professes openly to carry passengers and goods for hire, is a common carrier. Such are railway companies, who profess to carry passengers and parcels, (b) stage coach and stage waggon proprietors, lightermen, hoymen, barge owners, canal-boatmen, and the owners and masters of ships and steam-boats employed as general ships for the transportation of all persons offering themselves or their goods to be conveyed for hire to the port of destination. (c) "When it is said that the owners and masters of ships are deemed common carriers, it is to be understood of such ships as are employed as general ships, or for the transportation of merchandize for persons in general; such as vessels employed in the coasting trade, or in foreign trade, for all persons offering goods for the port of destination. But if the owner of a ship employs it on his own account generally, or if he lets the tonnage, with a small exception, to a single person, and then for the accommodation of a particular individual, he takes goods on board for freight, (not receiving them from persons in general,) he will not be deemed a common carrier, but a mere private carrier, for he does not hold himself out as engaged in a public business or employment." (d) The owner of a cart or carriage who does not ply regularly for hire to a particular destination, but merely lets out a private carriage, with horses and driver, by the hour, day, or job, to proceed to any destination ordered by the hirer, is not a common carrier. (e) A London cab-driver or hackneycoachman, for example, is not a common carrier. (ƒ)

Liabilities of COMMON CARRIERS.-Every person who starts a public conveyance, and professes to carry passengers or goods, or both the one and the other, from one place to another, for a reasonable or customary reward, or a fixed price, is bound to exercise his duty and employment in favour of all persons who are ready and willing to pay him his customary hire, provided he has room in his coach, cart, or carriage, for their conveyance, (g) and intends to set out on his accustomed journey. (h)

If four persons, wishing to travel together, take "the whole inside of a coach," the coach proprietor and his servants have no right to separate

(b) Palmer v. Grand Junction Co., 4 M. & W. 749; and see 8 M. & W. 421; 5 Ad. & E. N. S. 747.

(c) Gisbourne v. Hurst, 1 Salk. 249. Rich v. Kneeland, Cro. Jas. 330; Bac. Abr. (CARRIERS) A. Mors v. Slue, 1 Mod. 85; 1 Ventr. 190, 238; T. Raym. 220, s. c Boucher v. Lawson, cases temp. Hardwicke, 198.

(d) Story's Bailments, 325, § 501.

(e) Brind v. Dale, 8 C. & P. 207; Mood & Rob. s. c.

them, and do not fulfil their contract by furnishing a double-bodied coach, and tendering three inside places in one division and one in the other. (i) "If a person takes a place in a stage-coach, and pays at the time only a deposit, as half the fare for example, and is not at the inn ready to take his place when the coach is setting off, the coach proprietor is at liberty to fill up his place with another passenger; but if at the time of taking his place he pays the whole of the fare, in such case the coach proprietor cannot dispose of his place, but the passenger may take it at any stage of the journey he thinks fit.” (k)

Every common carrier of passengers for hire is bound to exercise the greatest possible care and forethought for securing the safety of his passengers. (1) He is answerable for the smallest negligence on his own part, or on the part of his servants and agents, but not for unforeseen accidents and misfortunes, which the greatest care and vigilance could not have provided against or prevented, such as accidents resulting from the horses suddenly taking fright, (m) or from the breaking of an axle-tree which was sound and perfect, and broken purely through inevitable accident. (n) He does not warrant the absolute safety of his passengers. His undertaking as to them goes no further than this, that as far as human care and foresight can go, he will provide for their safety." (o) "When everything has been done that human prudence can suggest, an accident may happen. The lights may in a dark night be obscured by fog; the horses frightened, or the coachman may be deceived by a sudden alteration in the position of objects near the road by which he had been used to be directed in former journies; and if, having exerted proper skill and care, he from accident gets off the road, the proprietors are not answerable for what happens from his doing so." (p) But the breaking down or overturning of a coach is prima facie proof of negligence on the part of the driver, and he must rebut this presumption, if it be unfounded, by showing that "the damage arose from what the law considers a mere accident." (q)

Carriage of passengers by RAILWAY.-When the carriage is by railway,

(i) Long v. Horne, 1 C. & P. 611.

(k) Ker v. Mountain, 1 Esp. 26, per Lord Kenyon.

() As to the ordinary liabilities of carriers of passengers not being common carriers, see ante, 801, 802.

(m) Aston v. Heaven, 2 Esp. 535, per Eyre, C. J. White v. Boulton, Peake, 113. Crofts v. Waterhouse, 11 Moore, 137.

axle-tree breaks through a flaw in the iron, the carrier is responsible. Sharp v. Grey, 2 M. & Sc. 620; 9 Bing. 460, s. c.

(0) Sir James Mansfield, 2 Campb. 81. Harris v. Costar, I C. & P. 637, per Best, C. J.

(p) Best, C. J., Crofts v. Waterhouse, 3 Bing 321.

(9) Sir James Mansfield, 2 Campb. 79. Park, J., 2 M. & Sc. 623.

(n) Christie v. Greggs, 2 Campb. 79.

If the

the railway company impliedly warrants the railway itself to be in good travelling order, and fit for use, and impliedly promises all persons who agree to become passengers, to provide roadworthy engines and carriages, skilful drivers and engineers, and all things necessary for the safe conveyance of such passengers. If the driver of a railway engine drives at a dangerous speed, or from negligence or unskilfulness causes the train to be thrown off the rails, or to come into collision with another train, the railway company is responsible for all damages and injuries that may have been sustained by the passengers. (r)

Common carriers of GOODS were, as we have already seen, (ante, 729.) made responsible by the public edict of the Roman prætor, together with common innkeepers and stable-keepers, for the safe delivery of the goods entrusted to them, unless such delivery was prevented by some inevitable accident, which no human care or skill could have provided against. The reasons for this extended responsibility are perhaps more cogent in the case of the common carrier of goods than the common innkeeper, and the common law has consequently, from an early period, adopted the spirit of the ordinances and decisions of the civil law respecting common carriers, as well as those respecting common innkeepers. "The law," observes Holt, C. J., "charges the common carrier, entrusted to carry goods, against all events but acts of God and enemies of the king. For though the force be never so great as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sort of persons that they may be safe in their dealings. For else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, &c.; and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." (s) The common carrier of goods for hire has been said consequently to be an INSURER of the safe delivery of the goods entrusted to him for conveyance. "To give proper security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, viz. that of taking all reasonable care of it, the responsibility of an insurer from which he is

(r) Carpue v. London and Brighton Rail. Co., 5 Ad. & E. N. s. 747. Palmer v. Grand Junction Railway Co. 4 M. & W. 749. Bridge v. Grand Junct. Rail. Co., 3 M. & W. 244, 248. (s) Coggs v. Bernard, Raym. 909. Smith's

leadg. cas. 92, 93. Lord Mansfield, 1 T. R. 33. Morse v. Slue, 1 Mod. 85; 1 Ventr. 190, 238. Nicholls v. More, Sid. 36. Woodliffe's case, Moore, 462; 1 Roll. Abr. 2 c.; Vidian's entries, 37; Herne, 76; Mod. Entr. 91, 92, 145.

to be relieved only by two things, both so well known to all the country when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not, viz. the act of God and the king's enemies." (t) By the term act of God is meant something in opposition to the act of man, such as storms, lightning, and tempests, and inevitable accidents not resulting from human agency. If the danger or the accident, though unavoidable, has been occasioned by the act of man, the carrier cannot avail himself of it as an excuse for the nondelivery of the goods. Thus where an action was brought against a common carrier for not safely carrying and delivering a quantity of hops, and it appeared that a fire broke out in a building adjoining a booth under which the carrier had placed the hops, and burnt with unextinguishable violence, and extended itself to the hops, and consumed them, without any neglect or default on the part of the carrier himself, it was held that inasmuch as the fire had not been occasioned by lightning, but by the act of man, the occurrence of the disaster constituted no answer to the action! (u)

If the goods have been destroyed or swept away by rains and floods, the circumstances attendant upon the loss must be regarded, in order to determine whether it has been occasioned by the act of God or the act of man. If the carrier has neglected to provide cartclothes and proper coverings for the goods; if he has gone out of his way to meet the danger; if he has travelled by unusual roads, or crossed a plain subject to inundations when he might have kept the high ground and been safe, the loss thus occasioned by the rains and floods is a loss from the act or negligence of man, and the carrier is consequently responsible therefor." If the common carrier goes by the ways that be dangerous, or drive by night, or in other inconvenient time, or if he overcharge a horse, whereby he falleth into the water, or otherwise so that the stuff is hurt or impaired, then he shall stand charged for his misdemeanour." (x) The carrier is not of course responsible for any deterioration in the value of the goods resulting from the negligence or want of care of the owner or the consignor, such as defective packing, nor for losses occasioned by an inherent defect in the article causing its destruction. (y) If, however, the defective packing of goods is patent and visible, and easily remedied, and the carrier accepts. the goods for conveyance, he is to take all reasonable means to provide against the defect, and secure their safety.

(1) Per Cur., Riley v. Horne, 2 M. & P. 338; 5 Bing. 217, s. c. Forward v. Pittard, 1 T. R. 33. Hyde v. Trent Nav Co., 5 T. R. 399.

(u) Forward v. Pittard, 1 T. R. 27. Hyde

v. Trent Nav. Co. 5 T. R. 399.

(x) Doct. & Stud. Dial. 2, ch. 38; Noy's maxims, ch. 43. Dale v. Hall, 1 Wils. 281. (y) Hawkes v. Smith, 1 Car. & M. 72.

A dog, with a string about his neck, was delivered to a carrier to be carried, and was tied by the string in a watch-box; shortly afterwards the dog slipped his head through the noose, and escaped, and was never afterwards heard of; and an action having been brought against the carrier to recover the value of the dog, it was contended that the owner ought to have taken care that the cord was properly secured round the dog's neck, but it was held that as the carrier had the means of seeing that the dog was insufficiently secured, he ought to have locked him up or taken other proper means to secure him, and that he was consequently responsible for the loss. (2) So where a cask of brandy was delivered to a common carrier to be carried for hire from Shrewsbury to London, and the cask began to leak on the road, and the passengers in the waggon repeatedly informed the waggoner of the circumstance, but the latter continued his journey onwards through Birmingham and Wolverhampton, and made no attempt to stop the leakage or save the brandy at any one of the stages at which he had halted, until the greater portion of it had been lost, it was held that the carrier was responsible to the owner for the damage that had been sustained by reason of the neglect. (a)

The carrier cannot qualify or limit his liability in respect of the negligence, want of skill, or carelessness of his servants and agents in and about the carrying of the goods by any private arrangement as to remuneration out of the profits of the business or otherwise between himself and such servants or agents. "If a common carrier should allow his driver of the carriage some small things as perquisites, the master would, without all doubt, be still liable; and that is only a private agreement between master and servant, and only a different way of paying his servant's wages." (b)

And if the accident or casualty causing the loss of the goods is occasioned by the misconduct of a third party, and not by any fault or neglect on the part of the carrier himself, the latter is nevertheless responsible to the owner for the loss, as he has himself a remedy over against the offending party. Thus where the ship of a common carrier by water drove on an anchor in the river Humber, and was sunk, and the goods on board were injured, and the accident was occasioned by the neglect of a third party, in not having his buoy out to mark the place where his anchor lay, it was held that the carrier was nevertheless bound to make good the loss. (c)

(2) Stuart v. Crawley, 2 Stark. 324. (a) Beck v. Evans, 16 East, 244.

(b) Page, J., Cas. temp. Hard. 90; 5 T. R.

397.

(c) Trent Navigation Company v. Wood, 3 Esp. 130.