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Secs. 69, 70. A carrier by land and by water has the same liabilities.-Id., and Note 2. A carrier of passengers is not a common carrier with such responsibilities as a carrier of goods only, for very obvious reasons, resulting from the difference between animate and inanimate matter, that capable of exercising volition and that not; the one controls itself to a certain extent in the care of the carrier, the other is entirely dependent on him. Common carriers, enumerated by Story on Bailm., Sec. 496, after making the distinction: 1. Carriers by land; and 2. Carriers by water, proceeds as follows: 1. Proprietors of stage coaches, and stage wagons, and railroad cars, which ply between different places and carry goods for hire (Note 1), so are truckmen, wagoners, teamsters, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one town to another (Note 2), or from one part of a town or city to another (Note 3.) 2. Owners and masters of ships, steamboats, lightermen, hoymen, barge owners, ferrymen, canal boatmen, and others employed in like manner. Angell on Car., Sec. 69, says: In the eighth year of the reign of Anne it was determined that any person undertaking for hire to carry the goods of all persons indifferently, is as to the liability imposed to be considered a common carrier.-Id., Sec. 70. In the case of Dwight vs. Brewster, 1 Pick., p. 50, Parker, J., defined a common carrier to be “ one who undertakes, for hire, to transport the goods of such as choose to employ him from place to place;'' " and this,” he added, “ might be carried on at the same time with other business." There is, or has been, in this country a discrepancy in the authorities as to the undertaking necessary to constitute one a common carrier. “It is considered reasonable and pretty well settled that a person who undertakes, though it be only ‘pro hac vice' to act as a common carrier, that is to carry for hire without a special contract, thereby incurs the responsibility of a common carrier."-See Mr. Wallace's learned note to the case of Coggs vs. Bernard, 1 Smith, Lead. Cas. (Am. ed. 1847), p. 230; Moses vs. Norris, 4 New Hamp. R., p. 204. But Mr. Redfield, in his work on Carriers and other bailments, published in the year 1869, Sec. 19,

generally considered that when 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

says: “It is



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," and refers to Gisbourn ys. Hurst, 1 Salk., p. 249; Upton vs. Slark, 2 C. & P., p. 593; Gilbert vs. Dale, 1 Nev. & Pre., p. 22. The definition laid down in the text with the light thrown upon it by the cases first supra cited, and the language of the authorities here referred to, cannot be misapprehended. The various kinds of common carriers, with the California decisions thereon, are here given.

DELIVERY.-A delivery to any other than the owner or his duly authorized agent is no defense to an action against a carrier for non-delivery.-Adams vs. Blankenstein, 2 Cal., p. 413. Ile may in an action for nondelivery prove that the goods belonged to a third party. Hayden vs. Davis, 9 id., p. 573. Is not responsible for non-delivery of a letter beyond the value of an ordinary letter, unless informed of the value at time it is received.-Hays vs. Wells, Fargo & Co., 23 id., p. 185. Is responsible immediately on failure to deliver draft. Jones vs. Wells, Fargo & Co., 28 id., p. 259; Agnew vs. Steamer Contra Costa, 27 id., p. 425, declares the presumptions of law to be against the common carrier. All common carriers are governed by same rules ordinarily.

WHO ARE TREATED AS COMMON CARRIERS by the Courts of California, and in what cases they are so treated:

Stage Coaches.-Owners of are not insurers or warrantors of passengers' safety to the extent that carriers of goods are, but are held tu diligence and care, and responsible for the slightest neglect.-Fairchild vs. Cal. Stage Co., 13 Cal., p. 599. Of the liability of

Steamboats-See Agnew vs. Steamer Contra Costa, 27 Cal., p. 425. How far

Steamtugs-Are treated as common carriers, etc., see White vs. Tug Mary Ann, 6 Cal., p. 462. Towing a boat to sea is transporting property as a common carrier; so held in this case.

Telegraph Companies—Are common carriers, as held in Parks vs. Alta Cal. Tel. Co., 13 Cal., p. 422; also, Thurn vs. Alta Tel. Co., 15 Cal., p. 472—both of which cases are cited and commented on in Red. on Carr., etc., Secs. 550-565. Under the general Railroad Act, all

Railroads-Are compelled to act and are responsible as common carriers of passengers and property. (So held in Contra Costa R. R. Co. vs. Moss, 23 Cal., p. 233.) Duty as such, to transport and deliver goods to end of destination.-Jackson vs. Sac. V. R. R. Co., 23 Cal., p. 268. And to use all persons alike.- Wheeler vs. S. F. & A. R. R. Co., 31 Cal., p. 46. May contract to carry beyond route.--Id. Their liabilities differ as common carriers and warehousemen.-Jack-on vs. Sac. V.R.R. Co., supra. May own steamboats connected with railroad business.- Wheeler vs. S. F. & A. R. R. Co., supra. Railroads and steamboats not to damage grain or other property on their routes.--Gerke vs. Cal. St. Nav. Co., 9 Cal., p. 251. The law regards

Ferrymen-As common carriers.--May vs. Hanson, 5 Cal., p. 360; Polk vs. Coffin, 9 Cal., p. 56; Tartar vs. Finch, 9 id., p. 276; Griffith vs. Cave, 22 id., p. 534. Liable for punative damages.-Mendelsohn vs. The Anaheim Lighter Co., 40 Cal., p. 657. See, also, Chap. 2, post, “ Common Carriers of Persons."

RESPONSIBILITY-Extends to safe and reasonably speedy transportation and delivery, the acts of God and the public enemy being the only exceptions to the accidents for which the common carrier is responsible; but with regard to this exception of the acts of God, Red., in his work on Carriers, etc., Sec, 24, says the act of God is limited to incitable accident.

This exception " has by the decisions of the Courts been restricted to such narrow limits as scarcely to amount to any relief to carriers.” It is in reality limited to accidents which come from force superior to all human agency, either in their production or resistance.-See Forward vs. Pittard, 1 T. R., p. 27, by Lord Mansfield. It appears from all the cases for one hundred years back that there are events for which the carrier is liable independent of his contract. A carrier is an insurer.See note to Sec. 2174, post; see, also, May vs. Hanson, 5 Cal., p. 360. Ferryman being the carrier.-Hooper vs. Wells, Fargo & Co., 27 id., p. 11. Extends to the distance held out to be a common carrier for,-Wheeler vs. S. F. & A. R. R. Co., 31 id., p. 46. And must treat all who apply alike.-Id. In the case of Hooper vs. Wells, Fargo & Co., supra, the carrier is treated as an insurer; but see this case (which is ably discussed both by the counsel and the Court) commented on as to restrictions placed in receipts of common carriers, in Red. on Car., etc., p. 42, Sec. 56; also, N. J. St. Nav. Co. vs. Merchants’ Bank, 6 How. U.S., p. 344. In Sec. 60, id., Redfield says that: “It seems to be the general sense

of the profession, and the almost uniform course of the
more recent decisions, that express and other common
carriers may limit and restrict their responsibility as
insurers, by general notices brought home to and im-
pliedly assented to by the owners of the goods, to any
reasonable extent, but that this will not extend any
protection to the carrier against any default or mis-
conduct either of himsell or his servants." — Balt. and
Ohio R. R. vs. Rathbone, 1 West Virg., p. 87. Evi-
dence of a rule qualifying the duties of a common car-
rier under certain circumstances is inadmissible, unless
it is shown that the rule was known to the plaintiff.-
Griffith vs. Cave, 22 Cal., p. 534.

tion to

2169. A common carrier must, if able to do so, Obligaaccept and carry whatever is offered to him, at a rea- accept

freight. sonable time and place, of a kind that he undertakes or is accustomed to carry.

NOTE.-If the carrier's vehicle is full, he is excused (Lovett vş. Hobbs, 2 Show., p. 127); otherwise he must carry whatever is brought to him to carry.-Story's Bailm., Sec. 508; Bennett vs. Dutton, 10 N. H., p. 481. So held as to passengers (Bennett vs. Peninsula Steam Packet Co., 6 C. B., p. 775), and as to goods.-Cranch vs. London and Northwestern R. R., 14 C. B., p. 255; Pickford vs. Grand Junction R. R., 8 M. & W.,

p. 372; Jackson vs. Rogers, 2 Show., p. 327. The articles and persons must be such as he undertakes to or is accustomed to carry.-See Johnson vs. Midland R. R., 4 Exch., p. 367; Sewall vs. Allen, 6 Wend., p. 335; Tunnell vs. Pettijohn, 2 Harringt., p. 48; Citizens Bank vs. Nantucket Steamboat Co., 2 Story, Sec. 16.

2170. A common carrier must not give preference, Obligation

not to give in time, price, or otherwise, to one person over an- proforence. other, except where expressly authorized by statute.

NOTE.-One of the duties of a common carrier is to receive and carry all goods offered for transportation by any person whatsoever, upon receiving a suitable hire. See Story's Bailm., Sec. 508; Parker vs. Great Western Railway Co., 7 M. & G., p. 253; Pickford vs. Grand Junc. R. Co., 10 M. & W., p. 399. It may be that this is not a rule of the common law (see Baxendale vs. Eastern Cos. R. R. Co., 4 C. B. [N. S.), pp. 63, 78); but if not, it ought to be incorporated into our law from the English Railway Acts, which generally

contain such a provision. This is the result of his public employment as a carrier. It was held in Wheeler vs. S. F. and A. R. R. Co., 31 Cal., p. 46, that as common carriers they must treat all who apply alike. Red. and Angell, in defining common carriers, call them carriers of goods for hire inditerenily for all persons, which indicates their business to be for allto carry for all persons indiferently who choose to employ them.--Red. on Car., etc., Secs. 19-24; sce Sec. 481, ante, and note.

What preferences he must give.

2171. A common carrier must always give a preference in time, and may give a preference in price, to the United States and to this State.

NOTE.-A due respect and obedience is hereby enforced to that underlying principle in all governments, that the convenience or interests of the few must, for the sake of good order, yield to that of the many.

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2172. A common carrier must start at such time and place as he announces to the public.

NOTE.- The place of receiving passengers, and the hour of starting, which passenger carriers are bound to observe and conform to, are those which they hoid out to the public, and thus become in the nature of a special contract. This regulation, by the text, now applies to all carriers, as well as to the carriers of passengers.--See Sec. 481, ante, regulating this subject for railroads.


2173. A common carrier is entitled to a reasonable compensation and no more, which he may require to be paid in advance. If payment thereof is refused, he may refuse to carry.

NOTE.- Wyld vs. Pickford, 8 M. & W., pp. 443-458. “ The carrier is entitled to demand his pay in advance; but where no such condition is insisted upon at the time" the goods are delivered, the owner not bound to tender the freight.-Red. on Car., etc., Sec. 133. If his right to demand in advance is exercised and not complied with, he of course may of right refuse to carry.

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2174. The rights and obligations of a common carrier cannot be altered by notice on his part, or by

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