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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.” 1
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.
? 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.
? 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, Laing v. Calder, 8 Penn. R., 483, sec:
c:21, vol. 203.
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
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 :
4no small tribute to
; the inherent justice and propriety of the measure. Some curious
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.
examples of the application of these statutes are given in this part of the work.
As regards keeping time on railways, the author thinks that, on general principles, railways should be liable for not delivering passengers within the stipulated time, as much as for not delivering goods according to their undertaking, and he pronounces some powerful strictures on the well-known English case of Hamlin v. the Great Northern Railway Company, the rule in wbich he conjectures will not be followed in Westminster Hall.
On the subject of railway stock, bonds, mortgages, &c., comprised under the general term of railway investments, the author professes it not to be in his power to give much information, "and none probably which will afford relief to those who have adventured their money in these enterprises, which so generally, in this country, have proved unproductive.”? In fact, it seems that
, but few questions on the subject have been definitively settled among the Americans, and those for the most only of secondary importance in comparison to those which yet remain to be decided. The author, however, is particularly powerful upon the subject of fraudulent schemes and bubble investments, which he has deemed it not improper to expatiate upon at great length, not sparing the conduct of the State Legislatures, in neglecting to establish sufficient preventives to such schemes going into operation, because of the far greater severity and extent to which losses arising thereby are felt throughout society in America than in older states. “Here we have no national funded stock, in convenient sums, for small investments, and which, being sure, is really a great blessing to the mass of those who wish to invest moderate pums, as a protection against age or calamity.”: Railway rolling stock bas, in some of the cases decided in that country, been regarded in the nature of fixtures; ex gra., they are included in a mortgage of the railway, entitling the mortgagee to them as against a judgment creditor; but the author does not fully assent to this.“
Redf., § 154.
On the whole, we are persuaded this work will take its place among the many valuable contributions which America has made to our law libraries; it has been prepared with infinite care. On its arrangement, which is excellent and most easy of reference, very great labour must have been bestowed; the typography is beauti
1 ful; it is printed, indeed, with an accuracy of which very few English books can boast. The author states his authorities with remarkable fidelity, and draws conclusions in which we should anticipate very general acquiescence in this country. In fact, almost the only blemish we have remarked, consists in occasional mistakes as to matters of practice, and of history, in regard to the English courts, etiquettes, usages ;-with one of these (which in all are very few) we will conclude. The author, in a note to his chapter on Mandamus, referring to a case in the Queen's Bench, where the Council of a borough were ordered to pay costs, tells us, “Counsel are, in the English practice, required to pay costs occasioned by their delay!”