Page:The American Cyclopædia (1879) Volume V.djvu/150

146 COMMON CARRIER COMMON LAW are delivered to him for carriage, unless they are retained for the convenience of the owner, or awaiting his orders. Common carriers of per- sons are those who hold themselves out as car- riers for hire of such as may offer, and who thereby become bound to carry all who offer. Their undertaking is to furnish suitable ve- hicles and to carry with reasonable despatch 'and without negligence. They are not, how- ever, insurers for the safety of their passen- gers, but are held to the highest degree of care and vigilance, and must supply them- selves with the most approved appliances for the conduct of their business. An injury through defect of machinery renders the car- rier liable, unless the defect was one which no degree of watchfulness on his part would enable him to detect and guard against. The negligence of the carrier's agent or servant is his own negligence; but he is not liable for the servant's intentional wrongs, except where they are perpetrated in the exercise of an authority which the carrier has conferred, and on his behalf; as, for example, when a railroad conductor thrusts a passenger from the cars to his injury on a wrongful charge of non-payment of fare. (See MASTEE AND SERVANT.) Where, however, the injury occurs through the concurring negligence of the car- rier and the passenger, the former is not liable, as the law will not undertake to apportion the responsibility in such cases. But if the want of prudent conduct on the part of the passenger is in consequence of fright or alarm caused by the carrier's negligence, he cannot excuse him- self on that ground. The common law does not make a carrier liable civilly for a death caused by his negligence; but this has been regarded as a serious defect, and now by Lord Campbell's act (9 and 10 Victoria, ch. 93), and by statutes in the United States, all persons by whose wrongful act, neglect, or default a death is caused, are made liable to the payment of a pecuniary compensation for the benefit of the family or next of kin. An injury to a passen- ger while he is on the carrier's vehicle in the proper place for carriage is prima facie through the carrier's negligence. The carrier may, however, establish reasonable rules and regula- tions for the management of his business, which passengers must observe at their peril, and may eject from his conveyance any who refuse to comply ; and the reasonableness of such rules and regulations is a mixed question of law and fact, except where they are so palpa- bly improper as to be void on their face. Every passenger has a right to take with him reasonable baggage and money for his journey, and for these the carrier is liable as insurer to the same extent as any carrier of goods. What is baggage and what a reasonable amount will depend upon the nature and extent of the jour- ney, and upon the passenger's condition and circumstances in life. Such articles of clothing and personal convenience as are usually taken on- going abroad, a watch and common articles of personal ornament, would be included, but not articles taken in connection with the pas- senger's business, or money beyond what might in prudence be provided for the contingencies of the journey.- If, however, the easier is accustomed to take with his passengers other goods besides their baggage, for a compensa- tion to be paid him, he assumes as to such goods all the responsibilities of a common car- rier of goods, and consequently may be liable for a loss thereof, though occasioned by such circumstances as would excuse him from lia- bility to the passenger for a personal injury. The carrier may always demand his compensa- tion in advance ; but if he fails to do so, the non-payment prior to an injury will not excuse him from liability. COMMON LAW. By this term: in English ju- risprudence is sometimes designated that part of the law of England which has grown up from usage, as distinguished from acts of parlia- ment ; the former being also classified as leges non scriptce, the latter as leges scriptm. This- last classification is, however, far from ac- curate ; for, as we shall have occasion to show more particularly in another part of this article, the laws were at an early period repeatedly collected and promulgated by royal authority,, and in later times have been contained in re- ported decisions of the courts and treatises of writers upon law ; and again, many ancient statutes, the records of which are now lost r were incorporated into the common law, many others of which we have the record being merely declaratory of the common law as it was claimed to have existed before. Such was* the Magna Charta, as confirmed by parliament, 9 Henry III., the oldest of the statutes of which an original record is now extant ; so the stat- ute 25 Edward III., relating to treason, the pe- tition of right, which was passed in 1628, and various other statutes of more modern date, purporting merely to declare the existing law, and not to enact any new provision. The defi- nition of common law above given includes not merely the indigenous customs of the Eng- lish people, but also so much of the Roman and canon laws as have been introduced in the admiralty and ecclesiastical courts, as well as the rules or maxims which were borrowed by English judges and writers from either of those systems. The term is also sometimes used to express the whole law, statutory or customary, as administered in the most ancient or what was termed common law courts, in distinction from the system of equity as de- veloped in the court of chancery, the latter being of more recent growth, and intended for relief in cases where there was no adequate remedy by the strict rules of the common law. In a still larger sense, it is the common appel- lation of the entire English law, including even the foreign elements intermingled with it, in distinction from the civil law generally re- ceived among European nations, and from the canon law, except so far as adopted in the