$187. Hackmen. The necessity of regulating the business of hackmen upon the principles of public service law has been apparent for centuries. Unless there is positive law requiring that all be served for reasonable rates there will be in this business oppression and extortion. The necessity of such regulation is sufficient proof of its propriety. At times those that are hindered by the enforcement of these rules complain that they are unreasonable. In Atlantic City v. Fansler, for instance, it was contended that the ordinance of the city that required every hackman to take anyone who applied at the established rates unless the sign "engaged " was displayed in good faith was unjustifiable. But Mr. Justice Garretson said, upon certiorari to dispose of a conviction under this ordinance: "We are unable to see that any of the regulations imposed by this ordinance are unreasonable. There is nothing unreasonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public street, to carry all persons applying to him for passage and legally tendering the fare, as common carriers are required to do; and a further regulation, such as is made in this ordinance, which provides for a convenient notification to intending passengers that the vehicle is already in actual use, which provision seems to be as well for the convenience of the driver, has nothing unreasonable in it.' 188. Street railways. A street railway company is obviously a common carrier of passengers. But, like a stage-coach, a street railway car may be New York.-Hollister v. Nowlen, 19 Wend. 234 (1838); Cole v. Goodwin, 19 Wend. 251 (1838); Blanchard v. Isaacs, 3 Barb. 388 (1848). Pennsylvania.-Beckman v. Shouse, 5 Rawle, 179 (1835). South Carolina.-Peixotti v. McLaughlin, 1 Strob. 468 (1847). 8 Bonce v. Dubuque, etc., Co., 53 Iowa, 278 (1880). used for the transportation of goods as well as of passengers. This is now commonly true of the long inter-urban lines; but it may equally be true of the ordinary street railways, which are primarily intended merely for carrying passengers through the streets of a city. Thus in the case of Levi v. Lynn & Boston Railroad it appeared to be the custom of the street railway to carry small parcels for hire on the front platform. The court held that this evidence was sufficient to warrant the jury in finding that the railway was a common carrier. 9 The cases which establish that the street railways are common carriers are again innumerable. And it is established beyond all question that they must serve all that apply with adequate facilities for reasonable compensation without discrimination. A few well-considered cases are subjoined.10 $189. Passenger elevators. A passenger elevator is plainly not a common carrier, as it does not purport to carry all who apply for transportation at a reasonable rate. But in maintaining and operating, an elevator for passengers, the owner is, according to the majority of the under a duty to exercise the same measure of care as is re cases, 9 11 Allen (Mass.), 300, 87 Am. Dec. 713, B. & W. 11 (1865). 10 United States.-Van der Venter v. Chicago City R. Co., 26 Fed. 32 (1885); Milwaukee Electric Ry. v. Milwaukee, 87 Fed. 577, B. & W. 336 (1898). Alabama.-Mobile St. Ry. v. Walters, 135 Ala. 227, 33 So. 42 (1902). California.-Barrett v. Market St. Ry., 81 Cal. 296, 22 Pac. 859 (1889). Indiana.-Citizens' Ry. Co. v. Twiname, 111 Ind. 587 (1887). Illinois.-Dean v. Chicago General R. Co., 64 Ill. App. 165 (1896). Massachusetts.-Levi v. Lynn & Boston R. R. Co., 11 Allen, 300, B. & W. 11 (1865). Nebraska. Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 20 L. R. A. 316, 55 N. W. 270, 38 Am. St. Rep. 753 (1893); Pray v. Omaha St. R. Co., 44 Neb. 167, 62 N. W. 447, 48 Am. St. Rep. 717 (1895); East Omaha St. R. Co. v. Godola, 50 Neb. 906, 70 N. W. 491 (1897); Lincoln F. Co. v. Heller, 100 N. W. 197 (1904). New York.-Barker v. Central Pk. N. & E. Ry., 151 N. Y. 237, 45 N. E. 550, 56 Am. St. Rep. 626, 35 L. R.. A. 489 (1896). 12 quired of a public carrier of passengers, the highest degree of care which human foresight can suggest.11 But certain cases refuse to go to this extent, holding that as the owner of the elevator is not engaged in a public calling, there is no occasion for imposing the extraordinary liability. Few courts, indeed, regard the owner of the elevator as a common carrier for all purposes in the sense that he is engaged in a public calling and obliged to serve all without discrimination. In the matter of exercising care his position is analogous to that of the common carrier of passengers, but beyond this the analogy ceases. The extraordinary liability of the carrier of passengers does not arise out of the nature of the calling, but rather out of the high regard for human life. Due care is care commensurate with the circumstances. One of the determining circumstances is that human life and safety are involved, and when such is the case, more diligence and circumspection is exacted than in other situations. $190. Pleasure railways. There are certain enterprises whereby people are moved about, like "merry-go-rounds," ""scenic railways," "shootingthe-chutes," ""ferris wheels," and the like, which are obviously not common carriers, however willing their proprietors may be 11 Marker v. Mitchell, 54 Fed. 637 (1893), affirmed in 62 Fed. 139, 10 C. C. A. 306, 22 U. S. App. 325 (1894); Treadwell v. Taylor, 80 Calif. 574, 5 L. R. A. 498, 13 Am. St. Rep. 175 (1889); Goodsell v. Taylor, 41 Minn. 207, 4 L. R. A. 673, 16 Am. St. Rep. 700 (1889); Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 N. E. 178, 64 Am. St. Rep. 35 (1898); Edwards v. Burke, 78 Pac. (Wash.) 610 (1904); Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010 (1895); Southern, etc., Assn. v. Lawson, 97 Tenn. 367, 37 S. W. 86, 56 Am. St. Rep. 804 (1896); Wise v. Ackerman, 76 Md. 375 (1896); Lee v. Knapp, 55 Mo. App. 391 (1893), (reasonable or ordinary care). 12 The following cases point out that the passenger elevators are really not common carriers. Sevier v. Bradley, 179 Mass. 329, 60 N. E. 395 (1901); Griffin v. Manice, 166 N. Y. 188, 59 N. E. 925 (1901); Edwards v. Manufacturers' Building Co. (R. I.), 61 Atl. 646 (1905). 13 to take all that will pay. This point is well discussed in a New York case13 involving the propriety of granting eminent domain for the Niagara Gorge trolley line, where Mr. Justice Andrews said, in part: "Whatever rule, founded on the adjudged cases, may be formulated on this subject, it cannot, we think, be framed so as to include the present case. The fact that the road of the petitioner may enable the portion of the public who visit Niagara Falls more easily or more fully to gratify their curiosity, or that the road will be public in the sense that all who desire will be entitled to be carried upon it, is not sufficient, we think, in view of the other necessary limitations, to make the enterprise a public one so as to justify condemnation proceedings. The case does not, we think, differ in principle from an attempt on the part of a private corporation, under color of an Act of the Legislature, to condemn lands for an inclined railway, or for a circular railway, or for an observatory, to promote the enjoyment or convenience of those who may visit the Falls." 13 Matter of the Niagara Falls & W. Railway, 108 N. Y. 375, 15 N. E. 429. PART II. PRIMARY DUTIES OF COMMON CARRIERS. CHAPTER VII. CONDITIONS PRECEDENT TO SERVICE. § 201. Public duty the basis of the restriction to reasonable charges. TOPIC A-DUTY OWED TO CERTAIN CLASSES OF PERSONS. § 202. Service owed to certain classes. 203. Person desiring shelter merely. 204. Person desiring to transact business. 205. Sleeping and parlor car subject to similar rule. 206. Person demanding incidental services. 207. Person assisting or meeting passengers. 208. Right involved is that of the passenger. 209. Extent of carriers duty to such persons. TOPIC B-TENDER OF COMPENSATION REQUIRED. § 210. Payment of fare as condition of receiving. 211. What is sufficient tender of fare or freight. 212. What denomination of money may be tendered. 213. Tender of money refused as counterfeit. 214. Tender of fare usually waived by the carrier. TOPIC C- GOODS MUST BE TENDERED IN PROPER MANNER. § 215. Goods must be tendered to the carrier at proper time. 216. Passengers must enter vehicle at proper time. 217. Goods must be tendered properly packed. 218. Special freight may require special tender. 219. Shipments in bulk should be received under proper conditions. 220. Reception of live stock. |