PART II

CONDUCT OF PUBLIC SERVICE

CHAPTER V.

COMMENCEMENT OF THE SERVICE.

Acceptance as a Common Carrier.

SHAW v. NORTHERN PACIFIC RAILROAD.

40 Minn. 144. 1889.

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial.

DICKINSON, J. There was evidence justifying the jury in finding that, when the plaintiff was about to take passage upon a train of the defendant at Miles City, he delivered to it, for immediate transportation, his proper personal baggage, for the loss of which the action is brought; but that he then indicated for the convenience of the defendant, and not for his own purposes, that he did not care whether or not it was forwarded by the next train, which was soon to pass that station, as it would be five or six days before he would reach his destination. In other words, there was evidence, proper for the consideration of the jury, that the baggage was delivered to the carrier, and by it received, merely for transportation in the usual course of business, and not for storage. The liability of a common carrier, therefore, attached at the time of the delivery. Lawrence v. Winona & St. Peter R. Co., 15 Minn. 313 (390); Moses v. Boston & Maine R. Co., 24 N. H. 71 (55 Am. Dec. 222); Barron v. Eldredge, 100 Mass. 455; Clarke v. Needles, 25 Pa. St. 338. The baggage was not sent by the next train, but was put in the defendant's baggage-room, where it was destroyed by the burning of the building on the following day.

Delivery to the Carrier.

GROSVENOR v. NEW YORK CENTRAL RAILROAD.

39 N. Y. 34. 1868.

MILLER, J. The accident would not have happened had the cutter been placed beyond the reach of passing trains. It was not enough that the agent was notified, to make out a valid acceptance and delivery. The place of delivery was important, and it was equally essential that due care should be exercised. Suppose the servant had left the cutter on the track of the railroad, and notified the agent, would the defendant have been responsible? Clearly not, for the apparent reason that there was no delivery upon the premises, no surrender of the property into the possession of the agent. Until it was actually delivered, the agent was under no obligation to take charge of the property, even if notified. It is apparent that the plaintiff was in fault in not delivering the property to the defendant, and in leaving it in an exposed condition, which caused its destruction; and, having failed to establish this material part of his case, should have been nonsuited. As a new trial must be granted for the error stated, it is not important to examine the other questions raised and discussed.

Acceptance as a Passenger.

BRIEN v. BENNETT.

8 C. & P. 724 (Eng.). 1839.

Case for negligently injuring a passenger. the plaintiff was not a passenger.

Plea 3d, that

It appeared that the defendant's omnibus was passing on its journey when the plaintiff, who was a gentleman considerably advanced in years, held up his finger to cause the driver of the omnibus to stop and take him up, and that upon his doing so the driver pulled up, and the conductor opened the omnibus door; and that just as the plaintiff was putting his foot on the step of the omnibus, the driver, supposing that the plaintiff

had got into it, drove on, and the plaintiff fell on his face on the ground, and was much hurt.

LORD ABINGER, C. B. I think that the stopping of the omnibus implies a consent to take the plaintiff as a passenger, and that it is evidence to go to the jury.

Verdict for the plaintiff.-Damages, £5.

Basis of the Undertaking.

TOLEDO, WABASH AND WESTERN RAILWAY CO. v.

BROOKS.

81 Ill. 245. 1876.

WALKER, J. It is manifest that if a person were stealthily, and wholly without the knowledge of any of the employees of the company, to get upon a train and secrete himself, for the purpose of passing from one place to another, he could not recover if injured. In such a case his wrongful act would bar him from all right to compensation. Then, does the act of the person who knowingly induces the conductor to violate the rule of the company, and prevails upon him to disregard his obligations to fidelity to his employer, to accomplish the same purpose, occupy a different position, or is he entitled to any more rights? He thereby combines with the conductor to wrong and defraud his employer out of the amount of his fare, and for his own profit. In this case the evidence tends strongly to show that both defendant in error and her husband had money more than sufficient to pay their fare to Danville, and a considerable distance beyond that place. If this be true, and defendant in error swears they had, then they were engaged in a deliberate fraud on the company, no less than by false representations to obtain their passage free from Decatur to Danville, and thus defraud the company out of the sum required to pay their fare. In this there is a broad distinction from Muhling's case, as in that case there was no pretence of fraud or wrong on his part. The court below should have given some one of the defendant's instructions which announced the view here expressed.

Service Under Unusual Conditions.

EATON V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD.

57 N. Y. 382. 1874.

DWIGHT, C. There was no evidence that passengers, either habitually or occasionally (except in the present instance), rode in the caboose. There was a regulation of the defendant, printed on the tables intended for the use of its employees, that passengers were forbidden to ride on coal trains. Disobedience of this rule, if known to the defendant, was followed by a discharge of the employee so offending. Of this regulation the plaintiff had no actual notice, and it was not put up in the caboose.

The question now recurs, whether there is anything in the facts of the present case to rebut the presumption which would naturally be derived from the separation of the defendant's coal business from its other transactions. If so, it must be in the authority of the conductor as a general agent of the defendant, or in the appearance of the caboose as fitted up for the transportation of passengers, or, in the conductor's invitation or suggestion as to the plaintiff's employment as a brakeman. It is a fallacy to argue that a conductor is a general agent for this purpose, assuming that his power would, as a rule, place him under the class of general agents; he only holds that position for the management of a freight train. The fact that the same word, "conductor," is used to designate servants in two kinds of business, which the defendant has made perfectly distinct, tends to confusion. There is no real analogy between the duties of a conductor of a passenger train and those of the manager of a strict freight train. A different class of men would naturally be employed in the two cases. The defendant has a right to assign specific duties to the one distinct from those performed by the other. It is a familiar rule in such a case, that an agent cannot increase his powers by his own acts; they must always be included in the acts or conduct of the principal. (Marvin v. Wilber, 52 N. Y. 270, 273.) No act of a conductor of a freight train will bind the company as to

carrying passengers, unless the principal in some way assents to it. In the present case, it was distinctly proved that the company forbade the act, and there was no evidence of any form of assent to its exercise, except that which may be inferred from the use of the caboose.

The caboose was not fitted up in the manner usual in passenger cars. Its general appearance showed it to be exclusively designed for the use of the defendant's servants. The plaintiff could not have been misled as he paid no fare. The conclusion is, that there was nothing in the attendant circumstances, in the present instance, to show that the conductor could, by inviting the plaintiff to get upon the train, create between him and the defendant the relation of passenger and carrier.

Special Arrangements for Particular Service.

COUP v. WABASH, ST. LOUIS AND PACIFIC
RAILWAY CO.

56 Mich. 111, 22 N. W. 215. 1885.

CAMPBELL, J. Plaintiff, who is a circus proprietor, sued defendant as a carrier for injuries to cars and equipments, and to persons and animals caused by a collision of two trains made up of his circus cars, while in transit through Illinois. The court below held defendant to the common-law liability of a common carrier and held there was no avoiding liability by reason of a special contract under which the transportation was directed.

The contract before us involves very few things ordinarily undertaken by carriers. The trains were to be made up entirely of cars which belonged to plaintiff and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which under any circumstances may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of accident. They contained wild animals which defendant's men could not handle, and which might also become