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lands. The Common Law does not require the railroad to fence its lands; the owner of animals must fence so as to confine them. Cattle have no right to roam at large, and in the absence of laws requiring fencing, the courts have sometimes held the railroad not liable where cattle had strayed upon the track and had been killed. Touching damages, one can sympathize with the farmer who refused to state the value of his cow until he received an answer to his question, “ Be you the assessor or the railroad claim agent?” In many States, however, railroads are required by Statute Law to fence their grounds. When the law requires this of the railroad, an accident due to lack of fences renders the company liable to either passengers or employees injured. Cattle guards used at highways are the equivalent of fences at such points. At private crossings, gates or bars may be necessary. As to the particular places where fences are required, a question of law and fact arises, which may require the services of both court and jury to decide.
Use of Streets. Authority to use streets or highways for railroad tracks is not within the powers of a municipality unless specifically granted in the municipal charter. The authority rests in the State, and is often exercised directly by the State, as it should be; the interest of the larger public is often greater than that of the citizens of a municipality.
The municipality usually has the right to regulate the use of the railroad in many ways, for instance as to speed, as to conforming to grades or changes of grade in the streets, and in other ways. It must, however, exercise this right in a way not oppressive or unreasonable.
Whether the use of streets or highways by a commercial railroad constitutes a new use, and an additional burden for which abutters are entitled to compensation seems not to be fully settled. The courts differ as to conditions which make it so.
Use by Street Railways. With street railways also the right to occupy streets must come by legislative sanction from the State. It is customary, however, to delegate to the municipality the right to grant locations in various streets and to regulate the occupation as well as many matters of construction, operation, and maintenance, among these to prescribe the motive power. There is some question whether the legislature may grant a monopoly in the use of streets. In some cases, the consent of abutters or a specified proportion of the abutters is necessary to justify a location. A requirement has been made in some States that the franchise shall be sold to the most favorable bidder.
The use of the highways by street railways is generally held not to be an additional burden; so also with subways for rapid transit. On the other hand, elevated railways have been required to pay damages in some cities, but the elements of unsightliness and noise have been the controlling factors and the damages sustained have been shown in the decrease in rentals.
Interurban Railroads. Interurban railroads partake of the character both of commercial railroads and of street railways. They often have their own right of way for considerable distances outside the cities although necessarily using the city streets. They frequently carry express or freight as well as passengers. Are they subject to the laws of railroads or, to the contrary, of street railways? In cities they ought to be subject to regulations governing street railways. Away from cities they are more like commercial railroads, and should properly be subject to substantially the same sort of control. The use of a country road by an interurban railroad probably constitutes an additional burden on the abutters.
Highway Crossings. The crossing of highways by a railroad or an interurban railway presents elements of danger in operation. Signs, gates, bells, and whistles are all used as warnings to users of the highways, and municipal or State regulations often require a street railway car to come to a full stop before crossings. Care is required of all users of a crossing at grade, and in case of accident, an attempt will be made to find the party guilty of negligence, and this will be determined at the trial. The violation of a city ordinance by either party may establish or place the negligence. What is negligence may often depend upon the surroundings and conditions.
Definition. When the railroad is constructed and operation begins, it becomes ordinarily a common carrier and subject to the laws governing common carriers.
All persons or corporations who undertake for hire or reward to transport from one place to another either passengers or goods for others who choose to employ them are common carriers.
Law of Common Carriers. Every common carrier is bound to convey for every one who offers to pay his lawful charges, either passengers or any goods of a description which he is in the habit of conveying, unless his conveyance is full or, for other reasons, he be unable to convey them. Most railroads convey not only passengers, but also mail, express, and freight of nearly all kinds, some dangerous or perishable commodities being sometimes excepted. Some railroads, like the Boston, Revere Beach & Lynn Railroad, carry passengers only; there are probably others which carry freight only, but for any who offer; in either case they are common carriers.
Private Railroads. There are others, among them lumber roads of an entirely private character, which serve only their owners and are not common carriers. In these the public have no rights, and such railroads
cannot exercise the right of eminent domain as has been previously stated. There are also “industry tracks” leading to warehouses or factories, commonly connected with public railroads under some special contract as to construction, maintenance, and operation. The users of these facilities have substantially the same rights with the railroad, as a common carrier, as others who use the ordinary facilities of the railroad such as the freight house at the station for loading or unloading.
Carrier's Lien. While a common carrier may refuse to convey unless the lawful charges are first paid, he may, and very commonly does, carry goods looking to the goods themselves for payment, holding a lien upon them until the charges are paid. If, however, in some way the goods are consigned without the consent of the owner by some wrongdoer who has no title to the goods, the lien will not hold against the true owner. The owner was not at fault; the carrier was negligent to the extent that he might have demanded payment in advance; the owner's right is clearly superior either at law or in good morals. The carrier is not restricted to his lien (that is to the goods) for payment; he may retain the goods and sue for the charges as his remedy. Where prepayment is required the shipper is entitled to a receipt. The carrier is entitled, in addition to other charges, to demurrage charges for delay in unloading, to cover use of cars and track. Whether the carrier's lien covers demurrage charges seems to be unsettled.
Connecting Lines. For the through carriage of freight over connecting lines, the initial carrier, by the weight of authority in the United States, acts as the agent of the other lines; the final carrier acts as the collecting agent for the freight charges, and holds a lien upon the goods for the full charges. Whether the local agent has authority to contract for carriage beyond his own line seems not to be completely established. Practice and custom sometimes serve to solve the question. Usually in the absence of an agreement the carrier is not obliged to pay accrued charges and collect at the end, but for goods accepted for delivery C.O.D., the carrier has agreed to collect such charges. Custom, well established, may serve to fix the legal status between carriers.
Responsibility of Carrier of Freight. The common carrier is responsible for the safe and prompt conduct of goods put in his hands as a carrier of freight. In the days of transportation by wagon, the teamster was the only party at hand in position to resist highwaymen attempting to steal the goods; the law therefore held him (or his principal) responsible; otherwise he might be in league with the robbers. The law was a good one and there has not been sufficient reason to change it.
Extent of Responsibility. The common carrier is responsible for all damage from any cause whatsoever; barring only from the "act of God,"
(which means inevitable accident) or from the public enemy, or from the negligence of the shipper. The act of God is a force, superior to all human agency, whose occurrence could not have been forestalled by any reasonable human foresight and action. A cloudburst or excessive flood is the act of God, but not a somewhat unusual freshet. The line of cleavage is sometimes difficult to fix. Fire, unless from lightning, is held to proceed in some way from human agency, and for this the carrier is responsible. The public enemy is some body or some nation at war with the government. Rioters do not constitute a public enemy however powerful they may be, unless definitely in revolt in an attack upon the government. Resistance to the authorities in an attack upon individuals does not constitute a mob the public enemy.
Acceptance of Goods. The liability of the carrier begins with the acceptance of the goods, and when the owner or his agent, the drayman, relinquishes control to the agents or appropriate servants of the carrier, delivery is accomplished. In some cases the shipper is required to load, and here if the railroad fails to provide cars, goods in the warehouse are then at the carrier's risk. In other cases, it will depend upon agreement or equivalent custom, whether the railroad holds goods as warehouseman or carrier. The warehouseman is not an insurer as the carrier is, and is liable only for negligence.
Bill of Lading. On delivery the shipper is entitled to a bill of lading which is both a receipt and evidence of the contract to carry. It is generally on printed forms. It is also a symbol of title, and without its presentation the carrier may refuse to deliver goods at the point of destination in order to secure delivery to the proper person. The carrier cannot demand the surrender of the bill of lading, but may require a receipt for the goods delivered. The bill of lading is assignable, but is not properly a negotiable instrument. As has been stated elsewhere, a draft is often attached by the seller or shipper, so that the consignee can acquire the bill of lading only by paying or accepting the draft as may be required.
Special Cars. The carrier is not under obligation to carry goods of an unusual character, or requiring a special kind of car, such as a refrigerator car or oil tank car. He may not, however, discriminate by giving such service to one shipper and refusing it to another. His duty to the public as a common carrier forbids this; he is not allowed to discriminate between individuals.
Negligence of Carrier or Shipper. In the carriage of freight it matters not whether the carrier was negligent. If, however, any damage or loss which has occurred can be directly traced to negligence of the shipper, from faulty packing of the goods, or similar carelessness, or from the dangerous character of the goods, neither of which the carrier would detect
in the ordinary prudent course of business, the carrier is not responsible, but the burden of proof rests with the carrier in this case.
Responsibility of Connecting Lines. In the case of through freight over several lines, according to the weight of authority in the United States, each line is responsible for safe carriage over its own lines. The initial line in contracting for the entire carriage does so in part as agent for the other lines and does not assume responsibility for damage or loss beyond its own line.
Time of Delivery. In the absence of a special agreement to the contrary the carrier is responsible for delivery of the goods at their destination within a reasonable time, according to the usual course of business, with all convenient dispatch ; in ordinary local freight, this does not mean great dispatch ; reloading at connecting points often involves considerable delay " in the ordinary course of business.” For unreasonable delay the carrier is liable. In case the consignee refuses to receive the goods, the carrier, as agent of the consignor must protect the latter's interest by prudent action, perhaps by notice to the consignor, or by sale of perishable goods, or such other action as circumstances shall dictate. If goods are held by consignee's order, and deterioration or other damage results, the consignee and not the carrier is responsible. The evidence necessary to protect the carrier should be in available shape. If the delay is due to the act of God or of the public enemy the carrier is not liable.
Place of Delivery. Ordinarily the depot or warehouse of the carrier will be the place of delivery; the side track for unloading may be the proper place for some commodities. Custom as to warehouse or side track controls. It is not customary in this country to deliver to the consignee's warehouse as it is in England. The law varies in different States as to whether the liability of the carrier ceases when the goods are placed on the platform or in the warehouse at the place of destination, or whether notice and reasonable opportunity to remove are essential to terminate the railroad's duty as carrier and substitute that as warehouseman. A further question may arise whether opportunity to remove includes opportunity for inspection. Usage and custom may determine this.
Limitation of Liability. By express agreement the carrier may limit his liability as insurer, for instance against fire. The carrier sometimes stipulates and contracts with the shipper that the latter shall insure the goods, and the consideration may be a reduction in rates. Such an agreement is good against fire occurring from causes outside the negligence of the carrier's servants, but not when arising from such negligence, it is against public policy as contained in the duty of the carrier to the public. The shipper is bound by the terms of his bill of lading and should read it. The carrier, however, may not have the right to impose terms and may