they commonly profess to carry or are bound by statute to carry (r).

A London cabdriver or hackney coachman is not a common carrier; but where a traveller hires a cab for the carriage of both himself and his luggage the law implies, from the acceptance of the luggage by the cabdriver, a warranty to carry safely and securely, so as to render him liable for the loss of any part of it while so hired (s), his liability being that of an ordinary bailee for reward. The traveller also has his remedy against the proprietor for the loss of luggage sustained by the negligence of the driver (†).

It has also been decided that wharfingers, describing themselves as wharfingers, lightermen, and carmen, and holding themselves out to carry goods from their wharf for customers only, although also at times carrying for strangers at agreed prices in instances where the business may be considered good, are certainly not common carriers, even though they might under the circumstances be considered carriers (u).

So long as goods are in the custody of a common carrier he is bound to take the utmost care of them, and is responsible for all loss or injury, save by the act of God or the public enemy; but he is not liable for damages due to natural deterioration or inherent vice, or to ordinary wear and tear, or to natural decay (r), or where the goods, being brittle, are not safely packed (y); nor is he liable for damage to dangerous goods, unless the nature of them is communicated to him (2). When a carrier delivers a particular ticket or notice to the person from whom he receives the goods to be carried, in which the terms on which the goods are to be carried are specified, this has been decided to be a special contract which defines his liability (a).

Such a contract will not deprive the carrier of the protection and benefit of the Carriers Act, 1830 (6), unless he is necessarily deprived of it, and the Act excluded, by the terms of the contract (c). But the special terms or conditions must be

Johnson v. Midland Rail. Co., L. R. 4 Exch. 367.

Ross v. Hill, 2 C. B. 877.

Powles v. Hider, 6 E. & B. 207.

(u) Chattock & Co. v. Bellamy & Co., 64 L. J. Q. B. 250.

(x) Blower v. G. W. Rail. Co., L. R. 7 C. P. 655.

(y) Hart v. Baxendale, 16 L. T. (N. S.) 390. And see Baldwin v. L. C. §

D. Rail. Co., 9 Q. B. D. 52.

(z) Farrant v. Barnes, 11 C. B. N. S. 553; 31 L. J. C. P. 137.

(a) Wyld v. Pickford, 8 M. & W. 443; Walker v. York. & N. Midland Rail. Co., 2 E. & B. 750.

reasonably brought to the knowledge of the person delivering such goods to the carrier; and it is not sufficient where the terms or conditions are merely printed on the back of the ticket or document, and of which he has no notice or actual knowledge (d). A condition, however, that the carrier accepts no liability will not exempt him where the liability for the loss of the goods arises wholly from his negligence (e).

Where the loss of the goods is occasioned, not by the neglect of the common carrier, but by the neglect or default of a third party, the carrier is liable to the owner, but the carrier has a remedy over against such third party (f). It is prima facie evidence of the loss of goods if the consignee or owner shows either that the goods never reached him or that there was a short delivery (g). After goods have arrived at the end of their transit, the carrier must keep them for a reasonable time, and during that period he is liable in the same degree as during their transit (h). It should be observed that the ordinary rules as to contributory negligence will apply, and that when the owner is guilty of contributory negligence, which conduces to the loss of his goods, the common carrier will not be liable (i).

By way of regulating and meeting the frequent difficulties arising from the construction placed or to be placed on special contracts made between owners and common carriers finally the Carriers Act, 1830 (k), was passed, as the title sets out, for the more effectual protection of mail contractors, stage coach proprietors, and other common carriers for hire, against the loss of or injury to parcels or packages delivered to them for conveyance or custody, the value and contents of which shall not be declared to them by the owners thereof. sect. 1 it is provided that such carriers are not to be liable for loss of or injury to any of the articles specified, such as coins, jewellery, bank notes, china, silks, furs, pictures, lace, &c., of which the value exceeds 107., unless at the time of delivery the value and nature of the goods are declared, and the increased rate of charge accepted. Under sect. 2 an

By

(d) Henderson v. Stephenson, L. R. 2 H. L. (Sc.) 470; Parker v. S. E. Rail. Co., 2 C. P. D. 416. And see also Watkins v. Rymill, 10 Q. B. D. 178. (e) Martin v. Great Indian Penin. Rail. Co., L. R. 3 Exch. 9; see also Seton, Laing & Co. v. Lafone, L. R. 19 Q. B. D. 68.

(f) Trent Navigation Co. v. Ward, 3 Esp. 130.

(g) Hawkes v. Smith, Car. & M. 72.

(h) Shepherd v. B. & E. Rail. Co., L. R. 3 Exch. 189.

Butterworth v. Brownlow, 34 L. J. C. P. 267; Batson v. Donovan, 4 B.

& Ald. 37; Radley v. L. & N. W. Rail. Co., 1 App. Cas. 754.

(k) 11 Geo. 4 & 1 Will. 4, c. 68.

increased rate of charge for such goods may be demanded, but a notice of such charges is required to be affixed in a conspicuous place in the receiving office or warehouse where such goods are received. By sect. 3, when a declaration has been made and an increased rate of charge paid, the person receiving the goods must acknowledge this by a receipt, if required, otherwise the common carrier will not be protected by the Act. By sect. 4 it is declared that the publication by carriers of notices shall not affect their liability at common law in respect of any goods not enumerated in the Act, and in respect of which they are not entitled to the benefit of the Act. By sect. 5 any office used by such carriers for the receiving of goods shall be deemed to be a receiving house, and any one or more may be sued without joining a co-proprietor or co-partner. Sect. 6 provides that nothing in the Act is to annul or affect any special contract. By sect. 7, where any person is entitled to recover damages, he may also recover the extra rate of charge paid. Sect. 8 is very important, as it provides that the proprietor or carrier shall not be protected by the Act from liability for loss arising from the felonious acts of his servants, nor are such servants protected from personal liability for their own neglect or misconduct. Under this section it has been held that the plaintiff must show that the goods were stolen in transitu and primâ facie by the servants of the defendant (7), but that he need not fix any particular servant with the felony (m). A special contract excluding liability for loss by theft on the part of the carrier's servant is valid at common law (n). By sect. 8 it is provided that only such damages shall be recovered as shall be proved, not exceeding the declared value and increased charges. Under sect. 10 the carrier may pay money into Court as in other actions (o). By an amending Act, passed in the year 1865 (p), it is enacted that the word "lace" is not to include machine-made lace. Many cases have been decided under this Act, which may be found collected in Addison on the Law of Contracts, and Smith's Leading Cases (q); it may, however, be stated here that where there has been no declaration under sect. 1 of the

(1) Metcalfe v. L. & B. Rail. Co., 27 L. J. C. P. 333.

(m) Vaughton v. L. & N. W. Rail. Co., L. R. 9 Exch. 93.

(n) Shaw v. G. W. Rail. Co., (1894) 1 Q. B. 373.

See Rules of the Supreme Court, Ord. XXII.

(p) 28 & 29 Vict. c. 94.

10th edit., vol. 1, sub tit. Coggs v. Bernard. And see Roscoe's Nisi Prius Evidence, sub tit. Actions against Common Carriers.

Carriers Act, 1830, the carrier is not liable even in case of gross negligence (r).

Where goods have been consigned by a vendor to the vendee, and for that purpose are handed to a common carrier for the purpose of delivery, then, in case of injury to or loss of the goods in transitu, the vendee or consignee is the proper person to sue, so long as the property in the goods has passed to him from the vendor (s), the ordinary inference being that the contract of carriage is between the carrier and the consignee, the consignor being the agent of the consignee to make it (t).

Where no price has been agreed for the carriage of goods between the parties, the law implies a contract from the delivery of the goods to the carrier; and that implied contract is that the carrier will charge a reasonable price only, as to the reasonableness of which the Court or jury are to determine (u). If, where no price has been agreed, the carrier refuses to carry without the payment of an excessive price, then the owner or consignor is entitled to bring an action to recover the excess paid, as money had and received to the use of the consignor. This rule, however, does not in any way affect the right of the parties to make a special bargain (x) under the Act of 1830, by which all special bargains are left unaffected by the Act.

(r) Hinton v. Dibbin, 2 Q. B. 646.

(s) Coats v. Chaplin, 3 Q. B. 483.

(t) Cork Distilleries Co. v. Great S. & W. Rail. Co., L. R. 7 H. L. (E. & I. App. Ca.), see judgment of Mellor, J., at p. 277.

(u) Harrison v. L. B. & S. C. Railway, 2 B. & S. 122; 31 L. J. Q. B. 113. (x) See sect. 6 of the Carriers Act, 1830.

CHAPTER VI.

ORDINARY LOCOMOTIVES ON HIGHWAYS.

THE rules of law applying to ordinary locomotives upon highways are founded upon the rules of common law and upon the statutes (such as the Highway Act, 1835), which apply generally to the use of all vehicles upon highways, and which have been already dealt with in the previous chapters. In addition, there are the special statutes dealing with and restricting the use of locomotives, and passed in the years 1861, 1865, 1878, and 1898, together with the ninth section of the Locomotives on Highways Act, 1896 (a).

The earlier statute deals principally with the question of tolls to be levied upon locomotives, and with the weight to be carried upon each pair of wheels; it also restricts the passage of locomotives over suspension and other bridges, though in the case of "other bridges" it is requisite that a conspicuous notice should be exhibited by the proper authority to the effect that the bridge is insufficient to carry anything beyond ordinary weights (b); but if there is no notice it may be assumed that no danger is apprehended (c). In case damage is done to any bridge by a locomotive, the owner thereof is to reimburse and make good the damage done. By sect. 7 (1) of the Act of 1898 a right of appeal is given to the owner of a locomotive against restrictions as to passing over bridges; the appeal is under sub-sect. 3 to the Local Government Board either as arbitrators or otherwise at their option. By sect. 8 of the Act of 1898 no locomotive is allowed to meet or pass another upon any bridge, subject to a penalty not exceeding 51. There is also a special proviso that general Highway Acts are to apply to locomotives as well as to other vehicles, and also that nothing contained in the Act shall authorize any person to use upon the highway a locomotive

(a) Statutes are set out in the Appendix.

Locomotives Act, 1861, sect. 6. Sect. 7 does not apply to county bridges; R. v. Kitchener, infra.

(c) R. v. Kitchener (1873), L. R. 2 C. C. R. 88; 43 L. J. M. C. 12.