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with him, receive him as a boarder. On the other hand, although not obliged to receive a neighbor as a guest, an innkeeper may voluntarily receive him as such, which would usually be shown by the signing of the register.
42. Acceptance as common carrier.—The peculiar responsibilities of the carrier of goods do not begin until the moment when it assumes possession. But its liability as such begins at once on the receipt of goods for transportation, though the goods have not yet been started toward their destination. That is, the liability of the carrier as such depends upon its possession, with the right to transport immediately.26 But when goods are received by the carrier, not for immediate transportation but to be held pending orders of the shipper, the carrier holds the goods as a warehouseman only.27 And where goods are offered to a railroad company at an unreasonably long time before the train starts, if the carrier actually takes the goods it becomes responsible at once as a carrier, although the carrier might have refused to take them so long in advance and the shipper knows that according to the time-table the goods will not be carried until a later time.28 But where upon the special understanding that for the shipper's own convenience the carrier had received goods into its warehouse before the opening of navigation, to be forwarded as soon as possible thereafter, it was not held liable as a carrier while the goods were in the warehouse. 29
26 Shaw v. Northern Pacific R. R., 40 Minn. 144, LEADING ILLUSTRATIVE CASES.
27 Barron v. Eldredge, 100 Mass. 455.
43. Delivery to the carrier.—The delivery to the carrier of goods or property for shipment may be actual or constructive, but there must be a delivery and acceptance of the goods. Thus delivery to the driver of an express wagon collecting goods is a good delivery to the company, as the goods have actually been received in due course of business. 30 On the other hand, the deposit of goods beside a railroad track, as upon a platform provided to receive them, though they are so deposited for immediate shipment ready to be loaded upon the freight train when it arrives, is not, in the absence of special custom, delivery which renders the carrier liable.31 Where goods are taken out of the vehicle in which they are brought to the conveyance of the carrier, the tackling by which the transfer is effected usually belongs to, or at least is operated by, the carrier; and in that case the carrier's responsibility begins as soon as the goods are attached to the tackling; 32 and similarly where grain or liquid is shipped in bulk, being delivered through a chute, the cases hold that when the carrier has control of the mouth of the pipe it is responsible for the grain spilled. 33
44. Acceptance as a passenger.—Likewise the relation of carrier and passenger may arise before
20 Ham v. McPherson, 6 Upp. Can. Q. B. (N. S.) 360. 30 Southern Exp. Co. v. Newby, 36 Ga. 635.
31 Grosvenor v. New York Central R. R., 39 N. Y. 34, LEADING ILLUSTRATIVE CASES.
82 Merritt v. Old Colony & N. Ry. Co., 11 Allen 80 (Mass.). 83 The R. G. Winslow, 4 Biss. 13 (U. S. Cir. Ct.).
actual transportation has begun. If there has been consent manifested to receive one as passenger, whether this be express or implied, it is enough. Thus if a person who intends to be carried has boarded a vehicle which has been put at his disposal, he has become a passenger, though the vehicle has not yet started.34 And one who is in the waiting room of a station ready to board the cars has been held already to be entitled to all the rights of a passenger.35 It was early held that when a man, intending to take passage in a vehicle which has stopped to receive him, puts his foot upon the step or his hand upon a hand rail, he has been accepted as a passenger, and the responsibility of the carrier toward him as a passenger has begun.36 In accordance with this reasoning, it has been held in most cases relating to street cars that the relation of carrier and passenger is established the moment the vehicle slackens its speed in response to signal.37
45. Basis of the undertaking.- Where the customer is dealing with an employee, it is sometimes difficult to say whether the servant is undertaking public service on behalf of his master, or whether he is agreeing to a private service in his personal capacity. Where a parcel was given to the coachman who undertook to deliver it in town, it was held that such carriage was a private matter, undertaken by the servant personally.88 A person leaving a package upon the front platform of a street car should not expect the company to be liable, unless there has been a holding out to take for an additional price miscellaneous parcels which passengers bring with them.39 When the telegraph operator writes out the message as a favor to the sender, he is acting plainly for him, not for the company. One who is received as a guest upon the invitation of the servant of the proprietor certainly should understand that he does not fall within the profession of that master. Thus one riding in the carrier's vehicle, not as ordinary passengers ride, but upon invitation of the carrier's servant without paying fare, should never be held to be a passenger, his relations being with the servant, not with the carrier.41
34 Massiter v. Cooper, 4 Esp. 260 (Eng.). 35 Norfolk & W. R. R. Co. v. Galliher, 89 Va. 639, 16 S. E. 935. 36 Brien v. Bennett, 8 C. & P. 724 (Eng.), LEADING ILLUSTRATIVE CASES. 37 St. Louis I. M. & S. Ry Co. v. Lawrence, 153 S. W. 799 (Ark.). 38 Butler v. Basing, 2 C. & P. 613 (Eng.).
46. Whether relationship is established.—To be received at an inn as a guest one must make himself known to the innkeeper, and request entertainment.42 Moreover, he must be accepted by the innkeeper, or be given cause to understand that he has been.43 A passenger must put himself in the care of the carrier, and there must be something from which it may fairly be implied that the company has accepted him as a passenger. So a traveler who is concealing himself with the intention of stealing a ride, clearly is not a passenger. One who 39 Levi v. Lynn & B. Ry. Co., 11 Allen 300 (Mass.). 40 Pegram v. Western Union Telegraph Co., 100 N. C. 28, 6 S. E. 770.
41 Toledo W. & W. Ry. Co. v. Brooks, 81 III. 245, LEADING ILLUSTRATIVE CASES.
42 Bernard v. Lalond, 8 Leg. News 215 (Can.).
obtains service by fraudulent representations in obtaining his ticket cannot claim the rights of a passenger.46 And one who makes a deal with a conductor to let him travel for a gratuity paid must know that he is entering into no relations with the company.18 Nor can one who conceals the true nature of goods shipped in order to get a lower rate charge the carrier with their loss. 47 The fundamental principle in all of these cases is that there is no assent by the company to enter into the relationship. Or if there is apparent consent, it is obtained by the fraud used to gain it.
47. Service under unusual conditions.-A railroad is not a common carrier of a person who by permission of the engineer rides on a locomotive. 48 And so a passenger who, without the knowledge or consent of the conductor of the train, rides in the baggage car, cannot maintain an action against the railroad company for injuries sustained which would not have happened to him had he been in a passenger car.
So clearly, one riding upon a construction train of flat cars before general service is begun must appreciate that he is not being accepted as a passenger by the company.50 Yet the possibility remains that one may be accepted upon a freight train as a passenger, if the circumstances are such as give him to understand that this is a regular
45 Mendenhall v. Atchison T. & S. F. Ry. Co., 66 Kans. 438, 71 Pac. 846. 46 Grahn v. International & G. N. R. R. Co., 100 Tex. 27, 93 S. W. 104. 47 Oppenheimer & Co. v. United States Express Co., 69 Ill. 62. 48 Ramm v. Minneapolis & St. L. R. R., 94 Iowa 296, 62 N. W. 751. 49 Bricker v. Philadelphia & R. R. R., 132 Pa. St. 1, 18 Atl. 983. 60 Wade v. Lutcher & Moore Cypress Lumber Co., 74 Fed. 517.