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that might thereafter lead out of the same, and to take tolls at such turnpikes. By subsequent acts, another company were empowered to make a railroad, which was to be open to the public on payment only of such tolls as the railway company should demand under the powers of their act; the railroad was made, and crossed the embankment company's road. It was held that the embankment company were entitled to demand a toll from all persons who passed on the railway across their road, the clause in favour of the public in the railway act not taking away the vested right of the embankment company to their tolls. (1)

SECT. 3.-Of a Railway Company viewed as Carriers,

I.-Of Goods.

II.-Of Passengers.

SUB-SECT. 1.-Of a Railway Company viewed as Carriers of Goods. (m)

411. In treating of a railway company in the

(1) See ante, p. 302, n. (k).

(m) If a carrier undertakes to convey goods, and avails himself of a railway for the purpose, he is himself liable for any accident that may happen to the goods in the course of that mode of conveyance, and the owner is not bound to look to the railway company. Draper v. Shurmer, Taunton, April 14, 1841. The plaintiff, a lace manufacturer, despatched a bale of lace, directed to go by the defendant's waggon from Bristol to Birmingham, between which places the defendant was a carrier. At Cheltenham the waggon was put upon the Birmingham and Cheltenham Railway, and a spark from the engine lighted on the tarpauline, and the goods were burned. The substantial point raised was, whether a party undertaking to convey goods, and availing himself

capacity of carriers of goods, there are six points to be considered: 1st, what are the duties and obligations of a railway company viewed in their capacity of carriers; 2ndly, what are the risks for which they are liable at common law; 3rdly, the commencement and termination of those risks; 4thly, the effect of special contracts, and of particular enactments of the legislature; 5thly, what will excuse or justify the company's nondelivery of the goods; and lastly, the general rights of the company in that capacity.

412. First, then, of the duties and obligations of a railway company as common carriers. One of their duties is to receive and carry all goods offered for transportation on receiving a suitable hire; (n) hence, if they will not carry goods for a reasonable compensation, upon an offer thereof, (o) and a refusal of the goods, they become liable to an action, unless there is reasonable ground for their refusal. But if the goods tendered them are of a sort which they are not accustomed to carry, or which they have no convenient means of carrying with security, (p) or they are brought at an unreasonable time, those would

of a railway, with the knowledge of the owner, was himself liable for any accident that might occur in the course of that mode of conveyance, or whether the owner was to look to the railway company. The plaintiff had a verdict for the full amount of his goods.

(n) Ex parte Robins, 7 Dowl. P. C. 566.

(0) Pickford v. The Grand Junction Railway Company. 2 Railw. Cas. 592; S. C. 8 M. & W. 372.

(p) Railway Companies are not in general bound to provide means of carrying every possible description of goods, &c., but they have a discretionary power in this respect. The Liverpool and Manchester Company however constitutes an exception to this rule. See stat. 7 Geo. 4, c. 49, s. 138 (Local and Personal).

seem to furnish reasonable grounds for the company's refusal to take charge of the goods, and would, accordingly, if true, be a good defence to an action for the non-carriage of the goods. (q)

413. Another duty of the company, viewed as carriers, is to provide suitable engines and carriages for the transportation of the goods, (r) together with all reasonable equipments, and proper servants to take care of them; they are also bound to take the utmost care of the goods from the moment of receiving them, to forward (s) them with all reasonable

(4) Storey on Bailments, sect. 508.

(r) Accordingly, where an animal is sent by a train, the company are liable for any injury that it may sustain, either by reason of the improper construction of the carriage, &c. in which it is placed, or the improper position of such carriage, &c. in the train. So ruled by Lord Denman, C. J., in Walker v. London and South Western Railway Company, Kingston Spring Assizes,


(s) Where a railway company give notice by a board over the door of their warehouse, that goods delivered after a particular hour will go forward the next working day, it has been ruled that they are not bound to forward goods received after that hour the same evening, and accordingly cannot be made liable for failing to do so without proof of a special contract to that effect; Pickford v. Grand Junction Railway Company, tried at the Guildhall Sittings after H. T. 1844. As to what sufficient evidence to go to the jury of such a contract, see same case, 12 M. & W. 766. Audeline v. London and South Western Railway Company, N. P. Dec. 17, 1841. The question was as to the liability of the company for the loss upon certain baskets of plums, incurred through delay in delivering the same. The company resisted the claim on the ground that the fault lay with an intermediate agent, from whom the company received them, and who misdirected the company as to the amount to be charged for them. It appeared however that some ten minutes before the starting of the train by which the goods were to go, fresh

speed, to obey the directions of the owner in respect of them, to carry them safely to their place of destination, and to make a right delivery of them there according to the usage of trade or the course of business. (1)

414. 2ndly. Of the risks for which the company are liable by the common law. A railway company, by receiving goods for the purposes of carriage, place themselves on the footing of common carriers. (u) They are responsible, accordingly, for all losses, except those occasioned by the act of God, or of the queen's enemies. (u) By enemies are to be understood public enemies. (x) Under the head of losses by the act of God would seem to be comprehended all misfortunes and accidents arising from inevitable necessity, which human prudence could not foresee or prevent, such, for instance, as losses occasioned by natural causes, viz. lightning, earthquakes, tempests, and the like. (y)

415. 3rdly. As to the commencement and termination of the risks of a railway company as common carriers; and (1st,) of the commencement of the risk.

directions were given to the company correcting the mistake. The judge directed the jury that in his opinion the fresh instructions being sufficiently intelligible, and being received the specified time before the train started, the company were bound to have corrected the charge, for which there was ample time, and that consequently they must be taken to have received the goods upon a contract to deliver them on payment of the altered and not the original charge. Verdict for the plaintiff.

(t) Storey on Bailments, sect. 509.

(u) Palmer v. Grand Junction Railway Company, 4 M. & W. 752.

(1) Storey on Bailments, sect. 526. (y) Ibid. sect. 511.

The liability of the company as carriers attaches from the time of their acceptance of the goods, whether that acceptance is in a special manner or according to the usage of their business. The usual mode is by a delivery of the goods to the servants of the company, or to some other person authorized to act on their behalf; and as soon as the delivery is complete, the responsibility of the company as carriers commences. An acceptance in some way, actual or constructive, is indispensable to charge the company. (2)

416. (2dly.) Of the termination of the risk; as soon as all is done with the goods that the duty of the company as carriers requires them to do, their responsibility as such ceases. If the company receive goods to be carried to the place of their destination, and there deposited, as soon as the goods arrive at the place in question, and are deposited in the company's warehouses, their responsibility as carriers ceases, that being the terminus of their duty as such. But if it is the duty of the company to deliver the goods to the consignees at the place of their destination, then their liability as carriers does not cease by such deposit; but they are chargeable for any loss which may occur until an actual delivery to the party. (a)

417. With regard to the extent of the company's duty in the matter of delivering the goods, it would seem that in general the company are bound to deliver them according to the address that is upon them, and consequently can only discharge themselves by

(z) Storey on Bailments, sects. 532, 533. (a) Ibid. sects. 538, 539.

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