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way, and the remaining lands is worth more than the whole was before the laying out of the road, the party is entitled to no compensation."
Owing to that provision in the constitution of the United States, which prohibits the state legislatures from passing any law impairing the obligation of contracts, many curious questions have arisen in the attempt to ascertain the proper limits of the restriction thus imposed upon each sovereign state. The Judges of the Supreme Court of the United States, who are expressly empowered to decide upon the constitutionality or otherwise of all laws, passed as well by the State Legislatures as by Congress itself, have been in former times, and are, we believe, now, far from unanimous on this subject. Among these questions is that of the duration of privileges or franchises conferred upon a corporate body. In America, these are, at present, whether given by express words or by implication, regarded as irrevocable, and inviolable by any subsequent legislation; though this doctrine does not go so far as to exclude others, whether indivi. duals or corporations, from the grant of similar privileges or franchises if the legislatures see fit. In this country, whilst the sovereign was the only known source of incorporation, the principle was laid down that the king could not dissolve a corporate body; and the same principle was maintained long after the sovereign ceased, in practice, to be the only creator of corporations; but no doubt the whole legislature has always had the inherent power of destroying any corporate existence, though it only appears to have exercised the power in the cases of the knights templars, temp. Edw. II., and the religious houses, temp. Hen. VIII.
The Chief Justice is an ardent admirer of the beautiful simplicity with which the courts of law in this country, in former times, invested their decisions as to carriers' responsibility, and hails some late decisions: as indicating an intention to restore, as far as practi
1 Livermore o. Town of Jamaica, 23 Verm. Rep., 361; Redf., $ 71, and this mode of reckoning is adopted in some states, though rejected in most
? See Redf., $$ 70, 231.
cable, the reasonable responsibility of carriers, and return again to the spirit of that line of decisions in which the nail indeed was hit, but hit with a sledge-hammer. In the state of New York the courts at one time held, that it is not competent for carriers to exonerate themselves from their general liability, either by notices brought home to the owner of goods at the time they are deposited for carriage, or even by express contracts to that effect; but the law is differently held now. In other states, when the question has arisen whether notice would excuse the liability of the carrier, it seems to have been taken for granted that a special acceptance of the terms of such notice would have that effect. The same law is held in the Supreme Court of the United States, which observed, in a case where the question was much discussed,
“The owner of the goods, by entering into the contract, virtually agrees that, in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence.” The reader must judge for himself as to the wholesomeness of this view. In Vermont the court says—“We are more inclined to adopt the view which the American cases have taken of the subject of notices by common carriers, intended to qualify their responsibility, than that of the English courts, which they have in some instances subsequently regretted. The consideration that carriers are bound, at all events, to carry such parcels, within the general scope of their business, as are offered them to carry, will make an essential difference between the effect of notices by them and by others, who have an option in regard to work which they undertake. In the former case, the contractor having no right to exact unreasonable terms, his giving public notice that he shall do so, where
1 Redf., SS 132-134, 140.
those who contract with him are not altogether at his mercy,
does not raise the same presumption of acquiescence in his demands, as arises in those cases where the contractor has the absolute right to impose his own conditions. And, unless it be made clearly to appear that persons contracting with common carriers, expressly consent to be bound by the terms of such notices, it does not appear to us that such acquiescence ought to be inferred.”?
In some parts of America they consider each carrier, in the absence of special contract, to be liable only to the extent of his own route, and for safe delivery to the next carrier, as in Garside v. Trent and Mersey Navigation Company, preferring that to what has been called the "absurd extreme” to which the courts of this country have gone, when they decided, as in Muschamp v. Lancaster and Preston Junction Railway Company, 8 that the first carrier upon a route occupied by a succession of carriers, is liable for the safe delivery of all articles at their ultimate destination. In Pennsylvania the English rule is fully established, and it is the doctrine which is likely, according to the learned ChiefJustice Redfield, to prevail in the courts throughout the United States. We cannot leave that part of this treatise, which deals with the relations of railway companies as common carriers of goods, without venturing to submit an opinion, that it will be found especially deserving of the notice of English lawyers.
To the reader who has acquired some idea of the enormous multitudes who travel by rail in America—the recklessness of the conductors--the deficient state of the permanent ways, and of the rails themselves for the most part, and the number of accidents which happen-it will perhaps be matter of some surprise to find the law respecting railway companies, as common carriers of passengers, contained in this work in eight and-twenty pages. Still, much valuable matter is there. The rule laid down in this country, respecting the amount of care and diligence required by the law from the stage-coach proprietors," has been very generally
1 Farmers' and Mechanics' Bank, o. Champlain Transportation Company. 23 Verm. R., 186.
2 4 T. R., 581.
adopted and applied to the protection of railway passengers in the United States. The learned author expresses himself on this subject thus :—“If the degree of care and watchfulness is to be in proportion to the importance of the business, it is scarcely possible to express the extreme severity of care and diligence which should be required in the conduct of passenger trains upon railways. Hence very few cases of accident and injury have occurred where it was not considered, in some measure, attributable to a want of the requisite degree of care.” With regard to the vexed question in this country, as to whether the fact that an injury is suffered, by any one while a passenger by railway, is to be regarded as prima facie evidence of the company's liability, the courts of the State of New York, and the Supreme Court at Washington, have adopted the opinions of our judges who have ruled in the affirmative;in some of the other states the law seems to have been differently laid down. In Pennsylvania it has been decided, that where passengers “are liable to have their arms caught in passing bridges if lying out the windows," it is the duty of the conductors of the train to give such notice to them as will put them effectually on their guard, or the company are liable for all such injuries; and it is not sufficient to trust to printed notices put up in the cars. Cases of liability where the company carry gratuitously have come under a good deal of discussion in America. The case of the newspaper reporter travelling with a free ticket is well known among English railway cases. In the United States has occurred a case of this kind in the National Tribunal of last resort, where the plaintiff recovered. He was president of another railway company, and was, at the time of the accident, travelling without charge, and by invitation of the president of defendants' line, in a special train running for the accommodation of the officers of the company. The collision
1 Redf., § 149, so ruled in the Supreme Court of the United States ; 13 Peters' R., 190.
2 See Carpue v. London and Birmingham Railway Company, 5 Q. B., 747, and other English cases ; and see Redf., p. 326.
3 Redf., pp. 326, 327,
occurred by reason of another train coming in the opposite direction, in disobedience of orders to keep the track clear; and in the collision the plaintiff was hurt. It was laid down that the confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it. Where carriers undertake to carry persons by the powerful but dangerous agent of steam, public policy and safety require that they be held to the greatest possible care and diligence; and whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of "gross.”? The proposition has been stated in the courts of the State of New York, with the complete acquiescence of ChiefJustice Redfield, that railway companies are not bound to the same degree of care in regard to mere strangers who may voluntarily, but unlawfully, go upon their track, which they owe to passengers conveyed by them. It seems to be regarded as well : settled in America, that a passenger who is induced to leap from the carriage, by a well-founded apprehension of peril to life or limb, induced by any occurrences which might have been provided against by the utmost care of the carriers, is entitled to recover for any injury he may thereby sustain, where no injury would have occurred if he had remained quiet, or where his own conduct contributed to produce or enhance the injury.
The statute 9 & 10 Vict., c. 93, commonly called Lord Campbell's Act (called by Chief-Justice Redfield Lord Denman's Act, by mistake), providing for compensation in certain cases of deaths by railway, &c., accidents to passengers, &c., has been reenacted in most of the American States;--no small tribute to the inherent justice and propriety of the measure. Some curious
1 Derby v. Philadelphia, &c., Railway Company; 14 Howard, 483; and see as to gross negligence, a case confirming the former, Steamboat, New World v. King, 16 Howard, 468, 474.
Redfield, p. 332.