carry, although a bailee, is not one who undertakes the transportation of the goods on his own account, and he is therefore not a carrier of the goods.13 He differs in this respect from an express company or a dispatch transportation company,15 which though not personally carrying, still undertakes the carriage. 14 13 Briggs v. Boston & A. R. R., 6 Allen, 246 (1863); Roberts v. Turner, 12 Johns. 232, 7 Am. Dec. 311 (1854); Brown v. Denison, 2 Wend. 593 (1829); Platt v. Hibbard, 7 Cow. (N. Y.) 497 (1827); Achley v. Kellogg, 8 Cow. (N. Y.) 223 (1828); Teall v. Sears, 9 Barb. (N. Y.) 317 (1850); Stannard v. Prince, 64 N. Y. 300 (1876). 14 Infra 171. 15 Infra 172. CHAPTER IV. PUBLIC PROFESSION OF THE COMMON CARRIER. § 101. Nature of public profession. TOPIC A-PUBLIC EMPLOYMENT. § 102. Public profession as an assumption of a public trust. 103. Express profession of public employment. 104. By whom the profession must be made. 105. Lighterman. TOPIC B-PRIVATE BUSINESS. § 106. Employment in private business. 107. Private ferries. 108. Private railroad. 109. Private spur tracks. 110. Lateral branches. 111. Public spur tracks. 112. Industrial railways. 113. Tap lines. 114. Distinction between public lateral branch and private spur. TOPIC C- -CASUAL EMPLOYMENT. § 115. Intermittent employment. 116. Shipmaster. 117. Railroad not opened for passengers. 118. Incidental employment-Wagoner. 119. Truckman. TOPIC D-SPECIAL ARRANGEMENTS AS TO THE CARRIAGE. § 120. Whether the transaction is upon a public or private basis. 121. Special train. 122. Special freight trains. 123. Private excursion trains. 124. Establishment of train on guaranty of an individual. TOPIC E-EXTENT OF THE PUBLIC PROFESSION. § 125. To what goods the profession to carry extends. 126. Money. 127. Cattle. 128. Carrier of passengers whether also a carrier of goods. 129. Rolling stock. 130. Newspapers. 131. Other special classes of goods. 132. Obligation to carry all goods of a class. TOPIC F.-REGULAR BUSINESS. § 133. Special agreement. 134. Establishment of regular charge. 135. Permanent profession. 136. General practice. § 101. Nature of public profession. The plainest justification for the imposition of the extraordinary law which requires those who are in public callings to serve all that apply at reasonable rates, is that in initiation the service is voluntary. People are not forced into public service against their wills; it is only when they have held themselves out in some way as ready to accommodate all that apply that they are bound to serve indiscriminately. Whether there has been such a general undertaking to serve the general public is the primary question on the establishment of public calling. But it is a question of fact rather than a question of law in most cases; and the discussion of it requires the statement of many cases involving many close issues of fact. For although the public profession is often enough made in express terms, as by the advertisement of a carrier; it is also not infrequently left to implication from the general course of business. So very often there is no other way of judging of the nature of the business. TOPIC A-PUBLIC EMPLOYMENT. § 102. Public profession as an assumption of a public trust. In the earlier cases of public employment the profession to serve all that appear was spoken of as the assumption of a public trust in undertaking the business or as granting to the public of an interest in that business. The original rule was clearly expressed over two centuries ago by Lord Holt: "Wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. If, on the road a shoe falls off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest, where his house is not full, an action will lie against him; and so against a carrier, if his horses be not loaded and he refuses to take a packet proper to be sent by a carrier; and I have known such actions maintained, though the cases are not reported. . . . If the inn be full, or the carrier's horses loaded, the action will not be for such refusal; but one that has made profession of a public employment is bound to the utmost extent of that employment to serve the public.' $103. Express profession of public employment. An advertisement that a person proposes to engage in the business of carrying is sufficient evidence that he is a common carrier, whether the advertisement is a sign on his office 2 or a Lane v. Cotton, 12 Mod. 472, 484 (1701). 2 Ingate v. Christie, 3 Car. & K. 61 (1850). notice in a newspaper. And so the fact that a carrier has received a license to carry on business establishes his position as a common carrier, since the license is required only for public business.1 104. By whom the profession must be made. The public profession to carry must be made by the carrier himself, or some one expressly authorized by him to do it. Thus in a case where persons had been accepted as passengers on construction trains of an incomplete railroad by the person in charge of the work, the Supreme Court of Indiana well said:5 "Allen was a superintendent of construction and a civil engineer, and it is not shown that he had authority to receive the appellee as a passenger upon a road that had never been opened to the travelling public. The board of directors and the established rules of the company alone could make the appellant a common carrier for hire and the appellee a passenger. The power was not delegated to Allen, and it was beyond the scope of his authority to convert a construction train into a passenger train. He could not open an imperfect and incomplete road into one for passenger traffic without the consent of his superior of ficers." 105. Lighterman. Such a case is that of the lighterman, as was decided in the leading case of Ingate v. Christie." The defendant was employed 3 Doty v. Strong, 1 Pinn. (Wis.) 313, 40 Am. Dec. 773 (1843). 4 Babcock v. Herbert, 3 Ala. 392, 37 Am. Dec. 695 (1842); Farley v. Lavary, 107 Kỵ. 523, 54 S. W. 840, 47 L. R. A. 383 (1900); Atlantic City v. Brown, 71 N. J. L. 81, 58 Atl. 110 (1904); Robinson v. Cornish, 13 N. Y. Supp. 577 (1890); Culver v. Lester, 37 Can. L. J. 421 (1901): Gibson v. Silva, Rama-Nathan (Ceylon) 105 (circ. 1850). 5 Evansville & R. R. R. v. Barnes, 137 Ind. 306, 36 N. E. 1092 (1894), by Dailey, J. 63 Car. & K. 61, B. & W. 7 (1850). |