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such tickets; or the fraudulent selling or circulating of the same.1

§ 276. It is usual for traffic in newspapers, confectionery, fruit and similar commodities to be carried on in a small way on passenger trains. Vendors have rights which the law is bound to respect. In the case of Barney v. Steamboat D. R. Martin, which came before the United States circuit court, district of New York, Mr. Justice WARD on the bench, it was held: first, that no passenger, as such, has a right to carry on any business occupation upon the vehicles of a common carrier, and if he attempts so to do, after being requested to desist, he may be ejected; second, a carrier may grant the right to transact a business upon its vehicles, but the right will be limited to the grantee.


$277. When the liability begins and ends.

278. Liability as a warehouseman.

279. Furnishing facilities for freight business

280. "Without favor or prejudice."

281. Reform wrought, and how.

282. Reasonable rules.

283. Railway comity in freight carriage.

284. Delivery beyond the carrier's line.

285. The law of usage.

286. Liability incident thereto.

287. Unnecessary delay unlawful.

288. Perishable consignments.

289. Bill of lading, prima facie evidence.
290. Title as between bailor and bailee.

291. Consignor and consignee.

292. Burden of proof: Special obligations.
293. Special exemptions.

' Gross' Statutes, vol. i, chap. 30, div. vii, sec. 20.

294. A question of fact for the jury.

295. Bill of lading for through freight.
296. C. O. D.

297. Delay in taking away freight.

298. Wrong delivery by mistake.

299. Negligence: Contributory negligence.
300. Damage: Absolute loss.

301. Act of God.

§ 277. It is often a matter of vital moment to determine when the distinctive liability of a common carrier began and ended. A railroad company frequently sustains the relation of warehouseman. Even when there is no storage duty performed there may be a controversy as to when the liability as common carrier really began. For example, hay on the cars of a railroad company for shipment, if detained a day at the request of the shipper, is held during that time by the company in the capacity of warehouseman.1 In the same case the court made the statement that the distinctive liability of a common carrier attaches when the delivery of the freight to the carrier is complete. When the responsibility of the warehouseman ends, then it is that the technical liability of a common carrier begins, and this liability continues until that of some other person begins. It is only when the goods are deposited in a reasonably safe warehouse that the railroad company can avoid the greater responsibility of a carrier. 2

1 St. Louis, Alton and Terre Haute R. R. Co. v. Montgomery, 39 Ill. 335.

2 Illinois Central R. R. Co. v. Alexander, 20 Ill. 23; Richards v. Michigan Southern and Northern Indiana R. R. Co. Ibid. 404; Chicago and Rock Island R. R. Co. v. Warren, 16 Ill.. 502; Bartholomew v. St. Louis, Jacksonville and Chicago R. R. Co. 53 Ill. 227

$278. When it is claimed by the railroad company that its liability in a given case was that of a warehouseman only, the burden of proof rests upon the company. Carrying, rather than storing, being the main business of the corporation, the carrier liability can only be escaped by direct and full proof that the goods were in store. Accordingly a railroad company would be compelled to show not merely the arrival of the freight, but that the same had been separated from the train and placed in the proper or usual place for storage, and in care of a proper person, in order to relieve itself from liability as a common carrier.

$279. The first duty of a common carrier is that he must furnish "reasonable and ordinary facilities for doing the business of transportation, such facilities as will meet the ordinary demands of the public; but it is not obliged to provide in advance for or anticipate an unusual influx of freight."1 If a company has reason to expect a volume of business at certain seasons of the year, if that increase is usual and habitual, then it must be prepared to meet it. The expense of a freight car is so little that the company is bound to be pre pared to move the crops in the proper season for the sale of the same, and not to make the minimum of their car demands the measure of their actual supply of facilities.

$280. The furnishing of facilities and the transaction of the business must be uniform and impartial. If there is an insufficiency of cars the burden must be

1 Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488; Chicago and Alton R. R. Co. v. Randolph, 53 Ill. 510. For a fuller discussion of this subject see chapt. 8.

2 About $700.


shared equally by different points and persons. The accommodations must be uniform, "without favor or prejudice." The court has stated, however, that this doctrine of uniformity allows a difference in charges for different classes of freight, also for different periods of time. Formerly the railroad companies of Illinois claimed the right to bind themselves by contract to deliver grain exclusively to certain elevators.

§ 281. The constitution forbids such monopoly combinations; the courts have pronounced them void, as being contrary to public policy, and the claim has been abandoned. For this reform the state is indebted to the policy inaugurated by the present constitution of Illinois, although the doctrine therein laid down had frequently been proclaimed by the courts. It is worthy of remark that this affords an example of the value of legislation in giving emphasis to common law doctrines of justice.

282. It is conceded that the railroad company may adopt rules for the details of its business which some of its patronage would deem unjust. It is often extremely difficult to decide what is reasonable. If the determination of any given point in this connection is left to the adjudication of the courts, inquiry will be made into previous usages and customs on the

1 Chicago, Burlington and Quincy R. R. v. Parks, 18 Ill. 460; Vincent v. Chicago, Alton and St. Louis R. R. Co. 49 Ill. 33; People v. Chicago and Alton R. R. Co. 55 Ill. 111; Chicago and Northwestern R. R. Co. v. People, 56 Ill. 365; Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420.

'Notably in Great Western R. R. Co. of 1859 v. McComas, 33 Ill. 185; Michigan Southern and Northern Indiana R. R. Co. v. Day, 20 Ill. 376; Illinois Central R. R. Co. v. Johnson, 34 Ill. 389; Ibid. v. Frankenberger, 54 Ill. 88.

presumption that the rules which generally obtain are equitable.1


$283. This doctrine of uniformity and equity extends to intercourse between railroad companies to all transportation companies and each individual. Indeed, by the statute of 1867, still in force, as well as by the constitution and subsequent legislation, railroad companies are required to provide reasonable accommodations for accepting and carrying consignments from other common carriers. The statute referred to declares that "in case the officers of said companies cannot agree as to the manner and terms upon which such joint business shall be interchanged, said companies shall each choose an impartial person familiar with the management of railroads, and the two thus chosen shall select a third person to act with them, and the award of the persons thus selected, or a majority of them, as to the terms and manner for transacting said joint business, shall be conclusive and binding upon both parties. In case either of said roads shall refuse to select such referee then the county court may select such referee upon application of either party."3

§ 284. As to the delivery of freight beyond their own lines it is conceded that railroad companies cannot be obliged to receive goods on the requirement of the consignor that they themselves shall deliver the goods beyond or off their own lines of road. The legal duty of the company in that regard is commensurate with their franchise; confined to their own line

1 Vincent v. Chicago and Alton R. R. Co. 49 Ill. 33.

2 Gulliver v. Adams Express Co. 38 Ill. 502.

3 Gross' Statutes, vol. i, p. 537.

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