§ 685. It does not require a special contract to relieve the carrier from damages resulting from the vitality of the freight, without fault on his part. And although he is prima facie bound to furnish safe and suitable cars, it is agreed that the shipper may assume any risk of injuries likely to arise from the size or construction of the cars.1 Is there then any principle of law to prevent the shipper from making a valid contract, hiring the use of specific cattle cars for a given trip, with the requisite locomotive power to move them, and assuming any and every risk of the conveyance? He may under the English decisions and under the decisions of many of our States, exempt himself as common carrier for responsibility for any degree of negligence on the part of bis servants, agents and employees.3 He may therefore for a consideration assume the risk of injuries to swine from heat, suffocation, or the ill effects from being crowded together in the car; and the courts will give effect to the stipulation, even where the injury might have been prevented by a reasonable watering, or cooling of the hogs with water.1 Retaining the care and custody of the stock, it is the shipper's duty under the contract to guard against all risks of this kind. from all damages, actions, claims and suits on account of any and every the injuries, loss and damage herein before referred to, if any such occurs or happens. And this agreement further witnesseth, that the said party of the second part has this day delivered to said companies five car-loads of cattle to be transported to Buffalo on the conditions, stipulations and understandings above expressed. Names of men passed in charge of stock: D. W. BARROW. A. HILL, W. Station Agent. See analogous contract for carrying coal; Mallory v. Tioga Railroad Co., 39 Barb., 488; affirmed, 32 How. Pr., 616, n. 1 Squire v. N. Y. C. R. Co., 98 Mass., 239. The action was for damages caused to some hogs that were smothered on the way from Suspension Bridge to Albany; and the court asserted the validity of a contract by which the person delivering the animals assumed the risk of injuries resulting from the size and mode of construction of the cars and the manner of stowing the property, where the owner assisted in loading the cars and accompanied them. The court cites Kimbal v. Rutland & B. R. Co., 26 Vt., 247; and Bissell v. N. Y. C. R. Co., 25 N. Y., 442, as involving the same question, namely, the validity of the contract; and two English cases holding like stipulations valid and reasonable; i. e., Pardington v. South Wales R. Co., 1 H. & N., 392; and Beal v. South Devon R. Co., 5 H. & N., 875; 3 H. & N., 337. 2 Shaw v. York & N. Midland R. Co., 6 Eng. Rail. Cas., 87; Austin v. Man. chester & Sheffield R. Co., 5 Eng. Law and Eq., 329. 3 French v. Buffalo, N. Y. & Erie R. Co., 4 Keyes, 108; Bissell v. N. Y. Central R. R. Co., 25 N. Y., 442; Smith v. N. H. & N. R. Co., 12 Allen, 531; Keeny v. Grand Trunk R. R. Co., 59 Barb., 104. Cragin v. N. Y. C. R. R. Co., 51 N. Y., 61. Assuming that the carrier cannot relieve himself by stipulation, from the duty to fulfill his contract with fidelity and reasonable diligence; it is nevertheless quite apparent that a railroad company, by reason of its contract, occupies the position of a private carrier for hire; and that the agreement prescribes the extent of its liability, unless a loss arises from some wrongful act, either willful or negligent on the part of the carrier, its agents or servants.1 We have already referred to the analogous contract under which a steamboat or steam tug takes a barge or vessel in tow, without otherwise assuming the custody or control of her, on a stipulation limiting the liability of the proprietors of the towing boat within a very narrow range. The owners of the steam tug or steamboat engaged in the business of towing barges and canal-boats, are not regarded as common carriers. They do not receive the property into their custody; they do not exercise any control over it other than such as results from the towing of the boats in which it is laden; the master and crew of the boats in tow, retain the care and charge of the goods on board, subject only to the general authority of the master of the steamboat guiding the flotilla. There is here no sufficient delivery to constitute a bailment; certainly none sufficient to charge the owners of the tug as common carriers. They may therefore limit their liability to an honest and fair fulfillment of the contract, according to its true sense and meaning. And the contract is to be enforced on the same principles which apply to any other special agreement. Under a general exemption, they are liable for injuries arising from their own personal negligence, from the want of good faith, or from the gross negligence of their agents and servants.5 The same principle applies to the special contract of a common carrier, where the same is broad and general in its terms. 1 Penn v. Buffalo & Erie R. R. Co., 49 N. Y., 204, 208; French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108; Farnham v. Camden & Amboy R. R. Co., 55 Penn. St., 53; Colton v. Cleveland & Pittsburgh R. Co., 67 Penn. St., 211; New Jersey S. N. Co. v. Merchants' Bank, 6 How. U. S., 644. 2 Ante § 562, § 480. 3 Alexander v. Greene, 3 Hill, 9; 7 Hill, 533; Wells v. Steam Nav. Co., 2 N. Y., 204; Caton v. Rumney, 13 Wend., 387; Thompson v. Bliss, 15 Albany Law Journal, 296, and cases there cited; Brown v. Clegg, 63 Penn. St., 41; 9 Wall., 665; 16 Walł., 177. 4 Milton v. Hudson River S. Co., 37 N. Y., 210; Arctic Fire Ins. Co. v. Austin, 54 Barb., 559. Wells v. Steam Nav. Co., 2 N. Y., 208; 8 N. Y., 375; French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108; Wooden v. Austin, 51 Barb., 9; Dorr v. N. J. Steam Nav. Co., 11 N. Y., 485. § 686. Under a special contract by a common carrier, the relations of the parties are changed; and it depends upon the form and scope of the contract, whether it is to be considered as creating an exemption from certain losses and leaving the carrier liable as upon the common law for all others, or as a contract creating a special bailment for hire, with such liabilities as result naturally from the terms of the agreement. If a carrier exempts himself from liability for losses by fire, he remains liable as a common carrier with that exception.2 On the other hand, if he makes a general contract for the conveyance of live stock retained in the shipper's care and custody, he becomes a bailee for hire, and his responsibility arises out of his contract. And he must perform the contract according to its true intent and purport. The burden of proof rests with the plaintiff, bringing an action on a special agreement; or where he sues on a contract by the carrier, containing an exemption from certain risks. The plaintiff must establish his cause of action, by showing a loss within the scope of the carrier's undertaking; and to do this, he may be obliged to prove the actual cause of the loss.5 § 687. Matters of defence to actions against common carriers, being for the most part of a negative character, need not be considered at length. It will be sufficient to notice a few special defences or situations. 1. Carrying goods in a sealed railroad car (in the Blue Line), to be delivered unbroken, the essence of the carrier's contract is to carry and deliver the goods safely; and the carrier is not guilty of a conversion of the goods, where he removes them, for a good reason, into another car. 2. The carrier cannot be held liable to a stranger, there being no subsisting relation of contract between them; as where a passenger has 1 Dorr v. New Jersey Steam Nav. Co., 11 N. Y., 485, 493; 4 Sandf. R., 136; Wyld v. Pickford, 8 Mees. & Welsb., 443. 2 Farnham v. Camden & Amboy R. Co., 55 Penn. St., 53; 6 How. U. S., 344, 384. 3 Penn v. Buffalo & Erie R. Co., 49 N. Y., 204; opinion by Miller, J., in French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108; ante § 237. 4 Keeney v. Grand Trunk R. Co., 47 N. Y., 525. The dangers incident to railroad transportation, fire, and all other unavoidable accidents excepted." Under this clause, the burden of proof is with the shipper. Cotton v. Cleveland & P. R. Co., 67 Penn. St., 211; held the same under a like limitation; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344, 384; and in Farnham v. Camden & Amboy R. Co., 55 Penn. St., 53; and in Lamb v. Camden & Amboy R. R. Co., 46 N. Y., 271. 6 Commonwealth v. Power, 7 Met. R., 593; Hale v. Power, 12 Met. R., 482; Markham v. Brown, 8 N. H., 523; Flint v. N. & N. Y. Transp. Co., 34 Conn., 658; 75 Ill., 125; 55 N. Y. 103; Harris v. Stevens, 31 Vt., 79; Tucker v. Housatonic R. R. Co., 39 Ct., 447. the money of a friend in his custody, and is killed by the falling of a railroad bridge and burned up with the money. A bailee of money, having properly delivered it to the carrier, might recover against the carrier the amount lost or consumed.2 3. A carrier may set up as a defence to an action for goods by the shipper, that the same were taken from him under legal process in a suit brought by a third party, whereof the shipper was duly notified.3 The carrier may also deliver the goods to the true owner on demand, and interpose the title of that party and the delivery to him as a defence to an action by the shipper; he may likewise hold for the true owner, the consignee to whom a package of money is sent by an agent.5 4. The carrier may also set up any defence arising under the contract, by bringing himself within the exceptions contained in it; or by showing that the plaintiff has failed to fulfill its terms. E. g., under an agreement made by a common carrier, that he is not to be held liable for any loss or damage, unless a claim is made therefor within so many days, a reasonable time, from the receipt of the goods or package, or from the time they were delivered by the carrier; the action is lost unless the claim is made within the stipulated time. 'First National Bank of G. v. M. & C. R. Co., 20 Ohio St., 259. 2 Kellogg v. Sweeney, 1 Lans., 397; Woolley v. Edson, 35 Vt., 214; Casey v. Suter, 36 Md., 1. 3 Bliven v. Hudson River R. R. Co., 39 Barb., 188; 36 N. Y., 403. 4 American Ex. Co. v. Greenhalgh, 80 Ill., 68. 5 Thompson v. Fargo, 49 N. Y., 188. 6 Express Co. v. Caldwell, 21 Wall., 264. The action being for a package, the defendant set up as a defence that when the package was received "it was agreed between the company and the plaintiff, and made one of the express conditions upon which the package was received, that the company should not be held liable for any loss of or damage to the package whatever, unless claim should be made therefor within ninety days from its delivery to it." And the stipulation was held reasonable and valid, the time of transit being quite brief. The Court cites the analogous conditions in policies of insurance, which are held valid: Riddlesbarger v. Hartford Ins. Co., 7 Wall., 386; and like conditions in the contracts of telegraph companies. Wolf v. Western Union Tel. Co., 62 Penn. St., 83; Young v. Western Union Tel. Co., 34 N. Y., Supr., 390; and cases against common carriers; Lewis v. Great Western R. Co., 5 Hurlstone & Norman, 867; Southern Ex. Co. v. Caperton, 44 Ala., 101. CHAPTER X. CARRIERS OF PASSENGERS. I. DUTY TO RECEIVE AND CARRY: REGULATIONS. 1 § 688. A common carrier of passengers is one who holds himself out to the public as ready to receive and carry on his route for hire all persons who apply for a passage. He assumes the character by entering upon the business, and representing himself to the community as undertaking to convey, indifferently, all such as may desire to be received as passengers. His duties resemble those of the common carrier of goods; like him, he has entered into an engagement with the public, and is bound to serve all who require his services. He has a right to demand prepayment of his hire, but is not at liberty to choose between those whom he will and will not receive; neither can he, under pretence of demanding exorbitant fare, escape from his obligation to carry any and every individual who pays or tenders to him the usual rate of fare.3 5 The owners of stage coaches and steamboats, and railroad companies, who hold themselves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room, and there is no legal excuse for a refusal. As to what will be regarded as a legal excuse, Mr. Justice Story, in Jencks v. Coleman, says: "There is no doubt that this steamboat is a common carrier of passengers for hire; and, therefore, the defendant, as commander, was bound to take the plaintiff as a passenger on board, if he had suitable accommodations, and there was no reasonable objection to the character or conduct of the plaintiff. The question then really resolves itself into the mere consideration whether there was, in the present case, upon the facts, a reasonable ground for the refusal. The right of passengers to a passage on 1 Middleton v. Fowle, 1 Salk., 182, 249. 2 Messiter v. Cooper, 4 Esp. R., 260. 3 Beekman v. Schenectady and Saratoga Railroad Co., 3 Paige Ch. R., 45. ✦ Bennett v. Dutton, 10 N. Hamp. R., 481; New York Session Laws of 1850, p. 231, 232. Jencks v. Coleman, 2 Sumn. R., 221; Markham v. Brown, 8 N. H. R., 523. |