23 N.H. 275 | Superior Court of New Hampshire | 1851
The main question presented is, whether there is any evidence competent for the consideration of the jury, that the defendants were common carriers of goods by the passenger trains of cars ?
"What are the duties and liabilities of common carriers, and who are to be considered such, are subjects on which the decisions have been very numerous, as might have been expected from the importance of the inquiry, and the great amount of property entrusted to persons .of this class.
A common carrier is a person who undertakes to transport from place to place for hire, the goods of those who choose to employ him. Gisbourn v. Hurst, 1 Salk., 249; Dwight v. Brewster, 1 Pick., 53. A distinction is made between such persons and those whose business it is to convey passengers, who are said not to be common carriers. Aston v. Heaven, 2 Esp., 533 ; Sharp v. Grey, 9 Bing., 460. A carrier of goods undertakes to deliver them at all hazards, but a carrier of passengers is not responsible for accidents which happen in spite of every precaution. Christie v. Gregg, 2 Camp., 79; Weed v. Sand S. Railroad Co., 19 Wend., 543. The reason for this distinc
But in order to impose this- extensiva responsibility upon the defendants, it must appear that they have held themselves out to the world as common carriers by the passenger trains of cars upon their railway. Their object, however, was not the conveyance of goods by these trains, but the transportation of passengers. The cars upon the passenger trains are not provided with conveniences for the deposit of such articles as those now in question, during their transit. They may, however, be used for the carriage of goods, as well as of passengers, if the proprietors see fit to do so, and in that case they become common carriers. Their position would then be similar to that of proprietors of stage coaches, who may, in addition to the transportation of passengers, become liable as common carriers, by usually carrying goods for hue. In Middleton v. Fowler, 1 Salk., 282, the action was case for the negligence of the defendants in losing a trunk which was delivered to the driver of a coach, who promised to take care of it. It was held that the defendants were not within the custom as carriers, unless they took a distinct price for the carriage of goods as well as of persons, and that money-given to the driver was a mere gratuity and could not make the master liable, which could not be done by the servant unless he were acting in execution of the authority given by the master.
In this case, the evidence shows that twice within two years, goods have been conveyed by the passenger trains, under the charge of some of the persons employed by the defendants. As the bills, however, did not state that they were carried by the passenger train, and as it does not appear, that it was understood they were to be thus transported, it is perhaps fair to suppose that they were carried on this train, for the temporary convenience of the company, and that they did not intend by so doing to hold themselves out to the world as common carriers by the passenger cars. The fact that the conductor had carried goods and eggs to market for an individual, as it does not ap
The evidence is, that both the printed rule of the company, and the practice for five years past, had been, not to send articles by the passenger train. These articles were such as are usually carried as personal baggage. They were not accompanied by the owner, and, by the printed rule, on which the defendants rely and by the practice, no agent was authorised to send them by the passenger train. This evidence is not contradicted or qualified, in any degree, by any evidence offered by the plaintiff, or by those parts of the printed rules, on which he relies ; and a decision that the defendants are, notwithstanding, liable as common carriers of these articles, by the passenger train, would conflict not only with the evidence, but with the authorities which define the nature and responsibilities of persons of this description. We find nothing in the authorities authorizing the position that a single instance, like that which happened in the year 1846, standing alone, with no attendant circumstances to give it any additional weight, tends to prove the existence of that habit and practice which must be shown, to constitute the defendants common carriers by the passenger trains. Such responsibilities are not imposed on persons who on one particular occasion transport goods for hire, but on him only, who in the words of Story, on Bailments, 322, “ undertakes to convey goods for persons generally,” and who “ holds himself out, as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation, pro hac viceS A practice of conveying goods
There is another reason also, why the plaintiff cannot recover in this case. When the articles were delivered to the ticket-master, at Andover, there was no label upon them. It could not be known on inspection, who was the owner of them, or to what place they were to be sent. The ticket-master promised to put a label upon them, but that was his contract, and not the contract of the defendants. There is nothing to show, that they ever undertook to render such services to the public, and the evidence is, that it was not the duty of the ticket-master. Without something to indicate the disposition to be made of the articles, it would be obviously unjust to compel the defendants to be responsible for them. The undertaking by the ticket-master to do something which neither he nor the company was bound to do, was, if not a mere voluntary courtesy, certainly not a contract binding upon the defendants, and it is difficult to see how, under these circumstances, they can be liable.
Judgment on the Verdict.