1849. GORDON V. ROLT. Crowder and Montague Smith now shewed cause.—The action is well brought in trespass, for the injury was done by persons employed under the defendant, in the course of work from which he was to receive a benefit. It is as if the defendant himself had used the crane for the purpose of his business. [Parke, B.—If a person is run over by a coachman, his master is not liable in trespass.] In that case the injury is not caused by anything done for the master's benefit. [Parke, B.-That is immaterial. Suppose a person sends a cart for a bale of goods, for which he is to receive payment, and the carter drives over a man, the master is liable in case, not trespass, unless he ordered his servant to do the act.] If the crane had not been broken, trespass might have been maintained against the defendant for using it; then is the plaintiff to be deprived of that remedy, because the crane is damaged? M'Manus v. Crickett (a) does not apply, for there the injury was done by the wilful act of the servant, without benefit to the master; here there was no intention to do mischief. [Parke, B.— The result of the authorities is, that if a servant, in the course of his master's employ, drives over any person, and does a wilful injury, the servant, and not the master, is liable in trespass; if the servant by his negligent driving causes an injury, the master is liable in case; if the master himself is driving, he is either liable in case, for his negligence, or in trespass, because the act was wilful. In Maclaughlin v. Pryor (b), the master, though not actually driving, was present and directing the driver; therefore there was evidence that he sanctioned the conduct of his servant, from which the injury arose.] A servant acting, as in this case, in the ordinary course of his master's business, must be presumed to have authority to do any act not necessarily wrongful, or intentionally so. [Alderson, B.-To render the master liable in trespass, it must appear that he ordered his servant to do the act, and there is no evidence of that here. Rolfe, B.-If it had been proved that the defendant said to his men, "Raise a weight of twenty tons on this crane, but do not break it," he would have been liable in trespass if it had broken. But here there is no evidence that the defendant knew what the men were doing.] Cockburn and Maynard appeared to support the rule, but were not called upon. PER CURIAM.-The rule must be absolute to enter a nonsuit. 1849. GORDON บ. ROLT. Rule absolute. JOHNSON V. THE MIDLAND RAILWAY COMPANY. ASE.-The declaration stated, that the defendants were common carriers of goods and chattels for hire from Melton Mowbray, in the county of Leicester, to Oakham, in the county of Rutland; that the plaintiff, on &c., caused to be tendered to the defendants, at their place of business for the receipt of goods for carriage in Melton Mowbray, to wit, &c., five tons of coals, and requested the defendants to carry the coals from Melton Mowbray to Oakham; yet, although the defendants had ample and sufficient conveniences for receiving and carrying the coals, and although the plaintiff offered to pay for the carriage, and although the defendants received and carried the goods of other persons on that occasion from Melton Mowbray to Oakham, the defendants, not regarding their duty as common carriers, wholly neglected and refused to receive or carry the said goods for the plaintiff, &c. fore, such a Company is not every descrip tion of goods, and between all places on their bound to carry line, but only such goods, and to and from such places, as they have pub The defendants pleaded, (with other pleas not material,) licly professed first, not guilty. to do, and have convenience for Secondly, that the defendants were not common carriers that purpose. 1849. JOHNSON v. MIDLAND of goods and chattels for hire from Melton Mowbray to Oakham, modo et formâ. Thirdly, that they had not ample and sufficient conveBAILWAY CO. niences for receiving and carrying the said goods, according to the said requirement of the plaintiff in that behalf. Upon these pleas issues were joined. At the trial, before Maule, J., at the last Leicester Spring Assizes, it appeared, that many years ago a canal was made from Syston to Melton Mowbray, and shortly after another canal from Melton Mowbray to Oakham. These two canals were principally used in carrying coals from the Derbyshire pits. In the year 1845 the defendants obtained an Act of Parliament (8 & 9 Vict. c. lvi) empowering them to make a branch railway from Syston to Peterborough. Under the provisions of that Act they purchased the canal from Melton Mowbray to Oakham and closed it entirely. The branch railway was completed, passing through Melton Mowbray and Oakham, and having stations at each of those towns. Since its construction the defendants carried coals and other goods the whole distance from Syston to Peterborough, and they carried oil-cake and other goods. from Melton Mowbray to Oakham, but they never carried coals from Melton Mowbray to Oakham, nor could they do so unless they gave up the passenger traffic, or made a new line of rail. In January last, the plaintiff took five tons of coals to the railway station yard at Melton Mowbray, and there left them, with directions to convey them to a person at Oakham, at the same time tendering the price of their carriage. The Railway Company refused to carry them, stating, as the fact was, that they had no wagons or other conveniences at Melton Mowbray for the loading and conveyance of coals from that place to Oakham. For that refusal the present action was brought. A verdict was found for the plaintiff, with nominal damages, leave being reserved to the defendants to move to enter a nonsuit, if the Court should be of opinion that the defendants were not under any legal obligation to carry the coals. Humfrey, in last Easter Term, obtained a rule nisi accordingly, against which Whitehurst and Mellor now shewed cause.-The defendants are bound as common carriers to carry coals, indiscriminately with other goods, from Melton Mowbray to Oakham. If not, the whole canal communication becomes valueless, for they have stopped up the canal between those two places. [Parke, B.-No obligation is cast on them by reason of their closing the canal.] The question will then depend upon their common law liability, in connection with the provisions of the Railway Clauses Consolidation Act (8 & 9 Vict. c. 20), which is incorporated with the Company's Act (8 & 9 Vict. c. lvi). The 86th section of the former Act enacts, that "it shall be lawful for the Company to use and employ locomotive engines or other moving power, and carriages and wagons to be drawn or propelled thereby, and to carry and convey upon the railway all such passengers and goods as shall be offered to them for that purpose, and to make such reasonable charges in respect thereof as they may from time to time determine upon, not exceeding the tolls by the special Act authorised to be taken by them." By the 89th section, "Nothing in this or the special Act contained shall extend to charge or make liable the Company further or in any other case than where, according to the laws of the realm, stage-coach proprietors and common carriers would be liable, nor shall extend in any degree to deprive the Company of any protection or privilege which common carriers or stage-coach proprietors may be entitled to; but on the contrary, the Company shall at all times be entitled to the benefit of every such protection and privilege." By sect. 90, the Company are empowered to vary the tolls either upon the whole or any particular portions of the railway, provided such tolls be at all times charged equally to all persons and at the same rate, whether per ton per mile, or otherwise, in respect of all passengers and 1849. JOHNSON v. MIDLAND RAILWAY Co. 1849. JOHNSON v. MIDLAND of all goods or carriages of the same description," &c. By the 105th section, "No person shall be entitled to carry, or to require the Company to carry, upon the railway any RAILWAY Co. aquafortis, oil of vitriol, gunpowder, lucifer matches, or any other goods which, in the judgment of the Company, may be of a dangerous nature;" and a penalty is imposed on any person sending such goods by the railway without giving notice in writing to the servants of the Company. The 38th section of the 8 & 9 Vict. c. lvi, limits the charge for the carriage of passengers. The 39th section limits the charge for the conveyance of the several articles, matters, and things thereinafter mentioned; and, amongst other things enumerated in the schedule, there is, "for all coals, per ton per mile, one penny farthing." [Parke, B.-They were not bound to carry the coal unless they had convenience for that purpose: Jackson v. Rogers (a); and the evidence was, that they could not carry coal without giving up the passenger traffic. In order to entitle everybody to call upon them to carry coal from Melton Mowbray to Oakham, they must have publicly professed to do so. The question is irrespective of the Act of Parliament, which only enables them to be carriers, leaving them at liberty to exercise their common law right of carrying any particular description of goods only, from and to particular places. Alderson, B.-Suppose a man says, I will carry coal as far as Melton Mowbray, but only vegetables from Melton Mowbray to Oakham, can you compel him to carry coal to Oakham?] Under the 8 & 9 Vict. c. 20, s. 86, the Company, having once elected to become carriers, are bound to carry every description of goods, except those mentioned in the 105th section, and to and from every station on their line. [Alderson, B.-If the 86th section be construed as compulsory, how is it consistent with the 89th, which provides, that the Company shall not be liable except as common (a) 2 Show. 327. |