and management of the wagon, with his own drivers and horses, for specified distances, it was held that, notwithstanding this private agreement, they were jointly responsible to third persons for the negligence of the drivers throughout the whole distance.

If a carrier takes goods to carry only as far as he goes, and then enga ges to send them forward by another carrier, he is liable as carrier to the end of his own route; he is liable also if he neglects to send the goods on; but he is not liable for what may happen to them afterwards. Thus far the law is quite settled.

It seems to be still the rule in England, that, if a carrier takes goods which are marked or otherwise designated to go to a place beyond his own route, it will be presumed that he agrees to carry them thither, and that he has made arrangements for that purpose, which affect him with the liability of a carrier, through the whole route, unless he can show that the fact is otherwise, and also that the sender understood the fact to be otherwise, or had good reason so to understand it.

It is otherwise in this country, according to the weight of recent authority, and a common carrier will not be held liable, as such, beyond his own route, without evidence of a distinct contract to that effect; and the mere fact of his receiving a package directed to a place beyond his route will not be sufficient evidence for that purpose.

This has been so held by the Supreme Courts of New York, Vermont, Massachusetts, and Connecticut. It is obvious that the opposite rule would be much less safe in this country of immense distances, and where companies sometimes associate, for the purpose of facilitating the carriage of goods over vast spaces, than in England. And we think it open to doubt, whether the rule stated as the English rule will continue without important modifications there.

THE CARRIER OF PASSENGERS.

The carriers of passengers are under a more limited liability than the carriers of goods. This is now well settled. The reason is, that they have not the same control over passengers as over goods; cannot fasten them down, and use other means of securing them. Hence the distinction applies to the carriage of slaves; for, while they are in some respects property, they are also possessed with the same power and necessity of locomotion as other men. But while the liability of the carrier of passengers is thus mitigated, it is still stringent and extreme. No proof of care will excuse the carrier if he loses goods committed to him. But proof of the utmost care will excuse him for injury done to passengers.

Some of the authorities, and, as we think, the reason of the case would justify us in saying, that the carrier of passengers is liable for injury to them, unless he can show that he took all possible care-giving always a reasonable construction to this phrase; and in the case of railroad companies, there is authority for using the words in almost their literal meaning; that is, for holding them liable for all injury to passengers which could have been possibly avoided.

A NOTICE BY THE CARRIER RESPECTING HIS LIABILITY.

It is now settled-though formerly denied that the common carrier has a right to make a special agreement with the senders of goods, which

shall materially modify, or even wholly prevent, his liability for accidental loss or injury to the goods. Whether he could make such a bargain with his passengers, to prevent his liability for injury to their persons, is much more doubtful. The question does not seem to have come directly before the courts. And although the language used to express the carrier's rights is sometimes broad enough to extend to the persons or passengers, as well as to their goods, we think it open to doubt whether this was meant, or would be generally admitted as law. And if it were admitted, we should expect the carrier held to stricter proof of a bargain, and to a more definite bargain, with regard to persons, than might suffice as to goods.

The principal question is, what constitutes such a bargain? It seems to be well settled, by the weight of authority in this country, that a mere notice that the carrier is not responsible, or his refusal to be responsible, although brought home to the knowledge of the other party, does not necessarily constitute an agreement. The reason is this. The sender has a right to insist upon sending his goods, and the passenger has a right to insist upon going himself, leaving the carrier to his legal responsibility; and the carrier is bound to take them on these terms. If, therefore, the sender or the passenger, after receiving such notice, only sends or goes in silence, and without expressing any assent, especially if the notice be given at such time, or under such circumstances as would make it inconvenient for the sender not to send, or for the passenger not to go, then the law will not presume from his sending or going an assent to the carrier's terms.

But the assent may be expressed by words, or made manifest by acts; and it is in each case a question of evidence for the jury, whether there was such an agreement.

It seems to be conceeded also, that a notice by the carrier, which only limits and defines his liability to a reasonable extent, as one which states what kind of goods he will carry, and what he will not; or to what amount only he will be liable for passengers' baggage, without special notice; or what information he will require, if certain articles, as jewels or gold, are carried; or what increased rates must be paid for such things -any notice of this kind, if in itself reasonable and just, will bind the party receiving it.

No party will be affected by any notice,-neither the carrier, nor a sender of goods, nor a passenger,-unless a knowledge of it can be brought home to him. In a case in Pennsylvania, where the notice was in the English language, and the passenger was a German, who did not understand English, it was held incumbent on the carrier to prove that the passenger had actual knowledge of the limitation in the notice.

But the knowledge may be brought home to him by indirect evidence. As by showing that it was stated on a receipt given to him, or on a tioket sold him, or in a newspaper which he actually read, or, perhaps, in one which he was in the habit of reading, or even that it was a matter of usage, and generally known. But in an action in Massachusetts for lost baggage, it was proved that there was a notice printed on the back of the passage ticket given to the plaintiff, that the defendants wonld not be responsible beyond a specific sun; but no other notice was given, nor was plaintiff's attention called to this. And it was held that these facts did

not furnish that certain notice which must be given to exonerate such carrier from his liability. This question is one of fact, which the jury will determine upon all the evidence, under the direction of the court. And if the notice is ambiguous, they will be directed to construe it against the carrier.

Any fraud towards the carrier, as a fraudulent disregard of a notice, or an effort to cast on him a responsibility he is not obliged to assume, or to make his liability seem to be greater than it really is, will extinguish the liability of the carrier so far as it is affected by such fraud.

If a carrier gives notice, which he is authorized to give, the party receiving it is bound by it, and the carrier is under no obligation to make a special inquiry or investigation to see that the notice is complied with, but may assume this as done.

It should, however, be remarked, that such notice affects the liability of the common carrier only so far as it is peculiar to him; that is, his liabil ity for a loss which occurs without his agency or fault; for he is just as liable as he would be without notice, for a loss or injury caused by his own negligence or default.

Whether a common carrier could make a valid bargain by which he should be free from all liability, however the loss might occur, may not be certain. But, in the present state of the law, we are inclined to think he might; so far, that such a bargain would protect him against everything but his own wilful or fraudulent misconduct. But no bargain could be made to protect him against this.

THE CARRIER'S LIABILITY FOR GOODS CARRIED BY PASSENGERS.

A CARRIER of goods knows precisely what goods, or rather what parcels and packages, he receives and is responsible for. A carrier of passengers is responsible for the goods they carry with them as baggage; what that is, the carrier does not always know; and he is responsible only to extent of what might be fairly and naturally carried as baggage. This must always be a question of fact, to be settled as such by the jury, upon all the evidence, and under the direction of the court. But there can be no precise and definite standard. A traveller on a long journey needs more money and more baggage than on a short one; one to some places and for some purposes, more than one going to other places or for other purposes.

Thus, in New York it was decided that baggage does not properly include money in a trunk, or any articles usually carried about the person. And, in another New York case, it was held that, where the baggage of a passenger consists of an ordinary travelling-trunk, in which there is a large sum of mone, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. But a passenger may carry, as baggage, money, not exceeding an amount ordinarily carried for travelling expenses. So in Massachusetts, it was held that common carriers are responsible for money, bona fide, included in the baggage of a passenger, for travelling expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. In Pennsylvania carriers were held responsible for ladies' trunks containing apparel and jewels. And, in Illinois, a common carrier of passengers was held liable for the loss of a pocket-pistol, and a

pair of duelling pistols, contained in the carpet-bag of a passenger, which was stolen out of the possession of the carrier. But in Tennessee it was held that " a silver watch, worth about thirty-five dollars; also medicines, handcuffs, locks, &c., worth about twenty dollars,"-were not included in the term baggage, and that the carrier was not responsible for their loss. In Ohio, it was held that a gold watch, of the value of ninety-five dollars, was a part of the traveller's baggage, and his trunk a proper place to carry it in. In another New York case, it was held that the owners of steamboats were liable as common carriers for the baggage of passengers; but to subject them to damages for loss thereof, it must be strictly baggage ; that is, such articles of necessity and personal convenience as are usually carried by travellers. It was accordingly held, in that case, that the carrier was not liable for the loss of a trunk, containing valuable merchantize and nothing else, although it did not appear that the plaintiff had any other trunk with him. But in a case in Pennsylvania, where the plaintiff was a carpenter moving to the State of Ohio, and his trunk contained carpenters' tools to the value of $55, which the jury found to be the reasonable tools of a carpenter, it was held that he was entitled to

recover.

There is some diversity, and perhaps some uncertainty, in the application of the rule; but the rule itself is well settled, and a reasonable construction and application of it must always be made; and for this purpose, the passenger himself, and all the circumstances of the case, must be considered.

The purpose of the rule is to prevent the carrier from becoming liable by the fraud; for this would be the case if a passenger should carry merchandise by way of baggage, and thus make the carrier of passengers a carrier of goods without knowing it, and without having been paid for it.

Generally, a common carrier of passengers, by stage, packet, steamer, or cars, carries the moderate and reasonable baggage of a passenger, without being paid specifically for it. But the law considers a payment for this so far included in the payment of the fare, as to form a sufficient ground for the carrier's liability to the extent above stated.

The carrier is only liable for the goods or baggage delivered to him and placed under his care. Hence, if a sender of goods send with them his own servant, and intrust them to him, and not to the carrier, the carrier is not responsible. So, if a passenger keeps his baggage, or any part of it, on his person, or in his own hands, or within his own sight and immediate control, instead of delivering it to the carrier or his servants, the carrier is not liable, as carrier, for any loss or injury which may happen. to them; that is, not liable without actual default in relation to these specific things. Thus, in an action brought in New York to charge a railroad, as common carriers, for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was aftewards stolen ; and it was held that the defendants were not liable. But if the baggage of a passenger is delivered to a common carrier, he is liable for it in the same way, and to the same extent, as he is for goods which he carries.

There has grown up in this country a very peculiar exception to the rules of evidence, in relation to traveller's baggage. This exception per

mits the traveller to maintain his action against the carrier by proving, by his own testimony, the contents of a lost trunk or box, and their value. It is said to rest altogether upon necessity. And, therefore, the testimony of the wife of the owner is similarly admissable. But it is always limited to such things-in quantity, quality, kind, and value-as might reasonably be supposed to be caraied in such trunk or valise. Thus in the State of Maine, where the plaintiff proved that he had delivered to the defendants a box, to be carried to a certain place; that the box was not delivered; that he had made a demand thereof; and that the defendants admitted its loss; and then "offered to show, by his own testimony, (it not appearing that he had any other means of showing it,) what was in said box, and the value of the articles," the declaration having alleged that the box contained medical books, surgical instruments, and chemical apparatus, it was held that the plaintiff's oath was inadmissable. The rule, with this limitation, seems reasonable and safe, and is quite generally adopted. In Massachusetts it was distinctly denied by the Supreme Court, but was afterwards established by statute.

The common carrier of goods or of passengers is liable to third parties for any injury done to them by the negligence or default of the carrier, or of his servants. So he is for injury to property by the wayside, caused by his fault. But the negligence of the party suffering the injury, if it was material and contributed to the injury, is a good defence for the carrier; unless malice on his part can be shown. Where the party injured is in fault, the common carrier has still been held liable, if that fault was made possible and injurious through the fault of the carrier. Thus, in a case in England, where a party was sued, not as a carrier, but for damage caused by his fault, in which case the defendant's servant left a horse and cart unattended in a public street, and the plaintiff, a child under seven years of age, during the driver's absence, climbed on the wheel, and other children urged forward the horse, whereby the plaintiff was thrown to the ground and hurt, it was held that the jury were justified in finding a verdict for the plaintiff, although the plaintiff was a trespasser, and contributed to the injury by his own act.

Whether a railroad company is responsible for fire set to buildings or property along the road, without negligence on its part, has been much considered, both in England and in this country. In some of our States they are made so liable by statute provision. And this fact, together with the general principles of liability for injury done, would seem to lead to the conclusion, that they are not liable unless in fault, or unless made so by statute.

A frequent cause of disaster, both on land on the ocean, is collision. For this, a carrier by land, a railroad company for example, should be held liable, in our view of this question, unless the company could show that it took all possible care to prevent the collision; and we do not know that the general principles of law in relation to carriers could lead to any other conclusion.

The common carrier at sea, whether under canvas or steam, must be held to a careful, if not a strict, compliance with the rules and practice applicable to each case of meeting another vessel, which have been devised for the purpose of preventing collision and of whlch we shall treat in our chapter on the Law of Shipping.