gates left open; the jury, nevertheless, returned a verdict against the defendant for the full value of the horse.1

$53. In the case of Beck v. Evans, the plaintiff had sent a cask of brandy by the defendant's wagon from Shrewsbury to London. Before the wagon reached Birmingham, the cask was leaking fast, and the driver was informed of it; he delayed three hours at Birmingham, without attempting to stop it, passed through Wolverhampton, where he made some stay; and at the next stage beyond Wolverhampton, having some parcels to deliver, he took the cask out, and the remainder of the brandy was saved. It was left to the jury to consider, whether the injury arose from the negligence of the defendant's servant, the wagoner, in not examining the cask after he was informed of its leaky state, at either of the places where he halted; which being found in the affirmative, a verdict was taken for the full amount of the loss. A rule to set aside this verdict on the ground of the misdirection of the Judge, was moved for, and refused, in the Court of King's Bench.

$ 54. In England, at least, the doctrine is clearly settled, that a common carrier may limit the extraordinary liability which the law imposes upon him as such, by a special acceptance that he will not be liable, or by a public notice to that effect, of which the owner of the goods has knowledge; and in such cases, the common carrier descends to the situation of a private carrier for hire, and it is therefore enough to prove ordinary negligence, to render him liable in case the goods are lost or damaged in consequence.3 In a

1 Broadwater v. Blot, Holt, Ni. Pri. R. 547. And see Ante, § 24 ; and Mosley v. Fosset, 1 Roll. Abr. 4, per Popham, C. J.

2 Beck v. Evans, 16 East, R. 244.

3 Wild v. Pickford, 8 M. & Welsb. R. 461, and Hinton v. Dibbin, 2 Adol. & Ell. R. 646.

case in the Exchequer, the defendants, who were the proprietors of a public stage-coach, and had published the usual notice limiting their liability as common carriers, received from the plaintiff a valuable bank parcel, to be conveyed from Hertford to Brecon, for which they were paid the usual hire. When the coach arrived at Brecon, the driver was in liquor, and although the entry in the way-bill was known to the book-keeper, no search or inquiry was made for the parcel, and it was in consequence lost. The jury having found, that there was gross negligence on the part of the defendants, they forfeited the benefit of the notice, and were obliged to make good the whole loss. Baron Graham said, that he "perfectly agreed with the counsel for the defendants, that they would not have been liable, if ordinary diligence had been used;" so that it was for the omission of this diligence, (which is the definition already given of ordinary neglect,1) that made them liable.2

$55. In Smith v. Horne,3 a parcel had been sent from Worcester to London, by the defendant's coach. It arrived in London, and was taken from the defendant's office in a cart, under the direction of one person only, (it being the usual practice to employ two persons for that purpose.) This man left the cart unprotected in the street, while he went to different houses to deliver other packages. Notwithstanding the notice of the defendant as a common carrier, he was held liable, like a private carrier for hire, for the full value.

§ 56. It seldom happens, that persons undertake the carriage of goods for hire, who are not common carriers, and the rule in respect to common carriers, is, as has already

1 Ante, § 10.

2 Bodenham v. Bennett, 4 Price, R. 31.

3 Smith v. Horne, 8 Taunt. R. 144; 5 B. & Ald. R. 57.

been stated, that they are not excused in case of loss of, or injury to the goods, except by the act of God or the public enemy. But if the loss or injury by such means, is conduced by their negligence or want of skill, or by insufficiency of vehicle, they do not come within those two exceptions. Many of the authorities, therefore, which will be cited, in a subsequent chapter on the responsibility of common carriers,1 are illustrative of the general doctrine of liability in these cases, and, therefore, they will be found to illustrate the law applicable to private carriers for hire.

$ 57. It is a well settled principle, that if the owner of the goods in the hands of a private bailee, should in any way conduce to the loss, or the loss is as likely to have arisen from the misconduct of the owner, or his want of care, the carrier is not responsible for the loss. This is a rule which of course should apply to all bailees for hire, and has in fact been applied to a warehouseman. Thus, where a quantity of ginseng contained in a box was deposited by the plaintiff in the defendant's warehouse, and the plaintiff was in the habit of resorting to the box, and ordering the lid to be taken off for the purpose of showing the ginseng to expected purchasers, who came to the warehouse to view it, on the invitation of the plaintiff, and rats got into the box and destroyed the ginseng; it was held, that the defendant, the warehouseman, was not responsible for the loss. On the same principle, if the owner of the goods in the hands of a private carrier accompanies the goods to take care of them, and is himself guilty of negligence, by

2 Cailiff v. Danvers, 1 Peake, N. P. C. 155. As to destruction cause by rats, see Post, Chap VI. A carrier for hire, who is also a warehouseman, may be responsible in the latter character, for the loss of the goods after he has deposited them in his warehouse. Cairns v. Robins, 8 M. & Welsb.

R. 258.

which the goods are lost; or if there is as much reason to attribute the loss to the negligence of the one party as the other, the carrier is not liable. In Whalley v. Wray,2 the damage complained of happened distinctly by the owner's neglect. This was an action of assumpsit against the defendant, as a lighterman, for damage done to the plaintiff's goods, which had been intrusted to him to be deposited in the plaintiff's warehouse; and the facts of the case were, that before the goods could be permitted to be landed, it was necessary to present a petition to the commissioners of the customs, who refer it to the land surveyor, upon whose report the goods are permitted to be landed. A petition had been presented by S., who was the custom-house agent, to the plaintiff; but no report having been made of it, the land surveyor refused to permit the goods to be landed; in consequence of which, they remained in the lighter undischarged, where they received the damage for which the action was brought. The presenting of the petition, &c. was usually done by the custom-house agent of the party to whom the goods belonged, and was not usually done by the lighterman. By Lord Eldon: "To entitle the plaintiff to recover, it must appear that the loss happened by the neglect of doing that which was the regular and common duty of the defendant. The law raises no presumption of what is his duty; that is a matter of evidence: here it is in evidence, that the presenting the petition, and the subsequent proceedings, was the business of the custom-house agent of the plaintiff, not of the lighterman; if there had been any contract, or undertaking, on the part of the lighterman, by the neglect of which the goods were spoiled, it should have been the object of a special count; the plaintiff has relied on the general liability of the defendant, without making it out in evidence,

1 Per Lord Abinger, in Brind v. Dale, 8 C. & Payne, R. 207; and see Robinson v. Dunmore, 2 Bos. & Pull. R. 417.

2 Whalley v. Wray, 3 Esp R. 74.

that it was the duty of the defendant to have done that, from the neglect of which the loss has arisen." But whether the loss did proceed from the negligence of the owner of the goods, or whether it may have so proceeded, may sometimes be a question to be submitted to the jury, with the circumstances attending the particular case.1

$58. A bailee for reward is liable for injury to goods occasioned by his negligence, although it appear that after thus happening of the injury, the goods were destroyed without his fault, and that they must have been so destroyed, even if no damage had previously occurred. In an action on the case against a warehouseman, it appeared on the trial, that several boxes of furniture, clothing, &c. belonging to the plaintiff, were deposited with the defendant, a warehouseman and oil merchant, to be stored for hire. The goods were placed in a lower room of the defendant's store, and while remaining there were seriously injured by the drippings of the oil from leaky casks in the second story. Afterwards the goods were destroyed by a sudden freshet, which caused the water of the river near to which the warehouse stood, to rise and flow into the room where they were deposited. Every exertion was made by the defendant's servants to save the goods from injury. It was held by the Court, that the defendant was no more released from his liability for the injury done by the oil, through his negligence, before the flood, than he would have been, under like circumstances, if he had carelessly permitted the goods to be stolen or burned. In such a case, he might have contended with as much propriety as in the case in question, that he ought not to be held responsible for the consequences of his own neglect, because the goods would have been destroyed by the flood, if no loss or damage had previously occurred. It could not be denied, that a cause of action to

1 Bowman v. Teall, 23 Wend. (N. Y.) R. 306.