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any other means, except a written agreement between Obliga

tions of him and the person with whom he deals.

carrier altered

only by NOTE.—“Obligations not altered by notice.”—Nev- agreement. ins vs. Bay State Steamboat Co., 4 Bosw., p. 2:25; Cole vs. Goodwin, 19 Wend., p. 251; approved, Dorr vs. N. J. Steam Nav. Co., 11 N. Y., p. 485, “Nor otherwise, except by written agreement.” This provision is new, in so far as it requires the agreement to be written; but it seems eminently desirable that such should be the law. This subject is ably discussed in Red. on Carr., Sec. 138, et seq., where, in Sec. 140, it is said: “Notice brought home to the owner of the goods as evidence merits a very different consideration in this species of bailment from any other, where there is no obligation upon the bailee to assume the duty." With the carrier of the text it is not optional, if the goods to be carried, or act to be done, is in the course of his customary business. That one of their liabilities, that of an insurer, may be limited by notice consented to by owner, has been decided in most of the State Courts, except New York.-Id., Sec. 114; N. J. Steam Nav. Co. vs. Merc. Bank, 6 How. U. S., p. 344. Being regarded in the light of an express contract is the ground of these decisions. In Sec. 147, id., it is said the right of the carrier to restrict his liabilities by special acceptance is firmly established in Pennsylvania. See Atwood vs. The Reliance Co., 9 Watts, p. 87; Brigham vs. Rogers, 6 Watts & Serg., p. 495; Laing vs. Coider, 8 Penn. St., p. 479. All these cases referred to in Dorras. N. J. Steam Nav. Co., 1 Kernan, p. 485, supra. It is, however, pretty well settled (Sec. 148 id.) that the restriction by notice brought home to owner only limits their responsibility as insurers, as by special contract at the time of the acceptance of the goods. From these authorities and cases it will be apparent that this power of restricting the ordinary obligations of common carriers, implied by law, from conducting the business, is far from being uniform or settled, and affords the strongest possible argument in favor of the adoption of the rule laid down in the text, and in making it of universal application, for under it such variance must be in writing and between the carrier and his employer.

2175. A common carrier cannot be exonerated, Certain

agreements by any agreement made in anticipation thereof, from void.

liability for the gross negligence, fraud, or willful wrong of himself or his servants.

NOTE.-Penn. R. R. vs. McCloskey, 23 Penn. St., p. 532; Camden & Amboy R. R. vs. Baldauff, 16 id., p. 67; Smith vs. N. Y. Central R. R., 29 Barb., p. 132; affirmed, 24 N. Y., p. 22.2. The latest cases in New York seem to hold that the carrier may be exempted from such liability for the acts of his servants.-Bissell vs. N. Y. Central R. R., 25 N. Y., p. 442; reversing S. C., 29 Barb., p. 502; Perkins vs. N. Y. Central R. R., 24 N. Y., p. 196; Wells vs. Same, id., p. 181. But these decisions were made by a bare majority of the Court of Appeals, and the dissenting opinions are regarded as entitled to the most weight. It is notorious that the negligence of railroad managers cannot be stopped by criminal prosecutions, and if they are enabled, by a reduction of a few cents in the fare, to escape a civil action, they will be practicably irresponsible for the acts of their servants.

Effect of written contract.

2176. A passenger, consignor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated. But his assent to any other modification of the carrier's rights or obligations contained in such instrument can only be manifested by his signature to the same.

NOTE.–Nevins vs. Bay State Steamboat Co., 4 Bosw., p. 225. This appears to be the only sound rule, notwithstanding its apparent repudiation by a bare majority of the New York Court of Appeals. See Bissell vs. N. Y. Central R. R., 25 N. Y., p. 442. This should be the rule, to correspond with the provisions of Sec. 2174, ante. See, also, note to that section.

ARTICLE II.

COMMON CARRIERS OF PERSONS.

SECTION 2180, Obligation to carry luggage.

2181. Luggage, what.
2182. Liability for luggage.
2183. Luggage, how carried and delivered.

SECTION 2184. Obligation to provide vehicles.

2185. Seats for passengers.
2186. Regulations for conduct of business.
2187. Fare, when payable.
2188. Ejection of passengers.
2189. Passenger who has not paid fare.
2190. Fare not payable after ejection.
2191. Carrier's lien.

2180. A common carrier of persons, unless his Obligation

to carry vehicle is fitted for the reception of passengers exclu- lugenge. sively, must receive and carry a reasonable amount of luggage for each passenger, without any charge except for an excess of weight over one hundred pounds to a passenger.

NOTE.-This obligation is usually provided for by statute.-See Red. on Car., etc., Sec. 486. Cannot enforce a rule requiring passenger to be booked and his passage paid before receiving his baggage, for it is inconsistent with the usual statute, and it would be a restriction on the rule of this text unauthorized.-Id., Secs. 71 to 76. Carriers of passengers are liable as common carriers for their baggage, and their checks take the place of bills of lading; but are responsible without giving check, if received as baggage, and whether passenger has paid his fare or not, or is riding on a free pass. See Sec. 481, ante, “Railroad Corporation Business." Company is not liable unless baggage is given in charge of their servants.-Red. on Car., etc., Sec. 74. Their liability results from duty, and not from contract in regard to baggage or passengers.-Id., Sec. 75. If one company gives a check for a depot or place beyond their route, they are agents of the owner, under obligations to forward by safe conveyance, and liable therefor.-Id., p. 72. So, when two roads connect and issue reciprocal checks, either may be sued and recovered from on the check of the other.-Id. Luggage is the English term. Our writers have usually used the term baggage.-See id., Sec. 71.

what.

2181. Luggage may consist of any articles in- Luggage, tended for the use of a passenger while traveling, or for his personal equipment.

NOTE.-The implied undertaking of the carrier to carry in safety the baggage of a passenger is not

5-vol, ii.

unlimited, and cannot be extended beyond ordinary baggage, or such as a passenger usually carries with him for his personal convenience. It never includes merchandise, nor would their liability ordinarily extend to the loss of a trunk of merchandise claimed to be checked as baggage.-Ang. on Car., Sec. 115; Story on Cont., Sec. 768, a, b; Redt. on Railw., Sec. 144; Nevins vs. Bay State Steamboat Co., 4 Bosw., p. 225; Duffy vs. Thompson, 4 E. D. Smith, p. 178; Davis vs. Cayuga & Susq. R. R., 10 How. Pr., p. 330; see Richards vs. Westcott, 2 Bosw., p. 589; 7 id., p.6; Pardee vs. Drew, 25 Wend., p. 459.

a

Liability for luggage.

2182. The liability of a carrier for luggage received by him with a passenger is the same as that of a common carrier of property.

NOTE.-Story on Bailm., Secs. 498, 499, 595; Ang. on Cur., Sec. 571; Cary vs. Cleveland & Toledo R. R., 29' Barb., p. 35; Cole vs. Goodwin, 19 Wend., p. 251; Powell vs. Myers, 26 Wend., p. 591.

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2183. A common carrier must deliver every passenger's luggage, whether within the prescribed weight or not, immediately upon the arrival of the passenger at his destination; and, unless the vehicle would be overcrowded or overloaded thereby, must carry it on the same vehicle by which he carries the passenger to whom it belongs.

NOTE.-Carrier liable for actual delivery of baggage or luggage to the owner.--See this question fully treated in Sec. 73, Red. on Car., etc., and note, wherein the text is fully sustained; Richards vs. The L. B. & S. Coast Railw., 7 C. B., p. 839; Butcher vs. L. & S. W. Railw., 16 C. B., p. 13; 8. c. 29 Eng. L. & Eq., p. 347. If passenger chooses to take exclusive control of it, company not liable.--Tower vs. Utica & Sch, Railw., 7 Hill N. Y., p. 47; Camden & Amboy Railw. vs. Belknap, 21 Wend., p. 354. Particularly in point is

Glasco vs. N. Y. Central R. R. Co., 36 Barb., p. 557. 2184. A common carrier of persons must provide a sufficient number of vehicles to accommodate all the passengers who can be reasonably expected to require carriage at any one time.

NOTE.-See Sec. 481, ante, and note thereto; also, Secs.

Obligation to provide vehicles.

482, 483, 484, as to how business of railroads is conducted;
see Red. on Car., etc., Sec. 488. “Regulations of car
riers as to accommodations of passengers must yield to
right of others to be carried," and their accommoda-
tions during the transit is subject to the carrier's rea-
sonable rules and regulations. Whether they are so or
not, is a question of fact for the jury. The case of Day
vs. Owen, 5 Mich., p. 520, is so pertinent and gives so
much good reason for the rule of the text that we quote
from it. Alluding to that portion of the note, supra, in
quotation marks, it proceeds as follows: “This we are
aware is the practice in America, in almost all modes
of passenger transportation, to cram the carriages and
boats to the point of suffocation, almost, if passen-
gers offer. But that is never attempted or allowed in
England, or upon the Continent. Whenever the seats
in a carriage or the accommodations in a boat are all
occupied, no more are allowed to enter the carriage or
boat. This sometimes results in putting a first class
passenger into a second class carriage, and vice versa.
But no man in Europe would ever be allowed to take
passage in a railway carriage without having a seat.
It would be deemed the height of indiscretion, almost
bordering on madness, to attempt to transport passen-
gers by railway in a standing position. And even in
omnibuses, no one can enter after the seats are filled.
And in Paris a prominent sign, 'Complet,' is exposed
the moment the carriage is full. And it seems to us
tặat a passenger carrier who is supplied with sufficient
accommodations for all who ordinarily offer, had better
be excused from carrying any excess which might occa-
sionally offer, than be compelled to carry them at the .
expense of the discomfort and suffering of all the other
passengers. We think, at least, that if railways took
this ground upon the score of safety merely, they would
not fail to be sustained by the Courts, unless the ex-
cited rush of all to go by the first chance is to override
all other considerations, either of safety or convenience.
And we trust that public opinion here is more reason-
able than to make any such demands."

passengers.

2185. A common carrier of persons must provide Seats for every passenger with a seat. He must not overload his vehicle by receiving and carrying more passengers than its rated capacity allows.

Note.-See Secs. 481, 482, 483, 484, ante, and notes.
The provision relating to overloading vehicles is emi-

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