the benefit of others who do not care to pay for it. If the plaintiff be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss. Munn v. Illinois, 94 U. S. 113, 126, 24 L. ed. 77. The principle is illustrated by the many cases in which the constitutionality of a rate is shown to depend upon whether it yields to the parties concerned a fair re

turn.

While the decision below goes upon the ground that we have stated, it is thrown in at the end as a makeweight that the order of the Commission calls upon the plaintiff "to submit a new schedule for transportation which may be operated at much less expense to it than the former schedule cost, and at a profit for plaintiff." This is merely the language of hope. We cannot take it to be a finding of fact, for we perceive nothing in the evidence that would warrant such a finding. The assumption upon which the Court made its ruling was that the plaintiff's other business was successful enough to stand a loss on the road.

Finally a suggestion is made in argument that the decision rested also upon another ground that cannot be reconsidered here. At the end of the opinion it is stated that the plaintiff has not petitioned the Railroad Commission for leave to discontinue this business and that until it has done so the courts are without jurisdiction of the matter. It is not impossible that this is an oversight since it seems unlikely that after the Commission has called the plaintiff before it on the question and against its strenuous objection has required it to go on, such an empty form can be required. But in any case it cannot be meant that the previous discussion which occupies the whole body of the opinion is superfluous and irrelevant to the result reached; nor can the words be taken literally, since the court proceeded to take jurisdiction and reinstated an injunction in favor of the defendant. Whatever may be the forms required by the local law it cannot give the Court or Commission power to do what the Constitution of the United States forbids, which is what the order and injunction attempt. Pennsylvania R. R. Co. v. Public Service Commission of Pennsylvania (November 10, 1919), 250 U. S. 566, 40 Sup. Ct. 36, 64 L. ed. -. Decree reversed.57

57 On the right to withdraw from public calling, see 16 Harv. L. Rev. 49, 143, 363, 542, 555-556; 22 Harv. L. Rev. 367, 369, 386; 23 Harv. L. Rev. 646; 6 Minn. L. Rev. 81.

1.

CHAPTER 10.

COMMON CARRIERS OF PASSENGERS.

BEGINNING OF THE PUBLIC CALLING AND OF ITS RELATIONS WITH PARTICULAR INDIVIDUALS.

BRIEN v. BENNETT.

Nisi Prius, 1839.

8 Car. & P. 724.

CASE. The declaration stated that the defendant was the proprietor of an omnibus for carrying passengers from Hammersmith and divers other places to London, and being such owner, the plaintiff at the request of the defendant, "agreed to become and became a passenger by the said omnibus to be safely and securely conveyed" from Hammersmith to London for reasonable fare and reward to the defendant, "and the defendant then received the plaintiff as such passenger as aforesaid, and thereupon it became and was the duty of the defendant to use due and proper care that the plaintiff should be safely and securely carried and conveyed by the said omnibus," yet the defendant, not regarding his duty, did not use proper care, &c., but on the contrary neglected it, so that by the negligence of the defendant and his servant in that behalf, "the plaintiff, whilst such passenger as aforesaid," fell from the said omnibus upon the ground, and was greatly hurt, &c. Pleas, 1st, not guilty; 2nd, denying that the defendant was the proprietor of the omnibus; 3rd, "that the plaintiff did not become a passenger by the said omnibus, nor did the defendant receive him the plaintiff as such passenger in manner and form as in the said declaration is alleged," (concluding to the country).

It appeared that the defendant's omnibus was passing on its journey, when the plaintiff who was a gentleman considerably advanced in years, held up his finger to cause the driver of the omnibus to stop and take him up, and upon his doing so the driver pulled up, and the, conductor opened the omnibus door; and that just as the plaintiff was putting his foot on the step of the omnibus, the driver, supposing that plaintiff had got into it,

drove on, and the plaintiff fell on his face on the ground, and was much hurt.

LORD ABINGER, C. B.-I think that the stopping of the omnibus implies a consent to take the plaintiff as a passenger, and that it is evidence to go to the jury.

Verdict for the plaintiff-Damages 5£.1

GILLSHANNON v. THE STONY BROOK R. CORP.

Supreme Judicial Court of Massachusetts, 1852.
10 Cush. (Mass.) 228.

Action on the case for injuries sustained by the plaintiff, a laborer in the employment of the defendants, by the negligence of their servants and agents. It was tried in this court before Bigelow, J., by whom the evidence was reported for the consideration of the whole court. From this evidence it appeared that the plaintiff was a common laborer, employed in repairing the defendants' road-bed, at a place several miles from his residence. Each morning and evening, he rode with other laborers, to and from the place of labor on the gravel train of the defendants. This was done with the consent of the company, and for mutual convenience; no compensation being paid, directly or indirectly by the laborers, for the passage, and the company being under no contract to convey the laborers to and from their work.

While thus on the way to their work on one occasion, a collision took place with a hand car on the track, through the negligence of those having charge of the gravel train, as the plaintiff contended, and he was thrown off and run over by the gravel train, for which injury this action was brought. The plaintiff had no charge or care over the gravel train, and there was some evidence that the gravel train was not sufficiently supplied with brakemen. If upon these facts the jury would be justified in finding a verdict for the plaintiff the case was to stand for trial; otherwise the plaintiff to become nonsuit.

DEWEY, J. If the relation existing between these parties was that of master and servant, no action will lie against the defendants for an injury received by the plaintiff in the course of that service, occasioned by the negligence of a fellow servant. Far

1 The relation of passenger and carrier may begin as soon as one goes on the carrier's premises with intent to board a train, when one signals a car or train and it slows down, and even if he boards the wrong train, or a moving street car. 10 C. J. 622-3; Messenger v. Valley City Ry., 21 N. Dak. 82, 128 N. W. 1023, 32 L. R. A. (N. S.) 881.

well v. Boston and Worcester Railroad, 4 Met. 49; Hayes v. Western Railroad, 3 Cush. 270.

It was attempted on the argument for the plaintiff to take the case out of the rule stated in those cases, upon the ground that the nature of the employment of these servants was different, the plaintiff being employed as a laborer in constructing the railroad bed, and not engaged in any duty connected with running the trains, and so not engaged in any common enterprise. The case of Albro v. Agawan Canal Co., 6 Cush. 75, seems to be adverse to these views, and goes strongly to sustain the defense.

It was also urged that the plaintiff was not in the employment of the defendants at the time the injury was received, or that he might properly be considered as a passenger, and the defendants, as respects him, were carriers for hire. But as it seems to us, in no view of the case can this action be maintained. If the plaintiff was by the contract of service to be carried by the defendants to the place for his labor, then the injury was received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining an injury from the negligence of other servants. If it be not properly inferable from the evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a permissive privilege granted to the plaintiff, of which he availed himself, to facilitate his labors and service, and is equally connected with it, and the relation of master and servant, and therefore furnishes no ground for maintaining this action.

How does the case differ from that suggested at the argument by the counsel for the defendants, who supposed a case where the business for which the party is employed, is that of cutting timber, or standing wood, and the servant receives an injury in his person on the way to the timber lot, by the overturning of the vehicle in which he is carried, by the negligence or careless driving of another servant? There is no liability on the part of the master in such a case.

It seems to the court, that upon the evidence offered in the present case, the plaintiff was not entitled to a verdict, and the nonsuit should stand.

Plaintiff nonsuit.2

2 But see, Doyle v. Fitchburg Ry. Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157; 44 Am. St. 335; Moore on Carriers, 586-7; 7 Col. L. Rev. 361, 10 C. J. 610, 623, 633.

If, in the above case, the defendant could be held to be a common carrier of passengers as to anyone, ought not the plaintiff to have been held to be a passenger, either because at the time he was not in the service of the corporation, or if he was in their service because his labor paid for transportation?

SHOEMAKER v. KINGSBURY.

Supreme Court of the United States, 1870.
12 Wall (U. S.) 369.

Error to the Circuit Court for the District of Kansas.

Suit for damages for personal injuries happening on a rail car. Verdict and judgment having gone for the plaintiff, the defendants brought the case here on error.

Mr. JUSTICE FIELD delivered the opinion of the court.

From the whole evidence in this case it is plain that the defendants were not common carriers of passengers at the time the accident occurred, which has led to the present action. They were merely contractors for building the Eastern Division of the Union Pacific Railway, and were running a construction train to transport material for the road. The entire train consisted, besides the engine and its tender, of cars for such material and what is called in the testimony a "caboose car." This latter car was intended solely for the accommodation of the men connected with the train; it contained their bunks and matresses; they slept in it, and deposited in it the lamps of the cars, and the tools they used. It was not adapted for passengers, and, according to the testimony of the conductor, the defendants did not wish to carry passengers, although when persons got on to ride the defendants did not put them off, and sometimes, though not always, fare was charged for their carriage.

The plaintiff, who was sheriff of a county in Kansas, and deputy marshal of the district, desired to arrest a person on the line of the road, and, to enable him to accomplish this purpose, he applied to the conductor for passage on the train as far as Wilson's Creek, and requested that the train would stop there until the arrest could be made. His wishes were granted in both respects, and for the services rendered he paid at the time a portion of the fare charged, and the balance subsequently.

In the rendition of these services for the plaintiff, the defendants were simply private carriers for hire. As such carriers, having only a construction train, they were not under the same obligations and responsibilities which attach to common carriers of passengers by railway. The latter undertake, for hire, to carry all persons indifferently who apply for passage; and the law, for the protection of travelers, subjects such carriers to a very strict responsibility. It imposes upon them the duty of providing for the safe conveyance of passenger, so far as that is practicable by the exercise of human care and foresight. They are bound to see that the road is in good order; that the engines are properly constructed and furnished; that the cars are strong and fitted for the accommodation of passengers, and that the running gear is, so far as the closest scrutiny can detect, perfect in its character. If any injury results from a defect in any of these particulars they are liable.