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liability is plain when the loss is directly the result of the delay, as in that case 13 where a carter, delayed in his journey, left his wagon in mid-river at a ford and the goods, as he might have foreseen, were injured by a freshet. And where the carrier transported potatoes unduly slowly in winter, the exposure to the risk of freezing in a subsequent period of severe cold was properly held to be so materially increased by the extension of the usual period of transit as to make the carrier liable.1 There is, however, a noteworthy conflict of authority upon the question whether a carrier who delivers goods to an intermediate point late should be held responsible for the destruction of the goods there by an act of God. Many hold that the negligent delay of the carrier in transportation should not be regarded as the real cause of the loss of goods by flood, even admitting that had the goods been transported with reasonable diligence they would not have been involved in the casualty.15 But the many cases must be reckoned with which hold that liability is made out from the mere fact that the loss would not have happened but for the negligent delay, some judges going so far as to say that if a carrier unjustifiably late is passing a powder magazine just as it is struck by lightning, the owner of the goods may sue for their destruction.16

13 Campbell v. Morse, Harper 468 (N. C.).

14 Fox v. Boston & M. R. R. Co., 148 Mass. 220, 19 N. E. 222, LEADING ILLUSTRATIVE CASES.

15 Denny v. New York Central R. R., 13 Gray 481 (Mass.).

16 Green-Wheeler Shoe Co. v. Chicago R. I. & P. Ry. Co., 130 Iowa 123, 106 N. W. 498, LEADING ILLUSTRATIVE CASES.

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64. Deviation from the undertaking. The undertaking of a common carrier, in the absence of any special contract, is to transport the property to the place of destination by the most usual, safe, direct and expeditious route. In accordance with this very general principle it has been held a deviation for a carrier, in violation of its undertaking, to ship goods before the time agreed upon 1 or on a different vessel from that stipulated for.18 So it is deviation to ship by rail instead of by water, 19 or by water instead of by rail.20 It may be a deviation to forward by steamship instead of sailing vessel, 21 and it is a deviation to transship goods.22 But it would probably be going too far to call it a deviation to carry the goods in a position different from the directions given, or to hold them for too long a time. But generally speaking any material departure in the conduct of carriage from the special undertaking in regard to it constitutes a deviation, as any course which differs materially from the performance which was understood to have been undertaken is a deviation.

65. Absolute liability during deviation.-Proof of a deviation and loss concurrent with it, from whatever cause arising, makes out a case of liability without more.23 By the general theory this liability

17 Campion v. Canadian Pacific Ry. Co., 43 Fed. 775. 18 Green & B. R. Nav. Co. v. Marshall, 48 Ind. 596.

19 Merrick v. Webster, 3 Mich. 268.

20 Philadelphia & R. R. Co. v. Beck, 125 Pa. St. 620, 17 Atl. 505.

21 Simkins v. Norwich & N. L. Steamboat Co., 11 Cush. 102 (Mass.).

22 The Maggie Hammond, 9 Wall. 435 (U. S.).

23 See the language in Davis v. Garrett, 6 Bingham 716 (Eng.), and in Church v. Chicago, M. & St. P. Ry. Co., 6 S. D. 235, 60 N. W. 854.

is not based upon negligence in the conduct of the undertaking, nor do the cases require proof of negligence. The mere fact of deviation is essentially a wrong in itself, as it constitutes a repudiation of the arrangement under which the carrier was authorized to act. The carrier, as the cases go, is unhesitatingly held liable in all cases, even when the act of God or the king's enemies are clearly the real cause of the loss. The explanation of this rule making the carrier who has deviated from its undertaking liable at all events thereafter, is the peculiar liability which the law attaches to improper intermeddling. As this intermeddling makes the whole performance thereafter fundamentally different, this absolute liability should persist until the goods are finally delivered. And very probably this is the law, although some doubts may be entertained after reading the opinions in many leading cases.24

66. Negligence in not avoiding. Even where the damage is apparently caused exclusively by some overwhelming calamity, nevertheless if the public servant could have foreseen the catastrophe in time to have prevented it,25 or could have avoided the results of it and negligently failed to do so, he will be liable.26 This is brought out in two well known United States Supreme Court cases. In Express Company v. Kountze Bros., it was pointed out

24 Note the decisions in Thorley Ltd. v. Orchis S. S. Co. Ltd., (1907) 1 K. B. 660 (Eng.), and in Atlantic C. L. Ry. Co. v. Hinely Stephens Co., 60 So. 749 (Fla.).

25 Caldwell v. Southern Express Co., 1 Flipp 85 (U. S.).

26 Ewart v. Street, 2 Bailey 157 (S. C.).

27 8 Wall 342 (U. S.), LEADING ILLUSTRATIVE Cases.

that, if the carrier chooses the route which would very probably expose the goods to capture by the enemy, it will be liable for their capture. In Railroad Company v. Reeves,28 it was pointed out that, unless the carried failed to exercise due care to save the goods from a rising flood, it would not be held liable. Where the injury may be repaired wholly or partially at the place of accident, and where such a course is peculiarly necessary to prevent further deterioration, the duty to meet the emergency by doing everything possible is obvious. Thus if a cargo has become wet, it should be dried if that is practicable.29 So perishable provisions should be iced if the departure of the carrier has been unavoidably delayed.

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67. Proper protection of patrons. Of the general obligations to protect those with whom the proprietors of a public service are having business relations, there can be no doubt. One of the first requirements which the government demands of every institution impressed with a public interest, and one which is thrown over every citizen as a great and protective shield, is the duty to act impartially with all.31 They are under obligations to extend their facilities to all persons, on equal terms, who are willing to comply with their reasonable regulations, and to make such compensation as is exacted from others in like circumstances. From this principle,

28 10 Wall. 176 (U. S.).

29 Notara v. Henderson, L. R. 7 Q. B. 225 (Eng.).

30 Peck v. Weeks, 34 Conn. 145.

31 This paragraph is substantially taken from Dunn v. Western Union Telegraph Co., 2 Ga. App. 845, 59 S. E. 189, LEADING ILLUSTRATIVE Cases.

universally recognized, springs the corollary that all such persons, natural and artificial, shall afford to such members of the public, as have occasion to transact with them business of the nature they are holding themselves out as being accustomed to do, safe and decent access to the places opened up for the transaction of the business in question. This safety does not mean mere physical safety, nor this decency mere absence of obscenity, but by the employment of the expression safe and decent access, it is intended to connote also the notion of freedom from abuse, humiliation, insult, and other unbecoming and disrespectful treatment.32

68. Liability for injuries by own servants.-The clearest examples of the affirmative duty to furnish protection are the cases holding the railroad liable for personal assault upon passengers by its employees. The company is responsible for such assaults on passengers while the employees are on duty, although the violence may have no apparent relation to the conduct of the business. Thus in one of the leading cases on this subject, a railroad was held liable for a trainman's kissing of a lady passenger.33 In the law of private relations when the assault is committed by a servant out of personal spite or in a frolic of his own, many authorities hold that the master is not liable. But practically all the cases as to public employment hold the company liable for its failure to protect its patrons from all as

32 If the servant precipitates trouble the company is liable for the consequences. Gooch v. Birmingham Ry. L. & P. Co., 58 So. 196 (Ala.).

33 Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657, LEADING ILLUSTRATIVE CASES.

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