under such circumstances is a common carrier, in spite of the fact that this occupation is merely incidental.15

It seems clear that there is nothing in the fact that the carrier is engaged in another business to prevent him from being also engaged in the business of common carrier; nor is there any reason why his business of carriage should not be merely incidental to his other business, provided the carriage is really a business and not a mere casual occupation. And in Gordon v. Hutchinson,16 Mr. Chief Justice Gibson said: "I am unable to understand why a wagoner soliciting the employment of a common carrier, shall be prevented, by the nature of any other employment he may sometimes follow, from contracting the responsibility of one. What has a merchant to do with the private business of those who publicly solicit employment from him? They offer themselves to him as competent to perform the service required, and, in the absence of express reservation, they contract to perform it on the usual terms, and under the usual responsibility."

$119. Truckman.

The case of the truckman also well illustrates the general principle; for even though he is a public truckman he must make a special bargain with each person who employs him. Even where a truckman is professing publicly the business of carrying goods from one part of a town to another, a few authorities have held that he is not a common carrier.17 The

15 Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847); Harrison v. Roy, 39 Miss. 396 (1860); Gordon v. Hutchinson, 1 W. & S. (Pa.) 285, 37 Am. Dec. 464, B. & W. 3 (1841); Chevallier v. Strahan, 2 Tex. 115, 47 Am. Dec. 639n (1849). In Haynie v. Baylor, 18 Tex. 498 (1857), it was held a question for the jury in such case whether the defendant solicited goods and so was common carrier, or took at request of plaintiff and was not. 16 1 W. & S. (Pa.) 285, 37 Am. Dec. 464, B. & W. 3 (1841).

17 Brind v. Dale, 8 C. & P. 207 (1837); Scaife v. Farrant, L. R. 10 Ex. 358 (1875); Faucher v. Wilson, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431 (1895); Jauniet v. American S. & M. Co. (Mo. App.), 84 S. W. 128 (1904).

reason for these decisions was expressed by Mr. Justice Denman in Scaife v. Farrant:18 "The defendant did not so deal with the public as to undertake to carry goods in the absence of an agreement as to terms of carriage; . . not that he will carry at all events, but only that he will carry if his estimates and terms, whether as to liability or otherwise, are agreed to.” Other authorities, however, hold that the truckman who holds himself out as a public truckman is a common carrier, even though it is impossible for him to fix in advance a tariff of charges, and he must therefore make a separate agreement as to his charges in each case.19 So a person who makes a public business of transporting goods from place to place in a town on a sled drawn by an ox-team has been held to be a common carrier.20

TOPIC D-SPECIAL ARRANGEMENTS AS TO THE CARRIAGE.

$120. Whether the transaction is upon a public or private basis.

It has just been seen that unless there has been some public profession to perform a certain public service there is no duty. to undertake that service. But suppose that one engaged in public employment does undertake to serve a particular applicant in a way not exactly within the obligation or to an extent beyond the usual limits of the service, is the result that the relation is that of a private party to a private contract or is the relation that of one in public employment to one of the

18 L. R. 10 Ex. 358, 364 (1875).

19 Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847); Robertson v. Kennedy, 2 Dana (Ky.), 430, 26 Am. Dec. 466 (1834); Cayo v. Pool, 21 Ky. L. Rep. 1600, 55 S. W. 887, 49 L. R. A. 251 (1900); Farley v. Lavary, 21 Ky. L. Rep. 1252, 54 S. W. 840, 47 L. R. A. 383 (1900); Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899); Robinson v. Cornish, 13 N. Y. Suppl. 577 (1890); Culver v. Lester, 37 Can. L. J. 421 (1901).

20 Robertson v. Kennedy, supra.

public? This issue requires discussion, for the phases of this problem are various and some discriminations must be made in order to state the law governing such special arrangements within the public service.

§ 121. Special train.

A railroad may run a special train, not intended for passengers, in which no one can claim to be carried as a passenger as of right. In a case in Georgia1 it appeared that there had been a wreck on a branch of the defendant's road, several miles from the town of Washington, by reason of which regular traffic on that branch had been suspended. An engine and freight car were run from Washington to the scene of the wreck, and the plaintiffs and others requested permission of the conductor in charge of the train to ride thereon, which was granted. The plaintiffs offered to pay the conductor for the round trip, but he would accept fare only one way. He had previously told the plaintiffs that he would probably return to Washington in about an hour. This was about 7 o'clock in the evening. The train, however, did not leave the scene of the wreck until about midnight, and, when it did, the conductor, acting under instructions from the superintendent of the railroad, refused to transport the plaintiffs, who walked back to Washington, and brought suit for the refusal. The court held that the action would not lie. Mr. Justice Candler said: "The train upon which the plaintiffs rode from Washington to the scene of the wreck was in no sense a regular passenger train. Indeed, it was neither regular nor passenger. Its sole purpose was to meet an emergency with which the employes of the defendant were confronted. This fact was well known to the plaintiffs. The defendant was under no obligation to transport them on this train at all. There is nothing in the evidence to show

1 Louisville & N. R. R. v. Du Bose, 120 Ga. 339, 47 S. E. 917 (1904).

that they were on the train by the invitation of the conductor. On the contrary, they sought him out, and requested him to allow them to ride on the train; demonstrating that they recognized that he was under no obligation to do so. Nor can it be successfully contended that the defendant is liable to the plaintiffs for the violation of the verbal contract alleged to have been made with them by the conductor to allow them to return on the train when it should come back to Washington. It is true, as a general proposition, that a person on a train may rely on the undertakings of the conductor, within his implied authority; but in the present case the plaintiffs were well aware that an emergency existed which had deranged all regular business on this branch of the defendant's road, and which was liable to upset any plans that might be made by the conductor with reference to the running of this train. When they boarded the train, they took the chances of the happening of such a contingency."

§ 122. Special freight trains.

Where cars loaded with freight are to be hauled in a special train at special times, not on the regular schedule, and by a special arrangement, the railroad company in so hauling the

not a common carrier. This arrangement is commonly made between the owner of a circus and the railroad which transmits the establishment from one place of exhibition to another. The circus is transmitted in a special train, made up exclusively of the circus cars, on a special schedule of time, and for a price less than the regular rates; and the owner furnishes men to load and unload. For such transportation the railroad is not responsible as a common carrier.2

2 Chicago, M. & S. P. R. R. v. Wallace, 66 Fed. 506, 30 L. R. A. 161 (1895); Wilson v. Atlantic C. L. R. R., 129 Fed. 774 (1904); Robertson v. Old Colony R. R., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482 (1892); Coup v. Wabash, S. L. & P. Ry., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374, B. & W. 12 (1885).

In the leading case on the subject, Mr. Justice Campbell said: "The business of common carrier, while it prevents any right to refuse the carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by the carrier, and running on their own time. It is never the duty of a carrier, as such, to make up special trains on demand, or to drive such trains made up entirely by other persons, or by their cars. It is not important now to consider how far, except as to the owners of goods in the cars forwarded, the reception of cars, loaded or unloaded, involves the responsibility of carriers as to the owners of the cars as such. The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws, and not by the common law. But it is not incumbent on companies, in their duty as common carriers, to move such cars, except in their own routine. They are not obliged to accept and run them at all times and seasons, and not in the ordinary course of business. The contract before us involves very few things ordinarily undertaken by carriers. The trains were to be made up entirely of cars which belonged to plaintiff, and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents, defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which, under any circumstances, may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of accident. They contained wild animals, which defendant's men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage. The trains were not to be run at the option of the defendant, but had short routes and special stoppages, and were to be run on some part of the road chiefly during the night.

3 Coup v. Wabash, S. L. & P. Ry., supra.