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§ 216. Passengers must enter vehicle at the proper time.

A passenger must present himself for carriage and enter the train at the proper time, neither too early nor too late. He cannot force himself on the railroad as a passenger by entering the car prematurely. Thus, he does not become a passenger by entering the car before it has been placed in a position in which passengers are to be received,2 cr by entering the car, even if it is at the proper position at the station, if it is not yet ready for passengers.3 Similarly, a person who reaches a train after it begins to move has no right to be received, and if he attempts to board he is not a passenger.*

217. Goods must be tendered properly packed.

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The carrier may refuse to receive goods for carriage unless they are properly packed; and indeed he must so refuse or take the risk from the improper packing. The same thing is true where freight is improperly loaded on a car by the shipper; the carrier must decline to accept it, properly prepare it himself for carriage, or be responsible for its safety. But the requirements of the carrier as to packing must be reasonable; he cannot reject a package on this ground if it is in fact rea

2 Farley v. Cincinnati H. & D. R. R., 108 Fed. 14, 47 C. C. A. 156 (1901); Curry v. Georgia M. & G. R. R., 92 Ga. 293, 18 S. E. 422 (1893).

3 Brown v. Scarboro, 97 Ala. 316, 12 So. 289 (1893); Hodges v. New H. S. Co., 107 N. C. 576, 12 S. E. 597 (1890); Tillett v. Lynchburg & D. R. R., 115 N. C. 662, 20 S. E. 480 (1894).

4 Illinois C. R. R. v. O'Keefe, 168 Ill. 115, 48 N. E. 294, 61 Am. St. Rep. 68n, 39 L. R. A. 148 (1897); Merrill v. Eastern R. R., 139 Mass. 238, 1 N. E. 548, 52 Am. Rep. 705 (1885); Georgia Pac. Ry. v. Robinson, 68 Miss. 643, 10 So. 60 (1891).

5 The David & Caroline, 5 Blatch. 266, Fed. Cas. No. 3,593 (1865); Union Express Co. v. Graham, 26 Ohio St. 595 (1875).

6 Elgin, J. & E. Ry. v. Bates Mach. Co., 98 Ill. App. 311 (1901). See Miltimore v. Chicago & N. W. R. R., 37 Wis. 190 (1875). Compare Michigan Congress Water Co. v. Chicago & G. T. Ry., 2 Int. Com. Rep. 428 (1888).

sonably safe for shipment. In general the loading and unloading of goods are under the carrier's control and he is responsible for any injury incident thereto. But if the shipper assumes the responsibility of loading and unloading the carrier is thereby relieved from liability for loss in that connection. But if the improper loading was apparent to the carrier's servant from ordinary observation the carrier will be liable."9

§ 218. Special freight may require special tender.

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Although in general, freight of all kinds may be forwarded from the regular freight stations, still there are special kinds of freight that require special handling. A lucid exposition of this exception may be found in Harp v. Choctaw, Oklahoma & Gulf Railroad.1 A railway company having a newly constructed line through a locality underlaid with coal at first allowed owners of mines to load coal from wagons upon cars shunted upon the station side track; later they withdrew this privilege and required coal miners to have spur tracks put in to their own premises. The railroad was held justified.

In the Circuit Court of Appeals the following reasons were given by Thayer, Circuit Judge: "A common carrier is entitled, in the first instance, by the common law, to establish reasonable rules and regulations governing the manner and

7 Bluthenthal v. Southern Ry., 84 Fed. 920 (1898);

Rhode Island E. &

B. Co. v. Lake Shore & M. S. Ry., 6 I. C. C. Rep. 176 (1894).

8 McCarthy v. Louisville, etc., R. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29 (1893); Penn. Co. v. Kenwood Bridge Co., 170 Ill. 645, 49 N. E. 215 (1897); Loveland v. Burke, 120 Mass. 139, 21 Am. Rep. 507 (1876); Jackson Architectural Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899); Ross v. Troy, etc., R. Co., 49 Vt. 364, 24 Am. Rep. 144 (1877); Miltimore v. Chicago, etc., Ry. Co., 37 Wis. 190 (1875).

9 McCarthy v. Louisville, etc., Ry. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29 (1893).

1 125 Fed. 445, 61 C. C. A. 405 (1903). See, to the same effect, Illinois R. R. v. People, 19 Ill. App. 141 (1886). Compare U. S. ex rel. Coffman v. Norfolk & W. R. R., 109 Fed. 831 (1901).

form in which it will receive such articles as it professes to carry, and providing how they shall be packed for shipment so that they may be handled and transported conveniently, safely, and expeditiously. This power to make reasonable regulations with respect to the manner in which it will receive commodities for transportation implies the existence of a power on the part of a common carrier to change or modify such regulations from time to time upon reasonable notice to the public, as otherwise it might be compelled to pursue a particular practice of receiving goods which it had once adopted, and was at the time attended with no inconvenience, after that practice had become exceedingly inconvenient and burdensome both to itself and the public. It is manifest, we think (indeed, so manifest that we might almost take judicial notice of the fact), that no railroad constructed through extensive coal fields and engaged in transporting coal to market could for any considerable period follow the practice of setting out cars on its station side tracks, some distance from the place where coal is mined, and permitting coal to be hauled thence by wagons and loaded into the cars by the slow process of shoveling. The useless consumption of time, and the additional expense incident to the handling of the commodity in question, in large quantities, in that primitive manner, would occasion great public loss and inconvenience, to say nothing of the loss sustained by the carrier, and the serious manner in which that method of handling coal would interfere with the movement of its trains and the transaction of its other business."

It may well be doubted whether this case is rightly decided upon general principles. It is true that a railway may make a lower rate to those shippers of coal who furnish their own facilities for loading coal in so economical a manner as by a tipple. But it would seem that the railroads must receive for transportation at reasonable rates also coal or any other commodity usually carried in bulk from wagons; this

was said squarely in one case before the interstate commerce commission.2 There the complainant, who was a druggist, offered coal for transportation from a wagon; the defendant railway refused to handle it because it was tendered in this way by such a person. But the commission inclined to hold the refusal unjustifiable, if based upon such reasons alone, saying: "That the complainant is a druggist, instead of a so-called legitimate operator, does not in the least abridge his right to enter the field of competition with those who possibly followed some other calling before they were coal operators. That he unloaded cars from wagons is not of itself a bar to his right to ship, else would a great bulk of our commerce suffer eclipse, since much of it is hauled in that way.'

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§ 219. Shipments in bulk should be received under proper conditions.

Every shipper having access to the railroad (by spur track or otherwise) should have the right to demand that the carrier receive his bulky goods at the track, and not require them to be tendered at the station. This right should exist in the case of all goods so bulky or otherwise of such a nature that a course of business has become established for them to be received in bulk beside the track. Such goods would include coal, grain, oil, and other things carried in bulk; heavy machinery and bulky manufactures of stone and metal, the carting of which by means of drays to a station would greatly and unnecessarily increase the cost of transportation. There is little direct authority on the point; the few decisions at common law involving a similar point turning on the right of a

2 Thompson v. Pennsylvania Ry., 10 I. C. C. Rep. 640 (1905).

3 Compare Riddle, Dean & Co. v. Pittsburg & L. E. R. R., 1 Int. Com. Rep. 688, 1 I. C. C. Rep. 374 (1888). Accord. Glade Coal Co. v. Baltimore & O. R. R., 10 I. C. C. Rep. 226 (1904).

consignee to receive beside the track, not of a consignor to deliver.1

The sound doctrine seems to be clearly expressed in the following extract from the opinion of Mr. Justice Baxter in Coe v. Louisville & Nashville Railroad,5 and though the point under discussion is the delivery of freight, the reasoning applies equally to its reception: "This rule is just and convenient, and necessary to an expeditious and economical delivery of freights. It has regard to their proper classification, and to the circumstances of the particular case. Under it articles susceptible of easy transfer may be delivered at a general delivery depot provided for the purpose. But live stock, coal, ore, grain in bulk, marble, etc., do not belong to this class. For these some other and more appropriate mode of delivery must be provided. Hence it is that persons engaged in receiving and forwarding live stock, manufacturers consuming large quantities of heavy material, dealers in coal, and grain merchants, receiving, storing, and forwarding grain in bulk, who are dependent on railroad transportation, usually select locations for the prosecution of their business contiguous to railroads, where they can have the benefit of side connections over which their freight can be delivered in bulk at their private depots; and may a railroad company, after encouraging investments in mills, furnaces, and other productive manufacturing enterprises on its line of road, refuse to make personal delivery of the material necessary to their business, at their depots, erected for the purpose, and require them to accept delivery a mile distant, at the depot of and through a rival and competing establishment? Or may such railroad company establish a union coal yard' in this city, and constitute it its depot for the delivery of coal, and thus impose on all the coal dealers in the city, with whom it has side connections, the labor, expense, and delay of carting their coal sup

4 Vincent v. Chicago & A. R. R., 49 Ill. 33 (1868); Chicago & N. W. R. R. v. People, 56 Ill. 365 (1870).

53 Fed. 775, B. & W. 251 (1880).

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