pensable. If one has books for instruction or his amusement by the way, or carries his gun or fishing-tackle, they would undoubtedly fall within the term 'baggage,' because they are usually carried as such." § 146. Baggage carried without compensation. As the baggage carried by the carrier and paid for in the fare is limited to the personal baggage carried with the passenger, it follows that if the passenger induces the carrier without further payment to carry something which is not personal baggage or to carry it apart from the passenger, the carriage is gratuitous. Furthermore, since the tender of what appears to be baggage for free carriage ordinarily involves a representation that the article tendered is personal baggage going with the passenger, it is accepted and carried on that basis, and if it is anything else the carrier cannot be held responsible for it in any way. If, therefore, the passenger delivers as baggage to the carrier articles of merchandise or other things not personal baggage, the carrier, taking them as baggage, is not responsible for their loss. "There was no undertaking to carry merchandise, and he had no right to impose his goods subtilely upon the company, and then seek to make the obligation that of a common carrier." " 18 18 The quotation is from Scott, J., in Michigan Cent. R. R. v. Carrow, 73 Ill. 348 (1874). See, also: United States-Humphreys v. Perry, 148 U. S. 627, 37 L. Ed. 587, 13 Sup. Ct. 711 (1893). Georgia Georgia R. Co. v. Johnson, 113 Ga. 589, 38 S. E. 954 (1901). Indiana-Doyle v. Kiser, 6 Ind. 242 (1855). Maine-Bluementhal v. Maine Cent. R. Co., 79 Me. 550, 11 Atl. 605 (1887). Massachusetts-Stimson v. Conn. River R. Co., 89 Mass. 83, 93 Am. Dec. 140 (1867); Collins v. Boston, etc., R., 10 Cush. (Mass.) 506 (1852); Jordon v. Fall River R. Co., 5 Cush. (Mass.) 69, 51 Am. Dec. 44 (1849). If, however, the carrier has notice that the articles are merchandise and accepts them for carriage, notwithstanding he is a gratuitous carrier he is responsible for any negligent injury to the goods. As Baron Parke said, in Great Northern Railway v. Shepard: 19 "If the plaintiff had carried these articles exposed, or had packed them in the shape of merchandise, so that the company might have known what they were, and they had chosen to treat them as personal luggage, and carry them without demanding any extra remuneration, they would have been responsible for the loss. If, indeed, they had notice, or might have suspected from the mode in which the parcels were packed that they did not contain personal luggage, then they ought to have objected to carry them." Indeed, under certain circumstances carriers might gladly carry merchandise in this way as a method of increasing their business, and in that case they would be carriers for hire and therefore under the liability of common carriers.20 "If he de Minnesota-McKibbin v. Great Northern R. Co., 78 Minn. 232, 80 N. W. 1052 (1899); Haines v. Chicago, St. P., M. & O. Ry. Co., 29 Minn. 160, 43 Am. Rep. 199, 12 N. W. 447 (1882). Mississippi Miss. Cen. R. Co. v. Kennedy, 41 Miss. 671 (1868). New York-Blanchard v. Isaacs, 3 Barb. (N. Y.) 388 (1848); Bell v. Drew, 4 E. D. Smith (N. Y.), 59 (1855). Ohio-Toledo, etc., R. Co. v. Bowler, etc., Co., 63 Ohio St. 274, 58 N. E. 813 (1900). Pennsylvania-Vemer v. Sweitzer, 32 Pa. St. 208 (1858). England-Belfast, etc., R. Co. v. Keys, 9 H. L. Cas. 556, 8 Jus. N. S. 367 (1861), 4 L. T. Rep. N. S. 841, 9 Wkly. Rep. 793; Great North. R. Co. v. Shepherd, 8 Ex. (Eng.) 30 (1852). 19 Supra. 20 United States-Hannibal, etc., R. Co. v. Swift, 12 Wall. (U. S.) 262, 20 L. Ed. 423 (1870); Jacobs v. Tutt, 33 Fed. 412 (1888). Arkansas-Kansas City R. Co. v. McGahey, 63 Ark. 344, 38 S. W. 659, 58 Am. St. Rep. 111, 36 L. R. A. 781n (1897). Illinois-Hamburg Am. Packet Co. v. Gattman, 127 Ill. 598, 20 N. E. 662 (1889). sired to have his merchandise or wares go upon the train with him, it was but just to the carrier he should disclose its nature and value, and if the company then chose to treat it as baggage, the liability of a common carrier would attach, but not otherwise." And a fortiori when the carrier, knowing the nature of the goods, charges and accepts extra compensation, he is responsible for them as a common carrier.22 § 147. Baggage carried apart from the passenger. For a similar reason a carrier is not responsible as a common carrier for baggage sent on by the owner when the owner does not accompany it as a passenger. The baggage which the carrier undertakes to transport without additional compensation is such baggage as may be carried with the passenger. Of course if the baggage is carried apart from the passenger for the convenience of the carrier without request of the passenger, or is so carried by agreement between the carrier and the passenger, the carrier is liable; but otherwise baggage sent before or after the passenger is to be dealt with and paid for as ordinary freight, Kansas-Chicago, etc., R. Co. v. Conklin, 32 Kan. 55, 3 Pac. 762 (1884). Missouri-Minter v. Pac. R. R., 41 Mo. 503, 97 Am. Dec. 288 (1867). New York-Stoneman v. Erie R. Co., 52 N. Y. 429 (1873). Ohio-Toledo, etc., R. Co. v. Dages, 57 Ohio St. 38, 47 N. E. 1039, 63 Am. St. Rep. 702 (1897). Oregon Oakes v. No. Pac. R. Co., 20 Ore. 392, 26 Pac. 230, 23 Am. St. Rep. 126, 12 L. R. A. 318 (1891). Texas-Snaman v. Mo., etc., R. Co. (Tex. Civ. App.), 42 S. W. 1023 (1897). England Gt. Northern Ry. v. Shepherd, 8 Exch. 30, 21 L. J. Exch. 286, 7 R. & Can. Cas. 310 (1852). But see Blumantle v. Fitchburg R. R., 127 Mass. 322, 34 Am. Rep. 376n (1879). 21 Scott, J., in Michigan Cent. R. R. v. Carrow, supra. 22 Stoneman v. Erie Ry., 52 N. Y. 429 (1873); Sloman v. Great Western Ry., 67 N. Y. 208 (1876); Millard v. Missouri, K. & T. R. R., 86 N. Y. 441 (1881); Texas & P. R. R. v. Capps, 2 Wills App. (Tex.) § 34 (1883). and if the passenger presents it and procures it to be carried as baggage, the carrier is not responsible for it.23 In Wilson v. Grand Trunk Railway,24 Chief Justice Appleton said: "The fare paid by a passenger for transportation over a railroad is the compensation for his carriage, for the transportation at the same time of such baggage as he may require for his personal convenience and necessity during his journey. Baggage subsequently forwarded by his direction, in the absence of any special agreement with the carrier or of negligence on his part, is liable, like any other article of merchandise, to the payment of the usual freight." TOPIC B GRATUITOUS ARRANGEMENTS. § 148. Gratuitous carrier liable for negligence. While a purely gratuitous carriage cannot make the carrier liable as a common carrier, he is liable, like any gratuitous bailee, for gross negligence.1 23 Federal Courts-The Elvira Harbeck, 2 Blatchf. (U. S.) 336, Fed. Cas. No. 4,424 (1857). Connecticut-Beers v. Boston & A. R. R., 67 Conn. 417, 34 Atl. 541, 52 Am. St. Rep. 293, 32 L. R. A. 535 (1896). Indiana-Perkins v. Wright, 37 Ind. 27 (1871). Iowa-Warner v. Burlington & Mo. R. R. R., 22 Ia. 166 (1867). Maine-Graffam v. Boston & M. R. R., 67 Me. 234 (1877); Wilson v. Grand Trunk Ry., 56 Me. 60, 96 Am. Dec. 435, B. & W. 128 (1868); Wood v. Maine Central Ry. 98 Me. 98, 56 Atl. 457 (1903). Michigan-Flint & Pere M. Ry. v. Weir, 37 Mich. 111 (1877); Marshall v. Pontiac, etc., Ry., 126 Mich. 45, 85 N. W. 242 (1901). New York-Fairfax v. New York Cen. R. R., 37 N. Y. Sup. Ct. 516 (1874); Burkett v. New York Cen. R. R., 24 Misc. (N. Y.) 76, 53 N. Y. Supp. 394 (1898). Virginia-Chesapeake R. R. v. Wilson, 21 Grattan (Va.) 654 (1872). 24 Supra. 1 Louisville, etc., R. Co. v. Gerson, 102 Ala. 409, 14 So. 873 (1894); Rice v. Ill. Cent. R. Co., 22 Ill. App. 643 (1887); Adams Exp. Co. v. Cressap, 6 Bush. (Ky.) 572 (1869); Flint & P. M. R. R. v. Weir, 37 Mich. 111, 26 Am. Rep. 499 (1877); Dudley v. Camden, etc., Ferry Co., 42 N. J. L. 25, 36 Am. Rep. 501 (1880); Coggs v. Bernard, 2 Ld. Raym. 909 (1704). As to what constitutes gross negligence there is much difference of opinion. It is commonly assumed that less care is due from a common carrier to one whose goods he carries gratuitously than toward an ordinary shipper who pays for the carriage; and this view is expressed by Mr. Chief Justice Cooley, in Flint & Pere Marquette Railroad v. Weir:2" There can be no question that a railway company which receives property for gratuitous carriage assumes, like any other gratuitous bailee, certain duties in respect to it, and that a suit will lie for a failure to perform these duties. But the obligation in such case is quite different from the obligation of a bailee who, for a consideration, received, or promised, undertakes to carry or to perform any other service with respect to the subject of the bailment. In the latter case the terms of the contract, if an express contract was made, will be the measure of the duties to be performed; and in the absence of any express contract the law itself will impose upon the bailee a higher degree of care and watchfulness than it demands of him who, for the mere accommodation of the bailor, undertakes the charge of his goods. The gratuitous bailee must not be reckless; he must observe such care as may reasonably be required of him under the circumstances; but it is not the same care which is required of the bailee who, for his own profit, assumes the duty. This is elementary, and is so reasonable that it requires no discussion. When care is bargained for and compensated, something is expected and is demandable beyond what can be required of him who undertakes a merely gratuitous favor." 3 2 Supra. 3 The following cases discuss gross negligence in gratuitous carriage: New Hampshire-Graves v. Ticknor, 6 N. H. 537 (1834). New York-Beardslee v. Richardson, 11 Wend. 25 (1833); Onderkirk v. Bank, 119 N. Y. 263 (1890). |