any person who takes the goods out of their possession, or The Rights and Liabilities of the riers of Goods. does any injury to them (k). This right arises from their Company as Cargeneral interest in conveying the goods, and their responsibility for any loss or injury to them during their transit. A carrier is, in all cases, entitled at common law to demand the price or hire of carriage before he receives the goods; and, if it is not paid, he may refuse to take charge of them. But, it is not necessary, in order to support an action for refusing to carry, that the satisfaction should have been tendered, in the strict sense of that term as applied to antecedent debts. It is sufficient, if the consignor was ready and willing to deal for ready money, and notifies that readiness and willingness to the carrier (1). Thus, the tolls On default of given, in addiAn account in We have already seen, that a railway company, in addition to the remedies given by the common law, have several special powers reserved to them, to entitle them to ascertain and recover the amount of tolls due to them. must be paid as the company may direct (m). payment of tolls a right of general lien is tion to the remedy by an action at law (n). writing of the lading of carriages must be given on pain of a penalty (o). Disputes concerning the amount of tolls may be settled by a justice (p). Lastly, in case of difference between the servants of the company and the owner, or person having charge, of any carriage passing on the railway, or of any goods conveyed by such carriage, respecting the quantity or nature of such goods, the servants of the company may examine the goods (g). The Rights and Liabilities of the Company as Carriers of Goods. The rights and liabilities of the company as carriers of passengers. As to the termination of the carrier's risk, it may be observed, that the material consideration is, whether the owner of the goods has taken any exclusive possession of them, or has terminated the custody of the carrier by an act or direction, which does not flow from the duty of the carrier. So long as the carrier retains the possession of the goods, or is to perform any further duty, either by custom or contract, as carrier, he is responsible for their safety. But when the transit is ended, and the delivery is either completed or waived by the owner, the responsibility of the carrier ceases (r). V. It is now proposed to consider the liabilities of carriers in respect of passengers: first, as to their luggage; secondly, as to their persons. Passengers by railways are accustomed as of right to take a certain specified quantity of luggage, for which no charge in addition to the fare is made. The quantity of luggage thus allowed is in some of the early special acts particularly specified; and in all the special acts passed during and subsequent to the session 8 & 9 Vict., the following clause as to passengers' luggage was inserted, viz., That every passenger travelling upon the railway might take with him his ordinary luggage, not exceeding a weight particularly specified, without any charge being made for the carriage thereof. The 7 & 8 Vict. c. 85, s. 6, as we have seen (s), also contains a provision, obliging all railway companies to permit third class passengers to take a limited quantity of luggage (†). (r) Story on Bailments, 345. (t) The weight of luggage allowed to 100lbs.; and in the case of thirdclass passengers, from 40 lbs. to 100 lbs. In six instances, the luggage allowed to passengers is limited in dimension as well as in weight; and in four acts it is provided, that passengers' luggage shall be conveyed at the risk of the company, upon the The doctrine seems now to be firmly established (u), that the responsibility of carriers of passengers with their luggage, stands, as to the luggage, upon the ordinary footing of common carriers (x). The observations already made with reference to the liabilities of common carriers, in respect of goods carried by them, are therefore applicable in considering the extent of the liability of railway companies for the loss or injury of the luggage of passengers carried on the railway. It follows, that a general notice limiting the liability of the company is of no avail; but the company are entitled to all the protection afforded by the Carriers Act; and special contracts may be made (y). With regard, however, to the persons of passengers, the carriers of passengers are not, like carriers of goods, insurers against all injuries except of the act of God or by public enemies, and their undertaking is not an undertaking absolutely, to convey safely. The rule appears to be, that passenger carriers are liable to carry safely those whom they take payment of a sum not exceeding twopence for each parcel. Biggs' Collection of Special Acts, 1845 (Introd. xxviii). In some of the early Special Railway Acts, the company are exempted from liability in respect of certain descriptions of passengers' luggage. See Elwell v. The Grand Junction Railway Company, 5 M. & W. 669. (u) In Story on Bailments, 324, it is said, "It has been a matter of some controversy, in what character the proprietors of stage-coaches and steam-boats, and rail-cars, are to be regarded. The more important question has been in regard to their liability for the baggage of passengers, whether it is that of common carriers, or only that of private persons engaging ordinarily for hire, that is, for due and reasonable skill and diligence in (x) Robinson v. Dunmore, 2 Bos. The Rights and Liabilities of the riers of Passengers. The Rights and Liabilities of the Company as Car riers of Passengers. into their coaches, as far as human care and foresight will go; consequently they are liable for the result of any accident which may arise through negligence. Thus it has been laid down, that every stage-coach proprietor impliedly undertakes that his coach shall be sufficiently secure to perform the intended journey, and he ought to examine its sufficiency previous to such journey; and if he do not, and by the insecurity of the coach a passenger is injured, an action is maintainable against the coach proprietor for negligence, though the coach had been examined previous to the journey before the accident, and though it had been repaired at the coachmaker's only three or four days before (y). So, if an accident happens from a defect in the original construction of a coach, the proprietor is liable, although the defect be out of sight, and not discoverable upon ordinary examination (z). In an action against a coach proprietor for negligence, it appeared that the plaintiff became an outside passenger for hire; that there was luggage on the roof of the coach, and no iron railing between the luggage and the passengers; and that the plaintiff, being seated with her back to the luggage, was, by a sudden jolt, thrown from the coach, and her leg was thereby broken. The learned judge directed the jury to find for the plaintiff, if they were of opinion that the injury sustained was occasioned by the negligence of the defendant. The jury found for the plaintiff, and stated that they so found on account of the improper construction of the coach, and of the luggage being on the seat; and it was held, that the case was properly submitted to the jury, and that the facts found specially by them amounted to negligence in the defendant (a). So, it has been decided, that if (y) Bremner v. Williams, 1 Car. & P. 414, per Best, J. (z) Sharp v. Gray, 9 Bing. 457. (a) Curtis v. Drinkwater, 2 B. & Adol. 169. The Rights and Liabilities of the Company as Car through the default of a coach proprietor in neglecting to provide proper means of conveyance, a passenger be placed riers of Passengers. in so perilous a situation as to render it prudent for him to leap from the coach, whereby his leg is broken, the proprietor will be responsible in damages, although the coach was not actually overturned (d). And it has been decided by a learned judge in a late case, that, if an accident happens to a passenger on a railway in consequence of the carriage running off the rails, the burthen of proof to disprove negligence, lies on the railway company, it having been shewn that the exclusive management both of the machinery and railway was in their hands (e). It is also to be observed, that the responsibilities of railway companies as carriers of passengers have been greatly extended by the statute 9 & 10 Vict. c. 93(f). Sect. 1 of this statute enacts, that, wheresoever the death of a person shall be caused by wrongful act, neglect, or default, such as would (if death had not ensued) have entitled the party injured to recover damages in respect thereof, in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such (d) Jones v. Boyce, 1 Stark. R. 493. (e) Carpue v. The London and Brighton Railway Company, 5 Q. B. 747; 3 Railway Cases, 692. The declaration, which was in case, charged, that the company were owners of the railway, and of carriages used by them for the conveyance of passengers along it, for reward; that, they being owners of the railway and carriages, plaintiff, at their request, became a passenger in one of the carriages, for reward to them, and they received him as such passenger, H H and it became their duty to use due (f) See this statute, post, App. 222. |