separate charge on account of their baggage. Subsequently a custom grew up on some routes, of charging freight for the conveyance of all baggage exceeding a certain weight; and under this custom they were soon treated as common carriers of the baggage thus specifically received and carried as freight; and finally as common carriers of all baggage carried with passengers, on the ground that compensation for its conveyance is included in the passenger's fare.2 There is a tacit understanding to that effect, an implied contract that the fare paid covers baggage.

The proprietor of a line of coaches cannot limit his liability for baggage, by a notice printed on a ticket or posted conspicuously in his office ; or even by a notice brought home to a passenger's attention. He is not allowed to exempt himself from his legal liability.3 IIis liability can only be qualified by a contract.

The carrier's implied contract is to carry his passenger's luggage;" which is understood to include such articles of necessity or personal convenience as are usually carried by passengers for their personal use, and not merchandise or other valuables carried in trunks for other purposes, such as sale and the like. With much liberality in determining the things which may be carried as baggage, the law does not hold the carrier liable for such articles as cannot be fairly thus carried; such as silver plate, samples of goods, or merchandise, packed with baggage, or money exceeding the amount required for travelling expenses. There is no implied understanding that articles like these may be carried as baggage. Received as freight or with knowledge of their character and value, the carrier is liable for them."

'Middleton v. Fowler, 1 Salk., 232; Upshare v. Aidee, 1 Comyns, 25; Jeremy on Carr., 11, 13; Stewart v. London and Northwestern R. Co., 3 H. and C., 139. 2 Richards v. London, B. & S. C. R. Co., 7 C. B., 839; Great Western R. v. Goodman, 12 C. B., 313; 11 Eng. L. and Eq., 546; Brooke v. Pickwick, 4 Bing., 218. Ante § 493; Orange Co. Bank v. Brown, 9 Wend., 85; Pardeo v. Drew, 25 Wend., 459; Dexter v. Syracuse, B. & N. Y. R. R. Co., 42 N. Y., 326.

3 Clark v. Faxton, 21 Wend., 153; Hollister v. Nowlen, 19 Wend., 234; Dorr v. N. J. Steam Nav. Co., 11 N. Y., 485; Cole v. Goodwin, 19 Wend., 251; Blossom v. Dodd, 43 N. Y., 264; Brook v. Pickwick, 4 Bing. R., 218; Jones v. Voorhees, 10 Ohio, 145.

4 Powell v. Myers, 26 Wend., 591.

Orange Co. Bauk v. Brown, 9 Wend., 85; Pardee v. Drew, 25 Wend., 459. 6 Merrill v. Grinnell, 30 N. Y., 594; Van Horn v. Kermit; McCormick v.

Hudson River R. R. Co., 4 E. D. Smith, 181, 453; 10 How. Pr., 330.

7 Dexter v. Syracuse, B. & N. Y. R. R. Co., 42 N. Y., 326; Bell v. Drew, 4 E. D. Smith, 59; Hawkins v. Hoffman, 6 Hill, 586; Grant v. Newton, 1 E. D. Smith, 95; 30 N. Y., 594.

8 Stoneman v. Erie Railway Co., 52 N. Y., 429; Hannibal Railroad v. Swift, 13 Wall., 262.

§ 503. In respect to their principal business, the proprietors of a line of stage coaches are liable as carriers of passengers: without insuring the absolute safety of their passengers, they do undertake to carry them safely as far as human care and foresight will go; in other words, they engage for the utmost care and diligence of very cautious persons. We shall consider this liability more fully in its proper place. In respect to such goods, packages and parcels as they carry habitually for hire, they are common carriers, and their liability is the same as if that were their sole business. They are thus liable, when they engage in the business and hold themselves out to the community as ready and willing to carry such packages or parcels; and when such goods or parcels are carried on their account. It being shown that they are engaged in the business, a delivery to their agent to receive and carry, is sufficient to charge them. A delivery alone, unaccompanied by such evidence, is not sufficient; as where the driver of the stage is permitted to carry packages on his own account, and he does not assume to act on behalf of the company; and the arrangement is known to the parties dealing with him." The driver in this case acts as an ordinary bailee for hire.7

9

§ 504. Hackney coachmen are not ordinarily regarded as common carriers, their employment being intended chiefly for the convenience of persons; they certainly cannot be charged as common carriers of goods, where they simply carry passengers who retain in their custody packages and parcels, or articles of clothing. And yet where it is their business to carry passengers and their baggage, after the manner of a stage coach, there does not appear to be any good reason for exempting them from the liability of carriers. Cabmen and the proprietors of an omnibus, employed in like manner, stand upon the same footing; they are

1 Camden & Amboy R. & T. Co. v. Burke, 13 Wend., 611; Sharp v. Grey, 9 Bing., 457; 24 N. Y., 181, 193, 193, 218.

2 Dwight v. Brewster, 1 Pick., 50; Allen v. Sewall, 2 Wend., 327; S. C., 6 Wend., 335; Jones v. Voorhees, 10 Ohio, 145; Merwin v. Butler, 17 Coun., 138; Powell v. Mills, 30 Missis., 231; Ante § 496.

3 Mellenry v. Railroad Co., 4 Harr. (Del.), 448; Beekman v. Shouse, 5 Rawle, 179; Middleton v. Fowler, 1 Salk., 232; Blanchard v. Isaacs, 3 Barb., 383. 4 Witbeck v. Schuyler, 44 Barb., 469; 39 N. Y., 34; Ball v. N. J. S. Co., 1 Daly, 491.

5 Bean v. Sturtevant, 8 N. H., 146; Butler v. Basing, 2 Carr. and P., 614; 3 Barb., 383.

Allen v. Sewall, supra; Mayall v. Boston & Maine R. R. Co., 19 N. H., 122; F. & M. Bank v. C. T. Co., 23 Vt., 133; King v. Lenox, 19 John., 235. 7 Sheldon v. Robinson, 7 N. H., 157.

8 Upshare v. Aidee, 1 Comyns, 25; Acton v. Heaver, 2 Esp., 533. 9 Tower v. U. & S. R. R. Co., 7 Hill, 47.

common carriers of the baggage of passengers, when they receive and carry it in the due course of their business. The fact that they carry over a short route, or to any point within the limits of a town, should not prevent them from being treated as public carriers.1

§ 505. Ferries. In this State only those who are properly licensed are permitted to keep a ferry, and transport for hire persons or goods and chattels over any river, stream or lake.2 The State has the right to, and does provide a means of regulating the business, with a view to secure the protection of the public. The statute law does this, without undertaking to prescribe rules, fixing the ferryman's liability for his acts of negligence; his liability is therefore to be ascertained from the common law.1

A ferryman is a carrier of passengers, and as such under the usual obligation to use the highest care in every part of his business-an obligation imposed by the common law, and quite independent of any personal contract. He is bound to employ a safe and sufficient boat, with suitable platforms and conveniences for the ingress and egress of passengers; a duty much varied in details, by the situation and circumstances of the ferry. He is bound also for the use of the highest skill and care in the management or navigation of his boat; and this duty becomes still more strict where his boat is propelled by steam.7

Is the ferryman a common carrier? He is when he acts in that capacity. He is certainly, in respect to those goods and chattels which he takes into his custody, so that he has the entire care of them; and, it is adjudged, that he is not thus liable for the absolute safety of property retained by a passenger in his own custody and under his own con

1 Dibble v. Brown, 12 Georgia, 217; Parmelee v. McNulty, 19 Ill., 556; Ross v. Hill, 2 C. B., 877; 3 Dowl. and L., 783; Dickinson v. Winchester, 4 Cush., 114; Commonwealth v. Fahey, 5 Cush., 408; ante § 500.

22 R. S., 416, 417-421, 5th ed. The statute provides for the formation of ferry companies or corporations-id., 806.

3 Gibbons v. Ogden, 9 Wheat., 1; People v. Babcock, 11 Wend., 586. Albany and New York, and perhaps one or two other old cities, have by charter a power over the ferries within their limits. Aikin v. Western R. Co., 20 N. Y., 370; Costar v. Brush, 25 Wend., 628; 10 Barb., 223; 32 Barb., 102.

Miller v. Pendleton, 8 Gray, 547.

Carroll v. Staten Island R. R. Co., 58 N. Y., 125, 133; Bretherton v. Wood,

3 Brod, and Bing., 54; 14 How. (U. S.), 483.

6 Hazman v. Hoboken L. I. Co., 2 Daly, 130; 8. C., 50 N. Y., 53; McPadden v. N. Y. Central R. R. Co., 44 N. Y., 478; Caldwell v. N. J. Steamboat Co., 47 N. Y., 282.

7 Carroll v. Staten Island R. R. Co., supra; and Caldwell v. N. J. Steamboat Co., supra.

trol. The decision consists well with the rule applied where one boat is engaged in towing another which is left in the possession of its owner.3 If a man drive a horse and wagon on a ferryboat and retain them under his control, the ferryman cannot fairly be charged with the full liabilities of a common carrier of the property. Both parties have duties to perform in respect to it; the owner is bound to preserve it with all reasonable care; and the ferryman is bound to extreme diligence and care to provide a sufficient boat and suitable guards, barriers and appliances for the safe transport of the property, and for the diligent use of all the means in his power to insure its safety. He is liable for any damages or loss arising from his neglect;3 and he does not insure the safety of property retained by the owner under his own hand, or worn upon his person.4

§ 506. Many writers and some decisions hold the ferryman liable as a common carrier for the safety of horses and carriages received and transported by him in the usual manner; and they base his liability upon these grounds: first, his right to place them on the boat where he deems proper, and under such regulations and restrictions as may enable him to secure their safe transit; and second, the similarity between his situation and that of a carrier along the river, together with the difficulty of discriminating between carriers of property up and down the stream, and carriers from one shore to the other. By common consent, the law must be applied to all carriers alike, under like circumstances; if the owners of a steamboat run it up or down a river as a carrier of

1 Wyckoff v. Queens Co. Ferry Co., 52 N. Y., 32; Harvey v. Rose, 26 Ark., 3; S. C., 7 Amer. R., 535. A ferryman is not a common carrier unless he carries for hire: Self v. Dunn, 42 Ga., 528.

2 Ante § 430; Milton v. Hudson River S. Co., 37 N. Y., 210; Brown v. Clegg, 63 Penn. St., 51.

3 White v. Winnisimmet Co., 7 Cush., 155; Clark v. Union Ferry Co., 35 N. Y., 485; Willoughby v. Horridge, 12 C. B., 742; Walker v. Jackson, 10 Meeson and W., 131; 52 N. Y., 32; nor for articles worn by a passenger; Cohen v. Hume, 1 McCord, 439.

4 Wilsons v. Hamilton, 4 Ohio St., 722. This was an action to recover of the defendant as a common carrier the value of a wagon and four horses and harness lost in crossing the Ohio river on the defendant's ferryboat. The court held the defendant, a ferryman occupying a position in a line of public travel, a common carrier, and as such subject to all the liabilities incident to that pesition; that he is a common carrier of living animals; and, grudgingly, that his liability may be qualified where the owner of a horse and wagon selects his own place upon the boat and retains the exclusive custody of them. In Fisher v. Clisbee, 12 Ill., 344, the same rule was held in respect to a horse and harness and buggy driven by a servant upon the defendant's ferryboat-a ferry across the Illinois river, at Lacon. The court considered the property to be in the

freight, they are justly held liable as common carriers of horses and cattle which they receive on board for transportation, when they take them

ferryman's possession, and under his orders; meanwhile the owner's servant held the horse by the head. See Angell on Carriers, § § 82, 109, 130, 165.

POWELL v. MILLS, 37 Miss., 691. OPINION BY HANDY, J.

"This action was brought by the plaintiffs in error against the defendants, as ferrymen, to recover for the damage done to certain goods in the care of the plaintiffs, as proprietors of a line of stage coaches for transportation, by the stage coach being thrown from the defendants' ferryboat, in consequence of which the goods were wet and became damaged.

"The facts, as set forth in the bill of exceptions, are in substance: that the defendants were in the habit of taking the stage coaches of the plaintiffs across their ferry for hire, and on the occasion when the damage complained of was done, the plaintiffs' driver drove the coach and horses into the ferryboat, then got off his seat, after he had tied up the lines, taking his bucket to water the horses. The ferryman noticed the driver watering the horses. No ono was holding the horses when they started out of the boat, the driver being engaged in watering those in front. The horses ran out of the boat before it reached the landing, and the coach was thrown into the river. After the driver left his seat he had no hold of the horses or of the lines until the horses ran out. The ferryman was talking to the driver whilst he was watering the horses, and it does not appear that he made any effort to quiet them or prevent injury being done by them; the driver was taken into the river, as if taken by the horses in his efforts to stop them. The ferry was a public one, kept by the defendants, who received compensation by contract with the plaintiffs for transporting their stage coaches and horses; and it is admitted that the goods in the plaintiffs' coach were injured by their submersiou.

"A verdict was rendered for the defendants, and thereupon the plaintiffs moved for a new trial; 1st, Because the verdict was contrary to law and the evidence; and 2nd, Because erroneous instructions were given by the court for the defendants: and the judgment was reversed, and the cause remanded for a new trial.

"After the stage coach and horses were received into the ferryboat, they were in the charge and keeping of the ferryman, and it became his duty to make such provisions as were required from the nature of the property committed to his charge to insure its safe transportation. This indeed is the very substance of the obligation incurred by the nature of the business. The responsibility of safely keeping the property during the passage across the river, and of employing all the means necessary to that end, was transferred from the owner to the carrier by the fact of receiving it into the ferryboat; and it devolved upon the defendants to show that the accident which caused the damage occurred by some of the means above mentioned, as exempting them from liability.

"There is no pretence that there was any exception in the contract exempting them from responsibility in such a case; or that the accident was inevitable, in the proper legal sense of the term, or could not have been prevented by the construction of barriers around the boat, or the employment of servants to secure the horses, or by causing them to be loosed from the coach. It was tho duty of the defendants to take these precautions in receiving the property, and