Thus, where a yardmaster out of hours took an engine and car without permission of the defendant company, and invited persons to ride free in the car to a meeting, over a portion of the road not used for passenger trains, he was held not to have even apparent authority to act for the company, and the persons so riding were not passengers.30 And where a party of children were invited by a servant of the carrier to ride on a train which was being shifted through the yard, they were not passengers.31

In a few cases, however, it has been held that children riding on a vehicle by invitation of a servant of the company are entitled to be regarded as passengers. Thus, where the driver of a stret car invited children to ride on the front platform, they were held to be passengers ;32 and where a conductor invited a boy to ride in a freight train (on which passengers were sometimes carried) the boy was held to be a passenger.33 But these cases can hardly be supported on this point. The children con

Headland, 18 Col. 477, 33 Pac. 185, 20 L. R. A. 822 (1893) (conductor induced to let plaintiff ride free on freight train); Toledo, W. & W. Ry. v. Brooks, 81 Ill. 245 (1876) (conductor induced to let plaintiff ride free on passenger train); Chicago & A. R. R. v. Michie, 83 Ill. 427 (1876) (riding on engine by consent of engineer); McVeety v. St. Paul, M. & M. Ry., 45 Minn. 268, 47 N. W. 809, 22 Am. St. Rep. 728, 11 L. R. A. 174 (1891); (riding free on freight train); Woolsey v. Chicago, B. & Q. R. R., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79 (1894) (riding on engine by consent of fireman, to shovel coal); Robertson v. New York & E. R. R., 22 Barb. (N. Y.) 91 (1856) (riding on engine by consent of engineer).

30 Chicago, S. P. & O. Ry. v. Bryant, 65 Fed. 969, 13 C. C. A. 249 (1895).

31 Reary v. Louisville, N. O. & T. Ry., 40 Lt. Ann. 32, Am. St. Rep. 497 (1888).

So. 390, 8

32 Wilton v. Middlesex R. R., 107 Mass. 108 (1871); Muehlhausen v. St. Louis R. R., 91 Mo. 332, 2 S. W. 315 (1886); Buck v. Power Co., 108 Mo. 185, 18 S. W. 1090 (1892).

33 St. Joseph & W. R. R. v. Wheeler, 35 Kan. 185, 10 Pac. 461 (1886); Sherman v. Hannibal & S. J. R. R., 72 Mo. 62, 37 Am. Rep. 423 (1880), (semble); Whitehead v. St. Louis, I. M. & S. Ry., 99 Mo. 263, 11 S. W. 751, 6 L. R. A. 409 (1889).

cerned were clearly guests of the servant, not of the carrier. However far the apparent authority of a conductor may be held to extend, it cannot cover an invitation to ride free; free carriage is not the carrier's business.

If one riding free by invitation of a servant is not a passenger, a fortiori one who by misrepresentation induces the servant to let him ride free is not a passenger;34 and still more clearly one who bribes the servant by a small fee to let him ride without paying the regular fare is not a passenger.35

34 Condran v. Chicago, M. & S. P. Ry., 67 Fed. 522, 14 C. C. A. 560, 32 U. S. App. 182 (1895).

35 McNamara v. Great Northern Ry., 61 Minn. 296, 63 N. W. 726 (1895); Janny v. Great Northern Ry., 63 Minn. 380, 65 N. W. 450 (1896); Brevig v. Chicago, S. P. M. & O. Ry., 64 Minn. 168, 66 N. W. 401 (1896).

§ 171. Varieties of common carriers.

In the chapters immediately preceding this the principal factors necessary for the establishment of common carriage have been discussed. In this chapter it is thought advisable to enumerate the different kinds of common carriers which are recognized as meeting those tests. This seemed necessary as the principal problem for discussion throughout this volume is the regulation

not only of railroad rates, but so far as there are decided cases, of the rates of all common carriers for transportation and incidental services. In classifying these varieties of common carriers the traditional division is made between carriers of goods and carriers of passengers, but this is obviously not entirely workable since many carriers, and the railways in particular, are usually carriers both of goods and of passengers.

TOPIC A- -CARRIERS OF GOODS.

$172. Pack carriers.

The earliest form of common carriage in England was by means of pack horses. The country roads were not adapted for wheeled vehicles, and the carrier was obliged to carry his goods on the horses' backs in panniers. Such were the two carriers who appear in the first part of Shakespeare's Henry IV.1 One of them had "a gammon of bacon and two razes of ginger to be delivered as far as Charing-cross," while the other had turkeys in his pannier. Such also was the carrier who took certain bales to carry to Southampton, and by breaking open the bales and stealing the contents provided a leading case in the law of larceny.2

173. Wagoners.

As the roads grew better and traffic between different parts of the country consequently increased, goods began to be carried in wagons; and the common carrier by land was a wagoner or carter. This continued to be the common method of land carriage of goods down to the invention of railroads, and such carriers might unquestionably be common carriers.3

1 Act II, scene 1.

2 Year Book, 13 Edw. iv, 9, pl. 5 (1473).

3 Georgia. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847). Illinois.-Parmalee v. Lowrtz, 74 Ill. 116, 24 Am. Rep. 276 (1874).

174. Hoymen.

As in the case of land carriage, so in the case of water carriage, there are carriers who do not ply regularly between fixed termini, but carry for those who employ them anywhere on a certain river or within a certain harbor. Such persons are ordinary carriers, at least, though whether they are common carriers or not may depend upon the nature of their profession. If however the lighterman does not take the goods, but they remain in the control and possession of the owner, the lighterman is to be regarded as merely furnishing the motive power; not taking possession he cannot be technically a carrier.1

§ 175. Ships.

That there was no essential difference between carriage by land and carriage by sea was established at a comparatively early day. Hale v. New Jersey Navigation Company, is an excellent summary of the matter. The suit was brought against the defendants, as common carriers, for two carriages shipped on board the "Lexington," to be transported in said boat, for hire, from New York to Boston or Providence. The boat and goods were destroyed by fire, in the Sound; and a verdict was given for the plaintiff, the defendants excepted to the charge, and claimed that they were not common carriers or sub

Kentucky.-Robertson v. Kennedy, 2 Dana (Ky.), 430, 26 Am. Dec. 466

(1834).

Mississippi. Harrison v. Roy, 39 Miss. 396 (1860).

Ohio. Samms v. Stewart, 20 Ohio St. 69, 55 Am. Dec. 393 (1847). Pennsylvania.-Gordon v. Hutchinson, 1 W. & S. (Pa.) 285, 37 Am. Dec. 464, B. & W. 3 (1841).

Texas.-Chevallier v. Strahan, 2 Tex. 115, 47 Am. Dec. 639n (1849).
England.—Gisbourn v. Hurst, 1 Salk. 249 (1710).

4 Liver Alkali Co. v. Johnson, L. R. 9 Exch. 338 (1874); Ingate v. Christie, 3 C. & K. 61, B. & W. 7 (1850); Maring v. Todd, 4 Campb. 225, 1 Starkie, 72 (1815); Dale v. Hall, 1 Wils. Chan. 281 (1750); Trent., etc., Nav. Co. v. Wood, 4 Dougl. 287, 3 Esp. 127, 1 T. R. 28 note (1785). 5 15 Conn. 539, 39 Am. Dec. 398 (1843).