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equally obvious that there are peculiar dangers to all concerned in the supplying of electricity." If a death-dealing current is permitted to enter a customer's house through a defect in the transformer, which could have been detected, the company is uniformly held liable. It must do everything to avoid such accidents that human care, skill, and vigilance can suggest. What the law requires of those who profess a public employment is the utmost foresight, such as the peculiar importance of these special services imperatively requires.

81. Act of God as an excuse.—The act of God, which is a universal excuse, is such an inevitable accident as results immediately from natural causes, and is in no way attributable to human agency. Common examples of what are termed acts of God are tempests, earthquakes, tidal waves, and floods.77 Loss arising from these causes is not charged to the proprietors of the service. Fire caused by spontaneous combustion or lightning is considered inevitable accident, and so excuses the carrier. Sudden changes in conditions are acts of God, unexpected frosts and extreme heat. Electrical disturbances and atmospheric conditions also may excuse as acts of God. In order to establish the excuse of act of God it must be shown that there was no human agency involved in the catastrophe.78 If, by failure of the wind, a vessel is driven upon the shore, notwithstanding the

76 Alexander v. Nanticoke Light Co., 209 Pa. St. 571, 58 Atl. 1068.

77 Wald v. Pittsburg C. C. & St. L. Ry. Co., 162 Ill. 545—the Johnstown flood held an excuse.

78 See Gilbert Bros. v. Chicago, R. I. & P. R. R. Co., 136 N. W. 911 (Iowa), for an enumeration of the exceptions.



efforts of its navigators, the loss is by act of God."' But if a ship, while being steered in its usual course, runs upon the wreck of another ship, which had been sunk below the surface of the water in midchannel by a sudden squall, the loss is held to be brought about by act of man.80

82. Damage by public enemies. From time immemorial seizure by the king's enemies has been an excuse in public service, even where the general rule is that of absolute liability. As a foundation for the excuse a state of war must exist between the community to which the carrier belongs and the country whose forces have made the seizure. The American cases chiefly relate to the situation at the time of our Civil War. It was finally generally agreed that the Confederate Government was so far de facto as not only to make its forces public enemies to federal carriers,81 but also to make the federal forces enemies to confederate carriers.82 Damage caused by mere marauders does not come within the excuse; and if a carrier be robbed by a hundred men, he is none the more excusable. Where the absolute liability as an insurer exists, the fact that the goods are injured or seized by a mob of rioters which the carrier is absolutely unable to resist furnishes no excuse, however unexpected the attack may have been.84


79 Colt v. McMechen, 6 Johns. 160 (N. Y.), LEADING ILLUSTRATIVE CASES. 80 Merritt v. Earle, 29 N. Y. 115. 81 Bland v. Adams Express Co., 1 Duv. 232 (Ky.). 82 Wallace v. Sanders, 50 Ga. 134. 83 Seligman & Bro. v. Armijo, 1 N. Mex. 459.

84 Pittsburg C. C. S. & St. L. Ry, Co. v. Chicago, 242 Ill. 178, 89 N. E. 1022.

83. Vice of the property.—There is also an established excuse if the loss happens by deterioration or by disintegration of the goods in transit, whether this is due to inherent characteristics or precipitated by external factors. If, for example, the loss happens by a freezing in winter or by rotting in summer,85 there is this apparent excuse. Likewise a loss caused by the fermentation of the molasses being carried, or by the decay of the fruit

86 in transit, will be excused. In any case, the deterioration of the goods must be the sole result of natural causes. This excuse finds its chief scope in the law relating to the carriage of animals. It is almost universally agreed that this is common carriage with all the law thereto applying; but, since animals are being dealt with, losses which can be traced primarily to their proper vice are held excused.87 Of course special care must be taken of animals because they are alive; and in emergencies unusual steps must be taken to save them. But if, notwithstanding due care for them, they injure themselves, or die by accident, the carrier may not be held liable.88

84. Interference by the patron.—Where the patron interferes and takes a hand in the services, there is another exception to the insurance liability. Thus, where the shipper put hay into a stock

85 Funsten Fruit Co. v. Toledo St. L. & W. Ry. Co., 163 Mo, App. 426, 143 S. W. 839.

86 Faucher v. Wilson, 68 N. H. 338, 38 Atl. 1002.
87 Kansas Pacific R. Co. v. Nichols, Kennedy & Co., 9 Kans. 235.

88 Coupland v. Housatonic R. R. Co., 61 Conn. 531, 23 Atl. 870, LEADING ILLUSTRATIVE CASES.

car, in violation of regulations of the company forbidding the putting of combustibles into a car, it was said that the carrier should not be held liable for a subsequent loss by fire.89 Similarly, where a servant of the shipper accompanying stock took a lantern into the car, which set the car on fire, it was held that the railroad was not liable, whether the lantern was handled negligently or not. If the shipper assumes the responsibility for securing the goods upon the vehicle, the carrier is then relieved from liability for loss caused thereby.91 But if the improper loading should have been apparent to the carrier, from the ordinary inspection which it or its servants would naturally give, the carrier will be liable."



89 Pratt v. Ogdensburg & L. C. R. R. Co., 102 Mass. 557. 90 Hart v. Chicago & N. W. Ry. Co., 69 Iowa 485, 29 N. W. 597. 31 Pennsylvania Co. v. Kenwood Bridge Co., 170 II). 645, 49 N. E. 215. 02 Elgin J. & E. Ry. Co. v. Bates Machine Co., 200 Ill. 636, 66 N. E. 326.

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85. Limitation upon liability possible.-It may well be that the abnormal liability of an insurer which the law imposes upon the carrier and the innkeeper may be cut down by special arrangement. Indeed, in discussing the insurance liability in the preceding chapter no good reason was apparent for so onerous an obligation. But it would seem to be against public policy for a public servant to go further and stipulate that he shall not be liable for his negligence in the performance of his undertaking. At all events this distinction is the one which is generally taken by the courts, which allow limitation of liability as an insurer, while declaring void stipulations against liability for negligence. A contract being found, the question becomes one of public policy rather than positive law. The only issue then is whether the contract in question is truly inconsistent with the maintenance of that high standard which public service demands. And it follows that where the service in question is not public in character, or is not being rendered upon a public basis, there is no objection to a special contract reducing liability to the lowest terms. There is no public policy of the sort described involved in private employment of this character.

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