189 Mackersy v. Ramsays, etc.. 69 Macklin V. Frazier 51 Macklin V. N. J. St. Co 188 McLean v. Walker 26 McMaster V. Penn. R. Co 133, 138 McMillan V. Mich., etc., R. Co 331 McNabb v. Lockhart 18 McPadden v. N. Y. C. R. Co 154 McQueen's Appeal 32 McRae v. Wilmington, etc., R. Co 177 McVeety v. St. Paul M. & M. R. Co 150, 185 Madan v. Covert 51 Madan v. Sherard 193 Madden v. Port Royal, etc., R. Co 175 Mad River, etc., R. Co. v. Barber 158 Maggort V. Hausbarger 42 Maghee V. Camden, etc., R. Co 125 Magnin v. Dinsmore ^ 118 Magoflan V. Mo. Pac. Ry. Co 151 Mahoney v. Saft 44 Malaney v. Taft 39 Mallory V. Willis 57 Maltby v. Chapman 86 Manhattan Oil Co. v. Camden, etc., R. Co 122 Mami V. Birchard 127 Mann v. White River, etc., Co , 93 Mann Boudoir Company v. Dupre 93, 164 Manning v. Hollenbeck 90 TABLE OF CASES. XXXVll PAGE. Manning v Wells 11,75, 80 Mansfield v. Converse 3, 4 Manufacturers' National Bank v. Continental Bank 71 Manville v. West. Un. Tel Co 72 Maples V.N Y , etc., R Co 176 Marine Bank v. Chandler 56 Manner v. Smith 14 Markham v. Brown 79' Maroney V Old Col., etc., R. Co... 178 Marquette, etc , R Co. v Kirkwood 196 Marshall V. Am. Ex Co 136 Marshall V. N Y. Cent. R. Co 129 Martin V.Am. Ex. Co , 122 Marvin v. Ellwood 62 Maryland Fire Insurance Co v. Dalrymple 3S Maryland Insurance Co v. LeRoy....^ 126 Maslin v. Bait., etc., R Co , 162 Mason v Thompson 76, 80 Mateer v. Brown 80 Mather v. Am. Ex. Co 202 Mathias v. Sellers 60 Matter of Franklin Bank ■. 8 Mauritz V. N. Y., etc,, R. Co 192 Maxwell v. Gerard 78 Maxwell v. Houston 23 May V, Hanson 165 May V. Harvey , 16 May V. Sharp 35 Mayall v. Boston, etc., R. Co 200 Maybinv- S. C. R. Co 67, 122 Mayor of Columbus v. Howard 38, 40 Mechanics' Bank v. Earp 70' Meier v. Penn. R. Co 154 Mellor V. Mo. P. Ry. Co.... 151 Meloy V. Chic , etc., R. Co 182 Memphis, etc., Railroad Company v. Benson 168, 178 Memphis, etc.. Company v. McCool 195 Memphis, etc.. Railroad Company v. Reeves. 198 Memphis, etc., Ry. Co. v. Stringfellow 174 Memphis, etc., R. Co. v. Whitfield 174 Menetone v, Athawes » 59 Merchants' Bank v. Hall 28 Merchants' Bank v. State Bank ..; 9 XXXVIU TABLE OF CASES. PAGE. Merchants' D T. Co. v. Bloch 92, 94, 119, 196 Merchants' D. Co, V. Bolles : 104, 122 Merchants' D. & T, Co, v. Corhforth 121 Merchants' D. T. Co. v. Purthmann 121 Merchants' D. T. Co. v. Kahn 125 Merchants' D. & T Co. v. Moore 131 Merchants' National Bank v. G-oodman > ■, 59 Merchants' National Bank v. Guilmartin t^.. 8 Merchants' Trans. Co. v. Story 51 Merriam V. Hartford, etc., R. Co ...i .........4. 101 Merrick V. G-ordon. 117 Merrill v. East R. Co 181, 182 Merrittv. Claghorn 82, 83 Merritt v. Earle * 106 Merrittv. Old Colony, etc., Ry 101 Messenger V. Penn. R. Co 95, 100 Metz V. Cal. S R. Co 187 Meyer v. Chicago, etc., R. Co 136 Michaels v, New York Central R. Co 128 Michigan Central R. Co. v. Carrow 187 Michigan, etc., R. Co. v. Day 135 Michigan S. R. Co. v- Heaton 121 Michigan, etc., R. Co. v. McDonough '. 112 Miller v. Adsit 17 Miller V. Georgia, etc., Co 120 Miller V. Hannibal, etc., R. Co 102 Miller V. Minn., etc., Ry. Co 152 Miller V. Peeples 77 Miller V. St. Louis Ry, Co 184 Miller Piano Company v. Parker 44 Milliken v. Shapleigh , 69 Millon V. Salisbury _. 38 Mills V. Gilbreth ". 51 Mills V. Hunt 63 Miner V. Staples 47, 85 Miner v. N. & W. R. Co 138 Minor v. Chicago, etc., Ry. Co 12 Minter V. Railroad Company 101, 190 Mintum V. Main.. 64 Mitchell V. Chicago & G. T. Ry. Company 183 Mitchell V. Marker 92, 167 Mitchell V. So. P. R. Co 181 Moakler V. Portland, etc., R. Co 184 TABI/S OF CASES. XXXIX PAGE. Mobile, etc., R, Co, T. Oopeiami....... H'^ Mobile, etc., R. Co. v. McArtlmr 205 Mobile, etc., R. Co. y, Prewitt 132 Mobile, etc., R. Co. v. Tupeb 196 Moifatt V. V*n Doren , , •. 27 Mogul S, S. Co. V. McGregor 100 Mohr V. R. Co , 132 Montana U. Ry, Co. y. Langlois..... 167 Montgomery v, Pac, C. li. Bureau -... 63 Montgomery v. Ship, etc - 12S Montgomery, etc., Ry. Co. v. Culver., ,,,.. 191 Montgomery, etc, R- Co. y. Kolb., 101 Mooers V, I Relf V. Rapp 104 Re Succession of Lanaux 27 Rex V. Humphrey 56 Rex V. Ivens 78 Rey V. Toney 47 Reynolds v. Witte 36 Rice V. Boston & "Worcester R. Co 132 Rice V. Hart 136 Rice V. Nixon 50 Richards v. London, etc., Railroad Company 78 Richardson v. Atkinson 15 Richardson v. Goddard 133 Richardson V. Rich 145 Richardson v. Insurance Company 32 Richardson V. N. E. Ry. Co 112, 113 Richardson v. Rowntree 164 Richmond v. Smith 82 Richmond, etc.. Railroad Company v. Benson 203 TABLE OF CASES. xlvu PAGB. 18.ichmond, etc., Railroad Company v. Huffman 178 Richmond & D. R. Co. v. Jefferson 172 Richmond, etc., Railroad Company v. Payne 119, 121 Richmond & D. R. Co. v. Scott 184 Rider V. Union Rubber Company 25, 44 Riggin V. Patapsco Insurance Company 126 Ringgold V. Ringgold 30 Ritchey v. West 59 Rixfordv. Smith 112 Roach V. Turk 66, 67 Roberts v. Noyes 62 Roberts v. Stuyvesant Safe Dep. Co 46, 62 Roberts v. Sykes 34 Roberts V. Thompson 35, 36 Roberts V. Turner 67, 93 Robertson v. Kennedy 106 Robertson v. Nat. S. S. Co 126 Robertson v. New York & Erie' Railroad Company 18.'5 Robins & Company v. Gray 90 Robinson v. Baker 144 Robinson v. Bird...... 63 Robinson v. Hurley 31, 32 Rodgers v. Stophel 55 Rodriguez V. Heffernan 65 Rogers v. Hine 63 -Rogers v. Kennebec St. Co 161, 165 Rogers v. Weir 16, 54 Rommel v. Schambacher 79 Root V. Chandler '. 24, 30 Root V. Great Western Railway Company 115 Rooth V. Wilson 13 Roseman v. Carolina C. R. Co 170 Rosenbaum v. St. Paul, etc.. Railway Company 151 Rosenfeld v. Peoria, etc., Railroad Company 120 Rosenplanter V. Roessle 88 Ross V. Johnson .- 55 Ross V. Troy & B. R. Co 113 Hotch V. Hawes 39 Roth V. Buffalo, etc., R. Co 186 Rothschild v. R. Co 132 Roulston V. McClelland 17 Rozelle v. Rhodes 12 Rozet V. McClellan 32 Xlviii ■ TABLE OF CASES PAGE- , Riibenstein v. Cruikshanks 85^ Rucker V. Mo. P. Ry. Co ; 184 Rumsey v. Laidley 28, 35 Russell V. Favier 41 Russell V. Fillmore 30 Ryan v. Gilmer 195 Ryan v. M. K. & T. Ry. Co 121 S. Safe Deposit Co. v. Pollock 46- Sager V. Portsmouth, etc., R. Co 126- Salt Springs National Bank v. Wheeler 59 Samms v. Stewart 91 Samuel v. Cheney .;., 143^ Sanbolf v. Alford 89, 9a Sanborn v. Colman 43 Sanderson v. Frazier 184, 195 Sanford V. Catawissa, etc., R. Co 96- .Sargent V. Boston, etc., R. Corp 100 Sargent v. Slack 48 Sargent v. St. Loiiis, etc., R. Co 175 Sargent V. Usher 48, 49 Sasseen v. Clark 78, 80, 86 Savings Bank V. Atchison, etc., R. Co 102 Schell V. Stephens 63 Schermer v. Neurath 15 Scheu V. Benedict, , 135, 136 Schmidt V. Blood 50, 52 Schneider v. Evans lir School District v. Boston, etc., R. Co 121 Schopman v. Railroad 159; Schwerin v. McKie 51 Schwinger v. Raymond 123 Schiefflin v. llarvey 124 Scott V. Crews 28 Scott V. Nat. Bank of Chester...... 8, 9 Scott V. Rogers 66 Scranton v. Baxter i 21 Searle v. Laverick 48 Sears v. Eastern Railroad Co 158 Seemuller v. Fuchs 63 Seevers v. Gabel 41 Seger v. Town 12^ TABLE OF CASES. xlix A AGE. Self V. Dunn 9"* Selway v. Holloway '••• 101 Sensenbrenner v. Matthews 60 Sessions v. "Western Railroad Co 53, 132 Sevier v. Vicksburg, etc., Railroad Co 174 Sewall V. Allen , 91 Sexton V. Graham 50 Seybolt V. New York, etc.. Railroad Co 151, 195 Seyds v. Hay 56 Seymour v. Cook 78 Shaacht v. Illinois Central Railroad Co 104 Sharpy. Gray 154 Shaw V. Berry 80, 82 Shaw V. Davis 93 Shaw V. Ferguson 60 Shaw V. Kaler 43 Shedd V. T. & B. R. Co.. 161 Sheldon v. Sherman , 5 Shellenberg v. Fremont i 141 Shelton V. Railway Co 177 Shenk V. Pennsylvania, etc., Co 131 Shenk v. Philadelphia St. P. Co 133, 143 Shepherd V. Bristol & Exeter Railroad 132 Sherley v. Billings 171 Sherman v. Hannibal, etc.. Railroad Co , 151 Shiells V. Blackburne Ig Shoecraft v. Bailey.... 12, 88 Schriver v. Sioux City, etc.. Railroad Co 121, 196 Shultz V. Wall 81,86,87, 88 Sibley V. Aldrich 81, 82 Simpson v. Waldby 71 Simpson v. Wrenn 23 Sims V. Miller 66 Sinclair v. Murphy 62 Singer Manufacturing Co. v. Belgart.; 44 Singer Manufacturing Co. v. Cole 5 Singer Manufacturing Co. v, Miller 75, 89 Sioux City, etc., R. Co. v. First Nat. Bank 102 Sira V. Wabash R. Co 172 Sisson V. Cleveland, etc., R. Co 127 Skelley V. Kahu 12, 17, 18 Skinner v. Upshaw 144 Skottowe V. Oregon, etc., R. Co 175 1 TABLE OF CASES. PAGE. Slaughter v. Green 4, 57 Small V. Robitison 60 Smallman v. Whilter 166 Smith V. Clark 3, 58 Smith V. Clews 25, 65 Smith V. Cook 48 Smith V. Dearlove 89 Smith V. Field... 20 Smith V. First National Bank 8, 9 Smith V. Library Board 22 Smith V. Meegan 60 Smith V. Miller 35 Smith V. Nashua, etc., Railroad Company 136 Smith V. Niles 43 Smith V. N. Y. C. R. Co 119, 162, 196, 201 Smith V. Read ;. 12 Smithy. Rollins 44 Smith V. St. Louis, etc., R. Co 159 Smithy. St. Paul C. Ry. Co 195 Smith V. Western Ry. Co 107, 108 Smith y. Whitman 125 Smith y. Wilson 86, 87, 173 Smithurst y. Edmunds 28 Smyrl y. Niolen 107 Snead y. Watkins 90 Sodowsky y. McFarland 12 Solomon y. Manhattan Ry. Co 181 South America Insurance Company y. Randall 3 South, etc.. Railroad Company v. Wood 131 Southern Express Company y. Caperton 118 Southern Express Company v. Craft 200 Southern Express Company y. Hunnicutt 118 Southern Express Company y. Purcell '. 119 Southern Express Company v. Van Meter 143 South. F. R. Co. y. Rhodes 151 South. K. R. Co. y. Sanford , 178 Southwood y. Myers 73 Spangler v. Eieholtz 61 Spears v. Hartley.; 56 Spellman v. Lincoln R. Co 92, 165, 195 Spice V. Bacon 88 Spooner v. Brooklyn C. R. Co 182 Spooner V. MaTichester 40 TABLE OF CASES. il PAGE. Spooner v. Mattoon 12 Sprague v. Smith...; , 159 Sprague V. West. Abb. Adm 138 (Spriug V. Hager 87 Stacy V. Dane Co. Bank 69 Standish v. N. St. Co 179 Stannard v. Prince., 67 Stanton v. Bell '. 18, 19 Stanton v. Leland 78 State V. Cincinnati, etc., R. Co 98 State V. Houston 72 State V. Moore 71, 111 State V. Powell 72 State V. Railway .-. 98 State V. Steele 79 Staub y. Kendrick 187 Steamboat Cr. Palace v. Vanderpool 188 Steamboat Keystone v. Moies 136 Steam Company v. Insurance Company 158 Steamship Company v. Insurance Company 206 Steamship Company v. Smart 134 Stearns v. Marsh 28, 32, 33 Steeg V. St. Paul, etc., Co 167 Steel V. McTyre 91, 92, 107 Steele v. Townsend 119 Steers v. Liverpool, etc., S. Co ; 192, 194 Steinmanv. Wilkins 52, 56 Steinweg v. Erie Ry. Co 121, 154, 156 Sternberg v. State 167 Stevens v. Hurlbut Bank 32 Stevens v. B. & W. Railroad 144, 145 Stewart v. Davis 43 Stewart V. Frazier 17 Stewart v. International, etc., R. Co 175 Stewart V. Merchants' D. T. Co 125 Stewart v. Parsons 88 Stiles V. Davis 62, 140, 141 Stimson V. Connecticut R. Co 190 St. Louis, etc., Ry. Co. v. Berry 190 St. Louis, etc.. Railroad Co. v. Cantrell 181 St. LouiSj etc., Railroad Co. y. Lamed 102 St. Louis, etc., Railway Co. v. Leigh.. 168 St. Louis, etc., Railroad Co. v. Mackie .'. 169 Iji TABLE OF CASES. PAGE. St. Louis, etc., Railroad Co. v. Murray ,.•• 181 St. Louis, etc., R. Co^ v. Weakly 119 St. Nicholas Bank v. State National Bank , 71 Stockton V. Frey 155 Stokes V. Frazier ." 3S Stokes V. Saltonstall 195 Stone V. C. &N. W. R. Co 161 Stone V. Waitt 139 Strahom v. Union, etc., Co 135 Streissguth V. National, etc.. Bank 71 Strieker y. Leathers 135 Strohn V. Detroit, etc.. Railroad Co 127 Strong V. Adams 30, 33 Strong V. National Banking Association 27, 30,32, 36 Stuart V. Crawley 103 Sturm V. Boker 3 Sullivan v. Clifton 49 Sullivan v. 0. C. R. Cb 169 Summer v. Crescent, etc.. Railroad Co 184 Summer v. Hamlet 26, 27 Sutton v. Buck , 17 Swan V. Bournes... 90 Swan V. Manchester, etc.. Railroad Co 180 Swann v. Brown .., 48 Swift V. Moseley 43 Swire V. Leach 43 Switzer v. Wilvers 66 T. Taber v. Delaware, etc.. Railroad Co 174, 183 Talbott V. Merchants' D. T. Co 206 Talmage v. Third National Bank 26 Talty V. Freedman's, etc., Co ol Tancil V. Seaton 13 Tarbell V. Royal, etc., Co 135 Tarbell v. Sturtevant ;>» Taylor v. Cheever 3i Taylor V. Downey 11, 84 Taylor v. Gt. N. Ry. Co 128 Taylor v. Little Rock, etc., Railroad Co 122 Taylor v. Secrist 51 Terre Haute, etc., Railroad Co. v. Buck 183 Terre Haute, etc., Railroad Company v. Jackson 171 TABLE OF CASES. liii PAGE. Terre Haute, etc., R. Co. V. Sherwood 119, 196 Texas, etc., R. Co. v. Bond 180 Texas, etc., R. Co. v. James 180 Texas, etc., Ry. Co. v. Mayes 206 Texas, etc, R. Co. v. Miller 175 Texas, etc., Ry. Co. v. Murphy 181 Texas, etc., R. Co. v. Williams 171, 181 Thayer V. Dwight 30 The Carib Prince 206 The Guildhall 206 The Ilyperious Cargo 138 The Idaho 54, 62, 141, 142 The Morning Light 109 The Phebe 56 The Pietro G 138 The R. E. Lee 188 The R. G. Winslow 52 The Uhla 109 Thickstun V. Howard 76, 80 Third National Bank v. Boyd 28 Thirteenth, etc., Ry. Co. v. Boudrou 182 Thomas v. Boston, etc., R. Co 92 Thomas V. Day... .' 52 Thomas v. Kerr 63 Thomas V. Phila., etc., R. Co 199 Thomas v. Wabash, St. L. & P. R. Co 206 Thomipson v. Fargo 20O Thompson v. Kelley 64 Thompson v. N. 0., etc., R. Co 174 Thompson v. Patrick 2& Thompson V. Small 144 Thome v. Deas 18 Thome v. Tilbury 53 Thorogood v. Bryan 185 Thorpe V. New York Central Railroad Company 149, 168 Threfall v. Berwick 89 Tiernan v. Commercial Bank 69 Tierney v. New York Central, etc., Railroad Company 97 Tindal v. Taylor 144 Titus V. Mechanics' National Bank 71 Toledo, W. & W. R. Co. v. Beggs 184 Toledo, etc., Ry. Co. v. Brooks 184 Toledo, etc., Railroad Co. v. Conroy 154 liv TABLE OF CASES. PAGE. Toledo, etc., Railroad Co. v. Hammond 186, 194 Toledo, etc., Railway Co. v. Merriman 117 Toledo, etc., Railroad Co. v. Rumbold 159 Toledo, etc.. Railway Co. v. Wright 167 Tombler v. Koelling 6 Tower v. Utica, etc.. Railroad Co 188 Towne v. Wiley 39 Townsend V. New York Central Railroad Co 177 Towsonv. Havre de Grace Bank 76 Tracy V.Wood 19 Transportation Co. V. Barber 141, 142 Treadwell v. Davis 30 Treadwell v. Whittier 92, 155 True V. International Tel. Co 72 Truslowv. Putnam , 61 Tuller V. Talbot 157 Tunniclifife v. Bay, etc., Railway Co 203 Turner V. First National Bank 8, 9 Turner v. Huff 131, 138 Tnrner V. Vicksburg, etc.. Railroad Co 174 Turrentine v. W. & W. R. Co 7 Turrill v. Crawley 89 Tuttlev. Campbell 5 Twomley v. Central P., etc., R. Co 181 , Tyler v. Western Union Telegraph Co 93 U. Umlauf V. Bassett 47 Union Express Co. v. Graham 197 "Union Pacific Railway Co. v. Moyer 136 Union Pacific Railroad Co. v. Nichols 151, 185 United States v. Thomas 71 Upham V. Detroit, etc.. Railroad Co 182 United States v. Babbit 10 Usher v. Western J. R. Co. 207 V- Tan Buskirk v. Purinton 145 Van Buskirk v. Roberts 203 Tance v. Throckmorton 12,75, 85 Tan Hern v. Taylor 106 Tan Horn v. Taylor 123 Tan Kirk v. Pennsylvania Railroad Co 177 Tannatta v. Central Railroad Co 137 TABLE OF CASES. Iv PAKE. Van Riper v. Baldwin 36 Van Santvoord v. St. John 115 Van Wart v. Wooley 71 Van Winkle v. U. S. M. S. Co 62 Van Wyck v. Howard 86 Varble v. Bigley 5, 93 Velsian v. Lewis 53 Vicksburg, etc., R. Co. v. Ragsdale 202 Vigo AgT. Society v. Brumflel 22 Vincent v. Cornell 63 Vincent v. Rather 50, 14§ Virginia C R. Co. v. Sanger 154 Vrooman v. Rogers 55 W. Wadsworth v. Allcott SO Wadsworth v. Sharpsteen 20 Wagner v. Missouri, Pacific Ry. Co 150, 182 Wahl V. Holt 117 Wainscott v. Silvers 42 Walcott V. Keith 29 Walden v. Finch 50 Walker v. Bank of State of New York 68- Walker v. Brit. Guar. Association 61 Walker v. Great Northern R. Co 151 Walker v. Parker 61 Walker v. Staples 30' Wallace v. Canaday 58 Walling V. Potter 75 Walsh V. Homer 126 Walsh V. New York Central R. Co 207 Walsh V. Porterfield 86 Ward V. Brandt ' 64 Ward V. Brown 48 Ward V. N. Y. C. R. Co 127, 202, 203 Ward V. School District 71 Ward's, etc., Co. v. Elkiiis 202 Wardwell v. Chic, etc., R. Co ' 177 Ware v. Gay 154 Wareham Bank v. Burt ' •. . . 62 Warner v. Hitchins 42 Washburn v. Pond. 32 Washington v. Raleigh, etc., R. Co 15& Ivi TABLE OF CASES. PAGE. Waterman v. Brown , 34 Watkins v. Roberts 1, 23, 62 Watts V. Savannah, etc., Can. Co 93 Way V. Chic, etc., Ry. Co 184, 185 Wear v. Gleason 16, 20 Weed V. Panama R. Co 128, 158 Weeks v. N. Y. etc., R. Co 173 Weightman v. Louisville, etc., R. Co 169 Weisenger v. Taylor 84, 85 Werle V. L. I. R. Co 183 Welch V. Mohr 40 Welles V. Thornton 16 Wellington v. Wentworth 16 Wells V. Am. Ex. Co 141, 142 Wells V. Archer 27 Wells V. N. Y. C. R. Co 161, 162 Wells V. Steam Nav. Co 5 Welsh V. Pittsburgh, etc., R. Co 106 Westchester, ejic, Co. v. Miles 168 Westcott V. Fargo 121 Western Union Telegraph Company v. Adams 72 Western Union Telegraph Company v. Buchanan . 93 Western Union Telegraph Company v. Call. Pub. Co 93 Western Union Telegraph Company v. Short 72 Western, etc., R. Co v. Exposition C. Mills 206 Western R. Co. v. Stanley 174 Western Md. Ry. Co. v, Stanley. , 183 Western Trans. Co. v. Barber ._ 17, 147 Western Trans. Co. v. Newhall 122 Wetherell v, O'Brien 4 Weyand v. Atchison, etc.. Railroad Company 135, 139 Wheeler v. McParland 60 Wheeler v. Newbould 32, 33 Wheeler v. Oceanic S. Nav. Co 193 Wheeler & W. M. Co. v. Heil 5 Wheelock v. Wheelwright 22 Whitaker v. Sumner 34 White V. Bartlett 54 White V. Norfolk'* S. R. Co 171 White V. Smith ; 60 White V. Webb 17 White V. Winnisimmet Company 93, 189 Whitehead v. St. Louis, etc., R 150 TABLE OF CASES. Ivii FAQEk \ White Mt., etc., R. v. Bay State Iron Company. 27 Whitesides v. Thurlkill 106 Whitney v. Beckford 144 Whitney v. First National Bank 8 Whitney v. Lee 18 Whitney v. Merch. Union Ex. Co 68 Whitney v. National Bank of Brattleboro 9 Whittemore v. Haroldson , 77 Whitten v. Wright 35 Whitworth v. Erie Railway Co 198 AVilbraham v. Snow 63 Wilcox V. Steamboat 101 Wiley V. First National Bank 8, 9 Wilkins v. Earle 88 Wilkinson v. Moseley . . . , 43 Williird V. Reinhardt 73 Willets V. Hatch 36 Willett V. Rich 44, 51 Willey V. Alleghany City 55 Williams v. Grant. 106, 107, 124 Williams v. Great Western Railway Co 194 Williams v. Millington 64 Williams v. Vanderbilt 203 Willis V. L. I. R. Co 183 Wilmington Dental M. Co. v. Adams Express Co 101 Wilson V. Brett 19 Wilson V. Halpin 87 Wilson V. Hamilton 189 Wilson V. Little .■ 27, 30 Wilson V. North P. R. Co : 181 Wilson V. Railroad Co 164, 186 Wilton V. St. Nav. Co 192 Wingate v. Mechanics' Bank 71 Winslow V. Vermont & Massachusetts Railroad Co 133, 143 Winston v. Taylor 47 Wintermute v. Clarke ■ 73 Winthrop Savings Bank v. Jackson 61 Wintringham v. Hayes ,, 52 Withbeck v. Holland , 137 Witting V. St. Louis, etc., Railway Co 119, 197 Witzler v. Collins 102, 103 Wolf V. American Express Co 109, 198 Wolf V. Hough. . ." • 116 Iviii TABLE OF CASES. PAGB. Wolfe V. Railway Co 141,^43 Wolff V Central Railroad Co 191 Wood V. Crocker 106, 13S Wood V. McClure 21, 22 Wood V. Orser ; 5& Woodman v. Hubbard 39, 43 Woodruff V. Painter 6, 46, 58 Woodruffs. & P. C. Co. v.Diehl 149 Woods V. Devine 187 Woodward v. Semans 3, 49 Woolen Co. v. Proctor 12 Woolery v. Louisville, etc., Railroad Co 181 Wopster V. Blossom 55 Work V. Leathers 123 Worthen V. Grand T. Ry. Co ]83 Worthington v Central Vt. R. Co 182 Wright V. Caldwell 188 Wright V. Paine 17 Wright V. Sherman 48 Wright V. Solomon : 65 Wyckoff V. Queens Co. F. Co. 92, 93, 189 Wylde V. Northern R. Co .183 Wylie V. Northampton National Bank 10 Wyraan v. Railroad 159 Wythre v. Cock i . 11 Y. Yarnell v. Kansas, etc., R. Co 167 York V. Canada, etc., St. Co 166 York V. Grindstone 76 York County v. Watson 72 Yorton v. Milwaukee, etc., R. Co - 177 Young V. Bruces 42 Young V. Smith •. 136 Z. Zimmer v. New York, etc., R. Co 193 Zinn V. New Jersey S. Co ....'. 130 BAILMEN'TS. CHAPTER I. DEFINITIONS. The word "bailment" is derived from the French bailler, meaning to deliver or put into one's hands. Bail- ment has been variously defined by Blackstone, Jones, Story, Kent, Edwards, Schouler and Redfield. With cer- tain modifications the definition given by the latter may be adopted and thus expressed : A bailment is where per- sonal property is delivered by one person to another to keep, to use, to improve or to repair, and to return when the purpose is accomplished, or to sell or transport and deliver to a third person.^ A bailment does not always imply a return of the prop- erty, because part of the engagement may be the delivery to some other person, as of goods to be sold and delivered, or to be carried and delivered. And this principle applies to every kind of bailment where the property is destroyed without fault of the bailee, by act of God or of the pub- lic enemy, or by inevitable accident,^ and so where the property is taken away from the bailee by the government or by lawful judicial process.^ The person entrusting the property is called the bailor ; the person receiving it on such trust, the bailee. The principal distinct classes of professed bailees are agisters, ' Redfield on' Oarriera and other Bailments, § 617. ' Story on Bailments, § 23 ; Conwell v. Smith, 8 Ind. 530. = Watkins v. Roberts, 28 Ind. 167. 2 BAILMENTS. livery-stable keepers, pawn-brokers, stock-brokers, inn- keepers, safe-deposit companies, warehousemen, wharf- ingers, carriers of goods. A general division of bailment may be made according to the degree of care or diligence exacted from the bailee, as follows : 1. Where the transaction is gratuitous and for the exclusive benefit of one of the parties, as in the case of a naked deposit or the loan of an article, where only ordinary care and diligence are required. 2. Where compensation is made to the bailor, but the transaction is for the benefit of both parties, as in the case of the hiring or the pawning of a chattel, and only ordinary care and diligence are required. 3. Where compensation is made to the bailee, but the transaction is for the benefit of both parties, as in the case of common carriers and innkeepers, and extraordinary care and diligence are required. Elementary writers have usually divided bailment in five classes, derived from the civil law, as follows : 1. Deposit {depositum), a delivery of goods to be kept and returned, without any act to be done to them, and without compensation. 2. Commission (mandatum), a delivery of goods where the bailee undertakes to do some act about or upon them, or simply to transport them, without compensation. 3. Loan {commodafum), a delivery of goods for use by the bailee, for his accommodation, and to be returned to the owner, without compensation. 4. Pledge {pignori acceptum), a delivery of goods as security for a debt, to be returned or accounted for on the payment of the debt. 5. Hiring (locatio condudio), where for compensation goods are delivered either (1) for use by the bailee, locatio rei ; or (2) for keeping or storage, locatio custodia, ; or (3) to . have labor or services performed on or about them, locatio DEFINITIONS. O operis fadendi ; or (4) to be transported, locatio operis mer- cium vehendarum. It is essential to the character of a bailment that the title to the property should not pass to the bailee. There- fore a sale is not a bailment, even if it is a conditional sale, for by a conditional sale title passes on performance of the condition. This subject is more appropriately treated under Sales. Bailment or sale. — A distinction must be observed be- tween a bailment and a sale. If the identical thing delivered is to be returned, even in an altered form, it is a bailment; but if the receiver is at liberty to return another thing, either in the same or a different form, or to pay money, at his option, it is a sale, title passes, and the property is at the risk of the receiver. So where grain is delivered to be returned as meal, lumber as boards, leather as shoes, or wool as cloth, it is a bailment, and not a sale.^ But if by contract or usage the identical thing is not to be returned, but only its equivalent, either in the same form or some other, or paid for in money, at the receiver's option, it is a sale or exchange, title passes on delivery, and the risk is upon thie receiver.^ The same principle obtains in respect to the distinction between a bailment •Poster V. Pettibone, 7 X. Y. 433; 57 Am. Dec. 530, Barker v. Roberts, 8 Greenl. 101; Mansfield T. Converse, 8 Allen, 182; Brown v. Hitchcock, 28 Vt. 452; Woodward v. Semans, 125 Ind. 330 ; 21 Am. St. Rep. 225 ; Browne on Sales, p. 2. 'Sturm V. Boker, 150 U. S. 312; Ewing v. French, 1 Blackf. 354; Smith V. Clark, 21 Wend. 83; 34 Am. Dec. 215; Norton. v. Woodniff, 2 N. Y. 153; Butterfleld v. Lathrop, 71 Pa. St. 226 ; Bailey v. Bensley, 87 111. 556 ; So. Am. Ins. Co. v. Randall, L. B., 3P. 0. A. 101 ; Mack v. Snell, 140N. Y. 193; 37 Am. St. Rep. 534; Browne on Sales, p. 3. In Woodward v. Semans, 125 Ind. 330 ; 21 Am. St. Rep. 225, the court said: "It'is the law of this jurisdiction as well as of many others, that where a Warehouseman receives grain on deposit for the owner, to be mingled with other grain in a common receptacle from which sales are made, the warehouseman keeping constantly on hand grain of a like kind and quality for the depositor. 4 BAILMENTS. and a debt ; as in case of a deposit of money in a bank.* A contract to furnish materials to which the other is to add materials and manufacture the whole into a, certain form is a contract of bailment and not of sale.^ Where one receives goods, under an agreement to keep them a certain time, and if he pays for them is to become the owner, but otherwise is to pay for the use of them, this is a bailment.^ Bailment or lease or sale.— On the other hand, in recent times such personal property as musical instruments and sewing-machines is frequently transferred upon what is called the " installment plan," under a writing binding the receiver to pay a stated sum at specified times " as rent " for it, providing that after a certain amount is thus paid and ready for delivery to him on call, the contract is one of bailment and not of sale. The agreement, in this case, is to yield property in exchange for property, and this is essentially a contract of sale. The appellees were entitled to a designated quantity of flour and bran for each bushel of wheat delivered by them, but they were not entitled to the flour and bran produced from the par- ticular wheat delivered by them to the appellants. There was therefore no undertaking to restore the wheat either in its original form or in an altered form." In Bretz v. Diehl, 117 Pa. St. 589; 2 Am. St. Rep. 706, the Court said : "The fundamental distinction between a bailment and a sale is that in the former, the subject of the contract, although in an altered form, is to be restored to the owner, whilst in the latter there is no obligation to return the specific, article ; the party receiving it is at liberty to return some other article of equal value in place of it." In Norton v. Woodruff, 2 N. Y. 153, an agreement by a miller to '' take " wheat and " give " flour in return was held a sale. See also Jones V. Kemp, 49 Mich. 9 ; Foster v. Pettibone, 7 N. Y. 433; 57 Am. Dec. 530; Barker v. Roberts, 8 Greenl. 101; Mansfield v. Converse, 8 Allen, 182; Brown V. Hitchcock, 28 Vt. 452 ; Slaughter v. Green, 1 Rand. 3; 10 Am. Dec. 488; Ledyard v. Hibbard, 48 Mich. 421 ; 42 Am. Rep. 474; Cent. Lith., etc., Co. T. Moore, 75 Wis. 170 ; 17 Am. St. Rep. 186 ; Irons v. Kentner, 51 Iowa, 88; 33 Am. Rep. 119. See post. ' Wetherell v. O'Brien, 140 111. 146 ; 33 Am. St. Rep. 221. "Mack v. Snell, 140 N. Y. 193 ; 37 Am. St. Rep. 534. 'Brown V. Billington, 163 Pa. St. 76; 43 Am. St. Rep. 781. DEFINITIONS. " the property shall belong to the receiver, that title shall remain in the owner until payment, and that the owner may reclaim it on default in any payment of the rent. The judicial tendency is to regard these transactions as sales and not as leases or bailments.' But if no rent is reserved and the article is to be returned within a certain time or paid for, this is a bailment.^ Possession. — Possession of the goods is essential to a hailment. So it has been held that a tow-boat owner is not a bailee of boats in tow.^ Contract. — There can be no bailment without a consent or contract. So if a servant, without authority or know- ledge of his employer, takes goods into his master's house or store on deposit, the employer is not responsible.* But one who finds lost property and takes possession of it, becomes a bailee for the owner.^ So if a lessee finds a stove on the premises he becomes a bailee of it.® Authority. — ^A corporation cannot become a bailee outside the authority of its charter. So a bank may not render itself liable for gratuitous and special deposits of money or other valuables, unless authorized by its charter to receive them, or unless such has been its custom/ But where a tenant in common of personal property is in exclusive possession, he is a bailee of his co-tenant's share, and is liable to him for a conversion of it.^ ' Browne on Sales, p. 5 ; Singer Manuf. Co. v. Cole, 4 Lea. 439 ; 40 Am. Rep. 20; Lootnis v. Bragg, 50 Conn. 228; Butsee Wheeler & W. M. Co. v. Heil, 115 Pa. St. 487 ; 2 Am. St. Rep. 575. See^osi. ' Dunlap V. Gleason, 16 Mich. 158 ; 93 Am. Dec. 231. ' Wells V. Steam Nav. Co., 2 N. Y. 204 ; Varble v. Bigley, 14 Bush. 698 ; 29 Am. Rep. 435. ' Lloyd V. West Branch Bank, 15 Penn. St. 172; 53 Am. Dec. 581. ' She-.doii V. Sherman, 42 N. Y. 484; 1 Am. Rep. 569. « Burk v. Dempster, 34 Neb. 426. ' Lloyd V. West Branch Bank, supra. *TuttIc V. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652. BiilLMBNTS. CHAPTER II. DEPOSIT. A deposit is where a thing is put or left in the keeping- of the bailee for an indefinite time, or until the bailor reclaims it, without any use, benefit or compensation to the bailee. Manner of delivery. — The delivery need not be direct; it is sometimes implied by the bailee's coming into con- structive possession in the pursuit of business beneficial to him. Thus a merchant is liable for the loss of a cus- tomer's watch and chain, taken off, and at a salesman's suggestion put in a drawer while the customer is trying on clothing, if ordinary care is not exercised toward it, but not if it is stolen.^ And so where a customer trying on a new cloak removes the old one and lays it on a counter, and the merchant provides no place for it, fails to notify the customer to look out for it, and makes no rules requir- ing employees to look out for it, he is liable if it is lost.^ Where a lessee finds a stove on the premises he becomes a naked bailee, and may not put it out-doors exposed to the elements.^ So the owner of a bath-house, who gives a check to a bather for valuables left for safe-keeping, and, knowing well both the bather and the valuables, delivers the articles to another person on presentation of the check, is liable for their value.* A good example of a naked 'TToodruffv. Painter, 150 Pa. St. 91; IC L. R. A. 451 ; 30 Am. St. Rep. 786. ' Bunnell v. Stern, 122 N. Y. 539 ; 10 L R. A, 481. Followed in Buttman V. Dennett (jST. Y. Com. PL), 9 Misc. 462, where wraps and other wearing apparel were tfcmporarily laid qflf in a restaurant by a customer. = Burk V. Dempster, 34 Neb. 426. *Tombler v. Koelling, 60 Ark. 62. DEPOSIT. I deposit is found in a case where the owner of an apartment house allowed a tenant to store his trunks in a storeroom on the premises without charge.^ Degree of care. — As the bailee receives no compensation, the degree of care exacted from him is in proportion; he is liable only in case of fraud or gross neglect.* This is the doctrine of Sir William Jones in his treatise on Bail- ments, and the early doctrine of Coke that bare acceptance implies an agreement to keep safely and renders the bailee liable for loss by theft is now universally discarded. The leading case in this country, illustrating this principle, was where a chest of gold was deposited in a bank for gratuit- ous safe-keeping, without any special undertaking, and the gold was fraudulently appropriated by the cashier, it was held that the bank was not liable to the depositor.* This 'Davis V. Gay, 141 Mass. 531. = Coggs V. Bernard, 2 Ld. Ram. 913 ; Turrentine v. W. & W. R. Co., 100 N. C. 375; G Am. St. Rep. 002. " Foster v. Essex Bank, 17 Mass. 479 ; 9 Am. Dec. 168. Parker, C. J., ob- served : " It must be manifest, that as far as the bank was concerned, this was a mere naked bailment for the accommodation of the depositor, and with- out any advantage to the bank, which can tend to increase its liability beyond the effect of such a contract. No control whatever of the chest, or of the gold contained in it, was left with the bank or its officers. It would have been a breach of trust to have opened the chest or to inspect its contents. The owner could at any time have withdrawn it, there being no lien for any price of its custody, and it was not thought that the bank had authority to remove it to a place of greater safety without the orders of its owner." He also held that the memorandum given by the cashier on receipt of the chest, stating that it was left for safe-keeping, contained no undertaking on the part of the bank beyond that implied from mere delivery without any writing. He held that the cash- ier's act was not in the course of his emplojrmeut. He therefore applied the principle that the bailor " shall be the loser, unless the person in whom he confided has shown bad faith in exposing the goods to hazards to which he would not expose his own. This would be erassa negligentia, and for this alone is such a depositary liable." " If he locks and fastens the warehouse as other prudent people do, and thieves break through and steal, he ought not to 8 BAILMENTS. doctrine was also laid down in a case where the owner of a painting on paper pasted on canvas delivered it to the be accountable ; but if he leaves the doors or windows open, he ought to be." See Smith v. First Nat. Bank, 99 Mass. 605 ; 97 Am. Dec. 59 ; Matter of Franklin Bank, 1 Paige, 249 ; 19 Am. Dec. 413 ; Mer. Nat. Banli t. Guilraar- tin, 88 Ga. 797 ; 17 L. R. A. 322. In Giblin v. McMullen, L. R. 2 P. C. 318 ; 3 Eng. Rul. Cas. 618, it was held that bankers who receive securities by way of deposit for safe-custody gratuitously — not making any charge for commis- sion or having any lien on the securities — are not responsible for any higher degree of care than a reasonably prudent man may be expected to take of prop- erty of the like description. In that case, securities to bearer contained in a box deposited with a bank by a customer were stolen by the cashier who had access to the strong room. This cashier had long been in the service of the bank and borne a good character. The key of the box was in the custody of the customer, and it did not appear how the cashier had got access to the con- tents. It was held that there was not evidence to go to a jury of such .negli- gence on the part of the bank as to make them liable. To the report on this case in 3 Eng. Rul. Cas. 625, the author of the present work has appended the following note, which he is permitted to reproduce here : " The doctrine of the principal case is generally held in this country. The leading case is Foster v. Essex Bank, 17 Mass. 479 ; 9 Am. Dec. 168 (a. d. 1621), in which the Court pronounced the case to be unprecedented, and it was held that where a cask containing a quantity of gold coin was deposited in a bank for Safe-keeping, in accordance with practice, and the gold was fraudu- lently taken out by the cashier, the bank was not liable therefor to the depositor. This doctrine has also been adjudged in more recent years under the National Banking Act. Soott v. Nat. Bank of Chester, 72 Pa. St. 471 ; 13 Am. Rep. 711; Nat. Bank v. Ocean Bank, 60 N. Y. 278 ; 19 Am. Rep. 181 ; First Nat. Bank v. Graham, 79 Pa. St. 106 ; 21 Am. Rep. 49 ; First Nat. Bank v. Rex, 89 Pa. St. 307 ; 33 Am. Rep. 767 ; Turner v. First Nat. Bank, 26 Iowa, 562 ; Chattahooche Nat. Bank v. Schley, 58 Ga. 369 ; Merchants' Nat. Bank v. Guil- martin, Ga. Sup. Ct., 44 Am. St. Rep. 182; 17 L. R. A. 322. But see to the contrary, Wiley v. First Nat. Bank, 47 Vt. 546 ; 19 Am. Rep. 122 ; Whitney v. First Nat. Bank, 55 Vt. 155; 45 Am. Rep. 598. "In Merch. Nat. Bank v, Guilmartin, supra, it was held that the bank was not liable for a special deposit received through the cashier for gratuitous safe- keeping and return to the depositor on demand, although the cashier stole or fraudulently appropriated it to his own use, provided, the bank exercised due diligence in the selection and retention of the cashier, and his fraudulent act DEPOSIT. 9 defendant without any special agreement as to care and without any agreement as to reward, and the defendant was without the knowledge or consent of the other officers. Citing the prin- cipal case, and Preston v. Prather, 137 IT. S. 604. " But a bank is liable in such case for gross negligence. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82 ; 36 Am. Rep. 582; First Nat. Bank v. Graham, 85 Pa. St. 91 ; 27 Am. Rep. 628, affirmed by the United States Supreme Court, 100 U. S. 699. The Court in the last case observed : " ' Corporations are liabla for every wrong they commit, and in such cases the doctrine of ultra vires has no application. " ' They are also liable for the acts of their servants while such servants are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. Merchants' Bank v.. State Bank, 10 Wall. 645. An action may be maintained against a corpora- tion for its malicious or negligent torts, however foreign they may be to the ob- jects of its creation or beyond its granted powers. It may be sued for assault and battery, for fraud and deceit, for false imprisonment, for malicious prose- cution, for nuisance and for libel. In certain cases It may be indicted for misfeasance or non-feasance touching duties imposed upon it in which the public -are interested. Its offences may be such as will forfeit its existence. P. W. & B. R. Co. V. Quigley, 21 How. 209 ; 2 Wait Actions and Defences, 337, 338, 339 ; Angell & Ames on Corp., §§ 186, 385 ; Cooley on Torts, 119, 120. " ' Recurring to the case in hand, it is now well settled that if a bank be accustomed to take such deposits as the one here in question, and this is known and acquiesced in by the directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter. Foster v. Essex Bank, 17 Mass. 479; Lancaster Co. Nat. Bank v. Smith, 62 Pa. St. 47 ; Scott v. National Bank of Chester Valley, 72 id. 471 ; s. c, 13 Am. Rep. 711 ; Thomp. N. B. Cas. «64 ; First Nat. Bank of Carlisle v. Graham, 79 Pa. St. 1-06 ; s. c, 21 Am. Rep. 49; Thomp. N. B. Cas. 875 ; Turner v. First Nat. Bank of Keokuk, 26 Iowa, 5G2 ; Thomp. N. B. Cas. 454 ; Smith v. First Nat. Bank of Westfleld, 99 Mass. 605 ; Chattahooche Nat. Bank v. Schley, 58 Ga. 369 ; Thomp. N. B. Cas. 379. The only authorities in direct conflict with these adjudications, to which our attention has been called, are Wiley v. Nat. Bank of Vermont, 47 Vt. 546 ; s. c, 19 Am. Rep. 122; Thomp. N. B. Cas. 905; and Whitney v. Nat. Bank of Brattleboro, 50 Vt. 389 ; s. c, 28 Am. Rep. 503. " ' The case first cited (Foster v. Essex Bank) was argued exhaustively by the most eminent counsel of the time and decided by a court of great judicial 10 BAILMENTS. kept it in a room next a stable in which was a well which learning aird ability. Their opinion is marked by careful elaboration. The special deposit there was a cask containing gold coin. While it was maintained that the bank would have been liable for its loss by gross negligence, it was held that such negligence in that case had not been shown. " ' Here gross negligence is conclusively established. The depositor kept an account in the bank. The cashier cut off and collected the coupons and placed the proceeds to her credit. The bonds therefore entered into the legitimate and proper business of the institution. But it is unnecessary to pursue this view of the subject further, because we think there is another ground free from doubt upon which our judgment may be rested. " ' The 46th section of the Banking Act of 1864, re-enacted in the Revised Statutes of the United States, § 5228, declares that after the failure of a National bank to pay its circulating notes, etc., ' it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep moneys belonging to it, and to deliver special deposits' This implies cleariy that a National banlt, as a part of its legitimate business, may receive such ' special deposits,' and this implication is as effectual as an express declara- tion of the same thing would have been. United States v. Babbit, 1 Black, 61. " ' The phrase ' special deposits,' thus used, embraces deposits such as that here in question. Pattison v. Syracuse Nat. Bank, Court of Appeals, New York (recently decided, and not yet reported). In that case it was said, 'a reference to the history of banking discloses that the chief, and in some cases the only deposits received by the early banks were special deposits of money, bullion, plate, etc., for safe-keeping and to be specifically returned to the depositor; and such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and the same business was done by the Goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done.' '"It would undoubtedly be competent for a National bank to receive a special deposit of such securities as those here in question either on a contract of hiring or without reward, and it would be liable for a greater or less degree of negli- gence accordingly.' " ' We do not mean that it could convert itself into a pawnbroker's shop. That subject involves topics alien to the case before us, and which in this opinion it is unnecessary to consider.' " "To the same effect Bank v. Zent, 39 Ohio St. 105; 3 Browne Nat. Bank Oas. 698; Wylie v. Northampton Nat. Bank, 119 U. S. 361; 3 Browne Nat. Bank Gas. 188. DEPOSIT. 11 caused the picture to become damp and to peel ;^ and where a boarder requested the boarding-house keeper to deposit his money in his safe, and the safe was feloniously broken and the money stolen;^ and so where a regular boarder at a hotel deposited money in the landlord's safe and it was stolen by the night clerk without negligence on the landlord's part f and where one received for gratuitous "Bankers are liable for the theft by their cashier of government bonds held by them as gratuitous bailees, to which such cashier had access, where they failed to look after such bonds, or to discharge him after being notified that he was speculating in stocks, he not being known to have any property other than his salary. Gray v. Merriam, 111. Sup. Ct. 35 N. E. Eep. 810; affirming 46 111. App. 337." ' Wythre v. Cock, 2 Strange, 1099. "Jennings v. Reynolds, 4 Kans. 110. = Taylor v. Downey, — Mich. ; 62 N. W. Rep. 716. The Court ob- served: "There is not a uniformity of decision upon this question of a boarding-house keeper's liability to a boarder. In Regina v. Hartley, 3 El. & BI. 144, a divided court affirmed the instruction that the boarding-house keeper did not contract to safely keep baggage of a boarder. This was where a servant carelessly left a hall door open, permitting a thief to enter and steal the baggage, which was in the hall. In Holder v. Soulby, 8 C. B. (N. S.) 263, Erie, J., protested against the claim that it was the duty of the keeper of a lodging-house to take care of a lodger's goods, and said that where the proprie- tor had done nothing which amounts to misfeasance, he knew of no authority or principle upon which he could be held responsible for mere absence of care. In a note to that case it is said that, ' even in a case of a common inn, the inn- keeper is not liable as such to persons who reside permanently at his house as boarders, nor otherwise than for actual negligence,' citing Chamberlain v. Masterson, 26 Ala. 371 ; Manning v. Wells, 9 Humph. 748. In Lawrence v. Howard, 1 Utah, 142, it was held that requiring lodgers to lock their rooms and deposit the key at the office was ordinary diligence. Indeed the court went further, and held that only slight care was required, implying that there was no bailment for mutual benefit in that case. The goods were stolen from the room where the proprietor left them after the plaintiff's departure. The case of Jeffords v. Crump, 12 Phila. 500, holds that ' an innkeeper is not liable for goods of a boarder, stolen from the inn, unless there be proof of gross negli- gence ; ' thus implying, as did Lawrence v. Howard, that it was a case of de- positum. See also Neal v. Wilcox, 4 Jones (N. C), 146. The case of Smith 12 BAILMENTS. delivery a sealed letter containing money' and where . a raUroad company retained freight on their cars for the owner's accommodation and without any additional com- pensation ;^ and in a case of a special and gratuitous de- posit of notes in a bank f and where one found a bank note and deposited it for gratuitous safe-keeping with de- fendant, from whose safe it was stolen.* It has sometimes been laid down that a bailee for safe- keeping without reward is bound only to such care of the V. Read, 6 Daly, 33, is" perhaps as strong a case in support of the plaintiff's contention as any, and this goes no further than to hold that ordinary care is due. See also Oayle's case, 8 Coke, 3 ; Bac. Abr. ' Inns and Innkeepers,' ch. 5 ; Vance v. Throckmorton, 5 Bush, 41 ; Woolen Co. v. Proctor, 7 Cush. 424 ; Hancock v. Rand, 94 N. Y. 1 ; Bish. Non-cont. Law, § 1171 ; Johnson v. Reynolds, 3 Eans. 257 ; Car Co. v. Lowe (Neb.), 6 Lawy. Rep. Ann. 809, and note, 44 N. W. Rep. 226; Shoecraft v. Bailey, 25 Iowa, 553. It is probable that this is the limit of the rule, viz., that boarding-house keepers are liable as bailees for mutual benefit, for the preservation of goods brought upon the premises by boarders. The nature of the liability is not changed by a deposit in the safe, though the degree of care may be increased over that required where the boarder retains the custody of valuables ; but the keeper of the house is still a bailee for mutual benefit, and still owes the duty of ordinary care, which varies in degree as the responsibility is thrown upon him, or is assumed by the owner." 'Beardslee v. Richardson, 11 Wend. 25; 25 Am. Dec. 596 fwith notes); followed in Haynie v. Waring, 29 Ala. 265 ; Skelley v. Kahn, 17 111. 171 ; Lampley v. Scott, 24 Miss. 533 ; Eddy v. Livingston, 35 Mo. 493. "Knowles v. Atlantic, etc., R. Co., 38 Me. 55 ; 61 Am. Dec. 234. =■ Lloyd V. West Branch Bank, 15 Pa. St. 172 ; 53 Am. Dec. 581. *Tancil V. Seaton, 28 Gratt. 601; 26 Am. Rep. 380. To the same eflfect: Edson V. Weston, 7 Cow. 278; Sodowsky v. McFarland, 3 Dana, 205; Rozellev. Rhodes, 116 Pa. St. 129; 2 Am. St. Rep. 591; Hibernia Bld'g Ass'n V. McGrath, 154 Pa. St. 296; 35 Am. St. Rep. 828; Coal Co. v. Riohter, 31 W. Va. 858; Burk v. Dempster, 34 Neb. 426 ; Spoonerv.Mattoon, 40 Vt. 300; 94 Am. Dec. 395 ; Minor v. Chic, etc., Ry. Co. 19 Wis. 40; 88 Am. Dec. 670 ; Dunn v. Branner, 13 La. Ann. 452 ; Jourdan v. Reed, 1 Clarke, 135; Bronnenburg v. Oharman, 80 Ind, 475 ; Davis v. Gay, 141 Mass. 531. DEPOSIT. 13 deposit as he takes of his own property of a similar kind. Thus in one case it is said : " The degree of care which is necessary to avoid the imputation of bad faith is estimated by the carefulness which the depositary uses toward his own property of a similar kind. This is now the received law as to this kind of bailment, notwithstanding it is denied by Lord Coke in 1 Inst. 896. It is recognized in Coggs v. Bernard, 2 Ld. Raym. 909. And the. same law as to gratuitous bailment is mentioned by Sir William Jones, and is sanctioned in Foster v. Essex Bank." ^ But it is believed that this statement is too broad. Something would depend on the character of the bailee and of the property. His customary gross negligence toward his own property would not justify it toward the deposit, as for example if he was accustomed to keep his money in a stocking instead of a safe or a bank. And much would depend on the nature of the property. He must observe a reasonable degree of care, and in other cases, with refer- ence to the nature of the goods and the particular cir- cumstances of the bailment ; as where one sent his horse to another to keep as a mere gratuitous bailee, and he turned the horse after dark, into a dangerous pasture, to which it was unaccustomed, though the place would be perfectly safe to his own cattle, to this animal it would be otherwise, and the bailee would be responsible for any injury in consequence.^ ' The degree of care exacted is in proportion to the value of the property to be kept.^ But it seems that if the bailor knows the general character and habits of the bailee, and the place where and the man- ner in which the goods are to be kept, he is conclusively presumed to assent that his goods shall be so treated, and cannot maintain an action for loss or injury.* Where a ' Lloyd V. West Branch Bank, supra. = Eooth V. Wilson, 1 B. & Aid. 59. 'Conner v. Winton, 8 Ind. 315; 65 Am. Dec. 761. ' Knowles v. Atlanlic, etc., R. Co., 38 Me. 55; 61 Am. Dec. 234. 14 BAILMENTS. bailee is not in the business of a depositary there is no presumption that he Avas to receive compensation, and thus be bound to higher degree of care, as in case of a boot and shoe dealer receiving a deposit of a quantity of gold.i Use of the property. — The bailee however may render himself liable for loss or injury if he uses the property, contrary to the implied agreement, or he may render him- self liable as for a conversion. Thus where a bag of jewels was lodged in the hands of a goldsmith for safe-keeping, and he broke the seal and pawned them for borrowed money, he became responsible as for a conversion, and the pawnee was liable in trover.^ This principle however is limited to a use for the benefit of the bailee, and does not extend to a use for the benefit of the property, which in- deed he is sometimes bound to make, as for example, to exercise a horse, or milk a cow ; ^ and so if the use would not injure or endanger the property. ; for example, he may justifiably read a book so deposited. But if the use sub- jects the property to risk of loss or injury, like the wear- ing of jewels, he is liable for loss or injury therein. The use however must have that natural tendency in order to render him liablie. So where S., a guest of N., deposited with him for safe-keeping government bonds of the value of $4,500, and N. with the consent of S. put them in a box with his own valuables, which he locked and placed in a drawer in a bureau in his bedroom, which drawer he also locked; and afterwards N. without the consent or knowledge of S., took one of the bonds and pledged it as security for his own debt ; and thereafter a thief entered the house, broke both locks and stole the other bonds and N.'s papers, it was held that N. was not liable to S. for the ' Mariner v. Smith, 5 Heisk. 203. ' Hartop V. Homo, 2 Strange, 1187. " De FoHclear v. Shottenkirk, 3 Johns. 170. DEPOSIT. 15 bonds taken by the thief;' the conversion of the one not working a conversion of the others. So when plaintiff deposited with a merchant a stim of money for gratuitous safe-keeping, with permission to use it, of which he neVer availed himself, but his bookkeeper with the acquiscence of both parties, occasionally took small amounts from it temporarily to make change, and the deposit was kept separate, and stolen without the defendant's fault, he was held not to be liable.^ So where the bailee appropriated part of a pipe of wine entrusted to him, this was held not to be a conversion of the remainder.^ But where the deposit is liquor, and the bailee takes part of it and fills the vessel with water, this is a conversion of the whole.* Servants. — The bailee without reward is responsible for the gross negligence of his servants in keeping the deposit to the same degree as for his own, provided it is within the course or line of his employment, but if the servant steps out of his way to do a wrong, either fraudulently or feloniously, the master is not answerable,^ unless the mas- ter's gross negligence aflfbrds the opportunity. Special undertaking. — If the bailee without reward specially agrees to keep safely, he is bound to a higher degree of care. It was early held that such an under- taking would render him liable for loss by robbery." But to render him thus liable there must be a distinct under- I ' Schermer v. Neurath, 54 Md. 491 ;'39 Am. Rep. 397. " Caldwell T. Hall, 60 Miss. 330 ; 45 Am. Rep. 410. = Philpott V. Kelley, 3 Ad. & Ell. 106. 'Richardson v. Atkinson, 1 Str. 576. 'Foster v. Essex Bank, supra. But a bailee without a lien is liable for bailnient of money taken out of his safe by a clerk whom he allowed to enter the safe. Glover v. Burbidge, 27 S. C. 305. ' Kettle V. Bromsall, Willes, 119 ; but in the report of the case in 3 Petersdorff, 363, it was added, " But in ordinary cases he is not liable if robbed." 16 BAILMENTS. taking to keep safely ; mere loose talk on the mere under- standing of the bailor would not effect it.^ Re-delivery. — The bailee without reward is bound to restore the deposit on demand if he still has it. A refusal renders him liable as for conversion or in assumpsit.^ If the deposit is made by more than one it may not be re- delivered except on the joint demand f but if the deposit is made by one of several owners, re-delivery may be made to that one ;^ and in the former case the one to whom re-delivery was made could not join the others in a suit for the property.* The bailee may justify surrender to the true owner, as in case of stolen property,^ or to the superior force of a judicial decree or proceedings.® He should notify the bailor of the proceedings. He is not bound to litigate but is scarcely safe in surrendering on demand.^ But he is otherwise responsible for a mis- delivery.'* If he does anything with the property not ' Foster v. Essex Bank, supra-, where it was held that the cashier's receipt " for safe-keeping " did not imply an agreement to keep safely. "It contdns no promise, and assumes no risks other than would be derived from, the mere delivery without any writing." It was also held that the weighing of the gold in presence of the president and cashier did not imply any special undertaking to keep safely. = Bradley v. Spofford, 23 N. H. 444; 55 Am. Dec. 205; Wellington v. Wentworth, 8 Mete. 548 ; Collins v. Bennett, 46 N. Y. 490 ; Foster v. Essex Bank, supra. = May V. Harvey, 13 East, 197. ^Brandon v. Scott, 7 Ell. & Bl. 234. ^ Rollers v. Weir, 34 N. Y. 463. »Bliven V. Hudson R. R. Co., 36 N. Y. 403; Burton v. Wilkinson, 18 Vt. 186 40 Am. Dec. 145. ' Welles V. Thornton, 45 Barb. 390. 'Coffin V. Henshaw, 10 Ind. 277; Nelson v. King, 25 Tex. 655; Colyar V. Taylor, 1 Cold. 372. So he delivers at his peril to an apparent stranger, without attempt to verify his claim and without inquiry as to the real owner- ship. Wear v. Qleason, 52 Ark. 364; 20 Am. St. Rep. 186. And .so if he delivers upon a forged order. Hubbell v. Blandy, 87 Mich. 209 ; 24 Am. St. DEPOSIT. 17 agreed upon he is liable as for conversion,^ and so he is liable for loss by a delivery in a way not requested nor contemplated.^ The burden is on the bailee to justify his delivery, or excuse a loss or injury.* Actions. — The bailee may recover the deposit from one Avho has unlawfully taken it from him.^ An action by the bailor for the deposit must be brought without un- reasonable delay.* Expenses in keeping.— In an emergency the bailee with- out reward may incur expenses on behalf of the owner in the preservation of the property.^ Determination. — The bailee may terminate the bailment at any time by tendering the property.® Although it has been said that the bailee may not deny his bailor's title, yet he may surrender to the true owner.^ Rep. 154. And so if ordered to deliver in one manner he adopts another. Graves v. Smith, 14 Wis. 5 ; 80 Am. Deo. 762. ■Ouderkirk v.^ Cent. Nat. Bank, 119 N. Y. 263. So if being instructed not to deliver except upon the bailor's written order he delivers to his wife upon a forged order. Rowing v. Manley, 49 N. Y. 192; 10 Am. Rep. 346. Venkins v. Bacon, 111 Mass. 373; 15 Am. Rep. 33, where plaintiff, about to start on a long voyage, requested defendant to buy a government bond and keep it for him and collect the coupons. Defendant was to receive no re- ward. He bought the bond, kept it a year, and then without request sent it by mail to plaintiff's wife, and it was lost. Held, that he was liable, irrespect- ive of the question of negligence. So where defendant received money for keep- ing without reward, and without instructions to remit he intrusted it to one " reputed to be an honest man " for delivery, and it was lost, defendant was held liable. Stewart v. Frazier, 5 Ala. 114. See Skelley v. Kahn, 17 111. 170. 'Fisher v. Cobb, 6 Vt. 622 ; Miller v. Adsit, 16 Wend. 335 ; White v. Webb, 15 Conn. 302; Sutton v. Buck, 2 Taunt. 302. ' Wright V. Paine, 62 Ala. 340 ; 34 Am. Rep. 24. = Harter v. Blanchard, 64 Barb. 617. "Roulston V. McClelland, 2 E. D. Smith, 60. 'West. Trans. Co. v. Barber, 56 N. Y. 544 ; Cook T. Holt, 48 id. 275. 18 BAILMENTS. CHAPTER III. MANDATE OR COMMISSION. Mandate or commission is where the bailee undertakes, without reward to do something upon or about the thing entrusted to him, as for example where an article to be repaired or transported, without compensation. So one who undertakes gratuitously to carry casks of brandy from one cellar to another, or to collect a note delivered to him, or to doctor a horse entrusted to him, is a mandatory, and assumes a certain degree of responsibility, proportioned to the nature of the property and the character of the ser- vices.^ This branch of the law is always connected with the delivery of property to the mandatory, and is distinguishable from a class of cases in which no property is delivered and the agent is simply to do some act gratu- itously, as to effect insurance, collect a demand, or treat a wound. But the mandatory is not bound to act, and no action lies against him for breach of his promise to act.^ Degree of care and extent of responsibility. — In such cases is only bound to reasonable diligence and answerable for gross negligence.^ But his diligence or negligence is measured by the circumstances and the character of the property or of thing service required.* So one would 'Ooggs Y. Bernacd, supra; Whitney v. Lee, 8 Mete. 91; Conner v. Winton, 8 Ind. 315; 65 Am. Deo. 701 ; Newell v. Newell, 34 Miss. 385. " Ooggs V. Bernard, supra; Thome v. Deas, 4 Johns. 84. "Stanton v. Bell, 2 Hawks, 145; 11 Am. Dec. 744; Conner v. Winton, supra; Eddy v. Livingston, 35 Mo. 487 ; 88 Am. Dec. 122; Haynie v. Waring, 29 Ala. 265; Skelley v. Kahn, 17 111.171; Lampley v. Scott, 24 Miss. 533; Hibernia B. Ass'n v. McQrath, 154 Pa. St. 296 ; 35 Am. St. Rep. 828. * Jqnkins v. Motlow, 1 Sneed, 248 ; 60 Am. Dec. 154 ; Eddy v. Livings- ton, supra; McNabb v. Lookhart, 18 Ga. 495 ; Graves v. Ticknor, 6 N. H. 537. MANDATE OR COMMISSION. 19 be bound to a greater degree of care in a bailment of money or of fragile goods than in the case of less valuable or less perishable property.^ Ordinarily it is considered that the bailee is bound only to such care of or diligence concerning the property entrusted to him as he takes or exercises toward his own of the same kind. So when a merchant undertook to enter a parcel of goods for another with one of his own at a cus- tom-house for exportation, and entered them under a wrong ■denomination, whereby both were seized, he was held not liable.^ And so if the bailee does work on the thing bailed with the same care as on his own.* But if his profession implies skill the want of skill may be imputable as gross negligence.' And if he is grossly careless in his care of his own valuable property, like money, and his own is likewise lost, this will not excuse such carelessness toward the money entrusted to him.* As where one undertook gratuitously to carry money from Boston to New York by boat, and left it with his own in his valise in one cabin while he slept in another, notwith- standing the steward told him it would be safer in the office, and it was stolen, he was held liable for the loss.^ Especially would he be deemed responsible if the money entrusted was lost but his own was saved, for this would indicate that he took less care of the former than of the latter.® But if he conducts the transmission of money as prudent men ordinarily do, he is not responsible for its lass.* Where one received for gratuitous delivery a ■ Shiells V. Blackburne, 1 H. Bl. 158. 'Lane v. Cotton, 1 Ld. Raym. 646; Kettle T. Bromsall. Willes, 121. ' Conner v. Winton, supra (farrier) ; Stanton v. Bell, supra ; Wilson v. Brett, 11 M. & W. 113 ; Isham v. Post, 141 N. Y. 100; 38 Am. St. Rep. 766 This doctrine has been approved by the Supreme Courts of the following States, to-wit : Alabama, Louisiana, Kentucky, New Jersey, Kansas, Ohio, Vermont,. Wisconsin, New York, Michigan, Minnesota, Texas, Connecticut, and Penn- sylvania. Counsel for appellant cite Alabama and Pennsylvania -as supporting the Massa'chusetts rule, but an examination of the cases of Railroad Co. v. McGuire, 79 Ala. 395, and Railroad Co. v. Oden, 80 Ala. 39, and the case of Steamship Co. v. Smart, 107 Pa. St. 492, will discover that Alabama and Penn- sj-lvania are in line with the New Hampshire rule as to the consignee having a, reasonable time in which to remove the goods, during which time the liability of the carrier as an insurer continues. Counsel for appellee are likewise mis- taken in putting Tennessee in the New Hampshire column. See Butler v. Bail- road Co., 8 Lea, 32. But whatever rule we adopt, we will be but going upon a well-beaten path, and following in the footsteps of eminent jurists. It is- difiScult to determine where lies the weight of authority amid such respectable conffiot. But considering the ' broad principles of public policy and convenience upon which the common-law liability of the carrier is made to rest,' the doc- trine of the New Hampshire court commends itself to our favor. We think it embodies the better reason. Without entering upon a discussion of these prin- ciples (for We could not hope to add anything new) we simply announce our approval of the New Hampshire ease as applicable to the undisputed facts of this case. This doctrine is supported, we believe, by a majority of the text writers, as well as the adjudicated case-i. In addition to authorities cited in brief of counsel, see 2 Beach Ry. Law, § 916 ; 3 Wood Railroads, 1908 ; 2 Redf. Railroads, 81; Story Bailm. §543; and Hutch. Carr. § 373. The Supreme Court of New York in Fenner v. Railroad Co., 44 N. Y 505, has covered the whole doctrine of notice and reasonable opportunity to remove J;he goods after COMMON CARRIERS OF GOODS. 135 not deliver them at another landing.^ So m respect to goods consigned " C. 0. D." ;" but in this case the carrier may afford the consignee a reasonable opportunity to examine the goods.^ arrival at place of destination, as follows : ' If the consignee is present upon the arrival of the goods, he must take them without unreasonable delay. If he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he has a reasonable time to take and remove them. If he is absent, unknown, or cannot be found, then the carrier can place the goods in its freight house, and after keep- ing them a reasonable time, if the consignee does not call for them, its liability as a common carrier ceases.' As to what is reasonable time for removal, where the facts are undisputed, as in this case, is a question of law. "Where there is a dispute about the facts, the question must be determined by the jury or court sitting as such. It should be said, however, that the question of reasonable time and opportunity to remove the goods is not in the least affected by any untoward or adventitious surroundings peculiar to any particular consignee. Hutch. Carr. 377." See also, Missouri Pac. Ry. Co. v. Wichita Wholesale Grocery Co., Kaus.; 40 Pac. Rep., 899; R. Co. v. Maris, 16 Kans. 333; Scheu v. Benedict, 116 N. y. 510; North Penn. Ry. Co. v. Com. Nat. Bank of Chicago, 123 U. S: 727. The view that favors the consignee is adopted in Tarbell v. Royal, etc., Co., 110 N. Y. 170; 6 Am. St. Rep. 350 ; Adams Ex. Co. v. Darnell, 31 Ind. 20; 99 Am. Dec. 582. The view favorable to the carrier is found in Francis v. Dubuque, etc., R. Co., 25 Iowa, 60 ; 95 Am. Dec. 769, where it is said : " To say that the responsibility of the carrier continues for one hour after the goods are stored is on principle no more reasonable than to say that it shall continue for six, twelve, or twenty-four ! " This case gives a useful- list of the authori- ties on both sides. ' Strieker v. Leathers, 68 Miss. 803 ; 13 L. R. A. 600 ; Mich., etc., R. Co. v. Day, 20 111. 375 ; 71 Am. Dec. 278; Strahoru v. Union, etc., Co., 43 111. 424; 92 Am. Dec. 142. " Daylight Burner Co. v. Odlin, 51 N. H. 56 ; 12 Am. Rep. 45 ; Murray v. Warner, 55 N. H. 546; 20 Am. Rep. 227; Norfolk S. R. Co. v. Barnes, 104 N. C. 25; 5L. R. A. 611 = Lyons & Co. v. Hill & Co., 46 N. H. 49 ; 88 Am. Dec. 189. So where the direction is to deliver on presentation of a duplicate bill of lading. McEwen v. Jeffersonville R. Co., 33 Ind. 368 ; 5 Am. Rep. 216; Weyand v. Atchison, etc., R. Co., 75 Iowa, 573; 9 Am. St. Rep. 504; 1 L. R. A. 650. 136 DELIVERY. Carrier's refusal to deliver. — If ^^the carrier refuses or neg- lects to deliver the goods on demand, either for his own convenience or through carelessness, his liability as carrier is not discharged.^ Consignee's refusal to accept. — If the consignee refuses to receive the goods after tender, or notice, and a reason- able time and opportunity to take them, the carrier's lia- bility is not discharged, but is reduced to that of ware- houseman, if he still retains the goods, and he is respon- sible only for ordinary care.^ What is a reasonable time and opportunity for the con- signee to take the goods depends much on their character as to bulk, number, value, perishability, and the like. The duty to deliver and the duty to receive are reciprocal. For example, the consignee of specie or other money can- not prolong the carrier's liability as insurer by refusal to take it although tendered out of banking hours.* But otherwise if the goods are tendered after the consignee's store is closed and his employees have gone away.* If the carrier retains the goods for the accommodation of the ' Meyer v. Chic, etc., Ry. Co., 24 Wis. 560; 1 Am. Rep. 207; Faulkner v. Hart, 82 N. Y. 413; 37 Am. Rep. 574. But in East Tenn., etc., R. Co. v. Kelly, 91 Tenn. 699 ; 17 L. R. A. 691, it is held that the liability is only as warehouseman. ' Ostrander v. Brown, 15 Johns. 39 ; 8 Am. Dec. 211 ; Young v. Smith, 3 Dana, 91; 28 Am. Dec. 57; Marshall v. Am. Ex. Co., 7 Wis. 1; 73 Am. Dec. 381; Steamboat Keystone v. Moies, 28 Mo. 243; 75 Am. Dec. 123; Wood v. Crocker, 18 Wis. 345 ; 86 Am. Deo. 773 ; Rankin v. Memphis, etc., Co., 9 Ileisk. 564; 24 Am. Rep. 339; Smith v. Nashua, etc., R. Co., 27 N. H. 86; 59 Am. Dec. 364; Union Pac. Ry. Co. v. Moyer, 40 Kans. 184; 10 Am. St. Rep. 183; Missouri, etc., Ry. Co. v. Haynes, 72 Tex. 175. 'Marshall v. Am. Ex. Co., supra; Young v. Smith, supra; Adams Ex. Co. V. Darnell, 31 Ind. 20 ; 90 Am. Deo. 582. See Rice v. Hart, 118 Mass. 201 ; 19 Am. Rep. 433 ; Eagle v. White, Whart. 505 ; 37 Am. Dec. 434; Scheu V. Benedict, 116 N. Y. 510; 15 Am. St. Rep. 426. 'Hill V. Humphreys, 5 W. & S. 123; 39 Am. Dec. 117. COMMON CARRIEKS OF GOODS. 137 consignee and at his request, without additional considera- tion, he is thereafter liable only as a gratuitous bailee.^ If the consignee does not take the goods within a reason- able time after notice or reasonable effort to notify, the carrier may divest himself of all responsibility by storing them with a responsible third person, engaged in that busi- ness at that place, for the owner's account.^ Notice of delivery or discharge is dispensed with where the consignee is absent or cannot be found after reasonable effort,^ but not by a custom of delivering to public draymen.* Notice may also be dispensed with by particular provision as to delivery in the bill of lading.^ Connecting carriers. — When the contract of the carrier is only to deliver to another carrier, his liability as carrier subsists until actual delivery to the next carrier, and is not modified by warehousing while awaiting such delivery.® Demurrage. — In the case of transportation of goods by water, it is usual for the bill of lading to provide that in case of delay on the part of the consignee in accepting or receiving the goods beyond a stipulated time, the carrier shall be entitled to recover from him a certain stipulated ' Knowles v. Atlantic, etc., R. Co., 38 Me. 55 ; 61 Am. Deo. 234. ' Fisk T. Newton, 1 Denio, 45 ; 43 Am. Deo. 649 ; Kohn v. Packard, 3 La. 224; 23 Am. Deo. 453. "Witbeck v. Holland, 45 N. Y. 17. ' Dean v. Vaocaro, 2 Head. 488 ; 75 Am. Dec. 744. ° As when it is provided that the goods shall be taken from alongside the vessel as soon as it is ready to discharge. Constable v. Nat. S. Co., 154 XJ. S. 51. » Bancroft v. Merch. D. F. Co., 47 la. 262 ; 29 Am. Rep. 482, and cases cited ; Railroad Co. v. Manuf. Co., 16 Wall. 318 ; Rawson v. Holland, 59 N. Y. Gil ; 17 Am. Rep. 394; Lawrence v. Winona, etc., R. Co., 15 Minn. 390; 2 Am. Rep. 130; Illinois Cent. R. Co. v. Mitchell, 68 III. 471; 18 Am. Rep. 564; Hooper v. Chic, etc., Ry. Co., 27 Wis. 81; 9 Am. Rep. 439; Condon v. Mar- quette, etc., R. Co., 55 Mich. 218; 54 Am. Rep. 367; Vannatta v. Cent. R. Co., 154Pa. St. 262; 35 Am. St. Rep. 823. 138 • DELIVERY. amount ; which is called Demurrage. It has been held in. some of the State courts, that demurrage is not recover- able from the consignee unless the bill of lading stipulates for its payment.^ But in the Federal courts it is held to be recoverable whether so stipulated or not.^ Custom. — Proof of usage is competent to justify stage- coach proprietors in leaving goods at their ofi&ce to be called for, and to warrant carriers by water in delivering goods to a wharfinger, or a railroad company in delivering on a platform at a station where there was no warehouse,* or carriers by water, in delivering at a certain landing although there is no warehouse there, and so of an usAge that the consignee shall furnish skidds for unloading.* But otherwise of usage to deliver goods to a cartman usually employed by the consignee, or to a public dray- man, or merely to publish notice in a newspaper, or to demand a receipt, or for a carrier by water to transport inland from the port of delivery, or contrary to the bill of lading although according to usage with the consignee, or to a person holding an unindorsed bill of lading.* ' Gage v. Morse, 12 Allen, 410; Miner v. N. & W. R. Co., 32 Conn. 01. ^ Sprague v. West, Abb. Adm. 548 ; Railroad Co. v. Northam, 2 Ben. 1 ; The Pietrp G., 38 Fed. Rep. 138 ; The Hyperion's Cargo, 2 Lowell, 93. For the de- Telopment of the doctrine t>{ demurrage consult Porter on Bills of Lading, Abbott on Shipping, and cases in 8 Eng. Rul. Cas., with American notes by the present writer. "Gibson t. Culver & Brown, 17 Wend. 305; 31 Am. Dec. 297; Farmers', etc., Bk. V. Champlain T. Co., 16 Vt. 52; 42 Am. Dec. 491; McMasters v. Penn. R. Co. 69 Pa. St. 374; 8 Am. Rep. 264; Turner v. Uuff, 46 Ark. 222; 55 Am. Rep. 580; Loveland v. Burke, 120 Mass. 139 ; 21 Am. Rep. 507. In Constable v. National St. Co., 154 U. S. 51, 'goods arriving by steamship at New York, and the company's wharf being so blocked that the ship could not land, her cargo was delivered at another wharf, according to custom in such cases, and notice thereof was posted at the company's wharf, but the con- signee was not notified. Held, a good delivery by custom. (Three jnstices dissenting.) ' Ostrander v. Brown, supra; Dean v. Vaccero, supra; Kohn v. Packard, COMMON CAKRIEKS OF GOODS. • 139 The carrier is boand to comply with a custom to notify the customs' collector and the consignee of the arrival of bonded goods.^ Waiver. — Delivery at the destination, or the ordinary mode of delivery there, may be waived by the consignee, , as by his assuming control,^ or by his accepting them at a point short of the destination.^ Legal process. — The carrier may justify yielding up the * goods to valid legal process/ but not where there is no process, or it is invalid although he supposed it valid.^ He may also yield to paramount title." supra; MoTgaji v. Dibble, 29 .Tex. 107; 94 Am. Dec. 264; Reed v. Richard- son, 98 Mass. 216; 93 Am. Dec. 155 ; Penn. R. Oo. v. Stern, 119 Pa. St. 24;, 4 Am. St. Rep. 626 ; Weyand v. Atcliison, etc., R. Co., 75 Iowa, 573 ; 9 Am. St.. Rep. 504. 'Chicago, etc., Ry. Co. v. Sawyer, 69 111. 285; 18 Am. Rep. 6l3. "Stone T. Waltt, 31 Me. 409; 52 Am. Dec. 621 ; Goodwin v. Bait., etc., R. Co., 50 N. Y. 154'; 10 Am. Rep. 457. 'Lorentv. Kentring, 1 N. & McC. 132; Hunt v. Haskell, 24 Me. 339; 41 Am. Dec. 387. •Pingree v. Detroit, etc., R. Co , 66 Mich. 143 ; 11 Am. St. Rep. 479. 'National Bk. v. Chic, etc., R Co., 44 Minn. 224; 9 L.R. A. 263; 20 Am. St. Rep. 560. °Blivenv. Hudson R. R. Co., 36 N. Y. 403; Edwards v. White Line Trans. Co., 104 Mass. 159; 6 Am. Rep. 213; KifF v. Old C, etc., Ry. Co., 117 Mass. 591; 19 Am. Rep. 429; Gibbons T. Farwell, 63 Mich. 344; 6 Am. St. Rep. 301; Bennett v. Am. Ex. Co., 83 Me. 236; 13 L. R. A. 33; 23 Am. St. Rep. 774 ; contra, if he notifies the consignee ; Jewett v. Olsen, 18 Greg. 419 , ]7 Am. St. Rep. 745 ; Ohio,etc., R. Co. v. Yohe, 51 Ind. 181 ; 19 Am. Rep. 727. In Edwai-ds v. White Line T. Co., supra, the court say of the attachment: "As against the plaintiffs it was of no more validity than a trespass by any other unauthprized proceeding, or by an unofficial person. The carrier is not relieved from the fulfillment of his contract, or his liability as carrier, by the intervention of such an act of dispossession, any more than he is by destruction from fire, or loss by theft, robbery or unavoidable accident. In neither case is he liable in trover for conversion of the property, but he is liable on his con- tract, or upon his obligations as common carrier. The owner may, it is true, maintain trover against the officer who took the property from the carrier; but 140 DELIVERV. Delivery to true owner. — The carrier may safely deliver he is not obliged to resort to him for his remedy. lie may proceed directly ■ against the carrier upon his contract, and leave the cairier to pursue the prop- erty in the hands of those who have wrongfully taken it from him." In Gib- bons V. Farwell, supra, the court consider that the surrender to an officer without a legal warrant was a conversion. But in Ohio & Miss. Ey. Co. v. Yohe, supra, the court said : " It is impossible for the carrier to deliver the goods to the consignee, when they have been ."-eized by legal process and taken out of his possession. The carrier cannot stop, when goods are offered to him for carriage, to investigate the question as to their ownership. Nor do we think he is bound, when the goods are so taken out of his possession to io\- ]ow them up, and be at the trouble and expense of asserting the claim thereto of the party to or for whom he undertook to carry them. "We do not think it material what the form of the process may be. In every case the carrier must 3'ield to the authority of legal process. After the seizure of the goods by the officer by virtue of the process, they are in the custody of the law, and the car- rier cannot comply with his contract without a resistance of the process and a violation of the law. The right of the sheriff to hold the goods involved ques- tions which could only be determined by the tribunal which issued the process, or some other competent tribunal, and the carrier had no power to decide them. If the goods were wrongfully seized, the plaintiffs have their remedy against the officer who seized them, or against the party at whose instance it was done. As between these parties, the process would be no justification, if the plain- tiffs were the owners and entitled to the possession of the goods." Citing Stiles V. Davis, 1 Black. 101. In Pingree v. Detroit, etc., R. Co., 66 Mich. 143 ; 11 Am. St. Rep. 479, the court said : " There seems to be a little apparent con- flict between the cases on this question, but there can be not doubt where the rule of justice lies. * * * There is no sense or justice in enabling a con- signor to compel a carrier, at his peril, to defend a title that he knows nothing about, and has no means of defending, unless the consignor gives it to him. * * * If the carrier cannot call on the consignor to defend, and must take the risk and the loss, he runs the risk of an action ; and if a wrongful holder, by doubtful title, or even by theft, compels him to receive the consignment, he can get the value from the carrier who has had them seized by the true owner, unless the carrier has means of proof, that he never can be pre- sumed to have, of the lack of intent in the shipper. Whatever may he a carrier's duty to resist a forcible seizure without process, he cannot be com- pelled to presume that regular process is illegal, and to accept all the con- sequences of resisting officers of the law. If he is excusable for yielding to a public enemy, he cannot be at fault for yielding to actual authority what COMMON CAEIUERS OP GOODS. 141 to the true owner, although not the consignee,^ but he is not bound to do so unless the demand is accompanied by legal process.'' Some cases however hold that the carrier is bound to decide as to the true ownership, at his peril, and that his refusal to surrender to the true owner is a con- version,^ he may yield to usurped authority." Citing Stiles v. Davis, supra. One judge dissented. ' Wells V. Am. Ex. Co., 55 Wis. 23; 42 Am. Rep. 695 J Transportation Co. V. Barber, 56 N. Y. 544 ; Barker t. Dement, 9 Gill, 7 ; Hardman v. Willcock, 9 Bing., 382; Cheesman v. Exall, 6 Exch., 341; Express Co. v. Greenhalgh, 80 111. 68 ; "Wolfe v. Railway Co., 97 Mo. 473 ; The Idaho, 93 U. S. 575. ■ ''Kohnv. Richmond, etc., E. Co., 37 S. C. 1 • 34 Am. St. Rep. 726, and note, 731 ; 24 L. R. A. 100. ' Shellenberg V. Fremont, etc., R. Co., Neb. Sup. Ct.; 63 N. W. Rep. 859. The court said : " The single question presented is whether the defendant, as a common carrier of property, was bound at i;s peril to determine which of the rival claimants of the property was the rightful owner. It was formerly held that, where a ba'.lee of goods delivered them to the rightful owner, he would, notwithstanding that fact, be answerable to the bailor without title thereto. The reason for the rule was that a bailee, having recognized the bailor as the owner, should not be permitted to dispute the latter's title. But according to the modern rule, as recognized in this country and in England, it is a sufficient excuse for the non-delivery of personal property for the bailee to show that he has surrendered it to the rightful owner. Hutch. Carri 404; Transportation Co. V. Barber, 56 N. Y. 544 ; Harker v. Dement, 9 Gill, 7 ; Hardman v. Willcock, 9 Bing. 382 ; Cheesman v. Exall, 6 Exch. 341 ; Wells v. Express Co., 55 Wis. 23; 11 N. "W^. Rep. 537; and 12 N. W. Rsp. 411; Express Co. y. Greenhalgh, 80 111. 68; Wolfe v. Railway Co., 97 Mo. 473, 11 S. W. Rep. 49. The Idaho, 93 U. S. 575. The reasoning upon which the modern doc- trine rests is that the obligation of the bailee is to restore the property or to account for it, and that he has in legal contemplation accounted for it when he has delivered it to one whose title and right of possession is paramount to that of his bailor." " On the question of the duty of a common carrier or other bailee at its peril to determine between the bailor and a third . party claiming title, the authorities are less numerous than the importance of the su'.'ject would seem to suggest, although the pronounced weight thereof sustains the proposi- tion that a refusal to surrender to the rightful owner .imounts to.a conversion, for which the latter may recover, if entitled to possession at the time of his i..;- 142 DELIVERY. Misdelivery.— The carrier is otherwise bound, at his peril, to deliver to the consignee addressed, or his authorized ■demand. In Wells v. Express Co., 55 Wis. 23, a well considered case, Judge Orton, after asserting the liability of the carrier, says: ' This principle obtains in all cases of bailment, and the jus tertii may be enforced, even as against the contract of bailment, and when enforced will be made available to excuse and protect the bailee from the performance of delivery according to its terms, and it is founded on reason, as well as sustained by a great preponderance of authority. There can be no distinction between its application in case the bailor or consignor seeks to reclaim the property from the bailee or carrier, and in case the consignee seeks its delivery, for the rights of all the parties to the contract must yield to the paramount right of the real owner of the property.' It is also said, in the same opinion : 'When the liability of the express company to respond to the claim of a third person as the exclusive owner of the property against the terms or directions of the consignment for delivery to another, or for delivery to himself and another, is established by law, as now seems clear, it follows that such third person should recover in an action against the company upon proof of ownership.' The proposition there asserted finds support in the following authorities: Transportation Co. v. Barber (supra); The Idaho (supra); Hutch. Carr. (406, 407). We have been referred to a single case at variance with the above doctrine, viz , Kohn v. Eailroad Co., 37 S- C. 1, in which, with one Judge dissenting, the liability of the defendant was denied. The reasons upon which that case rests are shown by the following quotation : 'It seems to us that common justice would require that such burden should be assumed by the claimant, who is most likely to have some means of meeting it, and not by the carrier, who cannot be supposed to know anything about the real ownership of the goods, and Jias a right to as.sume that the person fiom whom he received possession of the goods was such rightful owner, possession of personal property being evidence of title.' There is no doubt that the assertion of conflicting claims has been the occasion of frequent embarrassment to bailees, particularly common carriers, who are bound to receive goods offered for transportation, although there has been suggested no sufficient reason for excepting them from the operation of the rule by which the rightful owner is permitted to reclaim property whenever found. We are aware of exceptions to the rule, but they rest upon equitable considerations, none of which are presented by the record in this case, and need not therefore be noticed. But whatever may have been the embarrassment and inconvenience of the bailee under the former practice, his remedy under our system, by an answer in the nature of a bill of interpleader, thus making the adverse claimant a party to COMMON CARRIEKS OF GOODS. 143 agent, and is liable for delivery to anyone else, whether intentionally, or by mistake, or through imposition.^ Where goods have been fraudulently ordered in the name of a fictitious person and shipped direct to such person, it has been held that delivery to a stranger without evidence of his identity renders the carrier liable,^ but this is disputed in cases where there was no negligence, and delivery was made to the shipper answering the name.' Delivery to an unauthorized carman is at the carrier's risk.* So where delivery w;as to be made to the shipper himself, unauthor- ized delivery to a purchaser from him is invalid.* If A. delivers property to a carrier for carriage and delivery to B., and by subsequent direction of A. the carrier delivers it to another person, he is liable to an action by B.^ the controversy, and requiring such claimants to litigate the question of title between themselves, is ample and complete." ' Shenk v. Phila. S. P. Co., 60 Pa. St. 109 ; 100 Am. Dec. 541 ; Vincent v. Bather, 31 Tex .77; 98 Am. Dec. 516; Hayes v. Wells, etc., 23 Cal. 185; 83 Am. Dec. 89 ; McEntee v. N. J. S. Co., 45 N. Y. 34; 6 Am. Rep. 28; Housten, etc., Ry. Co. v. Adams, 49 Tex. 748 ; 30 Am. Rep. 116; Howard v. Steamship Co., 83 N. C. 158 ; 35 Am.' Rep. 571. ' Price V. Oswego, etc., Ry. Co., 50 N. Y. 213 ; 10 Am. Rep. 475 (Church, C. J., dissenting); Winslow v. Vt., etc., R. Co., 42 Vt. 700; 1 Am. Rep. 365; So. Ex. Co. V. Van Meter, 17 Fla. 783 ; 35 Am. Rep. 107. ■ ° Dunbar v. Boston, etc., R. Corp., 110 Mass. 26; 14 Am. Rep. 576; Samuel V. Cheney, 135 Mass. 278; 46 Am. Rep. 467, distinguishing Price v. Oswego, etc., Ry. Co., and Winslow v. Vt., etc., R Co., supra. An express company is not liable for misdelivery of money transmitted by it, where it was sent by the consignor in answer to a telegram purporting to be from a person in whom he had confidence, without inquiry as to whether the sender of the despatch was in fact such person, and delivery was made to the actual sender of the despatch upon reasonable proof as to his identity, althbugh he was not in fact the person whom the consignor supposed him to be. Pacific Express Co. v. Shearer (111.); — L. R. A. — *Guillaume v. Hamburgh, etc., Co., 42 N. Y. 212; 1 Am. Rep. 512. 'Wolfe V. Pac. R. Co., 97 Mo. 473 ; 3 L. R. A. 539 ; 10 Am. St. Rep. 331. 'Bailey v. H. R. R. Co., 49 N. Y. 70. 144 COMMON CARRTEKS OF GOODS. CHAPTER XV. CARRIERS OF G-OODS — LIEN FOR FREIG-HT. A common carrier has a right to his reasonable charges for the carriage of goods, and may retain them until it is paid.^ The lien cannot be acquired unless the goods were delivered for carriage with the consent of the owner, al- though the carrier was innocent.^ So where goods are carried merely for the convenience and at the request of a bailee of them.* So where the carrier receives goods from another connecting carrier with knowledge that the owner had directed them to be sent by another route.* Where goods are mis-sent by the owner's agent, the carrier still has his lien.'' The lien attaches when the carrier's liability as such begins, " as soon as he receives the goods on a con- tract of carriage. The contract being, as we have seen, entire, the shipper or customer delivering the goods can only take them back on paying the freight." " ' Ames V. Palmer, 42 Me. 197; 66 Am. Dec. 271 ; Galena, etc., R. Co. -v. Kae, 18 111. 488 ; 68 Am. Dec. 574 ; Redfield on Carr. § 270 ; Edwards on Bail- ments, § 645; Skmner v. Upshaw, 2 Ld. Raym. 752 ; 5 Eng. Rul. Oas. 281. ' Robinson v. Baker, 5 Gush. 137; 51 Am. Dec. 54; Fitch v. Kewberry, 1 Dougl. 1; 40 Am. Deo. 33; Pingree v Detroit, etc., R. Co., 06 Mich. 143; 11 Am. St. Rep. 479. The English rule seems to be different, Hutch, on Carr. §489. 3 Gilson V. Gwinn, 107 Mass. 126 ; 9 Am. Rep. 13. See Bassett v. Spofford, 45 N. Y. 387; 6 Am. Rep. 101; Stevens v. B., etc., R. Corp., 8 Gray, 262. * Hill V. Denver, etc., R. Co., 13 Colo. 35 ; 4 L. R. A. 376. To the contrary is a dictum in King v. Richards, 6 Whart. 418 ; 37 Am. Dec. 420. ° Whitney v. Beckford, 105 Mass. 271. "Edwards on Bailments, § 647, citing Tindal v. Taylor, 4 Ell. & Bl. 219; Keyser v. Harbeok, 3 Duer, 373 ; Hutch, on Carr. § 385, note, citing Thompson COMMON CARRIERS OF GOODS. 145 The lien on part delivered to the consignee is valid against the residue,^ but not where the goods belong to different shippers,^ or have been sold to different parties.^ The lien is valid as against the consignee's right of stoppage in transit.* The lien is valid only for the carriage, and not for an- other debt/ and it does not extend to cartage, after the goods have reached their destination.* The lien is valid for charges paid on the goods to other connecting carriers from whom they were received,^ but liot where the owner did not consent to the carriage by the claimant.^ No lien arises on account of the consignee's neglect to take the goods.^ Nor where it is otherwise provided in V. Small, 1 0. B. 328, 354; Bartlett v. Carnley, 6 Duer, 194; Van Buskirk v. Purinton, 2 Hall, 561 " Other cases," he continues, " state the law as being that no right to freight accrues until the voyage has commenced, or as it is usually expresses!, until the ship has broken ground.'' Citing Bailey v. Damon, 3 Gray, 92; Curling v. Long, 1 B. & P. 634; Clerason v. Davidson, 5 Binney, 392; Burgess v. Gun, 3 H. & J. 225. Redfield (Carriers, § 298) takes the latter view. As the carrier's liability as insurer begins on the receipt of the goods for carriage his lien should then attach. ' Lane v. Old Col. Eailroad, 14 Gray, 143 ; Frothingham v. Jenkins, 1 Oal. 42; 52 Am. Deo. 286; New Haven & R. Co. v. Campbell, 128 Mass. 104; 35 Am. Rep. 360. " Hale V. Barrett, 26 111. 195; 79 Am. Dec. 367. = Edw. on Bailm. § 649. ' Potts V. N. T., etc., R. Co., 131 Mass. 455 ; 41 Am. Rep. 247 ; Newhall v. Vargas, 15 Me. 314; 33 Am. Dec. 617; but only as against the particular goods, if there are no arrearages, although the bill of lading provides tha,t they may be held for all arrearages of freight on other goods. Penn. R. Co. v. Am. Oil Works, 126 Pa. St. 485 ; 12 Am. St. Rep. 885. " Pharr v. Collins, 35 La. Ann. 939. "Richardson v. Rich, 104 Mass. 156 ; 6 Am. Rep. 210. 'Briggs V. Boston, etc., R. Co., 6 Allen, 246; Bissel v. Price, 16 111. 408; Bowman v. Hilton, 11 Ohio, 303. ' Stevens v. Boston & W. Railroad, 8 Gray, 262. • Crommelin v. N. Y. & H. R. Co., 4 Keyes, 90. 146 LIEN FOR FREIGHT. effect by contract; as where a time is fixed for the pay- ment of the freight subsequent or without reference to delivery.^ Nor against the national government.^ If the consignee accepts the goods short of the destina- tion, a lien pro rata attaches.^ No lien attaches beyond the amount of charges agreed on beforehand, although the goods prove to be of greater value than the carrier supposed.^ The lien is lost by surrender of possession, voluntarily or through negligence,® even if it is agreed that the lien shall continue.^ A.nd so where the carrier refuses to deliver on the ground that the goods are not in his pos- session,^ or puts his right to hold them on some other ground than lien ; as for example, purchase.® And so, in the absence of special contract, where the goods are de- stroyed by fire before the carriage is completed." And so, where by delay the consignee is injured to an amount equal to the freight,'" but not so if the injury is by inevit- ' Pinney v. Wells, 10 Conn. 104 ; Chandler v. Belden, 18 Johns. 157 ; 9 Am. Dec. 193. = Dufolt V. Gorman, 1 Minn. 301. 'Lorent V. Kentrmg, 1 N. & McO. 132; Hunt v. Haskell, 24 Me. 339: 41 Am. Dec. 387. " Baldwin v. Liverpool, etc., S. Co., 74 N. Y. 125 ; 30 Am. Rep. 277. " Norfolk S. R. Co. v. Barnes, 104 N. C. 25 ; 5 L. R. A. 611 ; Hale v. Bar- rett, 26 111. 195 ; 79 Am. Dec 367 ; Boggs v. Martin, 13 B. Mon. 239. ' McFarlahd v. Wheeler, 26 Wend. 467. ' Adams Ex. Co. v. Harris, 120 Ind. 73 ; 16 Am. St. Rep. 315 ; 7 L. R. A. 214. Everett v. CofBn, 6 Wend. 603 ; 22 Am. Deo. 551 ; Everett v. Saltus, 15 Wend. 474. ° New York Cent., etc. R. Co. v. Standard Oil Co., 87 N. Y. 486 ; Barker v. Schooner, 1 Mackey, 24 ; 47 Am. Rep. 234. '° Dyer v. Grand T. Ry. Co., 42 Vt. 441 ; 1 Am. Rep. 350 , Peebles v. Bos- ton, etc., R. Co., 112 Mass. 498 ; Hill v. Leadbetter, 42 Me. 572 ; Bartram v. MoKee, 1 Watts. 39. COMMON CAKRIERS OF GOODS. 147 able accident ;^ and if the carrier pays for the loss of or injury to the goods he may deduct his freight.^ The lien is not lost where the goods are seized by judi- cial process.^ Nor by delivery on fraudulent promise of the consignee to pay the freight/ The lien is not lost by properly warehousing the goods, the consignee refusing them, even in the carrier's own name.^ The lien is assignable." But it does not pass with a wrongful sale or pledge of the goods.^ The carrier may not sell the goods to enforce his lien; such a sale is a conversion.^ He must tesort to equity. In many states the carrier is allowed by statute to sell the goods at public auction for his charges, upon public notice. In such cases, he is bound to use reasonable dili- ' Lee V. Salter, Lalor Supp. 163. "Hammond v. McClures, 1 Bay. 101. ° Newhall v. Vargas, 15 Me. 314 ; 33 Am. Dec. 617. See ante, p. . * Bigelow V. Heaton, 6 Hill, 43. ' Gregg V. 111. Cent. R. Co., 147 111. 550 ; 37 Am. St. Rep. 238 ; West. Trans. "Co. V. Barber, 56 N. Y. 544; Bickford v. Met. S. Co., 109 Mass. 151. In West. Trans. Go. v. Barber, supra, the court said : " Then the creation of a farther lien for the warehouse charges is made necessary by the act of the owner, and it is immaterial to him whether the carrier creates this additional lien in his own favor by depositing them in a warehouse of his own, if he has one, or in behalf of another in whose warehouse he makes the deposit. In the present case the plaintiff did not deposit the oats for the owner, tut in its own name, as its property. Such a deposit, if made in consequence of the default of the owner in receiving, would nb more discharge the lien than if made in a warehouse of its own. The keeper, as in the case of a deposit for the owner subject to the lien, had possession by authority of the carrier ; and his posses- sion is to be deemed that of the carrier, for the purpose ol preserving the lien." See Brittan v. Barnaby, 21 How. 529; Alden v. Carver, 13 Iowa, 253; 81 Am. Dec. 430. " Everett v. CofBii, 6 Wend. 603 ; 22 Am. Dec. 551. ' Everett v. Saltus, 15 Wend. 474. = Briggsv. Boston, etc., R. Co., 6 Allen, 246; 83 Am. Dec. 626; Moore's Ex. V. Patterson, 28 Pa. St. 505. 148 LIEN FOR FREIGHT. gence to ascertain the character of the packages from the external indications, and to communicate his knowledge to the bidders, and if he fails to do so, and sells valuable goods to a favorite, having superior knowledge, at a nominal price, he and the purchaser are liable to an action of dam- ages by the injured party .^ There seems to be no good reason why a private carrier should not have a lien as well as a common carrier, and very authoritative text writers have argued in favor of the right.'* But one court has held otherwise,* no satisfactory- reason being assigned. ' Nathan v. Shivers, 71 Ala. 117 ; 46 Am. Rep. 303. ' " Hutch. Carr. sec. 46 ; Jones Liens, sec. 276. ' Fuller V. Bradley, 25 Pa. St. 120, by Black, J. •COMMON CARRIERS OF PASSENGERS. 149 CHAPTER XVI. CARRIERS OF FASSENG-ERS — OBLIGATION TO CARRY, AND WHO ARE FASSENGBRS. One who holds himself out as a common carrier of pas- sengers is bound to carry all well-behaved persons apply- ing for passage, so far as he has accommodations for them, upon their paying their fare according to his reasonable regulations. He is bqund to carry for the public without discrimination of person, and may not receive nor reject applicants at pleasure.^ He is not bound to receive a drunken or disorderly per- son.^ He is bound to carry to all points to which he holds him- self out to carry or sells tickets, whether at the end of his route or intermediate.* The relation of carrier and passenger arises whenever a person is received for carriage in any vehicle propelled by the carrier's machinery and forming part of his train, although it may be the property of others and under the immediate charge of their servants ; as for example, parlor or drawing-room coaches and sleeping-cars ;* although those particular proprietors may also be liable to the passenger.'^ The payment of fare is not always necessary to raise- the relation of carrier and passenger. Ordinarily the car- ' HoUister v. Nowlen, 19 Wend. 234; 32 Am. Dec. 455 ; Cole v. Goodwin, 19 Wend. 251 ; 32 Am. Dec. 470. "Pittsburgh, etc., Ey. Co. v. Vandyne, 57 Ind. 576; 26 Am. Rep. 68. ^ Heirn v. McOaughan, 32 .Miss. 17 ; 66 Am. Dec. 588. * Thorpe v. N. Y. Cent., etc., R. Co., 76 N.Y. 402; 32 Am. Rep. 325; Rail- road Co. T. Walrath, 38 Ohio St. 461; 43 Am. Rep. 433. "Kevin V. Pullman Pal. 0. Co., 106 111. 222; 66 Am. Rep. 688; Woodruff S. & P. d. Co. V. Diehl, 84 Ind. 474; 43 Am. Rep. 102. 150 OBLIGATION TO CARRV WHO PASSENGERS. rier is answerable for his fault resulting in injury to one- whom he is carrying gratuitously ; ^ but as to a mere tres- passer or interloper, the carrier is only bound to use ordi- nary care and refrain from intentional injury.^ The relation is not raised when a person gets upon a. train on which the carrier has forbidden passengers to ride, such as a special or a freight train,* or on a particular part of a train, such as a baggage car, engine or caboose ; * but if the regulation is not known to the passenger and he is invited or permitted by the carrier's servants thus to ride, the relation exists,^ The following have been held to be passengers : a grat- uitous express messenger ; a gratuitous government mail agent; a person riding free with his stock; a popcorn peddler, paying for the privilege by the season and sup- plying passengers with water ; one who is willing to pay fare but is not called on for it ; one who by mistake takes a wrong train ; one who wears the uniform, cap and badge ' Lemon v. Chanslor, 68 Mo. 340 ; 30 Am. Rep. 799 ; Brennan v. Fairhaven, etc., R. Co., 45 Conn. 284; 29 Am. Rep. 679. "Higley v. Gilmer, 3 Mont. 90; 35 Am. Rep. 450, and note, 458; Everhart V. Terre Haute, etc., R. Co., 78 Ind. 292 ; 41 Am. Rep. 567 ; Chicago, etc., R. Co. V. Mehlsack, 131 111. 61; 19 Am. St. Rep. 17; Reary t. Louisville, etc., R. Co., 40 La. Ann. 32; 8 Am. St. Rep. 497. 'Houstoji & Tex. Cent. Ry. Co. v. Moore, 49 Tex. 31; 30 Am. Rep 98; Baton V. Del., etc., R. Co., 57 N. Y. 382 ; 15 Am. Rep. 513 ; Wagner y. Mo. Pac. Ry. Co., 97 Mo. 512; 3 L. R. A. 156. •Creed V. Penn. R. Co., 86 Penn. St. 139; 27 Am. Rep. 093; Bricker t. Phila., etc., R. Co., 132 Pa. St. 1; 19 Am. St. Rep. 585; McVeety t. St. Paul, etc., Ry. Co., 45 Minn. 268 ; 22 Am. St. Rep. 728; 11 L. R. A. 174; Louisville, etc.,R. Co. v. Hailey (Tenn.), 27 L. R. A. 549. If the prohibitory rule is posted conspioously, it is notice to the intruder. Penn. R. Co. v. Langdon, 92 Pa. St. 21 ; 37 Am. Rep. 651. ° Lucas V. Milwaukee, etc., Ry. Co., 33 Wis. 41 ; 14 Am. Rep. 735; Hanson V. Mansfield, etc., Co., 38 La. Ann. Ill; 58 Am. Rep. 162. Some cases hold this, even if the passenger knew the rule but was suffered to ride. Whitehead V. St. Louis, etc., R. Co , 99 Mo. 263 ; 6 L. R. A. 409. , COMMON CARRIERS OF PASSENGERS. 151 of another carrier in opposition to the carrier's regulation ; one on a construction or hand car by implied permission, as by custom ; one unlawfully travelling for pleasure on Sunday.^ The following persons have been held not to be passen- gers : one riding gratuitously in an express car by invita- tion of the express agent ; one riding on a hand-car by invitation of the section foreman ; or on a construction- car; a newspaper peddler permitted by the conductor to ride free, against the rules ; an infant riding free on a freight train, against the rules and without the knowledge of the conductor, and set by the brakeman at a dangerous service and injured therein ; a second person riding with stock, without a ticket, although he intended to pay fare on demand ; a boy climbing on a tender at the fireman's request to help supply it with water ; one on a construc- tion car under exclusive control of a contractor : an un- born child.* ' Blair v. Erie Ey. Co., 66 N. Y. 313 ; 23 Am. Eep. 55 ; Brewer t. N. Y., etc., R. Co., 124 N. Y. 59; 11 L. R. A. 483; 21 Am. St. Rep. 647 ; Hammond V. N. E. R. Co., 6 S. C. 130 ; 24 Am. Rep. 467 ; Seybolt v. N. Y., etc., R. Co., 95 N. Y. 562; 47 Am. Rep. 75 ; Lawson v. Chic, etc., Ry. Co., 64 Wis. 447 54 Am. Eep. 634; Magoffin v. Mo. Pac. Ry. Co., 102 Mo. 540; 22 Am. St. Rep. 798 ; Gulf, etc., Ry. Co. v. Wilson, 79 Tex. 371 ; 23 Api. St. Rep. 345 11 L. R. A., 486 ; Missouri P. Ry. Co. v. Ivy, 71 Tex. 409 ; 10 Am. St. Rep 758; Cleveland, etc., R. Co. v. Ketcham, 133 Ind. 346; 36 Am. St. Rep. 550 19 L. R. A. 339; Mellor v. Mo. P. R. Co., 105 Mo. 455 ; 10 L. E. A. 360 Florida S. R. Co. v. Hirst, 30 Fla. 1; 16 L. R. A. 631; Cincinnati, etc., R. Co. V. Caiper, 112 Ind. 26; 2 Am. St. Rep. 144; South. F. R. Co. v. Rhodes, 25 Fla. 40; 3 L. R. A. 733 ; 23 Am. St. Rep. 506; Rosenbaum v. St. Paul, etc., R. Co. 38 Minn. 173 ; 8 Am. St. Rep. 653 ; International, etc., Ry. Co. v. Prince, 77 Tex. 560; 19 Am. St. Rep. 795; Carroll v. Staten Island R. Co., 58 N. Y. 126 ; 17 Am. Rep. 221; Walker v. Qt. N. R. Co., 28 L. R., Irish, 69. 'Union P. Ry. Co. v. Nichols, 8 Kans. 505 ; 12 Am. Rep. 475; Hoar v. Me. Cent. R. Co., 70 Me. 65; 35 Am. Rep. 299; International, etc., R. Co. v. Cock, 68 Tex. 713 ; 2 Am. St. Rep. 521 ; Duff v. Alleghany R. Co., 91 Pa. St. 458 ; 36 Am. Rep. 675 ; Sherman v. Hannibal, etc., R. Co., 72 Mo. 62 ; 37 152 OBLIGATION TO CAKRY WHO PASSENGERS. One lawfully on a train as a passenger continues to be such until his arrival at his destination ; he does not for- feit his rights by getting oflf temporarily at a way station from motives of business or curiosity. So where a pas- senger by steamboat goes ashore to get a meal.^ Am. Rep. 423; Gardner v. N. H., etc., Co., 51 Conn. 143; 50 Am. Eep. 12; Flower V. Penn. R. Co., 69 Pa. St. 210; 37 Am. Rep. 251; Miller v. Minne- sota, etc., Ry. Co., 76 la. 655; 14 Am. St.. Rep. 258. ' Parsons v. N. Y. Cent., etc. Co., 113 N. Y., 355 ; 10 Am. St. Rep. 450 ; 3 L. R. A. 683; Dodge v. Boston & B. S. S. Co., 148 Mass. 207 ; 2 L. R. A. 83; 12 Am. St. Rep. 541. Somewhat to the contrary (as to mere curiosity), De Kay v. Chicago, etc. R. Co., 41 Minn. 178 ; 4 L. R. A. 632 ; 16 Am. St. Rep. 687. COMMON CARRIERS OF PASSENGERS. 153 CHAPTER XVII. CARRIERS OF PASSENG-ERS — DUTY OF CARRIER AS TO HIS VEHICLES, ROADWAY AND APPLI- ANCES. The general duty of a carrier of passengers is of a lower degree than that of a carrier of goods, because the carrier has a less absolute control over the person of the passenger than he has over goods, and the passenger is deemed capable of judging for and helping himself in case of emergency. The liability of the carrier of passengers is therefore not that of an insurer, but only to use the high- est degree of care, diligence and foresight. His duty has been expressed as follows : " The contract of a railway company as carrier of passengers, is to use due (extending to a high degree of) care, including the duty of exercising vigilance to see that whatever is required for the safe con- veyance of their passengers is in fit and proper order. The duty applies to the construction and maintenance as well of the line as of the carriages ; and in the case where . the company contract to carry over a line other than their own, extends to that other line. But it does not amount to a warranty of safe carriage, nor does it make the com- pany liable for damage by an occurrence which could not be prevented by the use of skill and foresight." ^ This rule states the universal American doctrine, so far as in- surance or warranty is concerned. The prevailing doc- trine is well stated by an approved text writer in the note below.^ I ' " Rule," 5 Eng. Rul. Cas., under Gt. W. Ry. Co. t. Blake, 7 II. & N. 987 ; Readhead v. Midland Ry. Co., L. R., 2 Q. B. 412; 4 Q. B. 379. ' Edwards on Bailments, § 710 : " The law requires , passenger can'iers to provide and use coaches and other vehicles that are safe and sufficient for the 154 DUTY AS TO VEHICLES, ETC. The doctrine thus expressed is adhered to by all the American courts down to the present time. The carrier is not an insurer of his vehicles and appliances, nor of the passenger's safety, and yet the measure of his duty is not to be determined by what a reasonably and ordinarily pru- dent person would do in the circumstances, but he is held journey or business in which they are employed; McPadden v. N. Y. Cent. R. Co., 44 N. Y., 478, citing the Readheard case; it requires them to examine their conveyances previous to the commencement of each trip or journey, and to prepare them carefully for the road, Ware v. Gay, H Pick. 106; Ingalls v. Bills, 9 Mete. 1; 43 Am. Dec. '346. . Railroad companies are under the same obligation to provide safe and secure cars, with engines and machinery in good, order. They are common carriers of passengers, and they are held to the same standard or degree of diligence as carriers by other and older modes of convey- ance, with this qualification : that the foresight and vigilance required by the rule must cover the roadway and rails, engines, cars, couplings and other appliances used in the business. Brown v. N. Y. Gent. R. Co., 34 N. Y. 404; McElroy v. Nashua, etc., R. Corp., 4 Cush. 400 ; 50 Am. Dec.794; Virginia C. R. Co, V. Sanger, 15 Gratt. 230. They do not actually guarantee the safety of the roads and bridges used by them ; Toledo, etc., R. Co. v. Conroy, 61 111. 162 ; but they are answerable for the use of the greatest skill and diligence, in their construction, and are liable for any discoverable defects in the material or in the manufacture of them ; liegeman v. West. R. Corp., 13 N. Y. 9 ; 64 Am. Dec. 517 ; Steinweg v. Brie Ry. Co., 43 N. Y. 123 ; 3 Am. Rep. 373 ; Caldwell v. N. J. St. Co., 47 N. Y. 282; they cannot escape liability by showing that they were njade by a skillful workman; Sharp v. Gray, 9 Bing. 457 ; Francis V. Cockrell, L. R., 5 Q. B., 184; they must answer for the proper construction and sufBciency of their cars and engines, when they purchase them, to the same extent as when they purchase the materials and manufacture these con- veyances for their own use; Meier v. Penn. R. Co., 64 Pa. St. 225; 3 Am. Rep. 581; Caldwell v. N. J. St. Co., supra; Hegeman v. "West. R. Corp., supra. The rule of diligence covers all the means by which the business of carrying passengers is carried on ; it requires that the railway carrier shall use the utmost vigilance, aided by the highest skill, to construct and perfect its road and track, and to keep them in a safe condition ; and to equip it with cars and engines adequate and sufficient for the safe conveyance of its passengers ; and it requires that the carrier shall, in the performanae of this duty, use every and all means which existing science furnishes, to guard against or to remedy COMMON CARKIERS OF PASSENGERS. 155 to the highest degree of practicable care, foresight and vigilance.^ The American cases generally hold the carrier to a stricter responsibility for the safety of his vehicles than the English courts, making him liable for defects in the manufacture discoverable by any known test. There is however some conflict of decision on this point. Thus it has been adjudged by some courts that if the carrier pur- chases vehicles from reputable manufacturers, giving such examination as is practicable and usual among prudent carriers using similar vehicles, he is not responsible for defects not discoverable upon such examination, although, they might have been discovered in the process of manu- facture.^ But this view is not generally prevalent, and the defects in the construction or management of its cars and other passengers so as to insure the safety of passengers." ' Railroad Co. v. Roy, 102 U. S. 456 ; Palmer v. Penn. Co., Ill N. Y 488;. 2 L. R. A. 252; Libby v. Maine Cent. R. Co., 85 Me. 34; 20 L. R. A. 812; Spellman v. Lincoln Rapid T. Co., 36 Neb. 890; 20 L. R. A. 316; Louisville, etc., R. Co. T. Snider, 117 Ind 435; 3 L. R. A. 434; 10 Am. St. Rep. 60; Dodge V. Boston, etc., S. Co., 148 Mass. 207; 2 L. R. A. 83; 12 Am. St. Rep. 541 ; Treadvrell v. Whittier, 80 Cal. 575 ; 5 L. R. A. 498 ; 13 Am. St. Rep. 175; Louisville, etc., R. Co. v. Lucas, 119 Ind. 583; 6 L. R. A. 193, with notes and references ; Burt v. Douglas, etc , Ry. Co., 83 Wis. 229 ; 18 L. R. A. 479 (imper- fectly insulated bandrail on electric car); Stockton v. Frey, 4 Gill, 406 ; 45 Am. Dec. 138; Parish & Co. v. Reigle, 11 Gratt. 697; 62 Am. Dec. 666. The case of Alden y. N. Y. Cent. R. Co., 26 N. Y. 102; 82 Am. Dec. 401, which held the carrier liable as an insurer for the absolute safety of his vehicles, is dis- credited and bverruled by the later New York and English cases, and has nowhere been followed. See note, 82 Am. Dec. 404. "Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537; 31 Am. Rep. 321, citing the English Richardson and Readhead cases, stipra, with approval, observ- ing of the latter : " The New York cases which were relied on upon the argument of the present cause were considered in the light of a large number of decisions, and disapproved, as we think, correctly. They entirely iguore the true ground of responsibility, as depending on the actual negligence of the carrier. There is no such thing as implied negligence where there is lione in fact." 156 DUTY AS TO VEHICLES, ETC. American cases almost universally hold the carrier respon- sible for the avoidable negligence of the manufacturers.^ The carrier is not bound to adopt all precautions known to science, unless they are in practical use,'' nor if the price is excessive and they are not necessary.* The carrier's liability has been extended to the cases of an unsafe berth and an unsafe stairway on a steamer,* but not to keeping the deck of a vessel or the platform of a car free from ice.^ A horse railway company must use care m the selection of its horses in order to procure those that are safe.® ' Note to the Huntley case, 31 Am. Rep. 321, where the present writer quotes and approves Hutchinson on Carriers, § 512, as follows : " Notwithstanding what may be said in some of the cases, the better opinion and the decided weight of authority is in favor of the position that so far as the passenger is concerned the carrier is responsible for the negligence of the manufacturer; " addmg : " So far as we know, the contrary doctrine is asserted only in the Michigan and Ten- nessee cases " (citing Nashville, etc., R. Co. V. Jones, 9 Heisk. 27). "The courts are unquestionably in error in saying that the Hegeman case is generally denied in the United States. It is only the Aldencase that is so denied. * * * It seems to us there is no escape from the reasoning in Francis v. Cockrell, L. R., 5 Q. B. 184. The passenger cannot look to the manufacturer; the carrier can; therefore the passenger can look to the carrier. Any other rule would leave the , passenger remediless." Thompson on Cariiers of Passengers, p. 221, says : " The negligence of the manufacturer of a railway coach is to be imputed to the carrier." See note, 64 Am. Dec. 525. "Steinweg V. Erie Ry. Co., 43 N. Y. 123; 3 Am. Rep. 373 (spark arrester); New Orleans, etc., R. Co. v. Faler, 58 Miss. 911 It would seem however that the natural tendency of this rule would be to prevent the adoption of any improvements, because no one carrier is bound to be the first to adopt them. » Le Barron v. E. B. F. Co., 11 Allen, 312; Natchez, etc., R. Co. v. McNeil, .■61 Miss. 434. ^Railroad Co. v. Walrath, 38 Ohio St. 461 ; 43 Am. Rep. 433. "Fearn v. West. J. F. Co., 143 Pa. St. 122; 13 L. R. A. 366 ; Palmer v. Penn. Co., supra. "Noble V. St. Jo., etc., R. Co., 98 Mich. 249. CARRIEKS OF PASSENGERS. 157 CHAPTER XVIII. CARRIERS OF PASSENGERS— CONTRACT EXPRESS OR IMPLIED— TICKETS— CONNECTING CAR- RIERS. It is the carrier's implied contract that he shall trans- port the passenger safely and promptly, so far as the utmost care, skill and diligence can accomplish it. Bounded by the limitations described in the last chapter, in respect to his duty as to his vehicles, roadway and other appliances, the carrier is impliedly bound to the highest degree of care, diligence and foresight in respect to the management of his road and vehicles, and is liable for any omission in this regard, whether from his own neglect or want of skill or foresight, or that of his agents or servants, resulting in delay or physical injury to the passenger. He is held to the highest measure of skill and care, to avert accidents, and if his negligence unites with the act of God in producing an injury, he is regarded as responsible. Although his roadway may be perfect, and his vehicles .of the best description and in the best condition, yet if care- lessness or unskillfulness in the use and management of them brings about or contributes to a disaster, he must answer for it. For example, if a railway train should carelessly collide with another on its own road or at a rail- way crossing, or should negligently run into a land-slide produced by a sudden and unprecedented flood, by reason of want of a look-out, or of sand in the box to apply to slippery rails, the carrier would be responsible, and so if a train should be run at a reckless degree of speed.^ ' Tuller T. Talbot, 23 111. 357 ; 76 Am. Dec. 695 (stage coach driver permit- ting passenger to drive) : " Passengers undertake to run those risks only which cannot be avoided by the utmost degree of care and skill, on the part of the car- 158 CONTRACT — TICKETS. The carrier is also liable in damages for any delay in the carriage of the passenger growing out of his fault. He is held to the same measure of responsibility in this respect a3 in regard to the safety of his passenger. If he adver- tises a time-schedule he is bound to conform to it, unless rendered unable by some unavoidable cause, for the reason that the travelling public have a right to rely on his public representations as to this matter.^ The carrier in this country may not impose on the pay- ing passenger an agreement exempting him from liability for delay or personal injury to him by his negligence or that of his servants. The rule is the same as in respect to the carrier of goods. But in England he is permitted to do so except as prohibited by statute.* The carrier may not impose upon the paying passenger, against his consent, any limitation of his liability for in- jury to the passenger in the foregoing respects by notice, or condition in his tickets, or otherwise, so far as his own route is concerned. He may not stipulate for immunity for the negligence or unskillfulness of himself or his serv- ants** But if he sells a ticket to a point beyond his own terminus, he may insert therein a valid condition that he shall not be responsible beyond his own line.* If he sells an unconditional ticket to a point beyond his own line, his liability for injury to the passenger's person rier, in the preparation and management of the means of conveyance." Mad River, etc., R. Co. v. Barber, 5 Ohio St. 541; 67 Am. Deo. 312. Bait. & 0. R. Co. v. Worthington, 21 Md. 275 ; 83 Am. Dec. 578 (misplaced switch). ' Hamlin v. Gt. N. R. Co., 1 H. & N. 408 ; Hurst v. Gt. W. R. Co., 19 C. B. [N.. S.], 310; Weed v. Panama R. Co., 17 N. Y. 362; 72 Am. Dec. 474. So he is bound to notify the public of changes in the time-table. Sears v. Eastern B. Co., 14 Allen, 433; 92 Am. Dec. 780. The carrier is not excused even if the delay was caused by the willful act of his servants. Weed v. Panama B. Co., supra. ' Steam Co. v. Insurance Co., 129 U. S. 397. = Harris v. Howe, 74 Tex. 534; 15 Am. St. Rep. 862; 5 L. R. A. 777. * Harris v. Ilono, supra. CARRIERS OP PASSENGERS. 159 or by delay in the carriage i.-> a question somewhat mooted, and some of the comets make a distinction between tlie one and the other. He may undoubtedly render himself liable for either by express contract, but in this country he is not generally considered liable for his passenger's safety, although he is for his prompt carriage, by the sale of an unconditional ticket beyond his own route.^ ' In England the carrier in such circumstances is held to the largest respon- sibility. Gt. W. Ry. Co. V. Blake, 7 H. & N. 937; Readhead v. Midland Ry. Co., L. R., 2 Q. B. 412; 5 Eng. Eul. Cas. 436. In this country, the English rule has been applied as to injury by delay. Carter v. Peck, 4 Sneed, 203; 67 Am. Dec. 604; cases in note, 59 Am. Dec. 447. But the cases distinguish between passengers and goods, as to phy.sical injury, on the ground that *' passengers take care of themselves." So it has been held in a number of ca^es that the carrier is not liable for an injury to the passenger's person upon the line of another connecting carrier over which he has sold a ticket, unless he has control of it, or there is some partnership or common interest between the companies. Sprague T. Smith, 29 Vt. 421; 70 Am. Dec. 424; Nashville, etc., R. Co., v. Sprayberryj 8 Baxt 341; 35 Am. Rep. 705; Hood v. N. Y., etc., R. Co., 22 Conn. 1; Cham- pion V. Bostwick, 18 Wend. 175; 31 Am. Dec. 336; Atchison, etc., R. Co. v. Cochran, 43 Kans. 225; 7 L. R. A. 414; 19 Am. St Rep 129; Hutch. Carr. 464, Redf. Railways, 313. Other cases deny any difference between freight and passengers in this particular. Harris v. Howe, supra (obiter), and where thpre was no change of cars the carrier was held liable for personal injury on a con- necting road. Chollette v. Omaha, -etc., R. Co., 26 Neb. 159; 4 L. R. A. 135. And so in the case of a special excursion train to a point beyond the carrier's route. Washington V. Raleigh, etc., R. Co., 101 N. C. 239; 1 L. R. A. 830. If a carrier's trains run on the line of another, the former is liable. Hutch. Carr, § 514; Gt. W. Ry. Co. v. Blake, 7 H. & N. 987; 5 Eng. Rul. Cas. 431; Sprague V. Smith, supra; Candee v. Penn. R. Co., 21 Wis. 582; 94 Am. Dec. 566; Toledo, etc., R. Co. v. Rumbold, 40 111. 143; Wyman v. Railroad, 46 Me. 162 ; Nelson v. Railroad, 26 Vt. 717; Schopman v. Railroad, 9 Cush. 24; 55 Am. Deo. 41. But not where only the cars are run and the motive power and the man- ajement are furnished by the other road. Smith v. St Louis, etc., E. Co., 85 Mo. 418; 55 Am. Rep. 380. If the carrier contracts to carry the passenger to a certain destination, he is responsible for his safety throughout the whole dis- tance, "whether the franchise and the means of conveyance, where the injury or loss occurs, be owned or controlled by him or some other carrier." Thomp, 160 CONTRACT TICKETS. The carrier may however impose reasonable conditions upon the sale of tickets, giving notice thereof on the ticket itself. He may condition the ticket to be " good this day only ; " " good within six months ; " " coupon to be void if detached by any one but conductor ; " "to be used on ot before a given day;" "good on certain trains only;" "good only two days after date;" "not to be good for return trip unless signed by the purchaser and stamped and dated by ticket agent at a certain place." ^ It is an implied condition that a ticket from A. to B. is not good in the reverse direction,^ nor on a circuitous route when there is also a direct one.^ Even if a ticket is not conditioned to be good only for a continuous trip, it has been held that the passenger is not Carr. Pass. 423; Quimby v. Vanderbilt, 17 N. Y. 300; 72 Am. Dec. 469. But this contract is not implied from merely selling a through ticket. Note, 32 Am. Dec. 230; Harris v. Howe, supra; Kessler t. N. Y , etc., K. Co., Gl N. Y. 538. ' Elmore v- Sands, 54 N. Y. 512 ; 13 Am. Rep. 617 ; Lillis v. St. Louis, etc., R. Co., 64 Mo. 464; 27 Am. Rep. 255; Louisville, etc., R. Co. v. Harris, 9 Lea, 180; 42 Am. Rep. 668; Auerbach v. N. Y. Cent., etc., R. Co., 89 N. Y. 281; 42 Am. R. 290; Ohio, etc., Ry. Co. v. Swarthout, 67 Ind. 567; 33 Am. Kep. 104; Boston & L. R. Co. v. Proctor, 1 Allen, 267; 79 Am. Dec. 729; Edwards v. Lake S., etc., Ry. Co., 81 Mich. 364 ; 21 Am. St. Rep. 527. The passenger having duly entered on the journey is not bound to complete it within the limited time. Lundy v. Cent. P. R. Co., 06 Cal. 191 ; 50 Am. Rep. 100. But if the journey is interrupted by accident without his fault he can not de- mand to resume it after that time. Gulf, etc , R. Co. v. Looney, 85 Tex. 158 ; 16 L. R. A. 471 ; 34 Am. St. Rep. 787. And if he has a coupon ticket over connecting lines, a. coupon need not be honored unless presented within the time designated, although the passenger began his journey at the earliest possi- ble time and the delay is through the fault of a previous connecting line ; his remedy is against the line in fault. Gulf, etc., Ry. Co. v. Looney, 85 Tex. 158; 34 Am. St. Rep. 787; 16 L. R. A. 471. " Good for this trip only," refers to journey, and not to date of ticket. Pier v. Finch, 24 Barb. 514. ' Kceley v. B. & M. R. Co., 67 Me. 163, 24 Am. Rep. 19. 'Bennett v. N. Y. Cent. R. Co., 69 N. Y. 594; 25 Am. Rep. 250. But a street car transfer ticket apparently applicable to several lines may be used on either. Pine v. St. Paul, etc., R. Co., 50 Minn. 144; 16 L. R. A. 347. CARRIERS OF PASSENGERS. 161 entitled to stop over at an intermediate station and resume his trip on the same ticket, without permission.^ Where a passenger is carried gratuitously, the voucher for his passage may lawfully provide that the carrier shall not be liable in any event, even for the negligence of him- self or his servants.^ This is on the ground that where " McCluie V. Phila., etc., R. Co., 34 Md. 532 ; 6 Am. Rep. 345 ; Shedd v. T. & B. R. Co., 40 Vt. 88 ; Dietrich v. Penn. R. Co., 71 Pa. St. 432; 10 Am. Rep. 711 ; Churchill v. Chicago, etc., R. Co., 67 111. 390 ; Cheney v. B. & M. R. Co., 11 Mete. 121 ; 45 Am. Dec. 190, and note, 193 ; Johnson t. Concord R. Co., 46 N. H. 213 ; 88 Am. Dec. 199 ; Stone v. C. & N. W. R. Co., 47 Iowa, 82; 29 Am. Rep. 458. 'Kinney v. Cent. R. Co., 34 N. J. 513 ; 3 Am. Rep. 265 ; 14 How. 468; Wells V. N. Y. Cent. R. Co., 24 N. Y. 181; 111. C. R. Co. v. Read, 37 111. 484 ; 87 Am. Dec. 260; Rogers v. Kennebec St. Co., 86 Me. 261 ; 25 L. R. A. 491 ; Griswold v. Railroad Co., 53 Conn. 371 ; Quimby v. Railroad Co., 150 Mass. 365. This view however is strenuously opposed in Jacobus v. St. Paul, etc., Ry. Co., 20 Minn. 125; 18 Am. Rep. 360, upon the ground that such a condition is against public policy, as it tends to create, a disregard "for his safety as a citizen of the state." Citing Illinois Cent. R. Co. v. Read, 37 111. 484: Indiana Cent. R. Co. t. Mundy, 21 Ind. 48; 83 Am. Dec. 339; Penn. R. Co. V. McCloskey's Adm'r, 23 Pa. St. 526 ; Mobile & Ohio Ry. v. Hopkins, 41 Ala. 486; Gulf, etc., Ry. Co. v. McGown, 65 Tex. 640 ; Railroad Co. v. Currari, 19 Ohio St. 1. This seems rather fanciful, and as savoring too much of judicial paternalism. The view taken by the court in the Maine case, above cited, seems more commendable : "The term 'public policy' or 'policy of the law ' suggests but a vague and uncertain principle, and sometimes seems to be invoked as authority for a decision when a more definite reason cannot readily be assigned. In what manner the public welfare or the safety of human life is involved, or any of the- cherished interests of the law are invaded, by allowing one out of a hundred passengers to travel on a pass at his own risk, does not clearly and satisfactorily appear. In most instances, it is balieved, free passes are solicited by the traveler, not proffered by the carrier. The fact that a gra- tuitous passenger must travel at his own risk will surely operate as an incentive to greater care and caution on his part, and tend to diminish the number of passes issued. The probability that the oases of free transit will be so numerous as to induce any relaxation of the rules of prudence and vigilance on the part of the carrier is too remote to have weight as argument. He is constantly, and, it would seem, sufficiently, reminded of his obligations to the public, in the 162 CONTRACT TICKETS. there is no consideration for the carriage the carrier owes no active duty to the passenger. Yet where the passen- ger is carried free, so far as he is personally concerned, but in consideration of compensation being paid for the simul- taneous carriage of his property needing his care, such as cattle, the question whether the carrier may stipulate for immunity for negligence is very much mooted, very in- fluential courts being strongly opposed on the subject. Holding the view that the condition is void, the Supreme Court of the United States is ranged with much the more numerous following; on the other side New York is the leading authority, with quite a number of influential courts.' most forcible arid effective manner, by the numerous claims and large verdicts in favor of those injured who travel for hire." Some of the cases allowing the carrier to contract for exemption for negligence still hold him liable in such case for gross negligence or willful misconduct. Wells v. N. Y. Cent. E. Co., supra ; Perkins v. Same, 24 N. Y. 196; Annas v. Milwaukee, etc., R. Co., 67 Wis. 46; 58 Am. Rep. 848, note. •Railroad Co. v. Lockwood, 17 Wall. 357; 10 Am. Rep. 366; Ohio & Miss. Ry. Co. V. Selby,,47 Ind. 471; 17 Am. Rep. 719. In the latter case is a valu- able list of decisions on both sides, arraying on the side of the drover, cases in Pennsylvania, Ohio, Maine, Massachusetts, Delaware, Kentucky, South Carolina, Georgia, Alabama, Mississippi, Louisiana; so also Maslin v. Bait., etc., R. Co., 14 W. Va. 180; 35 Am. Rep. 748; Carroll v. Mo. Ry. Co., 88 Mo. 239; 57 Am. Rep. 382; Black v. Goodrich Trans. Co., 55 Wis. 319; 42 Am. Rep. 713. And on the side of the carrier, Poucher v. N. Y. Cent. R. Co., 49 N. Y. 263 ; 10 Am. Rep. 364; and many other New York cases, and cases in New Jersey, Connecticut, Vermont, Illinois, Michigan and Maryland. With the latter must be arrayed the English courts; Gallin v. L. & N. W. R. Co., L. R., 10 Q. B. 212; 12 Moak's Eng. Rep. 268. The rule of New York seems to be pronounced with some hesitation. Thus in Smith v. N. Y. Cent. R. Co., 24 N. Y. 222, the judg- ment below was affirmed without any agreement on this particular point, three judges arraying themselves on each side of the question, and in Bissell v. N. Y. Cent. R. Co., 25 N. Y. 442, the present doctrine was adopted by four against three, including Chief Justice Denio. In the last case, Selden, J., observed : " The principle being established that railroads may, by contract, relieve them- selves from the negligence of their servants in the carrying of passengers when carried gratuitously, I can discover no rule of law or public policy to prevent CARRIERS OF PASSENGERS. 163 It is generally held as to a non-transferable ticket re- quiring the signature of the passenger, that the contract is found in its conditions and not in representations made by an officer of the company ; ^ and though he is not required to sign it, he is still bound by the terms of the conditions.^ rtheir doing it on any other terms which may be agreed upon between them and their passengers, and which shall fu^ni^h a consideration to the passengers for the risk which they assume. All the arguments which have been urged against the propriety and safety of allowing carriers to make such contracts apply with as much force to cases where passengers are carried gratuitously as where they are carried for reward. So far as the public are concerned, the question of re- ward is one of indifference, and so far as the parties are concerned, if they are Allowed to make the contract at all, they are the judges of the amount of con- sideration which will compensate them for assuming the risk, whether the whole fare, or half, or an eighth, or any other proportion or consideration. I apprehend it is entirely safe to leave them to fix the terms." He was of opinion that Bissell was, according to the wording of the pass, " riding free to t%ke charge of the stock." In Annas v. Milwaukee, etc., R. Co., 67 Wis. 46; 58 Am. Rep. 848, note, is a very exhaustive review of the authorities as to gratuit- ous passengers and drovers. At all events, there must be some assent to the -stipulation by the person carried. It cannot be implied merely from the custom of the carrier to exact such a release. Lawson v. Chic, etc., Ry. Co., 64 Wis. 447; 54 Am. Rep. 634. As to mail-agents and express messengers, see ante, page 150. Upon principles of comity, a stipulation for exemption made in a State where it is valid, concerning a contract to be wholly executed there, is held Talid when called in question in another, where it would be invalid if executed there. Knowlton v. Erie Ry. Co., 19 Ohio St. 260; 2 Am. Rep. 395. The carrier cannot evade hiS liability by a pass to a drover by which he agrees to le regarded simply as an employee of the carrier. Mo. P. Co. v. Ivy, 71 Tex. 409; 1 L. R. A. 500; 10 Am. St. Rep. 758. ' Mosher v. Railroad Co., 127 U. S. 390; 111. Cent. R. Co. v. Read; 37 111. 484; Railroad Co. v. McGowan, 26 Am. & Eng. R. Cas. 274; Fonseca v. Cu- nard S. Co., 153 Mass. 553 ; 12 L. R. A. 340; 25 Am. St. Rep. 660. But ■contra: Kansas City, etc., R. Co. v. Rodebaugh, 38 Kans. 45; 5 Am. St. Rep. 715; Freeman v. Detroit, etc., R. Co., 65 Mich. 577; Kent v. B. & 0. R. Co., 45 Ohio St. 284; 4 Am. St. Rep. 539. ' Kent V. Baltimore & Ohio R. Co., supra, citing cases from New York, Penn- sylvania and Massachusetts; contra: Fonseca v. Cunard S. Co., supra. 164 CONTRACT TICKETS. The weight of authority holds that there is no legal pre- sumption that the passenger by accepting a conditional- ticket knows and assents to its terms so far as it limits the carrier's liability for personal injuries by his negligence; and the burden of proof of knowledge by a passenger of a memorandum on his ticket limiting the carrier's liability, and of his assent to it, is on the carrier." The carrier may limit his liability in respect to the car- riage of passengers on freight trains upon which it is not a,ccustomed to carry them.* It must always be kept in mind that the ticket is not the contract, but only evidence of the contract, and conse- quently parol evidence is always admissible to show a different oral contract from that indicated by the ticket.' ' Baltimore & 0, R. Co. v. Harris, 79 U. S. 65 ; and other cases in note, 12: L. R. A. 340, from New York, Massachusetts, Maine and England. In Rich- ardson V. Rowntree [1894], App. Cas. 217, a steerage passenger received a ticket folded up so that no writing was visible unless she opened it. Upon it was printed : " It is mutually agreed for the consideration aforesaid that this ticket is issued and accepted upon the following conditions," one of which a limitation of liability to $100 for loss or injury to passenger or luggage "in any circumstances." In an action for personal injuries, the jury found that she knew there was writing and printing on the ticket, but did not know that it related to the terms of the contract of carriage, and that the carrier did not do what was reasonably sufficient to give her notice thereof. This was affirmed by the House of Lords. = Arnold v. 111. Cent. R. Co., 83 III. 273; 25 Am. Rep. 383. ' Wilson V. Railroad Co., 21 Gratt. 654 ; Qaimby v. Vanderbilt, 17 N. Y. 300; 72 Am. Dec. 469; Burnham v. Gr. T. Ry. Co. 63 Me. 298 ; 18 Am. Rep. 220 ; Railroad Co. v. Winters' Adm'rs, 143 U. S. 60 ; Mann Boudoir Co. v. Dupre, 54 Fed. Rep. 646 ; 21 L. R. A. 289 ; Nichols v. So. P. Ry. Co., 23 Oreg. 123 ; 18 L. R. A. 55. But if the ticket limits the time for which it is good, this cannot be contradicted, in the absence of fraud or negligence on the part of the company's agent, misleading the passenger. Gulf, etc., R. Co. t> Daniels, — Tex Civ. App ; 29 Southwestern Rep. 426. CARRIEIIS OF PASSENGERS. 165 CHAPTER XIX. CARRIERS OF PASSENGERS— DUTY TOWARD THE FASSENG-ER PERSONALLY. The carrier owes certain duties toward the person of the passenger from the moment he comes upon his premises for the purpose of being carried, until he leaves them. But these duties do not attach until the person comes upon his premises."^ A carrier by water is bound to a high degree of care in keeping the approaches to his vessel safe — the wharf, the gang-plank, the ferryboat apron, etc. A carrier by land is likewise bound as to his office or station, the platforms, and the approaches thereto and to his trains.^ ' The relation of carrier and passenger does not exist between a Street railvray company and a person who has given a signal, which was seen and responded to, for a car to stop, but who was struck by the unexpected swinging of the car from its proper track on to a switch track. Donovan v. Hartford St. R. Co., 65 Conn. 201; 29 L. R. A. 297. Citing Creamer v. West End St. R. Co.. 156 Mass. 320; 16 L. R. A. 490 ; Piatt v. Forty-Second St. & G. St. Ferry R. Co., 2 Hun, 124 ; and observing : "A common carrier is bound to exercise a high degree of care towards those who have put themselves under his care as passengers, but not until they have thus put themselves under his care. Up to that time, although they may have contracted witb him for their future transportation, he owes no more care to them than to any third party. His special duty begins when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of passenger to carrier is assumed." ' Rogers v. Kennebec St. Co., 86 Me. 261; 25 L. R. A. 491; Indiana Cent. Ry. Co. V. Iludelson, 13 Ind. 325; 74 Am. Dec. 254; MoseS v. Louisville, etc., R. Co., 39 La. Ann. 049; 4 Am. St. Rap. 231; Nichols v. W.ash., etc., R. Co., 83 Va. 99; 5 Am. St. Rep. 257; Cross v. Lake Shore, etc., Ry. Co., 60 Mich. 363; 13 Am. St. Rep. 399; Delaware, etc , R. Co. v. Trautwein, 52 N. J. L. 169; 19 Am. St. Rep. 442; Penn. Co. v. Marion, 123 Ind. 415 ; 18 Am. St. Rep. 330; Missouri P. Ry. Co. v. Neiswanger, 41 Kans. 621; 13 Am. St. Rep. 304; Loftus T. Union Ferry Co., 84 K. Y. 455; 38 Am. Rep. 533; May v. Hanson, 5 Cal. 360; 63 Am. Deo. 135. Bufthis does not extend to the protection of passen- 16G DUTY TO,WAED PASSENGERS. This duty, however, ceases on the abandonment of ' the in- tention to take passage.^ The duty extends to persons who come with the passenger, whether to assist him or as a mere act of friendship; they are also entitled to ample notice to enable them to leave the cars safely.^ It also ex- tends to persons coming upon the carrier's premises to meet an arriving traveller.^ But it does not extend to persons who come on his premises from mere curiosity or to sub- serve their own convenience.* The carrier may exclude from his premises or vehicles persons who desire to use them merely for the conduct of their own business.* The carrier may require the passenger to procure his ticket before taking the train, and may impose an addi- gers from infection by a contagious disease from wliich a ticket-seller is suffer- ing without the carrier's knowledge. Long v. Chicago, etc., R. Co., 48 Kans.^ 28; 30 Am. St. Rep. 271; 15 L. R. A. 319. " Heinlein v. Boston, etc., R. Co., 147 Mass. 136; 9 Am. St. Rep. 676. ° Louisville, etc., R. Co. v. Crunk, 119 Ind. 542; 12 Am. St. Rep. 443; Doss T.Mo., etcv, R. Co., 59 Mo. 27; 21 Am. Rep. 371; Little Rock, etc., R. Co. v. Lawton, 55 Ark. 428; 29 Am. St. Rep. 48; 15 L. R. A. 434; York v. Canada,, etc., St. Co., 22 Can. S. C. 167. The carrier must furnish safe passage to and. from its mail cars for persons desiring to mail letters thereon. Hale v. Grand Trunk R. Co., 60 Vt. 605; 1 L. R. A. 187. But as to a woman who goes at night to a railway station with her husband, to see him off on a freight train .which does not carry passengers, but on which he ships horses and accompanies- them on the passage by contract with the company, the company is not bound to keep lights and railings on the station platform. Dowd v. Chicago, etc., R. Co., 84 Wis. 105; 20 L. R. A. 527; 30 Am. St. Rep. 917. One who goes to a railway station as a mere spectator and for his own pleasure or convenience is there at his own risk and peril except as to gross and wanton negligence. Bur- bank V. Illinois C. R. Co., 42 La. Ann. 1156; 11 L. R. A. 720. = Cherokee Packet Co. v. Hilson, — Tenn. — ; 31 S. W. Rep. 737. ^Fluker V. Georgia, etc., Co., 81 Ga 461; 12 Am. St. Rep. 328; 2 L. R. A. 843 ; Smallman v. Whilter, 87 111. 545 ; 29 Am. Rep. 76. He may grant ex- clusive business privileges on his premises and vehicles. Old Colony R. Co. v. Tripp, 147 Mass. 35; 9 Am. St. Rep. 661 ; Barry v. Oyster Bay, etc., Co., 67 CARRIERS OF PASSENGERS. 167 tional amount of fare for failure to do so.' But he must give the passenger ample opportunity and time to buy his ticket, and unless he affords this, the passenger may pay the regular fare on the train, and no more can be exacted from him.^ He must give the passenger time to board the train safely,^ although he may start it before the passenger reaches his seat.* Although the passenger has procured a ticket he may be excluded from the train if he is drunk or offensive or disorderly.^ N. Y. 301; 23 Am. Rep. 115. Contra: Kalamazoo, etc., Co. v. Sootsma, 84 Mich. 194; 22 Am. St. Rep. 693; Montana U. Ry. Co. t. Langlois, 9 Mont. 419; 18 Am. St. Rep. 745. The conflict in the authorities on this point is thus solved in a note reviewing all the authorities, 22 Am. St. Rep. 699 : "The better reasoning sustains the doctrine approved in the principal case, namely : that a railway company or other common carrier may exclude all persons from its depot or grounds who are not using or seeking to use its means of carriage, but it cannot grant an exclusive right or more favorable preference to one indi- vidual or company engaged in soliciting patronage from its passengers than it gives to another individual or company engaged in the same line of business." ' Toledo, etc., Ry. Co. v. Wright, 68 Ind. 586 ; 34 Am. Rep. 277; McGowan V. Morgan's Co., 41 La. Ann. 732; 17 Am. St. Rep. 415; Reese v. Penn. R. Co , 131 Pa. St. 422 ; 17 Am. St. Rep. 818. A passenger on a street car may pay on the car, and he is not bound to tender the exact fare, but the conductor must make change to a reasonable amount ($5). Barrett v. Market St., etc. R. Co., 81 Gal. 296; 6 L. R. A. 336. The • conductor or driver may lawfully be required to keep tickets for sale. Sternberg v. State, 36 Neb. 307; 19 L. R. A. 570; Detroit v. Fort Wayne, etc., R. Co., 95 Mich. 456; 35 Am. St. Rep. 580; 20 L. R. A. 79. ^ Evans v. Memphis, etc., R. Co., 56 Ala. 246; 28 Am. Rep. 771. ' Akersloot v. Second Ave. R. Co., 131 N. Y. 599; 15 L. R. A. 489; Steeg v. St. Paul, etc., Co., 50 Minn. 149; 16 L. R. A. 379. ' Yarnell v. Kans., etc., R. Co., 113 Mo. 570; 18 L. R. A. 599. A passenger in an elevator must be given a reasonable time to obtain a firm footing before starting. Mitchell v. Marker, 62 Fed. Rep. 139; 25 L. R. A. 33. ' Pittsburgh, etc., Ry. Co. v. Vandyue, 57 Ind. 576; 26 Am. Rep. 68. 168 DUTY TOWARD PASSENGEES. Having admitted him to the train, the carrier is bound to furnish the passenger a seat.^ As has been shown, the carrier may make reasonable regulations as to what trains passengers may ride on. See ante. In like manner, the carrier may make reasonable regulations as to the particular car to which the passen- ger shall be admitted, according to the fare paid. He may direct that colored people shall go in a separate car ; and so of persons desiring to smoke ; and he may exclude men unaccompanied by women from a car provided for women and men accompanying them.*^ The carrier may not subject the passenger, even in a ' Davis T. Kans. City; etc., R. Co., 53 Mo. 317, 14 Am. Rep. 457; Loui-sville, etc., R. Co. T. Patterson, 69 Miss. 421; 22 L. R. A. 259; Memphis, etc., R. Co, T. Benson, 85 Tenn. 627; 4 Am. St. Rep. 776; llardenbergh v. St. Paul, etc., Ry. Co., 39 Minn. 3; 12 Am. St. Rep. 610. If there is no scat in the common cars the passenger may take one in a drawing-room or sleeping car forming part of the train, without paying extra for it, although the car does not belong to the railroad company. Thorpe v. N. Y. 0.,etc., R. Co., 76 N. Y. 402; 32Am. Rep. 325. But if ejected for refusing his ticket or fare because he' is not fur- nished with a seat, he cannot recover therefor, but only for breach of the con- tract to carry. St. Louis, etc., Ry. Co. v. Leigh, 45 Ark. 368; 55 A"m. Rep. 558. He should leave the train at the first stop. Memphis, etc , R. Co. v. Benson, swpra. A woman who takes passage in a baggage car when no passen- ger cars are provided for a passenger train, and pressing domestic duties call for her immediate transportation, does not thereby renounce her right as a passen- ger to safety and protection. Baltimore & P. R. Co. v. Swann (Md.), — L. R. A. ; 32 Atl. Rep. 175. '' Memphis, etc., R. Co. v. Benson, supra; Bass v. Chicago, etc., Ry. Co., 36 Wis. 450; 17 Am. Rep. 495; Chicago & N. W. Ry. Co. v. Williams, 55 111. 185; 8 Am. Rep. 641; Ex parte Plessy, 45 La. Ann. 80; 18 L. R. A. 639, and cases in notes; Britton v. Atlanta, etc., Co , 88 N. C. 536; 43 Am. Rep. 749; Westchester, etc., Co. v. Miles, 55 Pa. St, 209. But he may not exclude a colored woman from a woman's car simply on account of her color.. Chicago & N. W. Ry. Co. V. Williams, supra. Nor can he compel a colored person to take inferior accommodations, though at reduced rates. Coger v. N. W., etc., Co., 37 Iowa, 147. CARRIERS OP PASSENGERS. 169 second-class car, to hearing profane or obscene language or witnessing violent or drunken conduct.^ On the other hand, the passenger may be ejected on account of his own disorderly or offensive conduct,^ and from a street car when he is unable to sit up and offen- sively sick, although without his fault.^ If the carrier accepts a sick, feeble, blind, or crippled passenger, without an attendant, he is bound to use extra care toward him on the route and to aid him in leaving the conveyance.* And if it becomes necessary to remove a ' St. Louis, etc., R. Co. T. Mackie, 71 Tex. 491 ; 1 L. R. A. 667 ; 10 Am. St. Rep. 766. "Railway Co. v. Valleley, 32 Ohio St. 345; 30 Am. Rep. 601; Peavy v. Georgia R. & B. Co., 81 Ga. 485; 12 Am. St. Rep. 334. If he has delirium tremens he may be removed at a station and put in charge of an overseer of the poor. Atchison, etc., R. Co. v. Weber, 33 Kans. 543; 52 Am. Rep. 543. Or he may be put in the baggage car. Sullivan v. Old C. R. Co., 148 Mass. 119; 1 L. R. A. 513. ' Lemont v. Wash., etc., R. Co., 1 Mackey, 180 ; 47 Am. Rep. 238 ; Louis- ville, etc., R. Co. v. Logan, 88 Ky. 232; 21 Am. St. Rep. 332; Paddock v. Atchison, etc., R. Co., 37 Fed. Rep. 841 ; 4 L. E. A. 231 (eruption mistaken for small-pox). ' Groom v. Chicago, etc., R. Co., 52 Minn. 296 ; 18 L. R. A. 602; Weight- man V. Louisville, etc., R. Co., 70 Miss. 563 ; 35 Am. St. Rep. 660 ; 19 L. R. A. 671 ; Railway Co. v. Maddry, 57 Ark. 306 ; Foss v. Boston, etc., R. Co., jST. II. Sup. Ct. ; 11 L. R. A. 367. In Lake Shore, etc., Ry. Co. v. Salzman (Ohio Sup. Ct.), 40 N. E. Rep. 89, it was held that a railroad company is bound to give such care to a passenger who becomes sick on a train as is fairly practicable, with the facililties at hand, without unduly delaying the train or unreasonably interfSring with the safety, comfort or convenience of the other passengers. The court observed : "In travel by ship, care and medical attend- ance are always provided by the company, as one of the necessities of the journey. In travel by rail, no such necessity exists, and therefore a, railroad company is under no obligation to furnish hospitals on wheels, or physicians or nurses to attend the sick on their journeys. But without hospitals, and without physicians and nurses of their own, still much can be done to alleviate the pains and aches of a sick passenger. While the train is in motion, the passenger is utterly helpless as to aid except from those on the train. His 170 DUTY TOWARD PASSENttEKS. sick, drunken or insensible passenger from the carriage, that duty must be exercised in a humane manner, at a proper place, and with due regard to his subsequent safety.^ The carrier is bound to protect the passenger against and answer for all assaults, indignities, and wrongs com- mitted by his servants in the course of the employment, without regard to the motive.^ This is so even in the fellow-passengers owe him no duty except humanity. The alternative is presented of being cared for by his fellow-passengers, by the company, or to writhe in pain and sickness until relieved by death or the end of his journey. By taking passage and paying his fare the relation of carrier and passenger is established between the company and Himself, and as he is under tha control of the company for many purposes, and debarred by the rapid movement of its trains from receiving aid from the outside world, it would seem to follow as a neoassity of the situation that those who have received his money, and are thus rapidly' transporting him, should assume the obligation of taking reasonable care of him in case of sickness while on the train. This obligation is on the company, not only for the benefit of the sick person, but also for the comfort, and sometimes the safety, of the other passengers. A sick person, by his cries and moans may so annoy the other passengers as to require his removal .to a separate department or from the train. In case of small-pox or cholera or other contagious disease, the comfort and safety of the other passengers would de- mand the early removal of the afiBicted passenger from the train. The company would in such case be charged with the duty of removal, and reasonable care thereafter, until the afflicted person could be otherwise cared for. Railroad v. Weber, 33 Kans. 543 ; ConoUy v. Railroad Co., 41 La. Ann. 57. It is there- fore clear that the company owed a duty to the sick passenger, and was under obligation to take reasonable care of him — such care as was fairly practicable with the facilities at hand, without unreasonable delay of the train, or discom- fort to the other passengers." 'Connolly v. Crescent City R. Co., 41 La. Ann. 57; 17 Am. St. Rep. 389; 3 L. R. A. 133; Paddock v. Atchison, etc., R. Co., 37 Fed. Rep. 841; Cincin- nati, etc., R. Co. V. Cooper, 120 Ind. 469; 6 L. R. A. 241; Roseman v. Caro- lina C. R. Co., 112 N. C. 709; 34 Am. St. Rep. 524; 19 L. R. A. 327. ' Browne's Dom. Rel. 138; Dwinelle v. N. Y. Cent., etc., R. Co., 120 N. Y. 117; 8 L. R. A. 224; Lafltte v. N. 0. City, etc., R. Co., 43 La. Ann. 34; 12 L. R. A. 337; Dillingham v. Anthony. 73 Tex. 47; 3 L. R. A. 634; Palmeri v. Manhattan R. Co., 133 N. Y. 261; 16 L. R. A. 136; 28 Am. St. Rep. 632; CARRIERS OF PASSENGERS. 171 case of a trespasser.^ But not so unless they were com- mitted in the course of the employment, as for example, in case of an assault having no reference to the relation of carrier and passenger, or an unauthorized arrest.^ Many courts, however, render the carrier responsible for wanton assaults by its servants, upon passengers during the trans- portation and subject to their control, although the act is purely wanton and has no reference to promoting or regu- lating the carriage.^ Gillingham v. Ohio R. R. Co., 35 W. Va. 588; 14 L. R. A. 798; Hanson v. European, etc., Ry. Co., 62. Me. 84; 16 Am. Rep. 404; Bryant v. Rich, 106 Mass. 180; 8 Am. Rep. 311; Sherley v. Billings, 8 Bush. 147; 8 Am. Rep. 451; Texas, etc., R. Co. v. Williams, 62 Fed. Rep. 440. ' Farber v. Mo. P. R. Co., 116 Mo. 81 ; 20 L. R. A. 350. ' Browne's Dom. Rel. 138, 141-145; Mulligan v. N. Y., etc., R. Co.,, 129 N. Y. 506; 26 Am. St. Rep. 539; 14 L. R. A. 791; and so where the train was unnecessarily stopped in the midst of a mob of strikers who assaulted the passengers. Chicago, etc., R. Co. v. Pillsbury, 123 111. 9; 5 Am. St. Rep. 483. In Goodloe V. Memphis & C. R. R. Co., decided by the Supreme Court of Ala- bama in June, 1895 (18 S. R. 166), it appeared that at a station platform on defendant's road one of defendant's servants, while engaged in a playful scuffle, was unintentionally pushed against plaintiff, who had purchased a ticket and was preparing to go upon the train, thereby causing plaintiff to fall from the platform and sustain injuries. It was held that the conduct of defendant's employees was not fairly incident to their employment, and defendant was there- fore not liable. ' As where a ra'ilway conductor kissed a female passenger against her will. Croaker v. Chicago, etc., Ry. Co., 36 Wis. 657; 17 Am. Rep. 504. Or where a passenger accused a brakeman of having stolen his watch, arid the brakeman thereupon assaulted him. Chicago, etc., R. Co. v. Flexman, 103 III. 546; 42 Am. Rep. 33. Or where a brakeman in washing out a can purposely directed a jet of water on a passenger. Terre Haute, etc., R. Co. v. Jackson, 81 Ind. 19. And where a ticket agent wrongfully accused an intending passenger with hav- ing given him counterfeit money for his fare. Palmeri v Manhattan Ry. Co., supra. And where the engineer struck and cursed a passenger. White v. Norfolk & S. R. Co., 115 N. C. 631 ; 44 Am. St. Rep. 489. A very amusing application of this doctrine is found in Duffie v. Mathewson, 1 City Hall Recorder, 167, where it was held that "the captain and crew of a vessel on the 172 DUTY TOWARD PASSENGERS. This duty extends to the protection of the passenger against other passengers and third persons, so far as prac- ticable and foreseen.^ This includes assaults, insults, thefts, high seas have no right to permit or excite old Neptune to share a passenger and immerse him in a tub of water, contrary to his will." This was in pur^ suance of the nautical custom towards landsmen who refuse, on coming in sight of the banks of Newfoundland, "to produce a bottle of old cogniac or rum as an acceptable sacrifice to Neptune." The same custom prevails on crossing the equator. The case is reported in an amusing mock-heroic and classical strain. For being compelled to be shaved with an iron hoop, and then submerged in a tub of water, the jury awarded ^46 damages. On the other hand, the carrier has been held not responsible where a railway ticket agent had a passenger wrongfully arrested fbr giving him counterfeit money for his fare when the agent supposed it was counterfeit before he took it. See Mulligan v. N. T. Cent. R. Co., supra. And where a conductor stopped his train, entered the plaintiff's premises, and seized and carried off on the train his minor son. Gilliam v. So. R. Co., 70 Ala. 268. And where a street car driver followed a passenger from a oar and assaulted him. Cent. Ry. Co. v. Peacock, 69 Md. 257. And where a conductor shot a passenger under the erroneous impression, warranted by his attitude, manner and conduct, that he was about to draw a deadly weapon on him. Railroad Co. v. Jopes, 142 U. S. 18. And where a conductor followed a passenger and wrongfully procured his arrest for having given him counterfeit money for his fare. Galveston, etc., R. Co. v. Donahoe, 50 Tex. 162; Charleston v. London, etc., Ry. Co., Q. B. Div., 37 Alb. L. J., 102. The test is not whether the act was done according to the carrier's in- structions, but whether it was done in the prosecution of the business given the servant to do. King v. N. Y. Cent. R. Co., 66 N. Y. 181; 23 Am. Rep. 37. ' Gillingham v. Ohio R. R. Co., supra; Illinois Cent. R. Co. v. Minor, 69 Miss. 710; 16 L. R. A. 627; Richmond & D. R. Co. v. Jefferson, 89 Ga. 554; 32 Am. St. Rep. 87; 17 L. R. A. 551; Pittsburgh, etc. R. Co. v. Pil- low, 76 Pa. St. 510; 18 Am. Rep. 424; Putnam v. Broadway, etc., R. Co., 55 N. Y. 108; 14 Am. Rep. 190; Britton v. Atlanta, etc., Ry. Co., 88 X. C. 536; 43 Am. Rep. 749; Sira v. "Wabash R. Co., 115 Mo. 127; 37 Am. St. Rep. 380. See note, 6 Am, St. Rep. 735. In Cobb v. Gt. W. R. Co., 1894, App. Cas. 419, the passenger was robbed by a gang of men who en- tered the train at a way-station, lie complained to the station-master, inform- ing him that the robbers were then on the train, and asked to have the train delayed to give an opportunity t > have them arrested and searched by police then at the station, but ho refused and started the train, whereby tlie passenger CARRIERS OF PASSENGERS. 173 robberies, and even loss by gambling.' But the carrier will not be thus responsible for robbery by strangers of an extraordinary sum of money. ^ Nor does it extend to mere acts of negligence by one passenger toward another without fault of the carrier,^ nor to malicious acts of strangers outside, without his negli- gence.* The carrier is bound to afford the passenger safe and reasonable opportunity for obtaining food on long routes, and is liable for negligence injurious to the passenger who has left the train temporarily for that purpose.^ He is also similarly liable where the passenger has temporarily left, or attempted to leave, the vehicle for business or curiosity.^ But he is not bound to afford opportunity to leave the train at intermediate stations except for refresh- ment,' and if he so leaves the train, the carrier, although bound to notify him of the starting again if he is at hand, lost the money. He also complained that the company permitted the train to he over-crowded so that he was hustled and the more easily robbed. The Ilouse of Lords held that there appeared to be no breach of duty and no cause of action, steering clear of Pounder v. N. E. Ry. Co., 1892, 1 Q-: B. 385, a case of over- crowding in transit, known to the carrier's servants. ' Smith V. Wilson, 31 How. Pr. 272. nVeeks v. N. Y., etc., R. Co.. 72 N. Y. 50; 28 Am. Rep. 104, where $16,000 was robbed by strangers while the car was being slowly drawn by horses through the streets of New York. = Graeff V. Phila., etc., R. Co., 161 Pa. St. 230 ; 23 L. R. A. 606, where one hurrying to take a train opened a door violently against another. ^East Tenn., etc., R. Co. v. Kane, 92 Ga. 187; 22 L. R. A. 315, where a dis- charged employee misplaced a switch; Fiederioks v. North. C. R. Co., 157 Pa. St. 103, where a stranger set cars loose on a down-grade switch, causing a col- lision. ^Peniston V. Chic, etc. R. Co., 34 La. Ann. 777; 44 Am. Rep. 444. "Dice V. Willamette, etc., Co., 8 Oreg. 60; 34 Am. Rep. 575. 'Missouri P. Ry. Co. v. Foreman, 73 Tex. 311, 15 Am. St. Rep. 785. 174 DUTY TOWARD PASSENGERS. is not bound to searcn for or wait for him if he is not.i The carrier is bound to attend to the comfort of his vehicles, and if a passenger is injured in endeavoring to perform this omitted duty for himself, the carrier is liable.^ The transit being completed the carrier is bound to the highest care and skill in enabling the passenger to leave the vehicle and his premises. But the carrier is not bound by the conductor's promise to wake a sick and drowsy passenger on nearing his destination.^ He must not stop short of nor overshoot a station or a platform.^ He must stop at a plat- form or something equivalent, and not compel the passenger to make his way over tracks.^ His platforms^; bridges, etc., must be well constructed, adapted to the vehicles, and safe.* • DeKay v. Chic, etc., Ry. Co., 41 Minn. 178; 16 Am. St Rep. 687 = Western R. Co. v Stanley, 61 Md. 266 ; 48 Am. Rep. 96 (shutting a door while going through a tunnel, to keep out smoke and cinders). 'Sevier V. Vicksburg, etc., R. Co., 61 Miss. 8; 48 Am. Rep. 74; Missouri, etc., Ry. Co v. Kendrick, — Tex. Civ. App.— ; 32 S. W. Rep 42. * Memphis, etc., R. Co. v. Whitfield, 44 Miss. 466; 7 Am. Rep. 699 , N. Y., etc., R. Co. V, Doane, 115 Ind 435; 1 L. R. A. 157, Thompson v. N. 0., etc., R. Co., 50 Miss. 315; 19 Am. Rep. 12; Memphis & Little. Rock Ry. Co. v. Stringfellow, 44 Ark. 322; 51 Am. Rep. 598; Cartwright v. Chicago, etc., Ry. Co., 52 Mich. 606 ; 50 Am. Rep. 274, and note, 277 , Taber v. Del., etc., R. Co., 71 N. Y. 489. ^Missouri P R. Co. v. Wortham, 73 Tex. 25 , 3 L. R. A. 368; Phil., etc., R. Co. V. Anderson, 72 Md. 519 ; 20 Am. St. Rep. 483; 8 L. R. A. 673 ; Atch- ison, etc., R. Co V Shean, 18 Colo. 368, 20 L. R. A. 729. A passenger on a railroad train, ivith a ticket for a station at which it is customary for the train not to stop, but to slow its movement so as to allow passengers to alight, will be entitled to damages if, called to the platform by the announcement of the station, he is thrown from the steps of the car and injured, his fall being caused by the sudden increase of the speed of the train when it should have been slowed or stopped. Brashear v. Houston C. A. & N. R. Co . 28 L R A. 811 , 47 La. Ann. 735 ; 17 So. Rep. 260. "Turner v. Vicksburgh, etc, R. Co., 37 La. Ann. 648, 55 Am. Rep. 514; Johns V. Charlotte, etc., R. Co., 39 S. C. 162; 20 L R. A. 520; 39 Am. St. CARRIERS OF PASSENGERS, 175 His wharf must be safely accessible, and his station must be light. ^ He is bound to the utmost degree of skill, care and dili- gence in aifording egress. The passenger must be allowed a sufl&cient time to leave the vehicle.^ The carrier's duty sometimes extends to approaches which are not on his own premises, such as an elevated structure on an unopened street, or an alley connecting with a street.^ But a street railway carrier owes no duty to the passen- ger after he has left the car and until he reaches the side- walk.* Rep. 709. The carrier is liable for injury to a passenger on a platform by a mail. bag thrown by a mail agent. Sargent v. St. Louis, etc., R'. Co., 114 Mo. 348; 19L. R. A.460. » Phila., etc., R. Co Anderson, 72 Md.'Sig ; 20 Ani. St. Rep. 483 ; 8 L R. A. 673; Penn. Co. v. Marion, 123 Ind. 415 ; 7 L. R. A. 687; 18 Am. St. Rep. 330; Stewart v.Internat., etc., R. Co., 53 Tex. 289; 37 Am. Eep. 753; Eagle Packet Co. V. De Fries, 94 III. 598; 34 Am. Rep. 245, Dice v. Willamette, etc., Co., swpra. A ferry boat must be brought close up to the landing at all points, or a guard must be stationed to warn passengers of the gap. Drake v. Dartmouth, 25 N. S. 177. A railroad company i^ liable for an injury to an in- firm passenger whose condition was known to the conductor, caused by failure to provide suitable means for alighting from the train Madden v. Port Royal & W. C. R. Co. (S. C), 19 S. E. 951. In short, like a good actor, he must observe his "exits and his entrances." But he is not always bound to free steps from ice or scatter . ashes or sawdust on them. Kelly v Manhattan R. Co., 112 N. Y. 443 ; 3 L. R. A. 74. See note, 6 L. R A 193. = Chicago & A, R. Co. v Arnol, 144 111. 261; 19 L. R. A 313, Texas, etc., R. Co. V. Miller, 79 Tex 78 ; 23 Am. St, Rep. 308 ; Highland Av & B. R. Co. V. Burt, 92 Ala 291 ; 13 L. R. A. 95. So on a pay-oar N Y., etc , R. Co. V. Coulbourn, 69 Md. 360; 1 L R. A. 541. 'Delaware, etc., R. Co. v. Trautwein, 52 N. J L. 169; 7 L R. A. 435, 19 Am St. Rep 442; Skottowe v. Oregon, etc,, R. Co., 22 Oreg. 430 , 16 L, R. A. 593. * Creamer v West End S R. Co., 156 Mass. 320 ; 16 L. R. A. 490 ; 32 Am. St Rep. 456, Putnam v. Broadway, etc., R. Co , 55 N. Y. 108; 14 Am. Rep. 190. 176 CARRIERS OP PASSENGERS. CHAPTER XX. CARRIERS OF FASSENG-ERS — DUT7 AND LIABIL- ITY OF THE FASSBNGER. The primary duties of the passenger are to pay his fare, procure, produce and surrender his ticket as and when required, and conduct himself in an orderly and careful manner. As has been shown, he must procure his ticket, if re- quired, before boarding the carriage ' He may be required to exhibit it before boarding the carriage.^ He must also exhibit it on the demand of the conductor during the journey, whenever required,'' but he should be allowed a reasonable time to find and produce it,* or borrow the money for his fare,^ and if he ignorantly tenders a tax certificate for his fare and another offers to pay it, he is entitled to be carried.® He is not responsible for the mis- take of the carrier's conductor in respect to his ticket,^ but ■ Ante, p 166 ; Poole v. N. P, R. Co., 16 Oreg. 261 ; 8 Am. St. Rep 289. 'Ibid.; Pittsburgh, etc., Ry. Co. v. Vandyne, 57 Ind 576 i 26 Am. Rep. 68; North. C. Ry Co. v O'Conner, 76 Md. 207, 35 Am St Rep. 422. " Poole V. N P R Co., supra; Downs v. N. Y., etc., R. Co., 36 Conn. 287; 4 Am. Rep. 77 (commuter who had left his ticket at home) ; Jerome T Smith, 48Vt. 230, 21 Am. Rep. 125 (lost ticket), Bradshaw v S. B R Co., 135 Mass. 407, 46 Am. Rep. 481 (conductor of street car giving wrong transfer ticket). *Maples V. N Y., etc., R. Co, 38 Conn. 557, 9 Am. Rep. 434; Interna- tional, etc., R. Co. V. Wilkes, 68 Tex. 617, 2 Am St. Rep. 515. " Clark V. Wilmington, etc., R. Co , 91 N. C. 506 ; 49 Am. Rep 647. "Louisville, etc., R. Co. v Garrett, 8 Lea, 438, 41 Am. Rep. 640. ' Georgia, etc., R. Co. v. Eskew, 86 Ga. 641 ; 22 Am. St. Rep. 490 , Kansas 0., etc., Ry. Co. V. Riley, 68 Miss. 765 ; 24 Am. St. Rep. 309 ; 13 L. R. A. 38 (conductor returning wrong end of round trip ticket) ; Lake Erie, etc., Ry. Co. DUTY AND LIABILITY OF PASSENGEBS. 177 this does not excuse him from producing a proper ticket to a succeeding conductor, in order to be entitled to pursue his journey, although he may recover damages for the first conductor's mistake.^ If the ticket is insufficient through the fault or mistake of the carrier's ticket-seller, the carrier is responsible.^ If the passenger produces and surrenders an insufficient ticket it must be returned to him before fare can be ex- acted,^ and if he pays insufficient fare it must be returned to him after deducting fare to the point of expulsion.* The conductor may not seize' articles of property in the posses- sion of the passenger for his unpaid fare.^ The passenger must inform himself of the carrier's regu- lations as to trains and stops. If, without direction from the carrier, and ignorantly, he takes a wrong train, or one that does not stop at his V. Fix, 88 Ind. 381; 45 Am. Rep. 464. But if he receives a regular ticket on sur- render of a special train ticket, this gives him no right except on the special train. McRae v. Wilmington, etc., E. Co., 88 N. .0. 526 ; 43 Am. Rep. 745. ' Yorton v. Milwaukee, etc., Ry. Co., 54 Wis. 234; 41 Am. Rep. 23 (conduc- tor giving trip check instead of stop-over ticket); Townsend v. N. Y. Cent., etc., R. Co., 56 N. Y. 295 ; 15 Am. Rep. 419 (ticket surrendered to previous conductor); Shelton v. Ry. Co., 29 Ohio St. 214; McClure v. Phila., etc., R. Co., 34 Md. 532; 6 Am. Rsp. 345 (conductor's trip check pronounced good for subsequent day); Penu. R. Co. v. Connell, 112 111. 295; 54 Am. Rep. 238 (ticket issued by unauthorized agent) ; Lake Shore, etc., Ry. Co. v. Pierce, 47 Mich. 277; Haggerty v. Flmt, etc., R. Co., 59 Mich. 366; 60 Am. Rep. 301 " (conductor's check offjred on a succeeding connecting line). But compare Burnham v. Gd. T. Ry. Co., 63 Me-. 298 ; 18 Am. Rep. 220. ^ As where a purchased ticket is sold as valid, and the passenger is expelled. Murdook v. B. & A. R. Co., 137 Mass. 293; 50 Am. Rep. 307. See Iload v. Geo,, etc , Ry. Co., 79 Ga. 358 ; 11 Am. St. Rep. 434. 'Post V. Chic. & N. W. R. Co., 14 Neb. 110; 45 Am. Rep. 100; Van Kirk V. Penn. R. Co., 76 Pa. St. 66 ; 18 Am. Rep 404. 'Bland v. So. P. R. Co., 55 Cal 570; 36 Am. Rep. 50; Contra: Hofif- bauer v. Delhi, etc., R. Co., 52 la. 342; 35 Am. Rep. 278;- Wardwell v. Chic, etc., R. Co., 46 Minn. 514; 24 Am. St. Rep. 246. "Ram den v. B. & A. R. Co., 104 Mass. 117; 6 Am. Rep. 200. 178 CARRIERS OF PASSENGERS. station, he cannot demand that it shall stop/ but he may not be immediately expelled,^ and is entitled to ride to an intermediate stopping place.^ But if the passenger in taking the train follows, the direction of the carrier's servants the carrier is responsible.* The carrier may eject the passenger for failure to pro- duce and surrender a proper ticket or pay his fare.^ In the absence of statutory regulation he is not bound to do this at a station,^ but it must be done at a proper and safe place, without unnecessary force, and without insult or indignity, and with proper regard to the passenger's sex and condition, and if the ejection is not thus made the carrier may be rendered liable in damages.® ' Pittsburgh, etc., Ry. Co. v. Nuzum, 50 Ind. 141; 19 Am. Rep. 703; In- t'erna'l G. N. Ry. Co. v. Hassell, 62 Tex. 256; 50 Am. Rep. 525; Atchison, etc., R. Co. T. Gants, 38 Kans. 608; 5 Am. St. Rep. 780. 'Maroney v. Old Col., etc., Ry. Co., 106 Mass. 153; 8 Am. Rep. 305. •Richmond, etc., R. Co. v. Ashby, 79 Va. 130; 52 Am. Kep. 620. ^ South., etc., R. Co. v. Huffman, 76 Ala. 492; 52 Am. Rep. 349. "McClure v. Phil., etc., R. Co., 34 Md. 532; 6 Am. Rep. 345; Atchison, etc., R. Co. V. Gants. 38 Kans. 608 ; 5 Am. St. Rep. 780. Some of the cases make a distinction between persons having color of right on a train and bare trespassers, holding that the latter may be ejected at any safe place, but the former only at a station. Hardenbergh v. St. Paul, etc., Ry. Co., 39 Minn. 3; 12 Am. St. Rep. 610. 'Ibid.; Higgins v. Watervliet T. Co., 46 N. Y. 23; 7 Am. Rep. 293; Phil., etc., R. Co. T. Larkin, 47 Md. 155 ; 28 Am. Rep. 442, and cases cited in note; Arnold v. Penn. R. Co., 115 Pa. St. 135 ; 2 Am. St. Rep. 542 ; Memphis & Charleston R. Co. v. Benson, 85 Tenn. 627; 4 Am. St. Rep. 776; North. Chic. C. R. Co. V. Gastka, 128 111. 613; 4 L. R. A. 481; Burch v. Bait., etc., R. Co., — D. C. ; 26 L. R. A. 129, with notes. Ejection from a slowly moving train is not necessarily negligent. South. K. R. Co. v. Sanford, 45 Kans. 372 ; 11 L. R. A. 432. A young child, although a trespasser, may not be put on at a distant station without attendance or instructions. Indianapolis, etc., Ry. Co. v. Pitzer, 109 Ind. 179; 58 Am. Rep. 387. ' " A conductor has the right under proper circumstances, to eject a passenger from a car; but he would not be justified iu exercising that right while the car was at a high rate of speed, or when upon a high trestle, nor would he be justi- DUTY AND LIABILITY OF PASSENGERS. 179 If the passenger is lawfully on the train and has paid his fare he may resist ejection to such an extent that ex- traordinary force is necessary for his removal, and he may recover damages for injury in consequence.^ But he may not recover exemplary damages where he was inviting ejection by riding simply to test a question of the carrier's right to fare.^ On arrival at his destination, if his ticket has not been surrendered, and he alleges that he has lost it, the carrier may detain him a reasonable length of time for investiga- tion before allowing him to leave the boat or station.^ Although the carrier has no implied right to detain the passenger's person for his fare, yet an agreement between the master of a vessel and a passenger, made at the time of taking passage, that the passenger shall remain on board until he has paid his passage-money, is lawful.* Where the passenger has incurred the liability to expul- sion for the non-production of a proper ticket or non-pay- ■fled in putting off a person who was blind or deaf; knowing his infirmity, except at a safe place. Upon like principles, the law would not justify a conductor in putting off a passenger at a time and place, and under conditions and circum- stances which would expose him unnecessarily to great peril of life or bodily harm ; and this, too, whether the danger arose from the natural infirmity of the person, or was self-imposed. If the conductor did not know of the infirmity of the person and the peril attending the ejection, there would be no liability aris- ing from the exercise of the right and performance of the duty. It is the fact of notice or knowledge of the danger on the part of the conductqig under such -circumstances, that constitutes the act culpable or willful." (Alabama) John- son V. Louisville & N. R. Co., 16 So. Rep. 75. See cases, ante, p 178. 'English V. Del., etc., Co., G6 N. Y. 454; 23 Am. Rep. 69. The contrary seems to be intimated in Atchison, etc., R. Co. v. Gants, 38 Kans. 608 ; 5 Am. St. Rep. 780; Peabody v. Oregon, etc., Co., 21 Oreg. 121; 12 L. R. A. 823, which hold that the passenger should pay his fare or quietly leave the train "when required, arid resort to his action. = Cincinnati, etc., R. Co. v. Cole, 29 Ohio St. 126 ; 23 Am. Rep. 729. 'Standish v. N. St. Co., Ill Mass. 512; 15 Am. Rep. 66. * Com. V. Schultz (Penn.), 3 Wheel. Cr. Cas. 322. 180 CAREIERS OF ' PASSENGERS. ment of fare, the question whether he may reinstate him- self by an offer to pay fare on the production of a proper ticket is variously decided. The better opinion seems to be that his locus penitentm extends only up to the point of the stopping of the train for the purpose of putting him off, and that after that he cannot entitle himself to resume his journey on the same train.^ Contributoiy negligence. — The passenger is bound to exercise reasonable prudence in the care of his own per- son. But this is measured by his physical and mental capacity. If for example, a carrier receives a blind pas- senger unattended, he may not claim that he should exercise the activity of one who has his sight in endeav- oring to escape an accident.^ To board or leave a steam railway train in motion is usually regarded as negligent,^ although it is not neces- ' Swan V. Manchester, etc., R., 132 Mass. 116 ; 42 Am. Rep. 432; Iloffbauer V. Delhi, etc., R. Co., 52 la. 842; C5 Am. Rejp. 278; Pease v. Del., etc., R. Co., 101 N. Y. 367; 54 Am. Rep 699; Georgia, etc., R. Co. v. Asmore, 88 Ga. 529 ; 16 L. R. A. 53. In Bland v. So. P. R. Co., 55 Cal. 570 ; 36 Am. Rep. 50, the passenger was deemed entitled to avoid expulsion, even after stop- ping, by tendering the balance of his fare. In O'Brien v. N. Y. Cent., etc., R. Co., 80 N. Y. 236, it was held that where a stop is made for the express pur- pose of putting the passenger off, he cannot insist on being permitted to resume his trip by an offer to pay the disputed fara ; but where the stop is at a regular station, if before ejection he or others for him offer the full fare, the conductor is bound to accept it. In Tex., etc., Ry. Co. v. Bond, 62 Tex. 442; 50 Am. Rep. 532, a passenger offered the conductor the amount which he had been accustomed to pay, but the conductor demanded an additional sum because he had no ticket, which being refused, he stopped the train, and although the pas- senger then offered the additional sum, ejected him. Held, unlawful, unless the passenger's conduct was willful. But at all events there must be a tender or offer; mere willingness will not suflSce. Texas, etc., R. Co. v. James, 82 Tex. 206; 15 L. R. A. 347. ^ Railroad Co. v. Maddry, 57 Ark. 306. '111. Cent. R. Co. v. Slatton, 54 111. 133 ; 5 Am. Rep. 109; Cent. R. & B. Co. T. Letcher, 69 Ala. 106; 44 Am. Rep. 505; Jewell' Chic, etc., Ry. Co., DUTY AKD LIABILITY OP PASSENGER. 181 ■sarily so in respect to a street railway car,^ and sometimes in regard to slowly moving steam cars it is regarded as a question of fact.^ The passenger however may be excused if he acts by the direction or encouragement of the carrier's agents.^ And so, if in the face of sudden peril and to avoid imminent injury he leaps from the train, although he would not have been hurt had he remained on board.* It is the duty of the passenger to enter a part of the train designed for passengers. Ordinarily he is not war- ranted in getting on the engine, or in a baggage car or on top of a car, provided it conduces to the injury, although as to riding in a baggage car the case may be different if 54 Wis. 610 ; 41 Am. Rep. 63; Solomon v. Manhattan Ry. Co., 103 N. Y,437, 57 Am. Rep. 760, note; Houston, etc., Ry. Co. v Leslie, 57 Tex. 83; Merrill y. East. R. Co., 139 Mass. 238 ; 52 Am. Rep. 705; Com. v, B. & M. R., 129 Mass. 500; 37 Am. Rep. 382. ' Eppendorf v. Brooklyn, etc., R. Co., 69 N. Y. 195 , 23 Am. Rep. 171 ; Con- nor V. Citizen St. Ry. Co , 105 Ind. 62 , 55 Am. Rep. 177. ''Tex., etc., Ry. Co. v. Murphy, 46 Tex. 356; 26 Am. Rep. 272, Doss v, M., etc., R. Co., 59 Mo. 27; 21 Am. Rep. 371, and cases note, 37 Am. Rep. 384. ^St. Louii, etc., R. Co. v. Cantrell, 37 Ark. 519; 40 Am. Rep. 105; Chic, etc., R. Go. V. Randolph, 53 111. 510 ; 5 Am. Kep. 60; Lambeth v. N. C. B. Co., 66 M. C. 404; 8 Am. Rep. 508 ; Filer v. N. Y. 0. R. Co., 49 N. Y. 47 ; 10 Am. Rep. 327 ; Georgia R. Co. v. McCurdy, 45 Ga. 288 ; 12 Am. Rep. 577, and cases in note, 37 Am. Rep. 385 ; Irish v. No. Pao. R. Co., 4 Wash. 48 , 31 Am. St. Rep. 899. But the mere opinion of the conductor that it was safe, would not justify jumping off a train moving six to twelve miles an hour. Bardwell v. Mobile & 0. R. Co., 63 Miss. 574 ; 56 Am. Rep. 842. ^Twomley v. Cent. P., etc., R. Co., 69 N. Y. 158 ; 25 Am. Rep. 162; Wilson V. North P. R. Co., 23 Mich. 278 ; 37 Am. Rep. 410 ; Iron Ry. Co. v. Mowery, 36 Ohio St. 418; 38 Am. Rep. 597, and note, 599. It is a question of fact. Woolery v. Louisville, etc., Ry. Co., 107 Ind. 381; 57 Am. Rep. 114; St. Louis, etc., Rj;. Co. V. Murray, 55 Ark. 248; 29 Am. Si. Rep. 32. The same is true where the passenger goes out on the platform of the car to avoid an appa- lent peril. Mitchell v. So. P. E. Co., 87 Cal. 62; 11 L, R. A. 130. And so where in terror from an assault by the conductor he jumps from the train. Texas, etc., R. Co. v. Williams, 62 Fed. Rep. 440. 182 CARRIERS OF PASSENGERS. it was by permission of the' carrier's servaats, and without knowledge by the passenger that it was against the rules.'^ It is manifestly dangerous for the passenger to ride on the platform of a swiftly moving steam railway train,^ but not so of the platform or sideboards of a crowded street car.^ In respect to steam cars it is not necessarily negli- gent for the passenger to ride upon the platform if there is no room inside, for if it is the duty of the passenger tO' avoid a crowded train, it is also the duty of the carrier to prevent him from getting on such a train, and if he is per- ' Merrill v. East. R. Co., 139 Mass 238 ; 52 Am. Rep 705, Jacobus v St. P., etc., Ry. Co., 20 Minn. 125 ; 18 Am. Rep. 360 ; Kentucky, etc., R. Co. v. Thoma.s' Adm'r, 79 Ky. 160; 42 Am. Rep. 208; Houston, etc , R.Co.v Clem- mona, 55' Tex. 88 ; 40 Am. Rep 799; Penn. R Co. v. Langdon, 92 Pa. St. 21 ; 37 Am Rep. 651; Little Rock, etc., Ry. y. Miles, 48 Am. Rep. 10. It is not necessarily negligent for a njember of a theatrical company to ride in the show car Blake v. Burlington, etc., R. Co., 89 Iowa, 8 , 21 L, R. A. 559. Se& ante, p. — , as to effect of consent of servants. Also, Bait., etc., R. Co. t. State, 72 Md. 36 , 6 L. R. A. 706 , 20 Am St. Rep, 454 ; Wagner v. Mo P- R. Co., 97 Mo. 512; 3 L. R. A. 156 , Meloy v. Chicago, etc., R. Co., 77 Iowa,. 743 ; 4 L. R. A. 287 ; 14 Am St Rep. 325. " Camden, etc., R. Co v Hoosey, 99 Pa. St. 492, 44 Am. Rep. 120, GraT- ille v. Man^iattan R. Co., 105 N. Y 525; 59 Am. Rep 516, Worthington v. Cent. Vt. R. Co., 64 Vf 107 , 15 L. R. A. 326 , Quinn v 111. Cent. R. Co., 51 111. 495. ' Thirteenth, etc., Ry. Co v Boudrou, 92 Pa. St. 475 ; 37 Am. Rep 707 ; Germantown, etc., Ry. Co. v. Walling, 97 Pa. St. 55 ; 39 Am. Rep. 796 ; Nolan T. Brooklyn, etc., R. Co., 87 N. Y. 63, 41 Am. Rep 345, Spooner v. Brook- lyn C. R. Co., 54 N. Y. 230 ; 13 Am. Rep. 570 , Upham v. Detroit, etc., R. Co., 85 Mich. 12, 12 L. R. A. 129 ; Hawkins v. Front St. C. R. Co., 3 Wash. 592 ; 16 L R. A. 808 ; Highland Av. & B. R. Co. v. Donovan, 94 Ala. 299; Elliott V. Newport S. R. Co., — R. I. — ; 23 L. R. A. 208; although it has been considered otherwise if there is standing room inside, with straps for support. Andrews v: Capitol, etc., R. Co., 2 Mackey, 137 , 47 Am. Rep. 266. It is not necessarily negligent for the passenger to walk from one car to another of a moving train, to find a seat, although he is hurt while on the platform. Dewire V. Boston, etc , R. Co., 148 Mass. 443; 2 L. R. A 166 , Colegrove v. N. Y.. etc., R.Co., 20 N. Y.492, 75 Am. Dec. 418. DUTY AND LIABILITY OF PASSENGER. 183 mitted on it, the carrier should be held responsible for in- juries arising from his dangerous position.'^ The passenger is bound to reasonable care in alighting from the cars, should await directions, and should not alight unauthorized in an unaccustomed or dangerous place.^ But it is not necessarily negligent to make preparations to alight before the train has stoj)ped, as by getting up and going forward.^ He may even stand up to look at the landscape/ But he may not repeatedly leave his seat to close an insecure door.® It is not necessarily negligent to stand near the bow of a ferry-boat while landing.® Upon the question of the passenger's negligence in ex- posing any part of his person outside the car window when the train is in motion, there is a great and irreconcilable conflict of decision. Some cases hold it conclusively neg- ' Lafayette & I. R Co. v. Sims, 27 Ind. 59 ; Werle v- L. I. R. Co., 98 N. Y. 650; Willis T L. 1. R. Co., 34 N. Y., 670; and so the right to stand on the platform exists where a passenger, with an excursion ticket, on the return of the train is unable to find room inside, and is not informed that he can be car- ried on another train. Lynn v. So Pac. R. Co., 103 Oal 7 ; 24 L. R A. 710. 'Mitchell V. Chic & G. T. Ry. Co., 51 Mich. 236; 47 Am. Rep. 566, 111. Cent. R. Co. v. Green, 81 III. 19 ; 25 Am. Rep. 255 , Terre Haute, etc., R. Co. V. Buck, 96 Ind. 346; 49 Am. Rep. 168; Taber v. Del. etc., R Co., 71 K. Y. 489. One ejected at one end of a trestle, crossing the trestle to get his gun from the baggage car at the other-end, and injured, was held negligent I. & G. N. Ry. Co. T. FoUiard, 66 Tex. 603, 59 Am. Rep. 632 ' Worthen v Grand T. Ry Co , 125 Mass. 99 , Wylde v. North. R. Co , 53 N. Y. 156, Pres't, etc v. Leonhardt, 66 Md 70, and cases in note, 58 Am. Rep. 113. But not so of a passenger in a caboose on a freight train. Harris V. Hannibal, etc., R. Co , 89 Mo. 233 * Gee V. Met. Ry. Co., L R , 8 Q. B 161. " Adains v. Lancashire Ry. Co , L R , 4 C. P 739. Compare, West Md. Ry. Co. V. Stanley, 61 Md. 266 , 48 Am. Rep 96 ' Peverly v. City of Boston, 136 Mass. 366 , 49 Am. Rep 37. The passenger is justified in going out on the platform at the invitation of a brakeman, for the purpose of alighting, although not at the station, and against the rules. Bait, etc., R. Co. T. Meyers, 62 Fed. Rep. 367. 184 CARRIERS OF PASSENGERS. ligent ; ^ others hold it a question of fact.^ Where the law of comparative negligence prevails it is measured with the defendant's negligence.'' But it is not negligent for him to lay his arm on the window sill, although it is thrown outside by a jar and injured.* One fraudulently using another's ticket cannot recover for injury/ and so if he fraudulently induces the servants of ihe carrier to allow him to ride free.® " The rule is well settled that where one gets on a passenger train with the deliberate purpose not to pay his fare, and adheres to that purpose, or if being on the train, and having money with him with which he could pay his fare, he falsely and fraudulently represents to the conductor that he is with- out means to pay his fare, and by means of such false representations induces the conductor to permit him to re- main on the train without paying his fare, the relation of carrier and passenger and the obligations resulting from that relation are not thereby established between him and the company, and the company owes him no other duty than not to willfully or recklessly injure him." ^ 'Pittsburgh, etc., E. Co. v. Andrews, 39 Md. 329; 17 Am. Rep. 568; Dun V. Seaboard, etc., R. Co., 78 Va. 645; 49 Am. Rep. 388; Uolbrook v. Utica, etc., R. Co., 12 N. Y., 236; Richmond*; D. R. Co. v. Scott, 88 Va. 958; 16 L. R. A. 91. ''Barton V. St. Louis, etc., R. Co., 52 Mo. 253; 14 Am. Rep. 418, and note, 423; Summers v. Crescent, etc., R. Co., 34 La. Ann. 139 ; 44 Am. Rep. 419 ; Sanderson v. Prazier, 8 Colo. 79; 54 Am. Rep. 544; Dahlberg v. Minn, etc., Ey. Co., 32 Minn. 404; -50 Am. Rep. 585; Miller v. St. Louis R. Co., 5 Mo. App. 471 (elbow out of street horse-car window). 'Chicago, etc., R. Co. v. Pondrom, 51 111. 333; 2 Am. Rep. 306. ' Germantown Pass. Co. v. Brophy, — Pa. St. ; Farlow v. Kelley, 108 U.S 288. See Moaklerv. Portland &W.V.R. Co., 18 Oreg. 189; 6L.R. A. 656. "Way V. Chicago, etc., Ry. Co., 64 Iowa, 48 ; 52 Am. Rep. 431. 'Toledo, etc., Ry Co. v. Brooks, 81 111. 245 ; Rucker v. Mo. P. Ry. Co., 61 Tex. 499 'Toledo, W. & W. R. Co. v. Brooks, 81 111. 250; Chicagi & A. R. Co. v. Michie, 83 lU. 431; Toledo, W. & W. R. Co. v. Beggs, 85 111. 84; 28 Am. DUTY AND LIABILITY OF PASSENGER. 185 A passenger ipjured by the concurring negligence of his own carrier and another, is not chargeable with the negli- gence of the former.^ Rep. 613; Chicago, B. & Q. R. Co. v. Mehlsack, 131 111. 64; McVeety v. St. Paul, M. & M. R. Co., 45 Minn. 269; 11 L. R. A. 174; Robertson v. N. Y. & E. R. Co., 22 Barb. 91; Union fac. R. Co. t. Nichols, 8 Kan. 505; 12 Am. Rep. 475; Prince v. International & G. N. R. Co., 64 Tex. 146; Gulf. C. & S. F. R. Co. V. Campbell, 76 Tex. 175 ; Way v. Chicago, R. I. & P. R. Co., 64 Iowa, 48 ; 73 Io,wa, 463 ; Coudrau v_. Chicago, etc., Ry. Co., 67 Fed. Rep., 522; 28 L. .R. A. 749. 'N. Y., etc., R. Co. v. Steinbrenner, 47 N. J. L. 161; 54 Am. Rep. 126, and cases in note, 135; Little v. Hackett, 116 U. S. 366. The contrary doctrine of Thorogood v. Bryan, 8 C. B. 115, now discarded in England (The Bernina, L. R. 12 P. D. 58), never prevailed to much extent in this country. See Noyes v. Bosoawen, 64 N. H. 361; 10 Am. St. Rep. 410; note, 57 Am. Rep. 488. 186 CARRIERS OF PASSENGERS. CHAPTER XXI. CARRIERS OF PASSENGERS — BAG-G-Aai! AND OTHER PROPERTY. In consideration of the fare paid by the passenger, the carrier is bound to transport with him and safely deliver to him at his destination, his reasonable baggage, and for this his liability is like that of a carrier of goods, an in- surer against loss or injury by any accident except by the act of God or the public enemy.' The liability attaches if it is accepted, although no fare has been paid,^ but not where it was carried gratuitously,* nor where there was no accompanying passenger.* Under the term baggage are included not only such articles as the passenger expects to need or use by the way, but such as passengers ordinarily carry, and it may embrace articles for the use of his family, but not those for third persons.^ It includes articles of luxury as well as necessaries, and such as are proportioned to the means and station of the traveller and the length and character of his journey and his stay.^ ' Roth V. Buffalo, etc., R. Co., 34 N. Y. 548; 90 Am. Dec. 736; Oakes v. North. P. R. Co., 20 Oreg. 392, 12 L. R. A. 318; 23 Am. St. Rep. 126. " MoGill V. Rowand, 3 Pa. St. 451 ; 45 Am. Deo, 654, and before purchase of ticket. Lake Shore, etc., Ry. Co. v. Foster, 104 Ind. 293 , 54 Am. Rep. 319. 'Flint, etc., R. Co. v. Wier, 37 Mich. Ill; 26 Am. Eep. 499. * Wilson V. G. T. Ry. Co., 56 Me. 60 ; 96 Am. Dec. 435 ; but the passenger need not go on the same train, Curtis t. Del., etc., R. Co., 74 N.Y. 116; 30 Am. Rep. 271. * Dexter v. Syracuse, etc., R. Co., 42 N. Y. 326 ; 1 Am. Rep. 527. ° The following articles have been deemed baggage ; an opera glass, Toledo, etc., R. Co. V. Hammond, 33 Ind. 379 ; 5 Am. Rep. 221 ; a commercial travel- ler's price-book, Gleason v. Goodrich Trans. Co., 32 Wis. 85; 14 Am. Rep. 716 , BAGGAGE, ETC. 187 The carrier is not responsibie for merchandise carried for sale or as samples, unless he knows the character thereof and assents to the carriasje of it as basffage.^ But if he is informed of its character, and is paid extra com- pensation for carrying it, he becomes responsible for it.^ a gold Tratch in a trunk, Am. Cont. Co. v. Cross, 8 Bush, 472; 8 Am Kep. 471 ; a watchmaker's tools, Kansas City, etc., R. Co. v. Morrison, 34 Kans. 502; 55- Am. Rep. 252; valuable lace.s, N. Y., etc., R. Co. v. Fraloflf, 100 U. S. 24 ; bed and bedding of a poor man moving with his family, Ouimit v Ilenshaw, 35 Tt. 605 J 84 Am. Dec. 046; beds, bedding, silver spoons, and a gun, Parraelee T. Fischer, 22 111. 212; a reasonable amount of money for travelling expenses in a trunk, Jordan v. Fall River R. Co., 5 Cush. 69 ; 51 Am. Dec. 44, 111. Cent. R. Co. V. Copeland, 24 111. 332; 76 Am. Dec 749; duelling pistols (for the-' passenger's "satisfaction"), "Woods v. Devin, 13 111. 747; 56 Am. Dec. 483; a revolver, Davis v. Mich., etc., R. Co., 22 111. 278; 74 Am. Dec. 151 , a den- tist's instruments. Brock v. Gale, 14 Fla. 523 ; 14 Am. Rep. 356; a travelling, salesman's catalogue, Staub v. Kendrick, 121 Ind. 226; L. R. A. 619 ; a dog,. Kansas City, etc , R. Co. v. Higdon, 94 Ala. 286, 14 L. R. A. 515; &Z Am St. Rep. 119; watch, chain and diamond pin in trunk. Coward v. East T., etc., R. Co., 16 Lea, 225; 57 Am. Rep. 227; a servant's livery, Meux v. G,t. E. Ry. Co., Q. B., Oct., 1895. The following have been held not to be baggage : u, sacque, muff, and napkin- ring for a man (but why not the napkin-ring .'), Chicago, etc., R. Co. v, Boyce, 73 111. 510 ; 24 Am. Rep. 268; a feather bed not intended for use on the voyage^ Connolly v. Warren, 106 Mass. 146; 8 Am. Rep. 300, and note, 302, a large amount of gold coin of a county treasurer, Pfister v. Cent. P. R. Co., 70 Cal. 169; 59 Am. Rep. 404; stage properties, costumes and advertising matter, Oakes v. No. P. R. Co., 20 Oreg. 392 ; 23 Am. St. Rep. 126 , 12 L. R. A. 318; a lady's jewelry for a man, Metz v. Cal. S. R. Co., 85 Cal. 329, 20 Am. St, Rep. 228; 9 L. R. A. 431; a dog, Honeyman v. Oregon, etc., R. Co., 13 Oreg. 352; 57 Am. Rep. 20. The cases of Ouimit v. Henshaw, and Parmalee v. Fischer, supra, extend the carrier's responsibility to an unprecedented and per- haps unreasonable extent. ' Mich. Cent. B. Co. v. Carrow, 73 111. 348 ; 24 Am. Rep. 248 ; Haines v. Chic, etc , R. Co., 29 Minn. 160 ; 43 Am. Rep. 199 ; Penn. Co. v. Miller, 35 Ohio St. 541; 35 Am. Rep. 620; Blumantle v. Fitchburg R. Co., 127 Mass. 322; 34 Am. Rep. 376; Ailing v. B. & A. R. Co., 126 Mass. 121; 30 Am. Rep. 667. ' Iloeger v. Cliicago, etc., Ry. Co., 63 Wis. 100 ; 53 Am. Rep. 271 , Oakes v. N. P. R. Co., supra. 188 CARKIERS OF PASSENGERS. If the passenger has been accustomed to carry merchan- dise in his trunks, the carrier may decline to carry them without satisfactory proof of their contents.^ No contract of responsibility arises upon acceptance merely from the appearance of the baggage, nor the carrier's knowledge of its character, nor because he accepted similar articles from others.^ If the passenger unnecessarily retains exclusive posses- sion and control of personal articles on the journey, the carrier is absolved from responsibility for them unless negligent.^ If the passenger fails to deposit his baggage, not needed for use on the journey, in a room provided by the carrier for the purpose to his knowledge, the carrier is not liable for its loss by theft except through his negli- gence.* But ordinarily the carrier by water is responsible for personal articles retained by the passenger and reason- ably necessary for use on the journey, the assignment of a stateroom being deemed the designation of the place where the traveller may put his ordinary baggage.^ In regard to property of a passenger carried on a ferry- boat and kept by him under his control, as where he un- dertakes to manage and control his horses without aid 'Norfolk, etc., E Co. v. Irvine, 85 Va 217 ; 1 L. R. A 110. ' Blumantle v. R. Co., supra. Ailing v. R Co., supra. ' Tower v. Utlca, etc., B. Co., 7 Hill, 47 ; 42 Am. Dec 3G (coat left in a coach and stolen) , Steamboat Cr. Palace y. Vanderpool, 16 B. Monr. 302 (coat retained by passenger and stolen) ; The R. E. Lee, 2 Abb. U. S. 49 (jewelry left in satchel in stateroom and stolen while owner was at meal) ; Clark v. Burns, 118 Mass. 275 ; 19 Am. Rep. 45G (watch stolen from coat or from under pillow) , Cohen v. Frost, 2 Duer, 335 (trunk fastened with ropes under steamer berth); Wright v. Caldwell, 3 Mich. 51 (trunk put m usual place but without notice thereof or of the intention to become passenger). But a carrier was held for a satchel containing wearing apparel and stolen from a locked stateroom, Macklin v. N. J. St. Co., 7 Abb, Pr [N. S ] 229 ; and so for an overcoat thus left. Gore v. Norwich, etc., T. Co., 2 Daly, 254. ♦ Gleason v. Goodrich Tran. Co., 32 Wis. 85 ; 14 Am. Rep. 716. 'Hutch. Carr., §700. BAGGAGE, .ETC. 189' from the ferryman, the rule is that the ferryman is not under the obligation of a common carrier, but is bound only to reasonable care and diligence.^ But the carrier is liable for his own negligence even where the passenger assumes the control.^ Money kept on or about the person is ordinarily consid- ered not to be baggage for a loss of which the carrier is responsible either in case of robbery or of destruction.* 'In Wyckoffv. Queens Co. Ferry Co., 52 N. Y. 32; 11 Am. Rep. C50, where the blowing of the whistle startled tlie passenger's horse and he plunged off the boat and with' tha wagon was lost, thi.s doctrine was applied on the authority of White V. Winnisimmet Co., 7 Cush. 155, disapproving Fislier v. Clisbue, 12 111 344; Powell v. Hills, 30 Miss. 231 ; Wilson v. Hamilton, 4 Ohio St. 722. The same doctrine is held in Ilarvey t. Rose, 26 Ark. 3; 7 Am. Rep. 595; and in Dudley v. Camden, etc , F. Co., 42 N. J. L. 25. Hutchinson approves this doctrine. Carriers, § 58, note 101. 'Bergheim v. Gt. E. Ry. Co., 3 C. P. Div. 221; 5 Eng. Rul. Cas. 464; Kinsley v.L. S., etc., Ry. Co., 125 Mass. 54; 28 Am. Rep. 200 (baggage in sleeping car) ; Morris v. Third Ave. R. Co., 23 How. Pr. Rep. 345; Am. St. Co. T. Bryan, 83 Pa. St. 440; Pullman Pal, Car. v. Pollock, 69 Tex. 120; 5 Am. St. Rep. 31, and note, 34. In McKee v. Owen, 15 Mich. 115, the court wcro equally -divided in opinion as to the liability of a steamboat carrier, where a woman on going to bed at night rolled up her money in her gown and laid it in the upper berth, whence it was stolen through a broken window. = 111. Cent. K. Co. V. Handy, 63 Miss. 609 ; 56 Am. Rep. 846; First Nat. Bank t. Marietta, etc., R. Co., 20 Ohio St. 259 ; 5 Am. Rep. 655 ; Carpenter V. N. Y. etc., R. Co., 124 N. Y. 53; 21 Am. St. Rep. 644; 11 L. R. A. 759 ; (money under pillow in sleeping-car); Lewis v. N. Y. Cent. S. C. Co.; 143 Mass. 269; 58 Am. Rep. 135. But in Adams v. N. J. St. Co., 9 Misc. 25, the carrier was held, without negligence, for the loss of the passenger's money to a reasonable amount for expenses, retained in his stateroom And in Pullman Pal Car Co. v. Gavin, 93 Tenn. 53 ; 42 Am. St. Rep. 902, iiha defendant was held liable for money stolen from a passenger's berth during the night by one of its porters. The court said : " It is however universally recognized by the courts, that it is the du'y of a sleeping-car company to maintain a careful and continuous watch over the interior of the car while the berths are occupied by sleepers. If the property of the passenger is stolen by a fellow-pa>senger, or by an intruder on the train, in consequence of the failure of the company to 190 CAKEIER& OF PASSENGERS. . As to money in luggage there is a diflference of opinion. Undoubtly the carrier would not be liable for large sums of money in luggage unless he was notified of it and accepted it, but if he understood and accepted it he would be liable for any amount. It has even been held that the acceptance of a large amount by the employee, in violation of the carrier's rule, would bind the carrier, if the passen- ger was ignorant of the rule.' The carrier is bound for the safety of the baggage, to the same point to which his contract binds him to carry the passenger.'^ If he tickets him to a point beyond the ter- maintain this careful and continuous ■watch, the company will be liable for its value, Carpenter v. New York, etc., R. Co., 124 N. Y. 53; 21 Am. St. Eep. 644. It follows as a corollary from this proposition, that if the servant or agent of the company, charged with the duty of watching and protecting th'e property of t.e guest, purloins it himself, the company is responsible." Such a company is responsible for the personal property of the passenger put into the hands of its employee on the car, as for example an overcoat. Pullman Pal. Car Co. v. Lowe, 28 Neb. 239 ; 26 Am. St. Rep. 325. ■ St. Louis S. W. Ry. Co. v. Berry, 60 Ark. 433 ; 28 L. R. A. 501. The court said: "We conclude that where a passenger, who is ignorant of the rules or instructions of railway companies forbidding their agents to receive money for transportation as baggage, delivers to the baggage agent more money than the carrier is required to transport, and informs the agent of the amount, if he accepts it to ship as baggage, and a loss occurs, ^he carrier's pommon-law liability will attach. We are aware that a different rule prevails in some of the States, notably Massachusetts. Blumantle v. Railroad Co., 127 Mass. 322; Ailing V. Railroad Co., 126 Mass. 121; Jordon v. Railroad Co., 5 Gush. 69. See also Bomar v. Maxwell, 9 Humph. 620; Collins v. Railroad Co., 10 Cush. 506. But the weight of authority is with the rule as we have announced it. Railroad Co. v. Baldauf, 16 Pa. St. 67 ; Hutch. Car. § 685; Jacobs v. Tutt, 33 Fed. Rep. 412; Railroad Co. v. Fraloff, 100 U. S. 24; Humphreys, v. Perry, 148 U. S. 627j Railway Co. v. Shepherd, 8 Exch. 30; Minter v. Railroad Co., 41 Mo. 503, and other cases cited in brief of counsel for appellee. While most of these cases have reference to merchandise in some form, yet the rationale of the doctrine, as to it, is equally applicable to money where it is carried as baggage." "Stimson v. Conn. R. Co., 98 Mass. 83 ; 93 Am. Dec. 140. BAGGAGE, ETC- 191 minus of his own route, and especially if he also checks the baggage to such a point, he is responsible for the safety of the baggage to that point ^ The mere delivery of a through-check without a corresponding ticket does not make the carrier responsible for the baggage beydnd his own route. ^ The sale of a through ticket does not render the second liable for the loss by the first,* and checking baggage through does not by itself make the last carrier liable for the negligence of a former.^ An intermediate carrier need not show that the baggage was delivered by him in good order to the last carrier.* In the absence of a through-contract, the carrier in fault is alone chargeable.^ The carrier cannot avoid nor limit his responsibility for baggage by mere notice upon tickets or checks, or other advertisement^ But if the passenger's attention is drawn to the limitation, or he is aware of it, and assents to it, the limitation becomes operative when contained in the ' Louisville & Nash. E. Co. v Weaver, 9 Lea, 38; 42 Am. Rep. 654; Wolff V. Cent R. Co., 68 Ga. 653, 45 Am. Rep. 501 ; Bait. & Ohio E. Co. v. Camp- bell, 36 Ohio St. 647; '38 Am. Rep. 617; Isaacson v. N. Y. Cent, etc., R. Co., 94 N Y. 278, 46 Am. Rep. 142, Hawley v. Screven, 62 Ga. 347, 35 Am. Eep. 126, Cent R. v, Combs, 70 Ga. 533, 48 Am. Rep. 582; Coward v. East T, & C. R. Co., 16 Lea, 225; 57 Am. Rep. 226. But in Chicago, etc., R. Co. V. Fahey, 52 111. 81 ; 4 Am. Rep. 587, it was held that the carrier at fault wag alone chargeable = Felder v. Columbia, etc., R. Co., 21 S. C. 35 ; 53 Am. Rep. 656. ' Atchison, etc., Ry . Co. v. Roach, 35 Kans: 740 ; 57 Am. Rep. 199 , Lowen burg V. Jones, 56 Miss. 688 ; 31 Am. Rep. 379. "Montgomery, etc., Ry. Co v. Culver, 75 Ala 578; 51 Am. Rep. 483. ' Cincinnati, etc., R. Co. v. Pontius, 19 Ohio St. 221. " Blossom T. Dodd, 43 N. Y. 264; 3 Am. Rep. 701 ; Rawson v. Penn. R. Co., 48 N. Y. 212; 8 Am. Rep. 543 ; Bait. & Ohio R. Co. v. Campbell, 36 Ohio St. 647 ; 38 Am. Rep. 617; Coward v. East T., etc., R. Co., 16 Lea, 225 , 57 Am. Rep. 226; Kansas City, etc., E. Co. v. Rodebaugh, 38 Kans. 45; 5 Am. St, Rep. 715. Pennsylvania holds the contrary, Laing v. Colder, 8 Pa. St. 479 ; 49 Am. Dec. 533. 192 CARRIERS OF PASSENGERS. ticket.-' Ordinarily the assent is not presumed, but the carrier is bound to show it,^ but in some jurisdictions assent is presumed, in the absence of fraud, concealment or improper practice, by the acceptance of the ticket with- out objection." 'Rawsonv Penn. R. Co., 48 N. Y 212 ; 8 Am. Rep. 543. "Ealt., etc , R. Co. v. Campbell, 30 Ohio St. 647, 38 Am. Rep. 617 ; Hen- derson V Stevenson, 2 H. L. 470 (s. c. Abb.) ; Mauritz v. N. Y., etc., R. Co., 23 Ted Rep, 765; Railroad Co. v. Lockwood, 28 Ohio St. 358; Railroad Co. v. Stevens, 95 U. S. 055. ' Steers v. Liverpool, etc., S. Co., 57 N. Y. 1 ; 15 Am. Rep. 453, In O'Re- gan V. Cunard St Co., 160 Mass. 356, 39 Am. St. Rep. 484, it was even held that one accepting a ticket from a, carrier is bound by its conditions, although she did not and could not read it. " It was her duty to ascertain the contents if she cared to know her rights." It seems impossible to formulate anyf eneral and explicit rule on this subject, so variant are the decisions. Some of the cases distinguish between land and ocean travel, and between conditions on the back and those on the face of the ticket, and some leave the question of the passen- ger's assent to the jury. Mr. Hutchinson makes no distinction between such contracts and those of the carriage of goods alone. He says (Carr. § 568) : "So far as such tickets contain conditions in reference to the baggage of the passen- ger, as they sometimes do, there is no distinction between them and the ordi- nary receipts for goods when bailed for carriage ;" citing Wilton v. St. Nav. Co., IOC. B. [N. S.] 453, where a condition in an ocean steamer ticket ex- empting the owners from responsibility for baggage unless a bill of lading had been signed therefor, was held to protect him where the vessel had been wrecked by the negligence of the captain, although the passenger had not observed the condition. On the other hand, Mr. Lawson says (Oont. of Carrier, p. 122) : " The conclusions to be drawn from thess cases are, that a ticket is a mere voucher of payment ; that there must be notice to the passenger of any condi- tion it may contain at or bofore the completion of the contract; that it is imma- terial whether a condition limiting the carrier's liability is contained on the face or the back of the ticket; unless the passenger has read or unless his attention has been called to it befoi'e the completion of the contract, pnd that from the bare pos- session of the ticket constructive knowledge of its conditions cannot ba presumed." I prefer the latter view of the law both on principle and on authority. There is a manifest difference between the contract for carriage of goods alone and that for baggage, inasmuch as in the former case the owner has leisure to scrutinize the contract, and opportunity to withdraw his goods if he finds it objectionable; BAGGAGE, ETC. 193 Where the carrier receives baggage on deposit with a view to carriage, he may impose reasonable limitations on his liability in a receipt therefor, which bind the depositor by acceptance of the receipt without objection.-^ whereas, in the latter, he has no such leisure nor opportunity, at least in the case of railroad carriage, and is at the merCy of the carrier, having purchased his ticket. There may be a just distinction in this respect between carriers by land and carriers by water. Thus it is held in Wheeler v. Oceanic S. Nav. Co., 72 Hun, 5, that where a passenger on a steamship procures a ticket the day be- fore sailing, he is bound by its conditions, although his baggage is on board, unless he demands its return. This distinction is approved in Zimmer v. N. Y. etc., B. Co., 137 N. Y. 460, where the court observe : " Cases where parties, proposing to have articles of property transported by a common carrier, delib- erately enter into some necessary contract relating to the transportation, differ materially from those cases of travellers who commit their trunks, or articles of baggage, to an agent of some express or transfer company, and receive at the moment some paper, which as it has been said amounts simply to a voucher en- abling them to follow and identify their property. Madan v. Sherard, 73 N. Y. 329. The difference is very obvious in the circumstances, which in the one case usually admit of no negotiation or discussion, while in the other the shipment of the property is a matter of airangement, with full opportunity for deliberate action." Citing and approving Grossman v. Dodd, 63 Hun, 324 (baggage ex- press company's receipt). The views expressed in Henderson v. Stevenson, supra, seem quite consonant with reason, although in that case stress was laid on the fact that the limitations were on the back of the ticket. But to my mind, the conclusive test of the situation is, that having bought his ticket, ordinarily the carrier does not hand it over till payment, and the passenger can- not demand that the carrier shall give him back his money if he finds unjust conditions in the ticket. In Brown v. East R. Co., 11 Cush. 97, the question of the passenger's assent was deemed one for the jury. See note, 5 Am. St. Rep. 720. A limitation on a sleeping-car ticket issued with the passage ticket is of no avail. Louisville, etc., R. Co. v. Kafzenberger, 16 Lea; 380 ; 57 Am. Rep. 232. See Potter v. The Majestic, etc., Co , 60 Fed. Rep. 625; 23 L. R. A. 746 (U S. Cir. Ct. App.), where the main authorities are carefully reviewed, and it is held that although a limitation as to the amov/nt of I'lie carrier's liability for baggage may be imposed by a condition on the back of the ticket, where the words " See back" are conspicuously printed on its face, yet that an exemption from liability for loss or injury to the passenger or his luggage by perils of the sea or negligence in navigation may not thus be imposed. ' Harris v. Gt. W. Ry. Co., 1 Q. B. Div. 515. 194 CARRIERS OF PASSENGERS. The carrier may impose a charge for carrying baggage beyond a reasonable value, or weight, or number, or size of pieces.^ On the arrival of the baggage at the destination, the carrier must afford the passenger a reasonable time and opportunity to take it, during which he continues to be liable as insurer,* but after this he is responsible only as a warehouseman.* ' Williams v, Gt. W. Ky. Co., 10 Ex. 15 ; Steers t. Liverpool, etc., Co., supra; Railroad Co. v. Fraloflf, 100 U. S. 24. ' Mote v. Chicago, etc., R. Co., 27 Iowa, 22; 1 Am. Rep. 212; Chicago, etc., R. Co. V. Boyce, 73 III. 510; 24 Am. Rep. 268, and note, 272; Burnell v. N. y. Cent., etc., R. Co., 45 N. Y. 184; 6 Am. Rep. 61; Toledo, etc., R. Co. v. Hammond, 33 Ind. 379 ; 5 Am. Rep. 221. ' Ibid.; Fairfax v. N. Y. Cent., etc., R. Co., 73 N. Y. 167 ; 29 Am. Rep. 119; Hoegerv. Chicago, etc., Ry. Co., 63 Wis. 100; 53 Am. Rep. 271; Lafirey t. Qrummond, 74 Mich. 186; 16 Am. St. Rep. 624. CARRIERS. 195 CHAPTER XXII. CARRIERS — PRESUMPTIONS AND BURDE^ OF PROOF ; REMEDIES ; DAMAG-ES — CONFLICT OF LA-WS. Presumptions. — There are a few presumptions peculiar to the law of carriers that should be noted. The first and most important of these is the prima facie presumption of negligence, on the part of the carrier, which is raised by the occurrence of an accident resulting in personal injury. This attaches in every case of accident which is not mani- festly the result of causes against which care, skill, dili- gence and foresight could not have availed. It attaches in every case of breakage or failure of any part of the vehicle ; where a train leaves its track, or a stage over- turns, or a boiler explodes, or there is a collision between vehicles ; where there is an injury by reason of defect in the carrier's premises, or roadway, or appliances; in short, wherever it is not clear, upon the face of the occurrence,that he could not have been to blame. In all such cases, the burden is on the carrier to explain away his apparent negligence.^ "Farish V. Reigle, 11 Gratt. 697; 62 Am. Dec. G6G; Sanderson v. Frazier, 8 Colo. 79; 54 Am. Rep. 544 ; Smith v. St. Paul C. Ky. Co. 32 Minn. 1; 50 Am. Rep. 550, and note, 553 ; Seybolt v. N.Y., etc.. R. Co., 95 N. Y. 562; 47 Am. Rep. 75 ; Feital t. Middlesex R. Co., 109 Mass. 398 ; 12 Am. Rep. 720; Memphis, etc., Co. v. McCool, 83 Ind. 392 ; 43 Am. Rep. 71 ; Phila., etc., R. €o. V. Anderson, 94 Pa. St. 351 ; 39 Am. Rep. 787 ; Eagle Packet Co. v. De Fries, 94 111. 598 ; 34 Am. Rep. 245 ; Ryan v. Gilmer, 2 Mont. 517 ; Iron Ry. Co. V. Mowery, 36 Ohio St. 418; 38 Am. Rep. 597; Lawrence f. Green, 70Cal. 417; 59 Am. Rep. 428; Dougherty v. Mo. R. Co., 81 Mo. 325; 51 Am. Rep. 239; Louisville, etc., R. Co. v. Snyder, 117 Ind. 435; 10 Am. St. Rep. 60; Spellman v. Lincoln R. Co., 36 Neb. 890; 20 L. R. A. 316; Doyle T. Chicago, etc., R. Co., 77 la. 607; 4 L. R. A. 420; Stokes v. Saltonstall, 13 Pet. 181. See notes, 15 L. R. A., p. 35, etc. Ok. 196 PRESUMPTIONS. There is no presumption that the passenger was acting carelessly or in bad faith.^ The like presumption attaches where goods are lost or delivered in a damaged condition.'^ In the case of con- necting carriers of goods there is conflict of decision as to the presumption. Some cases hold that where goods pass over a line of several carriers, and are injured in transit,, the jury, in the absence of direct proof to the contrary, may presume that they reached the last carrier in the same condition as when delivered to the first.* On the other hand, it has been held that where one of a continu- ous line of carriers is sued for injuries to goods intrusted to him for, carriage, there is no presumption that he re- ceived them in good order, but the fact must be affirma- tively shown by the plaintiff.* In the case of an ordinary contract of carriage of com- mon inanimate property, and the failure to deliver it or the delivery of it in a damaged condition, the burden is on the carrier to free himself from blame.^ But in the 'Louisville, etc., R. Co. v. Thompson^ 107 Ind. 442 ; 57 Am. Rep. 120. /Merch. D. T. Co. v. Bloch Bros., 86 Tenn. 392; 6 Am. St. Rep. 847; Mobile, etc., E Co. v. Tupelo, etc., Co., 67 Miss. 35; 19 Am. St. Rep. 262; Browning v. Goodrich Tran.s. Co., 78 Wis. 391 ; 10 L. R. A. 415 ; 23 Am. St. Rep. 414; not so of loss of live stock where the owner agreed to care for it in transit and load and unload ii at his own expense. Terre Haute, etc., R. Co. V. Sherwood, 132 Ind. 129; 17 L. R. A. 339; 32 Am. St. Rep. 239; and not so of loss of money by a passenger in a sleeping-car. Carpenter v. N. Y., etc., R. Co., 124 N. Y. 53 ; 11 L. R. A. 759 ; 21 Am. St. Rep. 644. ' Shriver v. Sioux City, etc , R. Co., 24 Minn. 506 ; 31 Am. Rep. 353 ; Mobile, etc., R. Co. V. Tupelo, etc., Co., 67 Miss. 35; 19 Am. St. Rep. 262; Beard & Sons V. 111. Cent. Ry. Co., 79 Iowa, 518; 18 Am. St. Rep. 381; 7 L. R. A. 280; Smith V. N. Y. Cent. R. Co., 43 Barb. 225; 41 N.Y. 398; LaughUn v. Railway, 28 Wis. 204; 9 Am. Rep. 493; Dixon v. Richmond, etc., R. Co., 74 N. C. 538. ' Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51; 40 Am. Rep. 453. In the note, 40 Am. Rep. 457, it is said : " The principal case seems unsupported- by authority." " Hutch. Carr. § 768o. CARPJEKS. 197 like case of animals or perishable freight, and their delivery in a damaged condition, it has been held that the burden is not on the shipper to show that it did , not come about through their inherent defects.^ On the other hand, in the case of the death of animals transported wholly under the carrier's care, it has been held that the burden is on him to show that death resulted from some inherent prop- erty in the animal, without his fault.^ Where the contract of the carrier of goods stipulates for exemption in any particular, the question of presump- tion and of the burden of proof when he defends under Buch. exemption is considerably vexed, with the weight of authority apparently in favor of the carrier.^ ' Penna. Railroad v. Eaiordon, 119 Pa. St. 577 ; Hussey v. The Saragossa, 3 Woods, 380. ''Lindsley v. Railway, 36 Minn. 539; Louisville, etc.. Railroad v. Wynn, 88 Tenn. 320 = Witting T. St. Louis, etc., Ry. Co., 101 Mo. 631; 20 Am. St. Rep. 636; 10 L. E. A. 602, favors the carrier, overruling former decisions of that court. The court said : "Upon this question the authorities are in direct conflict. On the one hand it is held that when the common carrier relie? upon a contract exemption, he must bring himself within the exemption, and that he does not do this by .simply showing that the goods were lost, or destroyed, or injured by the excepted peril or accident, but that he must go further, and show that he was free from any negligence contributing to the loss or injur3'. The following are some of the cases which support this doctrine: Brown v. Adams Express Co., 15 W. Va. 812 ; Berry V. Cooper, 28 Ga. 543 ; Chicago, etc., R. Co. v. Moss, GO Miss. 1003; 45 Am. Rep. 428; Graham v. Davis & Co., 4 Ohio St. 362; 62Am.Dec. 285 ; Union Express Co. v. Graham, 26 Ohio St. 595. The same doctrine was asserted in this court in Levering v. Union Trans. & Ins. Co., 42 Mo. 88 ; 97 Am. Dec. 320, and in the subsequent case of Ketchum v. American, etc.. Ex- press Co., 52 Mo. 390. The question arose in the first of these cases on a bill ■of lading for the shipment of cotton containing the words 'at owner's risk of fire.' Judge Wagner, speaking for the court, said it devolved upon the defend- ant to show, notwithstanding the exception from liability stated in the contract, "that the accident did not occur through any fault, want of care, or negligence on the part of defendant or its agents. 198 PRESUMPTIONS. But where personal injury is apparently attributable ta some exterior cause, against which the carrier could not " By the other line of authori ties it is held to be sufficient for the carrier to show that the loss or damage was occasioned by some accident or peril, from lia- bility for which he is exempted, either by his contract or the law ; and that he is not required to go further, to show, in addition, that he was free from negligence contributing to the loss or damage. The following are some of the cases which assert this doctrine : Lamb v. Camden, etc., R & T. Co., 46 N. Y. 271 ; 7 Am. Rep. 327 ; Whitworth v. Erie Ry. Co,,- 87 N. Y. 413 ; Farnham v. Camden, etc., R. Co., 55 Pa. St. 53 ; Patterson v. Clyde, 67 Pa. St. 500 ; Little Rock, etc., R. Co. v. Talbot, 39 Ark. 526 , Memphis, etc., R. Co. v. Reeves, 10 Wall. 176; Read t. St. Louis, etc., R. Co., 60 Mo. 199 ; Davis v. Wabash, etc., Ry. Co., 89 Mo. 340. Observations made in Wolf v. American Express Co., 43 Mo. 421; 97 Am. Dec. 406, are in line with the cases just cited, but the question of the burden of proof did not fairly afise in that case. It did however arise in the case of Read v. St. Louis, etc., R. Co., 60 Mo. 199. In that caae the pota- toes were shipped at owner's risk of freezing. " It must therefore be taken as the established law of this State that when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff. The authorities cited are not all agreed as to the ground upon which the rule stands. The true reason, it seems to us, is that negligence is a positive wrong, and will not be presumed, though it may be inferred from circumstances. Then the carrier brings himself within the exception, he need go no further to relieve himself from his liability as in- surer. The party who founds his cause of action upon negligence must be pre- pared to establish the assertion by proof. If the cause of action stands on neg- ligence of the carrier, and not on the common-law liability of the carrier as an insurer, the burden of proof is upon the plaintiff from the beginning to the end of the case. We do not see that there is anything so unreasonable in the rule as some courts seem to think, when we remember, that by common law, the common carrier is regarded as an insurer of the safety of the goods against all losses except such as are caused by the act of God or the public enemy. He may contract against this liability as an insurer, but he cannot contract against his negligence or that of his servants. Though the goods may be carried under a special contract relieving him from the liability of an insurer, still he is none the less a common carrier ; and the question of negligence is to be determined in the light of the fact that he is a common carrier, and of the duties which he has assumed to perform. IIo is bound to use due care in the transportation of goods, regardless of any common-law liability as an insurer: N. Y. Cent. R. CARRIEKS. 199 have provided or guarded, he is not responsible although it occurred while the passenger was in transit.^ This would embrace cases of apparent contributory -neglect on the part' of the passenger himself. The same rule applies in the case of the carrier of goods. If the injury is apparently by the act of God the burden is on the shipper to show negligence on his part.^ Remedies. — The real owner of goods lost or injured may maintain an action therefor, without regard to the parties Co. >r. Lockwood, 17 Wall. 357 ; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174." On the shipper's side are also Lindsley v. Chic, etc., Ry. Co., 36 Minn. 539; 1 Am. St. Rep. 692; Hull v. Chic, etc., Ry. Co., 41 Minn. 510; 16 Am. St. Rep. 722; and on that of the carrier, Lancaster Mills T. Merch. C. P. Co., 89 Tenii. 1 ; 24 Am. St. Rep. 586. Mr. Hutchinson says that the rule putting the burden of proof on the carrier prevails "in Alabama, Georgia, Mississippi, Ohio, South Carolina, Texas and West Virginia, and certainly seems to be the better rule, and in accordance with reason and sound policy. It seems also to have been approved in Minnosota and Nebraska." Citing cases. The contrary view, he says, "prevails in the English, Arkansas, Kansas, Louisiana, Missouri, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, and the United States Courts, and seems to be supported by a preponderance of authority. It is also probably the rule in Iowa and Maine." Citing cases, and probably so in Connecticut and Illinois. Harper Bros. v. Railroad Co., 37 Conn. 272; Dunseth v. Wade, 2 Scam. 285. ' Penn. R. Co. v. MacKinney, 124 Pa. 462 ; 2 L. R. A. 820; 10 Am. St. Rep. 601 (missile hurled through car window) ; Thomas v. Phila., etc., R. Co., 148 Pa. St. 180; 15 L. R. A. 416; Hawkins v. Front St. C. R. Co., 3 Wash. 592; 16 L. R. A. 808 (collision between street car and wagon). [This last case seems of doubtful soundness, for it would seem that as the collision might have been by the fault of the railway company, the ordinary presumption attaches.] Pearn v. W. J. P. Co., 143 Pa. St. J22 ; 13 L. R. A. 366 (fall of snow on deck of boat). 1 ' Long V. Penna. R. Co., 147 Pa. St. 343; 14 L. R. A. 741; 30 Am. St. Rep. 732 (unprecedented flood). 200 REMEDIES. named as owners in the receipt or bill of lading.^ Suit may also be maintained by one having possession and a special property.^ The consignor may always maintain tha action in absence of proof of ownership or interest in the con- signee/ and so it has been held even if the consignee is the owner, provided the consignee has not sued.* This is on the theory of a breach of the agreement with the consignor to carry. But generally it seems that the right to sue is de- termined by the right of property.^ If goods are shipped for account and at risk of consignee he alone can sue.^ A carrier may sue a connecting carrier to whom he has de- livered goods marked " C. 0. D.," for delivering them to the consignee without payment.^ The father may sue for loss of his minor daughter's clothing.^ Where a passenger is personally hurt, not only may he recover therefor, but any person to whom he owes service may maintain an action for the loss of service in conse- quence.^ In the case of connecting carriers the consignee may sue the carrier in whose hands the goods are lost." But if the first carrier makes a through contract the consignee ' Day T. Ridley, 16 Vt. 48 ; 42 Am. Dec. 489, and note; 38 Am. Dec. 423; Bassett v. Spofford, 45 N. Y. 387 ; 6 Am. Rep. 101. ' Mayall v. Boston, etc., R. Co., 19 N. H. 122; 49 Am. Dec. 149. = Hand V. Baynes, 4 Whart. 204; 33 Am. Dec. 54. ■■ Finn v. W. R. Co., 112 Mass. 524; 17 Am. Rep. 128; Hooper v. Chic., etc., Ry. Co., 27 Wis. 81 ; 9 Am. Rep. 439. 'Thompson v. Fargo, 49 N. Y. 188; 10 Am. Rep. 342; Krudler v. Ellison, 47 N. Y. 36; 7 Am. Rep. 402; Ralph v. Chic, etc., Ry. Co., 32 Wis. 177; 14 Am. Rep. 725; South. Ex. Co. t. Craft, 49 Miss. 480; 19 Am. Rep. 4. " Potter V. Lansing, 1 Johns. 215; 3 Am. Dec. 310. ' Murray v. Warner, 55 N. H. 546 ; 20 Am. Rep. 227. » Baltimore S. P. Co. v. Smith, 23 Md. 402 ; 87 Am. Dec. 575 ; and the master for loss of his servant's livery, Meux v. 6t. E. Ry. Co., Q. B., Oct., 1895. "Ames V. Union Ry. Co., 117 Mass. 541; 19 Am. Rep. 426 (master and inj ured apprentice). " Packard v Taylor, 35 Ark. 402 ; 37 Am. Rep. 37. CAERIERS. 201 may look to him in any event.^ If there was no through contract or the last carrier limited his liability to his own line, the first carrier may be sued if the shipper cannot locate the loss.^ At common law, case is the proper form of action where goods were destroyed, lost or stolen, so that delivery could not be made,* and trover in case of refusal to deliver when delivery is possible, or has been made to a wrong person,^ but loss by deviation constitutes a conversion and trover lies.^ For loss by negligence the proper remedy is assump- sit or special action on the case.® Assumpsit will not lie for loss of baggage gratuitously carried.' Under the Code system of procedure and pleading the action should be replevin, or for damages for the conver- sion, or for damages for the breach of contract to carry, or for damages for the injury by negligence, according to the circumstances. In case of personal injury by negligence the action may be for the tort or for damages for the breach of the con- tract to carry.* Damages. — The measure of damages in case of failure to deliver goods or delivery in damaged condition is in the one case the value of the goods at their destination at the proper time of delivery, and in the other the amount of 'Newell V. Smith, 49 Vt. 255. " Smith V. N. Y. Cent. R. Co. 43 Barb. 225 ; affirmed, 41 N. Y. 620 ; Laugh- lin V. Chic., etc., R. Co., 28 Wis. 204; 9 Am. Rep. 493, and other cases cited in note; 72 Am. Dec. 246, and cases ante, ref. 4, 5. 'Packard v. Getman, 4 Wend. 613 ; 21 Am. Dec. 166. * Packard y. Getman, 6 Cow. 757; 16 Am. Deo. 475. "Phillips V. Brigham, 26 Ga. 617; 71 Am. Dec. 227. « Hawkins V. Hoffman, C Hill, 586 ; 41 Am. Dec. 767. ' Flint, etc., R. Co. v. Weir, 37 Mich. Ill ; 26 Am. Rep. 499. ^Baltimore City, etc., Ry. Co. v. Kemp, 61 Md. 619; 48 Am.'Rep. 134. 202 DAMAGES. deterioration, without allowance for contingent profits on sales lost.^ In case of delay in delivery,' depreciation in value, or the loss of certain profits, are recoverable ; but contingent profits cannot enter into the recovery.^ In cases of personal injury of the passenger, the measure of damages is in conformity with that in ordinary cases of negligence, and the nearest practicable approach to a definite rule is that the damages must be for the natural consequences.^ ' Hadley v. Baxendale, 9 Exch. 341; 5 Bng. Rul. Cas. 502; Home v, Mid- land By. Co., L. R. 8 0. P. 131, 5 Eng. Rul. Cas. 506. In a note to these cases, 5 Eng. Rul. Cas. 524, it is said: " That contingent profits from possible sales or employment of goods cannot enter into the recovery, although the carrier was informed at the time of the shipment that the object of the agreement was to make such sales, see Harvey v. Conn. R. Co., 124 Mass. 421; 26 Am. Rep. 673; and to this effect, Ward's, etc., Co. v, Elkins, 34 Mich. 439; 22 Am.Rep. fi44; Ward v. N. Y. Cent. R. Co., 47 N. Y. 29 ; 7 Am. Rep. 405 ; Brock v. Gale, 14 Fla. 523, 14 Am. Rep. 356 (loss of tools of a dentist passenger) ; Mather v. Am. Ex. Co., 138 Mass. 55; 52 Am. Rep. 258 (loss of architect's plans, entailing delay). But in Doming v. Grand T. Ry. Co., 48 N. H.455; 2 Am. Rep. 267, where the carrier was informed that the goods could be sold if forwarded at once, and he delayed, he was held for depreciation and loss of chance to .sell. And similarly as to loss of use of machinery during its de- tention. Priestly V. North. Ind., etc., Ry. Co., 26 111. 205; 79 Am. Dec. 369. In the last case it was held that under proper notice, averments and proofs, special damage even beyond this might be recovered. Of this, Redfteld says (Carriers, § 32) • ' The difference between the last case and some of the pre- ceding,' English, ' in regard to the rule of damages seems to be one of pol- icy between the English and American courts, in the one case to enable the owner to realize speculative damages, and in the other to deny all but what is the most obvious actual damages.' Mr. Hutchinson favors the view that the measure of damages may be enhanced so as to cover contingent profits where the carrier agrees to transport within a given time or for a stated pur- pose (Carriers, § 772). Citing Vicksburg, etc., R. Co. v, Ragsdale, 46 Miss. 458, where the court did ' not deny the proposition that where the carrier is notified of the expected profits and contracts in view of them, he may be liable ;' but the court in that case held that they must " be so definite and certain DAMAGES. 203 The same rule is applied in cases of delay of the passen- ger. The natural inconvenience and loss will be consid- ered, but not extraordinary expenses, such as a special train to shorten the consequent delay; nor contingent profits unless there was an express agreement or implied understanding having in view the business in question.^ that they can be ascertained reasonably by calculation.' The editor of Am. & Eng. Ency. of Law (Carriers, p. 908), states that ' the loss of mere specu- lative profits, in consequence of the delay of the carrier, or Ijis failure to deliver the goods, is not an element of damage. The recovery is limited to loss of profits on existing contracts.' Citing Ingledew v. North. R. Co., 7 Gray, 86 (loss of time) ; Penn. R. Co. v. Titusville R. R. Co., 71 Pa. St. 35a (increased expense of laying plank). Where a carrier negligently allows mules to eicap3, the expense of searching for them is recoverable. North. Mo. R. Co. V. Alters, 4 Kans. 453; 96 Am. Dec. 183. Ordinarily counsel fees are not re- coverable. Richmond, etc,, R. Co. v. Benson, 86 Ga. 203; 22 Am. St. Rep. 446.. The ordinary measure of damages is the value of the goods at the place of de- livery, in case of loss, and the depreciation in case of damage, but in the case of a family portraitits value to the owner is the standard. Green v. Boston, etc., R. Co., 128 Mass. 221; 35 Am. Rep. 370. See Ward v. N. Y. Cent. R. Co., 47 N. Y. 29; 7 Am. Rep. 405; Ayres v. Chicago, etc., R. Co., 71 Wis. 372; 5 Am. St. Rep. 226. As to mares with foal, see Missouri Pac. R. Co. v. Fagan,^ 72 Tex. 127; 2 L. R. A. 75 ; 13 Am. St. Rep. 776. Where a woman miscarried by reason of an injury negligently inflicted on her, she was not allowed dam- ages for the loss of the society or services of the child, nor for her grief in con- sequence. Tunnicliffe v. Bay, etc., Ry. Co., — Minnesota, ; 61 N. W. Rep. 11; Bovee v. Town of Danville, 53 Vt. 183. So also when the action was brought by the husband, Butler v. Manhattan Ry. Co., 143 N. Y. 417; 42 Am. St. Rep. 738. ' Hobbs V. London, etc., Ry. Co , L. R , 10 Q. B. Ill ; 5 Eng. Rul. Cas. 381 ; Le Blanche v. London, etc., Ry. Co., 1 C. P. Div. 286; 5 Eng. Rul. Cas. 392. In a note to these cases, 5 Eng. Rul. Cas. 428, it is said : "In a leading New York case, Williams v. Vanderbilt, 28 N. Y. 217; 84 Am. Deo. 333, it was adjudged that the damages might include the value of time lost, and expenses incurred, embracing those of sickness arising from detention in an unhealthful climate (Isthmus of Panama). To the same effect. Van Buskirk v. Roberts, 31 N. Y. 661. "In Cincinnati, etc., R. Co. v. Eaton, 94 Ind 474 ; 48 Am. Rep. 179, wher& the passenger was carried past her destination, it was held competent to show 204 CONFLICT OF LAWS. Conflict of la-wrs. — In the case of a contract between a car- rier and a passenger or a shipper of goods, the intention of that she was compelled to walk three hours over dusty roads, got wet in cross- ing a creek, was chased by dogs and otherwise frightened, and that the weather was sultry, by means of which she was made sick. Citing the Hobbs case. "In International Ky. Co. T Terry, 62 Tex. 380; 50 Am. Rep. 529, the company carried a passenger beyond his station, and put him off at a water- tank, in inclement weather, by means of which he contracted pneumonia. He recovered for consequent pain, expense, and business detriment. ' Much atten- tion has been given to the case of Hobbs.' "In Brown v. Chicago, etc., R. Co., 54 Wis. 342; 41 Am. Rep. 41, a preg- nant woman was carelessly directed by the brakemau to leave the train three luiles short of her destination. The walk brought on a miscarriage and the defendant was held liable therefor. " In Murdock v. B. & A. R. Co., 133 Mass. 15 ; 43 Am. Rep. 480, where the conductor wrongfully refused a ticket, and arrested the plaintiff for evading his fare, and delivered him to ofBcers at Pittsfleld, it was held that his detention over night in a cell, and the discomforts and indignities therefrom,' and from the authorities at Pittsfleld, and a cold which he took by reason of the dampness of the cell, were not proper items of damage. Citing the Hobbs case. " The circumstances in Indianapolis, etc., Ry. Co. v. Birney, 71 111. 391, were very similar to those in the Hobbs case, except that in the former, the plaintiff might have taken another train a few hours later, or a horse and Car- riage, and the opinion in the Illinois Case is based on the ground that the exposure was voluntary and unnecessary. See Georgia, etc., R. Co. v. Eisken, «6 Ga. 641 ; 22 Am. St. Rep. 490. " In Francis v. St. Louis T. Co., 5 Mo. App. 7, a passenger carrier contracted to oariy a young lady from a station to her home, in a city, but set her down a mile from her residence, on a sidewalk of a frequented street, along which ran tram cars going within a square of her house. The day was cold but dry ; the woman was delicate but not ill ; being warmly clad she walked home with a friendj and in so doing took a cold which permanently injured her. Held, too remote to warrant a recovery . " In Houston, etc., Ry. Co. v. Hill, 63 Tex. 381 ; 51 Am. Rep. 642, the com- pany contracted with the plaintiff to carry excursionists to a certain place to attend a public entertainment, On a breach of the contract it was held that the plaintiff might recover the profits which he would have realized on sales of tickets actually made, and the difference in expense of transportation of those whom he CARRIERS. 205 the parties will govern as to the law of place to be applied in its construction, and in the absence of a clear expression had thus agreed to take and did take on the faith of the contract, hut nothing for profits of conjectural sales. "In Georgia Railroad v. Ilaydon, 71 Ga. 581 ; 51 Am. Rep. 274, hy a colli- sion, the plaintiff, a theatrical manager, who -was a passenger with his troupe, was prevented from reaching his destination in time to fulfill an advertised en- gagement, for which tickets had been sold, and he had to refund the money. Held, that he could not jecover that amount. ' Damages which depend upon the particular character or business of one of the parties cannot be recovered unless known to the other party at the time of entering into the contract.' " The loss of a job by delay at a station at which a passenger was wrongfully put off is too remote to be considered. Carsten v. No. P. R. Cd., 44 Minn. 454; 9L. R. A.688. " Damages for refusal to allow the plaintiff to take a train which he was en- titled to take, include the amount paid tor another ticket, loss of tiipe. necessary hotel expenses, and other actual inconveniences. Northern G. R. Co. v. O'Oonner, 76 Md. 207 ; 16 L. R. A. 449. " See Louisvi^e, etc., R. Co. v. Ballard, 88 Ky. 1"j9 ; 2 L. R. A. 694; Chat- tanoo.;a, etc., Ry. Co. v. Lyon, 89 Ga. 16 ; 15 L. R. A. 857. " In an action upon a guaranty of a ra'.lroad company to transport an opera troup to a certain destination by a specified time, the loss from failure to arrive in season to give performances which the company knew the troup were going to such destination to give is recoverable ; but not so of los.s from the breaking up of the troup through failure to pay the perform^jrs owing to the want of the exptoted receipts from such advertised performances. Foster v. Cleveland, etc., R. Co., 56 Fed. Rep. 434. " Judge Thompson says of the Hobbs case (Carriers of Passengers, 566) : ' The rule seems to have been applied wilh unnecessary vigor.' •' Where a travelling salesman received as compensation a cartain salary, hi? railroad expenses, and a certain percentage of the amount uf his sales, the latter were held not to be profits for which was debarred fi-om recoveiy in an action for personal injuries, and he was allowed to show the extent and amount of his ordinary business. A passenger was allowed to recover for bodily suffering caused by being com- pelled to walk back to his destination after being negligently carried beyond it ; Mobile, etc., R- Co. v. MoArthur, 43 Miss. 180; for sickness and suffering caused by failing to stop at regular advertised landing place and being left all night exposed to the weather ; Ileirn v. McCaughan, 32 Miss. 17 ; for an injury 206 CONFLICT OF LAWS. to the contrary the law of the place where it is made will be deemed to govern its construction. This is so as to contracts for passage or carriage of goods from one State to another, and from one foreign port to another.' So if a stipulation in a contract relieving a carrier from liability for injuries to passengers by the negligence of its servants is valid by the law of the place where it is made, it will be enforced where the contract is sued upon, although the law of that place is different.^ In respect to negligence producing injury to cargo occurring within foreign territory, the law of that territory must prevail.^ There can be no recovery in one State for injuries sus- tained in another, unless the infliction of the injuries is sustained in returning to a station after a wrongful ejection ; Evans v. Ry. Co., H Mo. App. 463 ; for suffering from a cold contracted by being forced to wait for a delayed train in a station which was not warmed ; Texas, etc., Ry. Co. v. Mayes, Tex. Sup. Ct. ; 15 S. W. Rep. 43. " Lloyd V. Guibert, L. R., 1 Q. B. 115 ; 5 Eng. Rul. Cas. 870 (holdmg that in the circumstances the law of the ship's flag governed) ; Liverpool, etc., S. Co. v. Phoenix Ins. Co., 129 U. S. 397, and cases cited therein; China Mut. Ins. Co. V. Force, 142 N. Y. 90; Talbott v. Merch. D. T. Co., 41 Iowa, 247; 20 Am. Rep. 589 ; West., etc., R. Co. v. Exposition C. Mills. 81 Ga. 522 ; 2 L. R. A. 102; Potter v. The Majestic, etc., Co., 60 Fed. Rep. 625 ; 23 L. R. A. 746. The doctrine as stated in the text was approved in the last case, although there the contract-expressly provided that it should be governed by English law. Pope V. Nickerson, 3 Story, 465, is disinguished in Steamship Co. v. Insurance Co., supra. The validity of a clause in a bill of lading exempting a ship owner from damages due to a latent defect is to be determined by English law, where the ship is English and the contract was signed in an English port. The Carib Prince, 63 Fed. Rep. 266. A State statute making it unlawful for a carrier to limit his common-law liability to deliver property received for transportation will not control a contract made in another State contemplating a through car- riage to a third State, although the carrier is incorporated in the first State. Thomas v. Wabash, St. L. & P. R. Co., 63 Fed. Rep. 200. " O'Regan v. Cunard S. Co., 160 Mass. 356; 39 Am. St. Rep. 484. But see The Guildhall, 58 Fed. Rep. 796. 'Baetjer v. La Compagnie, etc., 59 Fed. Rep. 789. CARRIERS. 207 actionable under the law of the State in which they were received ; . but if actionable in the State where inflicted, it will be actionable in another State unless contrary to its policy, although it would not be actionable if it had been inflicted there. ^ The same is true of negligence producing the death of a human being.^ ' Alabama, etc., R. Co. v. Carroll, 97 Ala. 126 ; 38 Am. St. Rep. 163 ; 18 L. R. A. 433 (case of master and servant), and cases cited; Walsh v. N. Y., etc.. By. Co., 160 Mass. 571 ; 39 Am. St. Rep. 514. = Davis V. N. Y., etc., R. Co., 143 Mass. 301; 58 Am. Rep. 138, and note, 143. See Usher v. West. J. R. Co., 126 Pa. St. 206; 12 Am. St. Rep. 863, note; 14 Am. St. Rep. 353; Diggins v. Cent., etc., R. Co., 155 Mass. 176; 31 Am. St. Rep. 544. INDEX. A. Accident — See Common Carriers and other heads of Bailment. Act of Grod defined — See Accident. Agister : page. definition 47 degree of care exacted 47, 48 Animals — liability of carrier for Ill, 112 See Agister. Attornment — See "Warehouseman. ■ Auctioneers 62-64 may sue purchaser for fees ' 64 lien for fees 64 may sue for price 64 not liable to rriortgagee ^ ., 63 when liable for fraudulent sale 63 liable for selling stolen goods 63 B. Baggage — See Common Carriers. Bailments : definitions of the different kinds ], 2 and lease or sale, distinction between. . . 3, 4-5, 49, 50, 57, 58 Banks : when bailees 5 ordinary relation with depositor is that of debtor and creditor 68 distinction between gratuitous deposit and one for hire 56 presumption that deposit is general 56 when liable as depository 7-10 collections by, presumption of hire : 59 receiving paper for collection at distant place, liability for default of their agents 68, 69 210 INDEX. PAGE. Bill of lading 102, 103 evidence to vary 102 whether carrier may show he did not receive goods 102 Boarding-house keeper not innkeeper 73, 74 Broker and customer : relation of pledge 28 buying stocks on margins, relation of pledge 68 selling stocks in ordinary way is factor 68 See Factor. C. Canal companies not common carriers 93 Carriers — gratuitous — See Mambatb ; see Common Cakribrs. Common carriers — definition 91, 92 of goods 95-148 who are 91, 92 who are not 92, 93 essentials constituting 94 when may and when may not refuse to accept 97 may refuse if he has not means to transport. 97 may refuse dangerous or offensive goods 97 may refuse perishable articles 97 obligation to receive 95-101 what he is bound to receive and what not 95, 96 not bound to receive goods to be delivered at a point beyond his terminus 96, 97 discriminations ^- what may and what may not be made . 98-101 delivery to carrier 101-104 delivery to, how made 101 delivery to must be without fraud as to character or value.103, 104 liability attaches from time of acceptance 103 contract of carriage, what is implied 105 is ordinarily an insurer of goods 105 liable for thefts, embezzlements and use by passengers 124 causes of injury excusing carrier 105 act of God defined — excuses carrier 106 carrier liable if his negligence contributes to act of God . . 110 inevitable accident defined , 106-109 inherent defects excusing carrier Ill, 112 animals — liability of carrier for Ill) 112 INDEX. 211 •Common carriers — Continued: page. shipper's condact excusing carrier 112, 113 public enemies — act of, excusing carrier 110 mobs or riots not public enemies 110 contract of carriage, express 105-122 cannot impose stipulations 97 may limit liability by contract 105 cannot limit liability by notice 105 when may limit extent of liability by notice to con- signors ] 18, 119 cannot impose on shipper a contract limiting his liability in any respect 121 ■cannot absolve himself from liability for negligence even by contract 120, 121 but may by contract limit amount of liability for his own negligence 121 may limit time for presentation of claims, for damage 118 may by contract exempt himself from liability as insurer, 119, 120 may limit liability to his own route 114 rule where connecting carriers have arrangements about freight 116 liability beyond his own route raised by contract 114 what constitutes implied contract for through carriage 117 acceptance of goods marked for destination beyond his route— effect of 114r-116 acceptance of goods marked for destination beyond his route — English rule 114 acceptance of goods marked for destination beyond his route — American rule 115 cannot impose on shipper any limitation of liability for his own negligence 105 bill of lading 102, 103 agreement at time of shipping is conclusive 1 121 whether he may contradict recital of receipt in bill of lading 102 shipper's acceptance of document containing limitation im- plies assent 119, 120 shipper entitled to reasonable time and opportunity to learn limitation 120 limitation in first carrier's contract enures to succeeding carriers 122 .but when he undertakes only for his own route his limita- tions do not enure to succeeding carriers 122 212 INDEX. Common carriers — Contimied: PAOEi. where statutes prohibit limitation, carrier may stipulate for benefit of owner's insurance 122 duties in transportation 123-129 bound to furnish safe means of transportation 123 must observe special directions 123 deviation 125, 126 liable at all hazards if he deviates from usual route 125 must pursue particular route directed'. 125 when deviation authorized or excused 126- extraordinary eflForts to transport not required 128 if extraordinary dispatch is required carrier should be notified, 129 ■ care to be exercised — degree and kind 123, 124 bound to reasonable foresight 124 bound to skill in navigation 124 delay 127-129 liable for unreasonable and avoidable delay 127 liable for delay contributing to injury by act of Grod 127 what excuses delay 127, 128- when delay caused by act of God carrier is not bound to notify consignee 129 when cause of delay is removed, must resume carriage 128 bound to try to avert danger and diminish injury 124 may sell perishable property in danger 124 ' delivery by carrier 130-143 delivery — place of 130, 131 , general duty as to delivery defined ISO delivery — special directions must be observed 132-135 delivery — liability of insurer remains for a reasonable time after arrival 131 delivery — what is reasonable time and opportunity to take the goods •. 136, 137 delivery — notice to consignee of arrival, whether and when required 131 custom— ^how affects delivery of goods by carrier 138 bound to deliver to next succeeding carrier 115 delivery — where contract is only to deliver to connecting carrier, the liability of insurer exists till actual delivery to him : 137 delivery — consignee refusing to accept, carrier's liability reduced to that of warehouseman 136 delivery — consignee refusing to take goods, carrier may wholly absolve himself by warehousing goods 137 INDEX. 213 Common carriers — Continued: page. delivery — may be made to true owner 140, 141 delivery — carrier liable for misdelivery 142, 143 delivery — refusal or neglect is conversion 136 delivery excused by yielding t,o paramount title 139 public authority, act of, relieving carrier 113 delivery excused by yielding to valid legal process 139 delivery — waiver 139 delivery — how affected by custom 138, 139 demurrage 137, 138 lien for freight , '. 144-148 lien dependent upon owner's consent to carriage 144 lien on part delivered valid against rest 145 lien pro rata, when ; 146 lien, when-attaches - 144 lien valid as against consigner's right of stoppage 145 no lien, when '. 145, 146 lien how lost 146, 147 lien lost by sale of goods 147 lien — on statutory sale for charges no favoritism may be shown 148 whether private carrier has lien 148 'Common carriers of passengers 149, 194 whom bound to carry 149 obligation to carry and who are passengers 149-152 who are passengers 150, 151 who are not passengers 151 when relation arises 149 when bound to carry 149 duty to passenger does not attach till he comes on premises 165 duty as to vehicles, etc 153-156 not insurer of vehicles, etc 153, 155 but held to very highest measure of skill, care, diligence and foresight 153 liable for defects of manufacture discoverable by any known test. 155, 156 not bound to adopt precautions not in practical use 156 bound to have premises safe 165 must have safe approaches to vehicles 165 bound to keep premises safe for those who come with or to meet passenger 166 not bound to keep premises safe for those who come for curiosity or their own convenience 166 214 INDEX. Common carriers of passengers — Continued: pagb.- may exclude persons who merely wish to conduct busi- ness 166, 167 may grant exclusive business privileges on premises 166 must furnish safe egress from premises 175 must exclude disorderly persons 167 nature of implied contract 157, 158- not insurer of passenger's safety 153 duty toward passenger 165-175 must give passenger time and opportunity to buy ticket. . . 167 contract for carriage 157-165 may impose reasonable limitations by notice on tickets 160 carrier liable for fault of his ticket seller 177- bound to furnish seats 168 may designate particular cars for different passengers 168 may limit liability for carriage on freight trains 164 when liable for one on forbidden train or part of train 150' may eject passenger for want of ticket or fare . . . : may eject passenger for disorderly or offensive conduct 169 ejection must be in humane manner and at proper place.-. 178 removal of sick or drunken passenger must be in a humane manner 170* may not impose any limitation of his liability 158 but to trespasser bound only to ordinary care 150' passenger carried gratuitously, carrier may provide for exemption even for negligence 161 where passenger carried gratuitously in care of his freight, rule as to power of limitation is variously held .'. 16^ selling a through ticket he may stipulate not to be liable beyond his own line 158 bound to transport safely and promptly 157, 158 bound for his prompt carriage to destination 159 bound to afford opportunity to obtain food and for tem- porary absence 173 bound to extra care toward sick or feeble passenger 169 bound to protect passenger against assaults from his ser- vants in course of employment 170, 171 liable even for wanton assaults by servants 171, 172 bound to protect passenger from assaults of third persons as far as practicable 172 duty of protection does not extend to negligent acts of pas- sengers nor malicious acts of strangers outside 173 bound to highest care and skill in enabling passenger to leave vehicles. 174, 175 ■ INDEX. 215 Common carriers of passengers — Continued: page. selling unconditional through ticket, not liable for passen- ger's safety beyond his own route 159 duty and liability of passenger 176-185 passenger bound to take right train 177 passenger may follow carrier's direction as to train 178 passenger may sit in drawing-room car if there is no other place 168 passenger must procure ticket 176 assent to limitations in ticket, whether presumed 192 acceptance of ticket limiting liability for negligence raises no presumption of assent 164 ticket may be varied by parol evidence 164 if ticket is non-transferable is binding as to conditions in it 163 passenger bound to pursue direct route 160 ticket not good in reverse direction 160 passenger not entitled to stop over ' 161 must exhibit ticket on demand 176 in default of ticket must pay fare 177 passenger may be ejected for not producing ticket or pay- ing fare 178 train having stopped to eject passenger for non-payment, he cannot reinstate himself by offer of fare 180 carrier has no lien for fare 177 passenger alleging that he has lost ticket may be detained for investigation before leaving 179 one fraudulently evading payment of fare may not recover for injury 184 passenger may forcibly resist illegal expulsion 179 passenger may temporarily absent himself 152 contributory negligence of passenger 180-183 negligent to board moving steam train 180 not negligent to board moving street car 181 as to exposure of person outside car window 183, ISf passenger must not ride on engine or baggage car 181 passenger must not ride on platform of steam car unless cars are full 182 may prepare to leave car or boat while in motion 183 may not alight from moving car 183 may not leave car except at usual place 183 passenger excused if he acts negligently in sudden peril. . 181 passenger excused if he acts by direction of carrier's agents . 181 answerable for negligence to one carried gratuitously 149 216 INDEX. Common caniers of passengers — Continued: page. passenger injured by concurring negligence not charge- able with negligence of his own carrier 185 baggage 186-194 carrier bound to carry reasonable baggage free 186 carrier cannot limit liability for baggage by notice on ticket unless passenger assents or knows of it 191, 192 carrier bound for baggage to point designated by ticket . 190, 191 liability of' connecting carriers for baggage 191 what is reasonable baggage 186, 187 what is not reasonable baggage . . 1 , ^ . . 187 merchandise for sale not baggage 187, 188 as to money in baggage 190 money on person not baggage 189 articles unnecessarily • retained in passenger's exclusive possession not baggage 188, 189 carrier liable for negligence even where passenger retains possession 189 carrier may impose limitation as to baggage on deposit for carriage > 193 carrier may charge for baggage beyond reasonable amount . 194 passenger entitled to reasonable time and opportunity to take baggage on arrival 194 carrier responsible only as warehouseman for baggage not taken in reasonable time after arrival 194 Presumptions 195^199 occurrence of accident raises presumption of carrier's negligence 195 loss or injury of goods raises presumption of carrier's negligence 196 presumption in case of injury to or dfeath of animals.. 196, 197 where injury is by act of God, burden is on shipper or passenger to show negligence 199 where injury to person or goods is apparently due to un- avoidable exterior cause, carrier not liable 198, 199 presumption as to negligence where contract stipulates for exemption ■. 197 Remedies 199-201 remedies — form of action 201 real owner may always sue 199 one having possesjsion and special property may sue for injury 200 consignor may generally sue for loss or injury to goods. . . . 200 INDEX. 217 Common caniers of passengers — Continued: paoe. consignee may sue carrier in whose hands goods are lost . . 200 consignee alone may sue for injury or loss of goods shipped' at his risk '. 200 ' first carrier liable on through contract for goods .lost by any carrier 201 last carrier liable if loss cannot be located 201 passenger personally hurt, any one to whom he owes service may sue 200 father may sue for loss of minor child's clothing 200 on contract for through carriage any carrier may be sued. . 117 carrier may sue connecting carrier for failure to C. 0. D . . . 200 Damages : measure of, for loss or injury to goods measure of, for delay of goods 202 measure of, for delay of person 203 measure of, for personal injury 202 Conflict of Laws : law of place where contract is made will generally govern, 206 contingent profits not recoverable 202, 203 conflict of laws 204-207 intention of parties to contract will govern as to law df place 204, 205 in case of negligent injury to cargo in foreign country, law of that country governs rule as to death inflicted or personal injuries received in one State sued for in another 1 . . 206, 207 Collateral securities — See Pledge. Collecting agents — liable for default of their agents 68 Commission — See Mandate. Consent or contract essential to bailment 5 Contract or consent essential to bailment 5 Corporation — cannot become bailee without charter authority or custom 5 Custom — may authorize corporation to become bailee 5 See Common Carrier of Goods — Delivery. 218 INDEX. 1). PAGE. Damages 201-203 Definitions of bailments 1, 2 Delivery — See Special Heads. Demurrage — See Common Carriers. Deposit — defined 6 boarding-hoiise keeper when liable as depositary 11, 12 maimer of delivery to bailee 6 delivery when implied 6, 7 compensation, when not presumed 14 degree of .care exacted 7-13 how influenced by bailor's knowledge of depositary's char- acter. 13 depositary's care not measured by his care of his own goods, 13 how influenced by bailor's knowledge of place of deposit. . . 13 bailee entitled to expenses of keeping 17 when bailee responsible for acts of his servants 15 use of the property 14, 15 when bailee renders himself liable by use of 14, 15 when bailee bound to use 14 special undertaking .' 15 bailee may recover deposit from one wrongfully taking it . . 17 determination how made 17 re-delivery 16, 17 when bailee bound to re-deliver 16 conversion of 14, 17 re-delivery — demand when necessary 16 refusal to re-deliver, when is a conversion 16 when bailee responsible for mis-delivery 16, 17 bailee may surrender to true owner 16 bailee may yield to judicial proceedings or decree 16 Deviation — See Common Carriers. Discriminations by carriers 98-101 E. Elevator owners are common carriers .~ 92 Evidence : parol, admissible, to vary contract stated in ticket 164 See Bill op Lading 102, 103 INDEX. 219 I PAGE. Express Companies are common carriers 92 F. Factor 64^67 , definition 64, 65 when not a bailee 64 del credere 67 degree of care exacted 65 must obey instructions 66 possession alone gives no power to sell 65 may not receive payment unless he has goods 66 may sell on credit 66 may not sell nor pledge for his own debt 65 when title passes ou sale for his own debt 65, 66 when demand unnecessary to establish conversion 66, 67 has lien 66 Ferryman • — ■ when common carrier 93 Fonvcirder : definition l 67 not common carrier 92 liability 67 when guilty of conversion 68 Fraud — upon carrier as to character or value of goods relieves him 103, 104 G. G-uest — See Innkeeper. H. Hackmen are common carriers 91 Hire of labor or services : definition 57 bailment or sale, distinction 57, 58 contract arises and is completed on delivery to bailee 58 obligation to pay price 59 banks, collections by, presumption of hire 59 when presumption of compensation does not arise 61 price must be paid if labor performed although thing is destroyed 59 degree of care exacted 58, 59 220 INDEX. Hire of. labor or services — Continued: page. bailee at fault liable in damages 59 nothing recoverable if bailee at fault 59 burden of proof as to negligence or fault 61 return — effect of refusal 61 return and surrender 61 lien of bailee'. 60, 61 lien, how lost or waived 60, 61 Hire for personal use 38-44 where valuable property used for long time by another, pre- sumption of hiring 44 when hirer may avoid contract 43 letting implies warranty of fitness for the use 44 bailor not liable if ignorant of fault or defect 44 when payment of hire excused 42 possession, bailee has exclusive right of 43 hirer may sue for injury to property, by third person 43 hirer may sue one who takes property 43 hirer cannot confer title 41, 44 extent of use •. 39, 40 when use beyond that stipulated works conversion . . 39, 40 care exacted of bailee 38 bailee's liability for acts of servants 39 although contract is illegal, hirer is liable for misuse or carelessness 43 burden of proof of negligence is on bailor 44 when bailor runs risk of loss .■ 43 right of possession how extinguished 43 failure to return, when is conversion 41 return when excused 41 I. Innkeeper 73-90 who is 73, 74 who is not 73, 74 boarding-housekeeper not 73 holding out 73 guest, when and whom bound to receive 78, 79 duty toward person 79 degree of liability as to his property 80-83 insurer of guest's property at common law 83-84 when and to what liability attaches 84-86 guest, who is ' 73, 74 INDEX. 221 Innkeeper — Continued : page. who is not '.'. 73, 74 when one becomes ' 77 how one becomes . , 75, 76 when one ceases to be 77, 78 contributory negligence 86, 87 liability how afifected by statutes 87-89 lien 89, 90 how lost 90 K. Keeping — See Storage. L. Lien — agisters have none unless by statute 48 See Auctioneer, Common Carriers, Hire of Labor, Innkeeper, Livery-stable Keeper. Liveiy-stable keeper — degree of care exacted \ . . 48, 49 lien of. 49 statutory lien of 49 Loan 21-25 long use of valuable personalty of another raises pre- sumption of hiring.. 25 lender liable for injury by defects in the thing lent, if known to him, unless he notifies borrower 25 degree of care required of borrower 21 borrower bound to extraordinay care 21 not liable for loss by theft, accident, or superior force, un- less negligent 23 burden of proof of negligence on lender 22, 23 liability of borrower when article is diverted from the pup- pose of its loan 22 borroweip may maintain action against third person who takes article. . . . ; . , 24 has no action for destruction of article 24 lender may maintain action against third person who takes article l 23 how terminated 24 lender may recover without Remand generally 23 borrower may not claim title in himself -. 23 cannot confer title by sale 24 return generally must be identical 24 of equivalent, when valid,. 24 borrower lending article, guilty of conversion 24 222 INDEX. PAGE. IiOg companies not common carriers 93 M. Mail carrier not common carrier 93 Mandate 18-20 definition of 18 mandatary not bound to act 18 compensation of bailee not presumed 20 degree of care and responsibility of bailee 18-20 when want of skill in bailee is actionable 19 when bailee liable for intermeddling 20 bailee liable for careless misdelivery 20 how terminated 20 burden of proof 20 N. Kegligence — contributory of guest at inn 86, 87 of passengers 180-184 See Special Heads. 0. Officers, public 70, 71 public, generally liable for funds, unless lost by act of God or public enemy 7i P. Pawnbrokers 37 Pledge 26-37 how effected — delivery 26 where there is a contract, it is controlling 33, 34 contract strictly construed 33 when actual delivery not essential 27 for what may be made 27 who may pledge 26 title does not pass 27 pledgee has exclusive right of possession except against true owner 29 may sue third person for conversion of pledge 30 may sue pledgor for the pledge 29 may assign his interest in pledge 34 assignee of pledge may enforce pledgee's lien 34 INDEX. 223 Fledge — Continued: page. pledgee of lent property cannot confer title on one who has notice of real ownership , 34 right lost by surrender to pledgor 30 right lost by surrender to third person and taking guar- anty of debt 30 use of property by pledgee 28, 29 when pledgee must use pledge 29 when pledgee entitled to profits of use 29 degree of care required of pledgee 28 pledgee bound to ordinary care 28 collateral securities may not be sold without express au- thority 32, 35 must be collected 32, 35 degree of diligence and skill exacted of pledgee 35, 36 pledgee may assign with claim 36 pledgee's action on collateral securities, elements and essen- tials of — 36 pledgee's remedies 31, 32 pledgee may sue pledgor without resort to pledge 31 may forclose 32 when pledgee may sell 32 . notice of sale of pledge, when essential 32 effect ot pledgee's buying 33 if divisible, no more may be sold thain is necessary 33 pledgor's election to treat purchase by pledgee as void 33 return must be of identical article 30 of stocks, other stocks may be returned 30 when tender of debt not essential to obtain return of pledge 30 voluntary liability to return is conversion 30 redemption 34 pledgor may generally redeem at any time 34 pledgee bound to return on payment or tender 30 liable for refusal to return pledge on payment or tender 30 if debt illegal, pledgor must still pay before redemption . . 34 pledgor's remedies on refusal of pledgee to redeliver 34 right of redemption survives 34 if pledgee exchanges with a third person, pledgor may sue pledgee 33 statute of limitations attaches when debt falls due. 34 Possession, essential to bailment 5 See Special Heads. 224 INDEX. Presumptions — See Special Heads. pack. Public enemies defined 110, 111 See Common Carriers. R. Railroad Companies : are common carriers 91 bound to furnish facilities and anticipate ordinary demands for carriage 97 Receipts, •warehouse 55 Remedies — See Special Heads. S. Shipovrners are common carriers. 92 Sleeping-car company not common carrier 93 Stage-coach oivners are common carriers 91 Statutes — as to innkeepers 87-89 Steamboat owners are comnjon carriers 91 Stolen property — See Auctioneer, Carriers of Goods. Storage : definition of , 45 degree of 'care exacted. 45, 46 when care is implied from circumstances 46, 47 lien 47 T. Telegraph company not common carrier 93 not carriers, hut bailees, held to high skill and diligence. . 72 Telephone company not common carrier 93 Tenant in common, when bailee of co-tenant's share 5 Theft of deposit 7, 14 Tickets — See Common Carriers op Passengers. Title — does not pass on bailment 3 To'wboat owners not common carriers 93 Transportation com.panies are common carriers 92 INDEX. 225 W. PAGE. 'Waggoners are common carriers , 92 Warehouseman : definition , 49 beginning and termination of liability 52, 5'6 degree of care exacted'. 50, 51 burden of proof as to negligence 51 duty when title is disputed 53 receipts 55 delivery by , 53-55 when refusal to deliver is a conversion 54 ■ liable for misdelivery 53 attornment 54 lien 52 how lost 52 Wharfinger : definition 55 delivery to 55 degree of care exacted 55 bound to notify consignee of arrival of goods 55 lien 55, 56 lien is general, not specific merely 55 Date Due 1 • Library Bureat iCat. No, 1137 i,i«*B»«*'-'»" ' KF 1091 b88 Author Vol. Browne, Irving Title The elements of the ±aw copy of bailments and common carriers. Date Borrower's Name