THE LAW OF RAILWAYS.

COMMON CARRIERS.

INTRODUCTION.

1. Distinction between public or common and | 3. The precise definition of common carriers. private carriers. 4. Reference to the early cases.

2. The distinction further illustrated by the n. 7. Different kinds of bailment.

cases.

We have not deemed it important to go much into detail in defining the different classes of carriers. The distinction between common carriers and all other carriers is all that seems entirely pertinent to a work upon the subject of common carriers.

The distinction between common or public carriers and such as are merely private carriers is sufficiently defined below for ordinary practical purposes. But the distinction is further illustrated in numerous cases in the English and American reports.

1. It is generally considered that where the carrier undertakes to carry only for the particular occasion, pro hac vice, as it is called, he cannot be held responsible as a common carrier. So, also, if the carrier be employed in carrying for one or a definite number of persons, by way of special undertaking, he is only a private carrier. To constitute one a common carrier he must make that a regular and constant business, or at all events he must for the time hold himself ready to carry for all persons indifferently who choose to employ him.1

2. In an American case 2 a common carrier is defined to be

1 Gisbourn v. Hurst, 1 Salk. 249. Upston v. Slark, 2 C. & P. 598; Gilbert v. Dale, 1 Nev. & Per. 22.

one who undertakes for hire or reward to transport from place to place the goods of such as choose to employ him. It need not be the principal business, but merely incidental to other occupations, as when the proprietors of a stage-coach, whose chief business was to carry passengers and transport the mail, allowed the driver to carry parcels not belonging to the passengers, it was held to constitute them common carriers, and as such liable for the loss of a parcel thus committed to their agents. This, we apprehend, is the general rule in regard to stage-coach proprietors. They are regarded as common carriers, and that the act or agreement of the driver, within the range of the business which he is knowingly allowed to transact, will bind the proprietors.3

3. To constitute one a common carrier then he must make it, for the time, a regular employment to carry goods for hire for all who choose to employ him. The rule embraces the proprietors of stage-wagons and coaches, omnibuses and railways.5 The rule will also embrace carters, expressmen, porters, and all who engage regularly in the transportation of goods or money, either from town to town, or from place to place in the same town.

4. The definition of a common carrier requires that the service should be for hire or reward, since without that the same degree of responsibility would not arise. But in regard to private contracts for carrying goods or money, it is not important, after the thing is actually undertaken, whether it be for hire or not. That was the point decided in the celebrated and leading case of Coggs v. Bernard, where it was ruled that if one undertake to carry goods safely and securely, he is responsible for the damages they may sustain in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage.

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The opinion of Holt, Ch. J., in this case, forms the basis of the present law of bailment, both in this country and in England."

• F. & M. Bank v. Ch. Transp. Co., 23 Vt. R. 186.

Fish v. Chapman, 2 Kelly, 353:

5 Story, Bailm., § 496, and cases cited.

2 Ld. Ray. 909; s. c. Com. 133.

1 Holt, Ch. J. There are six sorts of bailments..

1. Depositum, or the

There has arisen in the American courts considerable controversy in regard to what precise form of transportation of goods will be sufficient to constitute one a common carrier. But it has been held that railways which take a car for transportation over their road, and take the sole possession and care of it, although it remain on their own trucks, are responsible as common carriers.8 And in general the same rule is established here as in England, that those who are engaged in the business of carrying for all who apply, indiscriminately, upon a particular route, by whatever mode of transportation they conduct their business, must be regarded as common carriers; while those who undertake to carry in a single instance, for a particular person, not being engaged in the business as a general employment, even for a period of the time, must be considered private carriers, and as such are only liable for the care and diligence which careful and diligent men exercise in their own business of equal importance.9

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mere deposit of goods to keep without benefit or reward. 2. Commodatum, where goods are loaned to one for his convenience. 3. Loaning for hire. 4. Pawn or pledge. 5. Goods, to be carried or repaired for reward. 6. For the same purpose, without reward.

It was decided in Shaw v. Davis, 7 Mich. R. 318, that a contract for rafting and running staves does not constitute the party a common carrier, but only an ordinary bailee for hire, which requires ordinary care and diligence.

• New Jersey Railw. v. Pennsylvania Railw., 3 Dutcher, 100.

• Pennewill". Cullen, 5 Harr. 238. See Dwight v. Brewster, 1 Pick. 50. The owner of a vessel usually employed in transporting goods from one port of the U. S. to another is a common carrier. Clark v. Richards, 1 Conn. R. 54.