an express company and that the express company carries money, does not make the railroad a carrier of money.9 $127. Cattle. The carriage of live stock is not ordinarily within the profession of most carrers by land. In the case of railways, however, it is generally agreed that live stock comes within the classes of goods which the railway undertakes to carry and that the railway is therefore a common carrier of live stock in its cattle trains.10 9 Kuter v. Michigan C. R. R., 1 Biss. 35 (1853). 10 Alabama-South & N. A. R. R. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578 (1875); Cen. Railroad Co. v. Smitha, 85 Ala. 47 (1887). Illinois Ohio, etc., R. R. v. Dunbar, 20 Ill. 623 (1858); T., W. & W. R. Co. v. Hamilton, 76 Ill. 393 (1875); Toledo, etc., R. R. Co. v. Thompson, 71 Ill. 434 (1874); St. Louis, etc., R. v. Dorman, 72 Ill. 504 (1874); Illinois Cent. R. R. v. Hall, 58 Ill. 409 (1871). Indiana Evansville, etc., R. R. v. Young, 28 Ind. 516 (1867). Kansas Kansas Pac. R. R. Co. v. Nichols, 9 Kan. 235, 12 Am. Rep. 494 (1872); Kansas, etc., R. R. v. Reynolds, 8 Kan. 623 (1871); Railroad Co. v. Sampson, 30 Kan. 645 (1883). Kentucky-Hall v. Renfro, 3 Met. (Ky.) 51 (1860). Maine Sager v. Portsmouth, etc., Railroad, 31 Me. 228 (1850). Massachusetts-Evans v. Fitchburg R. R., 111 Mass. 142, 15 Am. Rep. 19 (1872); Smith v. Railroad, 12 Allen (Mass.), 531 (1866). Minnesota-Lindsley v. Chicago, M. & St. P. Railroad Co., 36 Minn. 539 (1887); Moulton v. St. Paul, M. & M. Railroad Co., 31 Minn. 85, 47 Am. Rep. 781 (1883). Mississippi-Chicago, St. L., N. O. Railroad Co. v. Abels, 60 Miss. 1017 (1883). Missouri-Ballentine v. North. Mo. Railroad, 40 Mo. 491 (1867). Nebraska-Chicago, etc., R. R. v. Williams, 61 Neb. 608, 85 N. W. 832 (1901); Atchinson, etc., R. v. Washburn, 5 Neb. 117 (1876). New Hampshire-Rixford v. Smith, 52 N. H. 355 (1872). New York-Harris v. Northern Ind. Railroad, 20 N. Y. 232 (1859); Clarke v. Rochester & S. Railroad, 14 N. Y. 570, 67 Am. Dec. 205 (1856). North Carolina-Lee v. Raleigh & G. Railroad, 72 N. C. 236 (1875). Ohio-Wilson v. Hamilton, 4 Ohio St. 722 (1855); Welsh v. Pittsburg, Ft. W. & C. Railroad, 10 Ohio St. 65 (1859). In Michigan, however, a railway is held not to be a common carrier of live stock.11 § 128. Carrier of passengers whether also a carrier of goods. A carrier of passengers is not necessarily also a carrier of goods. His vehicles may not be adapted for that purpose, or he may not desire to carry on both lines of business. Even if he does occasionally carry goods for hire on his vehicles, he is not necessarily a common carrier of goods. 12 If, however, in addition to carrying passengers the carrier commonly takes or publicly professes to take goods, he is of course a common carrier of goods also. This often happened in the case of stage coaches.13 Oregon-See Honeyman v. Oregon, etc., R. Co., 13 Oregon, 352, 10 Pac. 660, 57 Am. Rep. 20 (1886). Pennsylvania-Ritz v. Penn. R. Co., 3 Phila. (Pa.) 82, 15 Leg. Int. (Pa.) 75 (1858). South Carolina-Bambeig v. So. Carolina R., 9 So. Car. 61, 30 Am. Rep. 13 (1877). Tennessee-East Tenn., Vir. and Ga. Railroad Co. v. Hale, 85 Tenn. 69 (1886); Smitha v. Louisville & N. Railroad Co., 86 Tenn. 198 (1887); Louisville, etc., R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. Rep. 311 (1890). Texas-Missouri Pac. Ry. Co. v. Harris, 67 Texas, 166 (1886). Vermont-Kimball v. Rutland, etc., R. Co., 26 Vt. 247, 62 Am. Dec. 567 (1854). Wisconsin-Betts v. Farmers' Loan Co., 21 Wis. 80 (1866); Ayres v. Railroad Co., 71 Wis. 372, 5 Am. Rep. 226 (1888). Nashville & C. Railroad Co. v. Jackson, 6 Heisk, 271 1871). 11 Michigan So. R. R. v. McDonough, 21 Mich. 165 (1870); Lake Shore & M. S. R. R. v. Perkins, 25 Mich. 329, 12 Am. Rep. 275 (1872). 12 Elkins v. Boston & M. R. R., 23 N. H. 275 (1851); McRae v. Can. Pac. Ry., Montreal L. R. 4 S. C. 186 (1888). But see Levi v. Lynn & B. R. R., 11 Allen (Mass.), 300, 87 Am. Dec. 713 (1865). 13 McHenry v. Railroad Co., 4 Har. (Del.) 448 (1846); Sales v. Western Stage Co., 4 Iowa, 547 (1857); Dwight v. Brewster, 1 Pick. (Mass.) 50 (1822); Hollister v. Nowlen, 19 Wend. (N. Y.) 234 (1838); Cole v. Goodwin, 19 Wend. (N. Y.) 251 (1838); Beckman v. Shouse, 5 Rawle (Pa.), 179, 28 Am. Dec. 653 (1835); Wallier v. Skipwith, Meigs (Tenn.), 502 (1838) Peixott v. McLaughlin, 1 Strob. (S. C.) 468 (1847); Frink v. $129. Rolling stock, 14 It seems that a railroad company must accept for transportation at a reasonable rate for the service rendered locomotives, cars and other rolling stock. This was well stated in a Canadian case, where Judge King said on this point: "The company having exercised the powers of these Acts, and having a railway track which the legislature allowed them to run, and being engaged in the transportation of goods under the Acts for compensation, must be taken (at least prima facie and in the absence of a more limited profession) to hold themselves out as carriers of all descriptions of property capable of being reasonably and conveniently transported over rails by a locomotive engine, to the extent to which they have the means and accommodation for such traffic. Here it does not appear that the defendants ever declined to transport this description of goods; on the contrary it appears that they had previously transported a locomotive for plaintiff, and in the case in question they received the cars without objection, and as if it were otherwise, for we know from common observation how much of the ordinary business of railroads consists in carrying goods in the freight cars of other companies; and we also know that cars and engines are transported from their place of construction for hundreds of miles over lines of railway other than that on which they are to be used. Then as to the means which the defendants had to accommodate this traffic, there is the fact that they did accommodate it, and apparently without difficulty; and indeed there could not be much difficulty, as the plaintiff supplied the trucks and wheels for the moving of his goods, and the only thing that the defendants needed to supply was the locomotive power and labor. It seems to me, therefore, that the defendants were common carriers as to these goods, and bound Co., 4 G. Greene (Iowa), 555 (1854); Butler v. Basing, 2 Car. & P. 613 (1827); Blanchard v. Isaacs, 3 Barb. (N. Y.) 388 (1848). 14 Greene v. St. John & M. Ry., 22 N. B. (P. & T.) 252 (1882). to transport them, having the means to do so, and that (at all events in the absence of a rate of freight established according to statute) they were bound to transport them for a reasonable remuneration." 15 § 130. Newspapers. In an important recent case, elsewhere discussed fully, one point was whether a railroad in making a special arrangement with one newspaper company could maintain that it was under no duty to carry the newspapers of another publisher upon this train, as it had made no public profession to do so.16 The court held that it was bound to do so,; an extract from the apinion will show the modern view of this subject: "It is contended that it was, by reason of its contract with the Commercial Publishing Company, a private carrier of newspapers, and therefore was under no obligations to admit the newspapers of the complainant on its train. It is true that a common carrier may become a private carrier or bailee for hire, when as a matter of accommodation or special agreement he undertakes to carry something which it is not his business to carry." For example, "If a carrier of produce, running a truck boat, should be requested to carry a keg of silver or a load of furniture, he might justly refuse to receive such freight, except by such an agreement as he might choose to make. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered 15 Accord in principle, Rogers Locomotive Works v. Erie Ry., 20 N. J. Eq. 379 (1869). 16 News Publishing Co. v. Southern Ry., 110 Tenn. 684, 755 W. 941 (1903). powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character." 17 $131. Other special classes of goods. If the goods, while similar in bulk and in manner of use to goods actually carried, are fragile or dangerous, or otherwise require special treatment, a carrier who has never professed to carry them may refuse to accept them as a common carrier. So where an express company had never professed to carry glass as a common carrier, and on the terms required of a common carrier, writ of mandamus to compel the company to receive and carry glass on such terms was refused.18 And so where the goods are of a dangerous nature, it seems clear that the carrier may refuse to receive them on the ground that he has never professed to carry goods of that kind.19 For as has been seen many times in the course of this discussion, there are for various natural reasons different classes of goods, and a practice of taking goods of one class does not establish any profession to take goods of another class. Thus in an early case in Delaware, Tunnel v. Pettijohn,20 a carter who usually carried parcels of moderate size, but who had taken a hogshead of molasses after first refusing it because of its size, was held not responsible for it as a common carrier. The grounds of the court were: There seems to be good reason for distinguishing between this and other kinds of goods, on 17 Cited from Hutchinson on Carriers, § 44, and from New York C. R. R. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627 (1873). 18 People ex rel. Walker v. Babcock, 16 Hun (N. Y.), 313 (1818); Toy v. Long Island Railroad, 26 Misc. (N. Y.) 792, 56 N. Y. Suppl. 182 (1899). See, also, Pender v. Robbins, 51 N. C. 207 (1858). 19 California Powder Works v. Atlantic, etc., R. Co., 113 Cal. 329, 45 Pac. Rep. 691, 36 L. R. A. 648 (1896); Farrant v. Barnes, 11 C. B. N. S. 553, 8 Jur. N. S. 868, 31 L. J. C. P. 137, 103 E. C. L. 553 (1862), per Erle, C. J.; Alston v. Herring, 11 Exch. 822, 25 L. J. Exch. 177 (1856). 202 Harr. (Del.) 48 (1836). |