Bennett v. Dutton

10 N.H. 481 | Superior Court of New Hampshire | 1839

Parker, C. J.

It is well settled, that so long as a common carrier has convenient room, he is bound to receive and carry all goods which are offered for transportation, of the sort he is accustomed to carry, if they are brought at a reasonable time, and in a suitable condition. Story on Bailment 328; 5 Bing. R. 217, Riley vs. Horne; (15 Eng. C. L. R. 426.)

And stage coaches, which transport goods as well as passengers, are, in respect of such goods, to be deemed common carriers, and responsible accordingly. Stoi-y 325.

Carriers of passengers, for hire, are not responsible, in all 'particulars, like common carriers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. ¡For an injury happening to the person of a passenger by mere (accident, without fault on their part, they are not responsible ; [but are liable only for want of due care, diligence or skill. This results from the different nature of the case. But in {relation to the baggage of their passengers, the better opinion | seems to be that they are responsible like other common car(riers of goods.

And we are of opinion that the proprietors of a stage coach, for the regular transportation of passengers, for hire, jfrom place to place, are, as in the case of common carriers of /goods, bound to take all passengers who come, so long as | they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for a refusal. 2 Sumner 221, Jencks vs. Coleman; 19 Wend. R. 239.

The principle which requires common carriers of goods to take all that are offered, under the limitations before suggested, seems well to apply.

Like innkeepers, carriers of passengers are not bound to receive all comers. 8 N. H. Rep. 523, Markham vs. Brown. The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion. And his object at the time may furnish a sufficient excuse for a refusal; as, if it be to commit an assault upon another passenger, or to injure the business of the proprietors.

The case shows the defendant to have been a general carrier of passengers, for hire, in his stage coach, from Nashua to Amherst, at the time of the plaintiff’s application. It is admitted there was room in the coach ; and there is no evidence that he was an improper person to be admitted:, or that he came within any of the reasons of exclusion before suggested.

It has been contended that the defendant was only a special carrier of passengers, and did not hold himself out as a carrier of persons generally ; but the, facts do not seem to show a holding out for special employment. He was one of the proprietors, and the driver, of a line of stages, from Nashua to Amherst and Prancestown. They held themselves out as general passenger carriers between those places. But, by reason of their connexion with French’s line of stages from Lowell to Nashua, they attempted to make an exception of persons who came from Lowell to Nashua, in Tuttle’s stage, on the same day in which they applied for a passage for the north. It is an attempt to limit their responsibility in a particular case or class of cases, on account of their agreement with French.

It is further contended, that the defendant and other proprietors had a right to make rules for the regulation of their business, and among them a rule that passengers from Lowell to Amherst and onward, should take French’s stage at Lowell ; and that by a notice brought home to the individual, the general responsibility of the defendant, if it existed, is limited.

But we are of opinion that the proprietors had no right to limit their general responsibility in this manner.

It has been decided, in New-York, that stage coach proprietors are answerable, as common carriers, for the,baggage of passengers — that they cannot restrict their common law lia- [ bility, by a general notice that the baggage of passengers is Í at the risk of the owners — and that if a carrier can restrict j his common law liability, it can only be by an express contract. 19 Wend. 234, Hollister vs. Nowlen. And this principle was applied, and the proprietors held liable for the loss of a trank, in a case where the passenger stopped at a place where the stages were not changed, and he permitted the stage to proceed, without any enquiry for his baggage. 19 Wend. 251, Cole vs. Goodwin. However this may be, as 1 there was room in the defendant’s coach, he could not have lobjected to take a passenger from Nashua, who applied there, merely because he belonged to some other town. That (would furnish no sufficient reason, and no rule or notice to |that effect could limit his duty. And there is as little legal reason to justify a refusal to take a passenger from Nashua, merely because he came to that place in a particular conveyance. The defendant might well have desired that passengers at Lowell should take French’s line, because it connect-led with his. But if he had himself been the proprietor of Ithe stages from Lowell to Nashua, he could have had no right |to refuse to take a passenger from Nashua, merely because he (did not see fit to come to that place in his stage. It was not for him to enquire whether the plaintiff came to Nashua from ( one town or another, or by one conveyance or another. That the plaintiff proposed to travel onward from that place, could not injuriously affect the defendant’s business ; nor was the plaintiff to be punished, because he had come to Nashua in a particular manner.

The defendant had good right, by an agreement with French, to give a preference to the passengers who came in French’s stage ; and as they were carriers of the mail on the same route, it seems he was bound so to do, without an agreement. If, after they were accommodated, there was still room, he was bound to carry the plaintiff, without en-quiring in what line he came to Nashua.

Judgment for the plaintiff.