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time—say ninety days or thereabouts—is allowed.17 But, when one was required to file proof of loss before the time when it would naturally be known, the proviso was held unreasonable.18 There has been much litigation concerning the validity of the usual stipulation in telegraph blanks requiring the party aggrieved by the fault of the company to file his claim within a relatively short time.19

92. Restrictions applicable to special service.The rules which have just been stated apply only to public service, as there is no such public policy otherwise. Thus carriers of passengers may exempt themselves from liability for car employees and train boys.20 Railroads may stipulate against liability for express matter and circus trains.21 There need be no liability for cars and their contents upon private sidings before and after transportation, and a carrier may stipulate against liability for losses beyond its own lines.23 Where private service is being rendered there is no liability for such service which cannot be contracted away, and generally speaking where one performs service beyond his public obligation, he may make such terms concerning it as he pleases, without its being obnoxious to the rules under consideration. The whole matter,



17 Hatch v. Minneapolis St. P. & S. S. M. Ry. Co., 15 N. D. 491, 107 N. W. 1087.

18 Wabash R. R. v. Thomas, 222 Ill. 337, 78 N. E. 777. 19 Wolf v. Western Union Telegraph Co., 62 Pa. St. 83. 20 Griswold v. New York & N. E. R. R. Co., 53 Conn. 371, 4 Atl. 261.

21 Coup v. Wabash, St. L. & P. Ry. Co., 56 Mich. 111, 22 N. W. 215, LEADING ILLUSTRATIVE CASES.

22 Mann v. Pere Marquette Ry. Co., 135 Mich. 210, 97 N. W. 721. 23 St. John v. Southern Exp. Co., 1 Woods 612 (U. S.).

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so far as this chapter is concerned, is dependent upon whether the service in question is public. And it will be remembered, too, that the instances referred to in this paragraph have already been discussed in other connections as not within the law governing public employment.

93. Liability in gratuitous service.—Where the service is gratuitous there is no obligation to undertake it upon a public basis. Therefore where service is being rendered without there being any compensation involved in the transaction, the special law of the public service does not apply. But, where a jack was shipped by a steamboat without anything being said about compensation, the court held that in the absence of a special understanding it would be assumed that the carriage was for hire and the carrier liable as an insurer.24 Although not obliged to perform gratuitous service upon the usual terms, the one who is performing such service may assume the usual obligations which pertain to it. Thus there is no doubt among the authorities that a person carried gratuitously by a railroad is a passenger, and is entitled to the same care as any passenger.25 It should, however, be plain that a carrier who is carrying a passenger gratuitously does not necessarily owe him the duty owed by a common carrier. Although it is obliged to take care even of a gratuitous passenger, still the obligations of the common carrier do not bind it. The question commonly arises as to the validity of a stipulation against lia

24 Knox v. Rives, Battle & Co., 14 Ala. 249. 25 Quimby v. B. & M. R. R., 150 Mass. 365, LEADING ILLUSTRATIVE CASES.

bility for injury by negligence. Such an exemption is generally held binding, though in the case of a common carrier it would be void.26 It is now appreciated that the railway company is not truly in such a case acting upon a public basis, although there were once decisions the other way.27

94. Liability to their employees.—When a railroad is transporting its own employees without charge, 'there is another distinction to be taken which will make the solution of the problem easier. If the carriage is directly in connection with the work, the relation to the carrier is plainly that of a servant and not that of a passenger, as where a workman on a gravel train is taken from place to place as his services are needed.28 The decision is the same where employees are being taken to and from their job in work trains.29 If, however, the employee receives in addition to his regular compensation a pass giving him the right to travel as passenger, then he should be regarded as a passenger, nothing appearing to the contrary.30 Special tickets given employees to go to their work may, indeed, be regarded as part of the compensation of the employee.31 The whole question in these cases is whether one is engaged in the service or whether a service is being received.

95. Persons engaged in dependent service. In the majority of cases mail clerks and express mes

26 Northern Pacific Ry. Co. V. Adams, 192 U. S. 440, 24 Sup. Ct. 408. 27 Jacobus v. St. Paul & C. Ry. Co., 20 Minn. 125. 28 Evansville & R. R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092. 29 Ionnone v. New York N. H. & H. R. R. Co., 21 R. I. 452, 44 Atl. 592. 30 Dickinson v. West End St. Ry., 177 Mass. 365, 59 X. E. 60. 31 Indiana Traction Co. v. Langley, 98 N. E. 728 (Ind.).


sengers, although traveling in the cars appropriated for the special service, are said to be passengers, for it is pointed out that their transportation is included in the sum paid the railroad by the government. It is, however, generally recognized that as they are necessarily carried in a different car from a passenger coach, to the extent to which it is dangerous to travel in such a car instead of the ordinary passenger car, they take the risk of injury peculiar thereto.33 On the other hand, it is generally said that, as the carrier is not bound to receive them as passengers, it may make such arrangements as it pleases with regard to terms of carriage and its liability for injury.34 In other words these persons may be taken upon a public or a private basis, as the facts may show. There are, however, some radical cases deserving of consideration where the fundamental principle in all this is said to be that the carrier cannot make stipulations against liability for injuries to persons being transported in connection with the matters as to which it owes a duty, obliging it to permit persons to travel in the way described as a matter of right.35

96. Real basis of the service. The matters discussed in this chapter are well worth serious consideration. The questions involved are two upon analysis; and these are the most fundamental ones in the law governing public service. First: Have we a case of public service in the facts before us? It can be shown not to be a case of public service, if the business itself is not in general public in charactér; or if in particular there has been no undertaking to perform the service in question upon a public basis. Second: Granting that a public service is being rendered, will a special contract relating to the liability during the service be given effect? This special arrangement in turn may fail for one of two reasons: either there is no good contract at all, for lack of initial consent or consideration, or else, if the contract is found, it will be held to be against public policy, as tending to relax those high standards of care in the performance of public service upon which our law is so insistent.

32 Cleveland C. C. & St. L. Ry. v. Ketcham, 133 Ind. 346, 33 N. E. 116. 33 Barker v. Chicago P. & St. L. Ry. Co., 243 Ill. 482, 90 N. E. 1057. 34 Baltimore & 0. S. W. Ry. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385. 85 Baker v. Boston & M. R. R. Co., 74 N. H. 100, 65 Atl. 386.

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