Page images

409. The above principles of interpretation are not to be pushed to such an extent as to defeat the company's right to toll, where, upon the fair construction of the words of the act, the intention of the legislature to impose the toll is sufficiently clear. Thus, in the case above referred to, it was held that the duty payable in respect of passing the inclined plane was clearly intended to be superadded to the distance duty in all cases where coals passed over the inclined plane, and was therefore payable as well on coals intended for exportation as others. (4) And again, where an act provided that every carriage conveying passengers was to be charged a certain tonnage per mile, it was held that the duty was payable on the combined weight of the carriage and passengers, the fair interpretation being that the tonnage was to be taken upon the carriage with the passengers upon it, and that the words "conveying passengers" were not merely descriptive of the carriages but indicative of the matters that were to be weighed, and to be in that respect subjected to a tonnage. (i)

410. II. As to the manner in which the right to tolls, supposing it to exist, may be defeated. To take away a vested right to tolls, there must, it seems, be a clear declaration of the purpose of the legislature to that effect; it cannot, therefore, in general, be done by way of inference, (k) but only by express words. An embankment company were, by an act of parliament, authorized to make a road, and to erect turnpikes across any ways leading or

(h) See ante, p. 301, n. (g).

(i) The Edinburgh and Dalkeith Railway Company v. Wau chope, 3 Railw. Cas. 232.

(k) Rowe v. Shilson, 4 B. & Ad. 726.

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

(9) 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, 1843.

(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. (t)

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.

« EelmineJätka »