Robert Hutchinson.

A treatise on the law of carriers : as administered in the courts of the United States, Canada and England (Volume 3) online

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Kt'f^rTT^




A TREATISE



ON THE



LAW OF CARRIERS



AS



ADMINISTERED IN THE COURTS OF THE UNITED
STATES, CANADA AND ENGLAND



BY



ROBERT HUTCHINSON



THIRD EDITION

BY

J. SCOTT MATTHEWS

AND

WILLIAM F. DICKINSON

Members of the Chicago Bar



VOLUNIK III



CHICAGO

CALLAGHAN AND COMPANY

1906






Entered according to Act of Congress, in the year 1879, by

CALLAGHAN AND COMPANY,
In the office of the Librarian of Congress, at Washington.



Entered according to Act of Congress, in the year 1891, by

CALLAGHAN AND COMPANY,
In the office of the Librarian of Congress, at Washington.



Entered according to Act of Congress, in the year 1906, by

CALLAGHAN AND COMPANY,
In the office of the Librarian of Congress, at Washington



TABLE OF CONTENTS

VOLUME III.



[references ABE TO SECTIONS.]

CHAPTER XII.

THE LIABILITY OF THE CARRIER AS AFFECTED BY THE CON-
CURRING OR CONTRIBUTORY NEGLIGENCE OF THE PAS-
SENGER.

Of contributory negligence generally 1170

Application of rule to carriers 1171

Difference in this respect between passenger and stranger 1172

Contributory negligence of passenger no excuse to carrier where

injury could have been averted 1173

Contributory negligence usually a question of fact 1174

When a question of law 1175

Questions of mixed law and fact 1176

Alighting from train while in motion 1177

Same subject 1178

Same subject — View that attempt by passenger to alight from train

while in motion is not necessarily a negligent act per se 1179

Same subject — How when danger obvious IISO

Getting on train while in motion IISI

Same subject — View that attempt by passenger to board train while

in motion is not necessarily a negligent act per se 1182

Same subject — Negligence of passenger in boarding train while in

motion no excuse for pushing him from platform 1183

Leaving or entering train elsewhere than on platform where one

is provided 1184

Same subject — Effect of carrier's acquiescence or directions 1185

Leaving or entering train at place where no platform is provided. .1186
Alighting at an unusual place when train has stopped short of or

has overshot platform 1187

Using ways for leaving or entering vehicles not intended for that

purpose 1188

Same subject — Effect of carrier's acquiescence 1189

Alighting from steps of vehicle when danger obvious 1190

Using ways for leaving depot not intended for that purpose 1191

Passing from car to car while train is in motion 1192

Same subject — How when cars provided with vestibules 1193

• iii



687500



IV TABLE OF CONTENTS.

[EEFKBENCES ABE TO SECTIONS.]

Occupying exposed position upon vehicle 1194

Same subject — Effect of carrier's acquiescence or directions 1195

Same subject — Occupying exposed position not a bar to recovery

where it does not contribute to injury 1196

Voluntarily riding on platform while train in motion 1197

Same subject — How when car full 1198

Riding on platform to better escape impending danger — How when

car unfit for physical comfort 1199

Riding in baggage or mail-car 1200

Riding in show-car 1201

Stockmen riding in stock-car 1202

Same subject — Passing over tops of cars while train is in motion.. 1203

Same subject — Stockmen riding on engine 1204

Riding on hand-car 1205

Interfering with management of vehicles 1206

Using unsafe platforms on depot premises 1207

Occupying exposed positions upon railway company's premises. . .1208
Exposure of person — Passenger projecting his limbs from car

window 1209

Same subject — Such protrusions held negligence 1210

Same subject — The contrary view 1211

Same subject 1212

Same subject 1213

Same subject — No defense where it does not contribute to injury., 1214

Same subject — Protruding head through car window 1215

Whether standing in car is contributory negligence 1216

Same subject — Care to be exercised by passenger while riding

on freight trains 1217

Riding upon engine 1218

Crossing tracks to reach or leave cars 1219

Crawling under trains to reach cars 1220

How far negligence excused by directions of carrier or his serv-
ants 1221

Same subject — Directions by agent must be given while acting

within scope of his authority 1222

Where the passenger is attempting to escape peril to which the

carrier has exposed him 1223

Same subject — The test of the carrier's liability 1224

Avoiding an inconvenience to which the negligence of the carrier

has exposed him 1225

Negligence on one kind of vehicle may not be on another 1226

Contributory negligence as affected by the infancy of the pas-
senger 1227

Same subject — When negligence will be imputed to children 1228

Imputabillty of the negligence of those who have infants and

imbeciles in charge 1229



TABLE OF CONTENTS. V

[references ABE TO SECTIONS.]

Contributory negligence, as affected by the intoxication of the pas-
senger 1230

Contributory negligence as affected by the blindness or deafness

of the passenger 1231

Traveling on Sunday 1232

Same subject 1233

Care to be exercised by passenger after having been wrongfully
ejected from train or negligently carried beyond his destina-
tion 1234

Whether the negligence of the passenger's carrier is to be imputed
to him when injured by the concurrent negligence of another —

The former English rule of Thorogood v. Bryan 1235

Same subject — The English rule generally denied in the United

States 1236

Same subject — English criticism of the rule 1237

Same subject — Final overthrow of the rule in England 1238

Summary of the rules upon the subject of this chapter 1239

CHAPTER XIII.

PASSENGERS' BAGGAGE.

Questions discussed in this chapter 1240

Carrier's liability for baggage 1241

"What is baggage 1242

Same subject — Is whatever is usually carried as baggage 1243

Same 'subject — Articles for personal use during, or for ultimate

purpose of journey 1244

Same subject — As to value 1245

Various articles held baggage 1246

Same subject — Bedding 1247

Same subject — A broad rule 1248

What is not baggage 1249

Effect of knowingly accepting articles not properly baggage, but

which are tendered as such by the passenger 1250

Same subject — Authority of baggage-master to check merchandise

as baggage 1251

Same subject — Massachusetts rule as to merchandise 1252

Baggage not limited to articles to be used on journey 1253

Articles appropriate or essential to purpose of journey 1254

The question of baggage, how determined 1255

Implied authority of baggage-master concerning baggage 1256

Liability when passenger retains possession of baggage 1257

Same subject — English cases — Must be clear that passenger as-
sumes entire control 1258

Same subject — English cases — Question of delivery to carrier 1259



VI TABLE OF CONTENTS.

[befebences are to sections.]

Same subject — English cases — Passenger's contributory negligence. 1260

Same subject — Conclusion from last decision 1261

Same subject — English cases — Dissent from earlier authorities 1262

Same subject — English cases — Bergheim v. Railway disapproved. . .1263

Same subject — General result of American cases 1264

Same subject — Carrier not liable for wearing apparel in present

use 1265

Same subject — Carrier liable for baggage retained by passenger in

sleeping-car ." 1266

Same subject — Hand-bag dropped out of window 1267

Liability of carrier by water for baggage taken by the passenger

into his stateroom 1268

Same subject — No liability for clothing, money or jewelry in cus-
tody of passenger 1269

Same subject — Nor for any property in exclusive possession of pas-
senger 1270

Same subject — New York rule as to the responsibility of the car-
rier by water for baggage taken by passenger into his state-
room 1271

Same subject — Passenger negligent, carrier not liable 1272

Sleeping and parlor-car companies 1273

Owner must be a passenger 1274

What is contract where baggage not accompanied by owner 1275

"Where baggage is accompanied by a person other than the owner. .1276
Baggage of wife accompanied by husband — of child accompanied

by parent 127f

"When passenger need not accompany his baggage 1278

Baggage when carried as freight 1279

Passenger lying over — Baggage going on 1280

Delivery of baggage to carrier 1281

Liability of carrier for delivering baggage to wrong connecting

carrier 1282

Same subject — Liability of connecting carrier 1283

Delivery of baggage at destination 1284

Passenger allowed reasonable time to call for baggage 1285

What is reasonable time 1286

Same subject 1287

Same subject 1288

Same subject 1289

Same subject — Dissent from prevailing construction of "reason-
able time" 1290

Strict liability of carrier succeeded by that of warehouseman 1291

Liability for negligence of subsidiary carrier 1292

Strict liability of carrier preserved where delay is caused by

carrier 1293



TABLE OF CONTENTS. vii

[BEFEBENCES ABE TO SECTIONS.]

Delivery by carrier to transfer company — Delivery by transfer

company 1294

Passenger's right to have baggage delivered at any regular station

at which train stops 1295

Connecting carriers — Through contract 1296

Contracts limiting liability 1297

Same subject — Terms of limitation on baggage checks 1298

Same subject — Terms of limitation on passenger tickets 1299

Liability for baggage when passenger is carried gratuitously. .. .1300

Baggage checks 1301

What a baggage check implies 1302

The carrier's lien upon baggage 1303



CHAPTER XIV.
OF ACTIONS AGAINST COMMON CARRIERS.

I. THE PASTIES.

Who may sue the carrier for loss of or damage to the goods 1304

One having special property may sue 1305

Owner may sue 1306

Person making contract with the carrier may sue 1307

Same subject — Even if plaintiff have no interest in goods 1308

Same subject — States following this doctrine 1309

Same subject — Doctrine supported by English cases 1310

Same subject — Advantage of this rule 1311

Conclusions from previous cases 1312

Contract need not be in writing to enable shipper to sue 1313

The rule of these cases stated — Only owner may sue in tort 1314

Rule that only owner can sue 1315

Rule that mere agent without interest cannot sue 1316

When consignee may sue 1317

When consignor the proper party 1318

Same subject — ^Where sale is void, or where contract of sale is

rescinded, consignor should sue 1319

Conclusions on this subject 1320

n. THE FOBM OF ACTION.

The form of action 1321

Original theory as to carrier's obligation 1322

First recognition of the theory of the carrier's contract obligation. .1323

Action on the case 1324

Action in case is several and not joint 1325



VIU TABLE OF CONTENTS.

[BEFEEENCES ABE TO SECTIONS.]

Advantage of declaring in case 1326

Action in assumpsit 1327

How character of action determined 1328

Same subject 1329

Distinction in form of action now generally unimportant 1330

When action should be upon the contract 1331

When action should be for breach of duty 1332

III. THE PLEADINGS. \

Important to determine if plaintiff's declaration be in case or as-
sumpsit 1333

What the declaration must allege 1334

When action is on the contract it must be set out correctly 1335

Same subject — Example of particularity requisite in declaring on

contract 1336

Same subject — Variance between declaration and proof fatal 1337

Same subject — Whole contract must be stated 1338

Reasons for requiring particularity in declaring 1339

Mere collateral stipulations need not be stated 1340

Pleadings in action for statutory penalty for excessive charge 1341

How common-law action for excessive charge is affected by stat-
utory action 1342

What is sufficient averment of an over-charge at common law 1343

Statements as to the carrier's reward or compensation 1344

The carrier's defense to the action 1345

IV. THE EVIDENCE.

What must be proved by the plaintiff 1346

Plaintiff must show whose negligence caused loss 1347

Presumption that each of several connecting carriers received goods
in same condition as when delivered to first carrier — Burden

of proof to show contrary 1348

Same subject — Rule in Michigan 1349

Contract with carrier may be either express or implied 1350

Express contract not necessary — Delivery and acceptance enough.. 1351
Plaintiff must produce some evidence of loss — What evidence will

be sufficient 1352

What the carrier may show 1353

Rule that burden of proof is upon carrier to show no negligence. .1354

Rule that burden of proof as to negligence is upon the shipper 1355

Importance of question 1356

Burdea of proof where property injured consists of live-stock 1357



TABLE OF CONTENTS. IX

[references ABE TO SECTIONS.]

V. THE MEASURE OF DAMAGES.

Difference in measure between actions of tort and contract 1358

The measure of damages for not accepting and carrying the goods. .1359

The measure of damages for the loss of the goods 1360

Same subject — Exceptions to the rule 1361

Measure of damages for injury to goods during transportation. .. .1362
Same subject — Measure of damages where goods not intended for
sale or have no market value — Family portrait — Second-hand

goods — Building plans 1363

Same subject — How when amount of loss limited by contract 1364

Right of consignee to refuse to receive injured goods 1365

Damages for delay in the transportation and delivery 1366

Same subject — Special damages — Notice of special circumstances

must be given to carrier when contract is made 1367

Same subject — Notice given after contract to carry has been per-
formed 1368

Damages for delay in transporting articles intended for use in

business 1369

Damages when carrier refuses to perform his contract to accept

and carry the goods 1370

Same subject 1371

Delay not a conversion of the goods — Nor loss through mere non-
feasance 1372

Damages for delay where the goods are not for sale as merchandise. 1373
Measure of damages for conversion of the goods — Mitigation of

damages 1374

Damages for injury to, or delay in the shipment of bodies of de-
ceased persons 1375



CHAPTER XV.

OF ACTIONS AGAINST CARRIERS FOR INJURIES TO
PASSENGERS.

' I. COMMON-LAW ACTIONS.

Actions for injuries at common law 1376

Parent's right of action 1377

Same subject — Nature and extent of recovery 1378

Husband's right of action 1379

Relation of servitude necessary at common law 1380

Effect of child's contributory negligence on parent's action 1381

Effect of parent's contributory negligence on his own action 1382

Effect of negligence of husband or wife on the other's action 1383



X TABLE OF CONTEJSTS.

[befebexces are to sections.]
ii. statutory actions.

Statutory right of action in case of death 138i

Same subject — Similar acts in the United States 1385

Whether statute gives a new right of action 1386

Extraterritorial effect of these statutes 1387

When right of action created in one state may be prosecuted in

other states 1388

Who may sue under these statutes 1389

Who may sue when action is brought in state other than one where

death is caused 1390

Effect of deceased's contributory negligence or his settlement of the

action 1391

Effect of beneficiaries' contributory negligence or release 1392

What law governs as to the effect of contributorj' negligence or of

a release 1393

When existence of kin must be shown 1394

Who included among beneficiaries — Aliens — Posthumous and ille-
gitimate children — Grandchildren 1395

Effect of time limitation 1396

Measure of damages 1397

No damages for mental suffering of beneficiaries 1398

Nominal damages 1399

Punitive damages ordinarily not recoverable 1400

Province of jury in allowing damages 1401

Distribution of damages recovered 1402

III. OF ACTIONS IN GENERAL.

1. The form of action.

Form of action optional 1403

Form of action when exemplary damages are claimed 1404

Form when brought by personal representative 1405

Recovery must be for cause of action stated 1406

How form of action is determined 1407

Same subject 1408

2. TTie pleadings.

Special damages must be pleaded 1409

Same subject 1410

3. The evidence.

Proof of the carrier's negligence 1411

Presumptions as to negligence 1412

When the fact of the injury is prima facie evidence of negligence 1413



TABLE OF CONTEXTS. XI

[BEFEBEXCES ABE TO SECTIONS.]

Same subject 1414

Proof of injury usually makes a prima facie case of negligence. . . .1415
Same subject — How where passenger agrees to assume risk of acci-
dent 1416

Contributory negligence of passenger — Burden of proof on de-
fendant 1417

Same subject — Cases holding that burden of proof is on plaintiff . .1418
To defeat recovery plaintiff's negligence must have been a proxi-
mate cause of injury 1419

How question of contributory negligence determined 1420

4. The measure of damages.

Measure of damages is generally compensation for injury 1421

Compensation for pain and suffering 1422

Future damages may be considered 1423

Inconvenience may be considered 1424

Suffering must be real 1425

Measure of damages for delay in transporting the passenger 1426

Damages for mental suffering 1427

Damages must be proximate and natural consequence of the in-
jury 1428

Same subject — The more liberal rule 1429

Same subject — How question determined 1430

Passenger must seek to make his damage as light as possible. .. .1431

Effect of previous sickness or disease 1432

Damages in case of maltreatment — Ejection from train 1433

Same subject — How when maltreatment is provoked by insulting

language or violent conduct of passenger 1434

Exemplary or punitory damages against carriers 1435

On what theory allowed 1436

When allowed for carrier's neglect of duty in furnishing safe vehi-
cles, tracks, etc 1437

When exemplary damages allowed for reckless acts of carrier's

servants 1438

Same subject 1439

Same subject — The more liberal rule 1440

When allowed for active maltreatment of passenger 1441

Same subject — The more liberal rule 1442

Same subject — Effect of servant's good faith 1443

Same subject — Evidence of authority or ratification 1444

Same subject — Carrier only liable where servant would have been. .1445
When carrier may disprove wrongful intent 1446



THE LAW OF CARRIERS



CHAPTER XII.

THE LIABILITY OF THE CARRIER AS AFFECTED BY
THE CONCURRING OR CONTRIBUTORY NEGLI-
GENCE OF THE PASSENGER.



§ 1170. Of contributory negligence § 1183.
generally.

1171. Application of rule to car-

riers.

1172. Difference in this respect

between passenger and 1184.
stranger.

1173. Contributory negligence of

passenger no excuse to
carrier where injury 1185.
could have been averted.

1174. Contributoi-y negligence

usually a question of 1186.
fact.

1175. When a question of law.

1176. Questions of mixed law 1187.

and fact.

1177. Alighting from train while

in motion.

1178. Same subject. 1188.

1179. Same subject — View that

attempt by passenger to
alight from train while 1189.
in motion is not neces-
sarily a negligent act 1190.
per se.

1180. Same subject — How when

danger obvious. 1191.

1181. Getting on train while in

motion.

1182. Same subject— View that 1192.

attempt by passenger to
board train while in 1193.
motion is not necessarily
a negligent act per se.

1364



Same subject — Negligence
of passenger in boarding
train while in motion no
excuse for pushing him
from platform.

Leaving or entering train
elsewhere than on plat-
form where one is pro-
vided.

Same subject — Effect of
carrier's acquiescence or
directions.

Leaving or entering train
at place where no plat-
form is provided.

Alighting at an, unusual
place when train has
stopped short of or has
overshot platform.

Using ways for leaving or
entering vehicles not in-
tended for that purpose.

Same subject — Effect of
carrier's acquiescence.

Alighting from steps of
vehicle when danger ob-
vious.

Using ways for leaving de-
pot not intended for that
purpose.

Passing from car to car
while train is in motion.

Same subject — How when
cars provided with vesti-
bules.



CONTRIBUTORY NEGLIGENCE OF PASSENGER,



1365



§ 1194.


Occupying exposed position


§ 1213.




upon vehicle.


1214.


1195


Same subject — Effect of
carrier's acquiescence or




1196.


directions.
Same subject — Occupying
exposed position not a


1215.




bar to recovery where it
does not contribute to in-


1216.




jury.




1197.


Voluntarily riding on plat-






form while train in mo-


1217.




tion.




1198.


Same subject — How when
car full.




1199.


Riding on platform to bet-


1218.




ter escape impending


1219.




danger — How when car






unfit for physical com-


1220.




fort.




1200.


Riding in baggage or mail-
car.


1221.


1201.


Riding in show-car.




1202.


Stockmen riding in stock-
car.


1222.


1203.


Same subject — Passing ov-
er tops of cars while






train is in motion.


1223.


1204.


Same subject — Stockmen
riding on engine.




1205.


Riding on hand-car.




1206.


Interfering with manage-
ment of vehicles.


1224.


1207.


Using unsafe platforms on
depot premises.


1225.


1208.


Occupying exposed posi-
tions upon railway com-






pany's premises.


1226.


1209.


Exposure of person — Pas-
senger projecting his






limbs from car window.


1227.


1210.


Same subject — Such pro-
trusions held negligence.




1211.


Same subject — The contra-
ry view.


1228.


1212.


Same subject.





. Same subject.

, Same subject — No defense
where it does not con-
tribute to injury.
Same subject — Protruding
head through car win-
dow.

, Whether standing in car
be contributory negli-
gence.

Same subject — Care to be
exercised by passenger
while riding on freight
trains.

Riding upon engine.

Crossing tracks to reach or
leave cars.

Crawling under trains to
reach cars.

How far negligence ex-
cused by directions of
carrier or his servants.

Same subject — Directions
by agent must be given
while acting within
scope of his authority.

"Where the passenger is at-
tempting to escape peril
to which the carrier has
exposed him.

Same subject — The test of
the carrier's liability.

Avoiding an inconvenience
to which the negligence
of the carrier has ex-
posed him.

Negligence on one kind of
vehicle may not be on
another.

Contributory negligence as
affected by the infancy
of the passenger.

Same subject — When neg-
ligence will be imputed
to children.



1366



THE LAW OF CARRIERS.



[§ 1170.



§ 1229. Imputability of the negli-
gence of those who have
infants and imbeciles in
charge.
1230. Contributory negligence, as
affected by the intoxica-
tion of the passenger.

Contributory negligence as
affected by the blindness
or deafness of the pas-
senger.

Traveling on Sunday.

Same subject.

Care to be exercised by
passenger after having
been wrongfully ejected
from train or negligent-
ly carried beyond his
destination.



1231.



1232.
1233.
1234.



§ 1235. Whether the negligence of
the passenger's carrier is
to be imputed to him
when injured by the con-
current negligence of an-
other — The former Eng-
lish rule of Thorogood
V. Bryan.
123G. Same subject— The English
rule generally denied in
the United States.

1237. Same subject — English crit-

icism of the rule.

1238. Same subject — Final over-

throw of the rule in Eng-
land.

1239. Summary of the rules up-

on the subject of this
chapter.



Sec. 1170. (§ 635.) Of contributory negligence generally.
— That a person who, by his own fault or neglig-ence, has
brought upon himself a loss or an injury, can claim no com-
pensation for it from another, is a principle of universal ap-
plication ; and it is equally true that, if his imprudence or
negligence has so materially contributed to the loss or mjury
that it may be regarded as in any degree a proximate and nat-
ural cause of the injury complained of, he can claim no recom-
pense from another Avho has been instrumental in causing it.
If, in other words, the injury, though inflicted by another, was
contributed to naturally and proximately by the situation of
peril into which the party by his own neglect had placed him-
self, he must be considered as the party solely in fault, and as



Online LibraryRobert HutchinsonA treatise on the law of carriers : as administered in the courts of the United States, Canada and England (Volume 3) → online text (page 1 of 89)