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course of business.51 But if no such custom of taking passengers on freight trains prevails, one could hardly reasonably consider himself accepted by the company as a passenger, whatever his dealing with the conductor may be.52 And the circumstances could hardly arise under which one might think of himself as a regular passenger while riding on a hand car.53
48. Special arrangements for particular service. -If the owner of goods goes along with them and retains possession of them, the person who furnishes the vehicle is not a carrier since he is not a bailee. In the case of a ferry, for example, the fact that the owner goes along with the goods and often retains the entire charge and management of them (as for instance where he drives a horse on the ferryboat and manages him while on the boat), prevents the relation of carriage.54 But though the owner of cattle or his servant may accompany the cattle, as a driver, while they are being carried, and may care for them and help unload them, the railroad company is none the less the bailee and carrier of the cattle, as he must do all this while the cattle are in the possession of the railroad company and at such times as it chooses to select for the purpose.55 The case of the circus train is peculiar in that the keeping of the wild beasts obviously remains with the owners of the circus who make a special contract for the haulage of their train.66 In much the same way, when vessels are towed the towboat owner is rarely held to take possession from the shipowners.57
51 Illinois Central R. R. v. Davenport, 177 Ill. 110, 52 N. E. 266.
52 Eaton v. Delaware L. & W. R. R. Co., 57 N. Y. 382, LEADING ILLUSTRATIVE CASES.
53 Cleveland v. Pine Bluff Arkansas Ry., 154 S. W. 191 (Ark.).
56 Coup v. Wabash, St. L. & P. Ry. Co., 56 Mich. 111, LEADING ILLUSTRATIVE CASES.
57 Alexander v. Greene, 3 Hill 9 (N. Y.).
REGULATION OF THE EMPLOYMENT.
49. The place of regulations.—Public businesses are usually carried on upon a large scale, and for their proper conduct it is plainly requisite to have established regulations. Great scope is allowed to regulations by the law, large discretion being given to those who are confronted with the problem of reducing to order a complicated business. However, it is the law, here as elsewhere, which has the last word to say concerning the propriety of the regulation in question. What the courts generally do is to hold justifiable a regulation which is made by a company in good faith and enforced by it without discrimination, unless it is plainly outrageous in its general operation. If the court might have itself done differently, or even if it sees hardship in particular cases, neither of these things is enough, as will be seen, to induce it to set the regulation aside, or hold it no justification for what was done in pursuance of it. Without regulations, a company may refuse to accede to particular requests, but it must then show that the particular request is unreasonable. But with a general regulation, a service may be refused to anyone, notwithstanding his particular hardship, unless the whole rule is shown to be unreasonable or inconsistent with the duty which the company owes to the public.
50. Scope of regulations limited.—Regulations which are in promotion of public service are valid, while regulations which are inconsistent with public duty are void. One branch of this rule was expounded in one of the earliest American cases in dealing with the somewhat complicated regulations of a canal company as to the order of passage of boats at docks.58 “The defendants, as owners, had the right to prescribe such reasonable rules and
regulations for the government of vessels passing along their canal, as their directors deemed best calculated to promote their own interest and the interests of those engaged in navigating the canal.” But this is subject to the qualifications stated in another early case, holding that negroes could be assigned to separate quarters although not excluded from the conveyance.59 "The right to be carried is a right superior to the rules and regulations of the boat, and cannot be affected by them.” It must be remembered that under our system of private ownership questions of management must be solved in the first instance by the owners themselves. We should not let regulation by the state become virtually operation.
51. Proper establishment of regulations.—Generally speaking, regulations are not binding unless there has been due notification of them. This does not mean that in every individual case they must have been brought home to the person who is held to be governed by them; it simply means there must
68 Pennsylvania Coal Co. v. Delaware & H. Canal Co., 31 N. Y. 91. 69 Day v. Owen, 5 Mich. 520.
be such publication of them as should fairly affect the patrons concerned with knowledge of them.co Publication may be by notices posted upon
premises, by provisions printed upon tickets, by advertisements or handbills or in any other way that promises sufficient publicity.81 When regulations are changed there must be due notice, the same rules applying as in the publication of the original regulations.6 Even a provision in the original regulation that there may be change without notice, should be unavailing. 63 Waiver of regulations to be effectual must be made by an official having at least apparent authority in the premises. A conductor could not bind the company by promising to stop a train in defiance of a published time-table.64 Implied waiver comes about by acquiescence in their constant violation by officers charged with the enforcement of rules. Thus when a street railway habitually permits passengers to ride upon platforms, although it has a rule to the contrary, its regulation is held to have been waived.85
52. Reasonable enforcement of regulations.The power to make regulations carries with it the power to enforce them. The carrier may expel those who refuse to conform to its reasonable regulations.66
But such ejection must be accomplished at a proper time and place, and in a proper method
60 Knoxville Traction Co. v. Wilkerson, 117 Tenn. 482, 99 S. W. 992. 61 Van Dusan v. Grand Trunk Ry. Co., 97 Mich. 439, 56 N. W. 848. 62 Sears v. Eastern R. R. Co., 14 Allen 433 (Mass.). 63 Geer v. Michigan Central Ry. Co., 142 Mich. 511, 106 N. W. 72. 64 White v. Evansville & T. H. R. R., 133 Ind. 480, 33 N. E. 273. 65 United Ry. & El. Co. v. Hertel, 97 Md. 382, 55 Atl. 428. 66 Decker v. Atchison T. & S. F. Ry. Co., 3 Okla. 553, 41 Pac. 610.