Elkins v. Boston & Maine Railroad

Gilchrist, C. J.

The main question presented is, whether there is any evidence competent for the consideration of the jury, that the defendants were common carriers of goods by the passenger trains of cars ?

"What are the duties and liabilities of common carriers, and who are to be considered such, are subjects on which the decisions have been very numerous, as might have been expected from the importance of the inquiry, and the great amount of property entrusted to persons .of this class.

A common carrier is a person who undertakes to transport from place to place for hire, the goods of those who choose to employ him. Gisbourn v. Hurst, 1 Salk., 249; Dwight v. Brewster, 1 Pick., 53 . A distinction is made between such persons and those whose business it is to convey passengers, who are said not to be common carriers. Aston v. Heaven, 2 Esp., 533 ; Sharp v. Grey, 9 Bing., 460. A carrier of goods undertakes to deliver them at all hazards, but a carrier of passengers is not responsible for accidents which happen in spite of every precaution. Christie v. Gregg, 2 Camp., 79; Weed v. Sand S. Railroad Co., 19 Wend., 543 . The reason for this distinc *285 tion was given at an early period. It is that in consequence of the public nature of his employment and the danger of collusion with plunderers, it is necessary to regard a common carrier as an insurer. Forward v. Pittard, 1 T. R., 27; Coggs v. Bernard, 2 Lord Raym., 909. His good conduct and honesty are matters of importance to the whole community. And all persons, it is said, carrying goods for hue, come under the denomination of common carriers. Moses v. Norris, 4 N. H. Rep., 304. The necessity of the application of a stringent rule to simplify and define the responsibilities of common carriers has been repeatedly declared and ably vindicated in numerous cases. Hyde v. Trent and Mersey Navigation Co., 5 T. R., 189; Riley v. Horne, 5 Bingh., 217; Hollister v. Nowlen, 19 Wend., 241 ; Roberts v. Turner, 12 Johns., 232 ; Thomas v. Boston and Providence Railroad, 10 Met., 476 .

But in order to impose this- extensiva responsibility upon the defendants, it must appear that they have held themselves out to the world as common carriers by the passenger trains of cars upon their railway. Their object, however, was not the conveyance of goods by these trains, but the transportation of passengers. The cars upon the passenger trains are not provided with conveniences for the deposit of such articles as those now in question, during their transit. They may, however, be used for the carriage of goods, as well as of passengers, if the proprietors see fit to do so, and in that case they become common carriers. Their position would then be similar to that of proprietors of stage coaches, who may, in addition to the transportation of passengers, become liable as common carriers, by usually carrying goods for hue. In Middleton v. Fowler, 1 Salk., 282, the action was case for the negligence of the defendants in losing a trunk which was delivered to the driver of a coach, who promised to take care of it. It was held that the defendants were not within the custom as carriers, unless they took a distinct price for the carriage of goods as well as of persons, and that money-given to the driver was a mere gratuity and could not make the master liable, which could not be done by the servant unless he were acting in execution of the authority given by the master. *286 In the case of Allen v. Sewall, 2 Wend., 327 ; 6 Wend., 335 , the owners of a steamboat, were held to be liable as common carriers, because they were in the habit of receiving compensation for the freight of light articles carried on board their boat. In Dwight v. Brewster, 1 Pick., 50 , it was held that an established practice of conveying for hire, in a stage coach, parcels not belonging to passengers, rendered the proprietors liable as common carriers; for although the principal business may be to carry passengers, there is no reason why the proprietors should not be common carriers of merchandize. And where the driver of a coach, by an arrangement with the proprietors, received compensation for carrying small packages, as a part of his wages, it was held that the proprietors were liable as common carriers, or as bailees for hire. Bean v. Sturtevant, 8 N. H. Rep., 325. But if articles be sent by a wagoner for his own benefit, and not for the benefit of his master, the latter is not liable. Basing v. Butler, 2 C. & P., 615. In the case of Sheldon v. Robinson, 7 N. H. Rep., 164, where it was alleged that the defendant was a common carrier, Parlcer, J., in pronouncing the judgment of the court, said that the evidence did not show him to have exercised the business of carrying packages as a public employment, or that he ever undertook to carry goods or money for persons generally, although he might in fact have taken all that was offered as a matter of convenience, or that he ever held himself out as ready to engage in the transportation of whatever was requested.

In this case, the evidence shows that twice within two years, goods have been conveyed by the passenger trains, under the charge of some of the persons employed by the defendants. As the bills, however, did not state that they were carried by the passenger train, and as it does not appear, that it was understood they were to be thus transported, it is perhaps fair to suppose that they were carried on this train, for the temporary convenience of the company, and that they did not intend by so doing to hold themselves out to the world as common carriers by the passenger cars. The fact that the conductor had carried goods and eggs to market for an individual, as it does not ap *287 pear that any compensation was paid therefor to the company, or that it was done by any authority, derived from them, cannot be considered as evidence of anything, beyond a private contract with the conductor, made for the accommodation and convenience .of the owner of the property. There is one instance, of the transportation of goods by the passenger train, in the year 1846, for which freight was paid to the baggage master. But this, of itself, does not tend to prove that the defendants have been in the habit of thus transporting goods, or that it was practised by their servants, in such a way that the company and the public must have understood that a custom existed to that effect.

The evidence is, that both the printed rule of the company, and the practice for five years past, had been, not to send articles by the passenger train. These articles were such as are usually carried as personal baggage. They were not accompanied by the owner, and, by the printed rule, on which the defendants rely and by the practice, no agent was authorised to send them by the passenger train. This evidence is not contradicted or qualified, in any degree, by any evidence offered by the plaintiff, or by those parts of the printed rules, on which he relies ; and a decision that the defendants are, notwithstanding, liable as common carriers of these articles, by the passenger train, would conflict not only with the evidence, but with the authorities which define the nature and responsibilities of persons of this description. We find nothing in the authorities authorizing the position that a single instance, like that which happened in the year 1846, standing alone, with no attendant circumstances to give it any additional weight, tends to prove the existence of that habit and practice which must be shown, to constitute the defendants common carriers by the passenger trains. Such responsibilities are not imposed on persons who on one particular occasion transport goods for hire, but on him only, who in the words of Story, on Bailments, 322, “ undertakes to convey goods for persons generally,” and who “ holds himself out, as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation, pro hac viceS A practice of conveying goods *288 for hire, is proved by an accumulation of instances; but though several instances of the like kind may be evidence of the practice, a single instance, by itself, has no weight. We cannot infer from it that the defendants ever did so before, or will ever do so again; whereas, if there be repeated instances of the same description, it will be a fair presumption that they intend to hold themselves out to the world, as being ready to do for the public generally, what they have already, repeatedly performed.

There is another reason also, why the plaintiff cannot recover in this case. When the articles were delivered to the ticket-master, at Andover, there was no label upon them. It could not be known on inspection, who was the owner of them, or to what place they were to be sent. The ticket-master promised to put a label upon them, but that was his contract, and not the contract of the defendants. There is nothing to show, that they ever undertook to render such services to the public, and the evidence is, that it was not the duty of the ticket-master. Without something to indicate the disposition to be made of the articles, it would be obviously unjust to compel the defendants to be responsible for them. The undertaking by the ticket-master to do something which neither he nor the company was bound to do, was, if not a mere voluntary courtesy, certainly not a contract binding upon the defendants, and it is difficult to see how, under these circumstances, they can be liable.

Judgment on the Verdict.