The Working and Management of an English Railway/Chapter 16

The Working and Management of an English Railway by George Findlay
Chapter 16 — On the Law as between English Railway Companies and the Public

On the Law as between English Railway Companies and the Public.

It is not the writer's intention, under this heading, to enter upon a minute examination of the whole body of what is known as "Railway Law." The limits of the present work would not indeed admit of this, nor is it necessary, for books of reference already exist, edited by competent hands, and affording the widest information upon all the legal questions which can arise in connection with railways. These are, however, for the most part overlaid with legal formulae, references to case law and Acts of Parliament, and contain a great deal of matter which can possess no interest for the general reader; so that, without in any way trenching upon their province, it may be useful to give here a brief summary, in "language to be understanded of the people," of the most important provisions of the laws which govern railway companies in their daily dealings with the public. It has been said that a little law, like a little knowledge, is a dangerous thing; and it has been likewise remarked that "the man who is his own lawyer has a fool for his client"; but all this proverbial philosophy must be taken cum grano, and it may well be that a little intelligent appreciation of the state of the law on a given subject may suffice to keep a man out of the law courts when a resort to litigation could only end in the loss of time, temper, and money.

The law as affecting railways is defined in various ways. There are, first, the provisions of the special Acts authorising the making of the several railways; secondly, the various public Acts which have been passed from time to time for the regulation of railways; thirdly, there is what is known as common law, or the custom of the realm; and in addition to all these, there is a great body of what is called "case law," that is, the recorded decisions which have been given by the Courts at different times upon disputed questions involving the interpretation of Acts of Parliament. In the remarks that follow, we shall treat all these authorities as one for our purpose, and merely attempt to give the reader some idea of what, in the present state of the law, he has a right to demand from the railway companies in his dealings with them, and what, on the other hand, they are entitled to expect from him.

In considering railway law, nearly every thing appears to turn upon the great question of what constitutes a "common carrier," and if this point is once clearly established in a given case, the rights, liabilities, and immunities of a common carrier are pretty clearly defined by the authorities. We learn, then, that a "common carrier" is one who undertakes the conveyance of goods or passengers for hire or reward, and therefore stands in the light of a bailee. He must exercise the business of carrying as a public employment, and must undertake to carry all persons, or the goods of all persons, as the case may be, indiscriminately. Having become a common carrier, as thus defined, the law places upon him the duty to carry, according to his profession, though there may be no specific agreement as to the performance of the service, or the price to be charged for it, and, with certain reservations, which will be noticed hereafter, he becomes an insurer, and is liable for loss or damage, unless such loss or damage arises from the act of God or the Queen's enemies.

Legally speaking, railway companies are not common carriers unless they choose to constitute themselves as such. The Railway Clauses Consolidation Act of 1845 provides that it shall be lawful for a railway company to employ engines and carriages and convey passengers and goods, but it does not say that they shall do so. Thus some of the earlier railway companies simply allowed other people to run their own engines and carriages over the railway on payment of tolls, and they were not common carriers ; but so soon as a railway company exercises its discretion under the Act of 1845, and holds itself out to the world as a common carrier, it comes within the operation of all the provisions of carrier's law, which, with some variations, applies equally to all other means of conveyance, whether by land or water.

A railway company is not entitled to make any charges for the services it performs, in excess of the charges specified in the Acts relating to its undertaking.

From this point it will be convenient to divide the remarks which follow under two heads, viz., (a) as to the law affecting the carriage of merchandise (in which term is included coal and other minerals, and live stock);,and (b) as to the law affecting the conveyance of passengers, and their luggage.

(A.)—As to the Law affecting the Carriage of Merchandise.

(1.) A common carrier, as a general rule, is bound by the common law to receive and carry, to those places which he holds himself out as carrying to, all goods offered to him for that purpose, from all persons alike upon the tender of payment for his hire; and if he refuses to do this, an action is maintainable against him. It must, however, be proved that he had the means of carrying the goods; that, in the case of goods of great value, he had the means of carrying them securely, and that they were offered to him at a reasonable time.

He is only liable to carry to such places as he holds himself out to be a common carrier to and from, and then only to carry such descriptions of goods as he professes to carry. As will be seen hereafter, there are certain articles of which railway companies are not, and decline to be, common carriers.

(2.) A carrier may refuse to take the custody of goods unless he is previously paid the price of their carriage. Railway companies, as a matter of practice, charge the carriage forward, if so desired, and collect it from the consignee, and in some cases they allow ledger accounts and collect their freight charges monthly; but, in so doing, they waive their rights in order to meet the convenience of their customers.

(3.) The responsibility of a carrier commences on the delivery of the goods to him and continues until he has delivered them or tendered them for delivery to the consignee. Many actions at law have turned upon the question of what constitutes "delivery" to a carrier, and the point is one of some delicacy; but, speaking generally, it may be said that the goods must be delivered by the sender or his accredited agent actually into the hands of the carrier, or some person who can be shown to be his agent, for the purpose of receiving them; for instance, his carman or the keeper of one of his receiving offices.

(4.) Goods delivered to a carrier must be properly and securely packed, and if any injury arises to them during their conveyance from their being, unknown to the carrier, improperly or insufficiently packed, the carrier is absolved from liability.

(S.) If any fraud or deceit be practised on the carrier whereby the real value of goods is concealed from him, and he is induced to regard them as of comparatively trifling value, he is not liable in case they be lost or stolen from him.

(6.) Railway companies are not bound to carry articles of a dangerous nature, such as gunpowder or other explosives, or lucifer matches; and if a person sends such articles by railway without declaring their true nature, he is liable to a penalty. The company may refuse to accept any package which they have reason to suspect contains goods of a dangerous nature, or to require that the package shall be opened so as to ascertain the facts.

Railway companies are not common carriers of articles of this description, and only convey them by arrangement with the senders, and under proper regulations.

(7.) At common law a carrier is in the nature of an insurer, and is bound to keep and carry goods entrusted to his care safely, and is liable for all losses, and in all events save only, as before mentioned, those resulting from the act of God or the Queen's enemies; and this holds good notwithstanding that there may have been no actual negligence on his part, and that the injury or loss may have been occasioned by the act of a third party. The "Act of God" has been defined as being something in opposition to the act of man, as for example, winds and storms, lightning, earthquake, inundations, or sudden illness or death, the consequences of which could not by any reasonable precautions on the part of the carrier have been prevented. "The Queen's Enemies" means foreign enemies, who are such by open declaration of war; not domestic enemies, as in the case of insurrection or riot, where the carrier, if made liable, would have his remedy in turn against the county.

(8.) The carrier is liable for the loss of goods occasioned by fire while in his possession as a carrier, notwithstanding that the fire may not have originated on his premises, or been caused by his negligence; but if the carrier is merely acting in the capacity of a warehouseman for the owner of the goods, the liability of a common carrier will no longer attach to him.

(9.) A carrier is not liable for losses or damage arising from the ordinary deterioration of goods in quantity or quality during transit, or from their inherent tendency to decay or deteriorate, or from accident occurring to any animal through its own inherent vice.

(10.) At a very early period in the history of railways, viz., in 1830, an Act was passed, which, although at the time intended for the protection of coach proprietors, mail contractors, and other carriers by road, was, by the 89th section of the Railways Clauses Consolidation Act of 1845, extended to railway companies in their capacity as common carriers. This Act (I. Will. IV. cap. 68) is popularly known as the "Carriers' Act," and it has a very important bearing upon the liability of a railway company for loss of, or damage to, valuable goods entrusted to its care.

The principle of the Act is contained in the first and second clauses, which provide that no common carrier by land for hire shall be liable for the loss of, or injury to, any articles of the following descriptions, viz.:—

Gold or silver coin.
Gold or silver in a manufactored or unmanufactured state.||Title deeds.
Precious stones.
Clocks and timepieces.
Bank notes.
Orders, notes or securities for payment of money.
Stamps, English or Foreign.
Gold or silver plate or plated articles.
Silks, manufactured or unmanufactured, and whether wrought up with other material or not.

whether delivered to be carried for hire or to accompany the person of a passenger by any public conveyance, when the value of such article exceeds ten pounds, unless at the time of delivery to the carrier the nature and value of such articles shall have been declared by the sender, and he shall have paid, or agreed to pay, such additional charge, over and above the ordinary rate of carriage, as the carrier shall, by notice, demand as compensation for the greater risk and care to be taken for the conveyance of the articles. In plain terms, the carrier is not liable unless the sender declares the value and pays the charge for insurance fixed by the carrier, and railway companies give effect to this Act by fixing an ad valorem scale of insurance for the articles named in the Act, this scale being duly advertised in their time tables and by other means.

By an amending Act, passed in 1865, it was enacted that the term "lace" should be construed so as not to include machine-made lace. It should also be mentioned that the Act of 1830 limits the carrier's liability to the declared value of the goods, plus the additional charge for insurance, but does not preclude the carrier from reducing this liability by proving that the declared value exceeds the actual value, if such be the case. Further, as the intention of the Act, as stated in its preamble, was to protect the carrier from the risk of depredation of articles of great value in small compass, it very properly provided that, where such depredation was committed by the servants of the carrier, he should be liable notwithstanding any of the provisions of the Act.

(11.) When railway companies first commenced to carry horses, cattle, sheep, and other live stock, they were in the habit of giving notice to the senders that they were not common carriers of live stock, and that they only conveyed it on the understanding that the owners took the entire risk, and this notice, being printed on the ticket, was held by the courts to be a special contract, and legal and binding upon both parties; but by an Act passed in 1854, entitled, "An act for the better regulation of the traffic in railways and canals," it was provided that in future all conditions limiting the liability of railway companies should be void unless they were reasonable, and were signed by the consignor, with a further proviso limiting the liability of railway companies for loss of, or injury to, animals and live stock committed to their care, to the following amounts:—

For any horse, not exceeding £50.
,, neat cattle, per head ,, 15 
,, sheep or pigs, per head ,,

The companies are exempted from liability for any greater sums than these, unless the sender shall declare the value of the animals at the time of delivery to them, and pay a reasonable charge for insurance, to be fixed by the company, over and above the ordinary rate of carriage. In point of fact, the principle of the "Carriers' Act" is, with certain limitations, applied to the conveyance of live stock.

(12.) By an Act passed in 1845 the railway company is empowered, in any case where they fail to recover the charges payable for the carriage of goods, to detain and sell the goods, and to retain out of the profits of the sale the amount due to them for freight, rendering up the surplus, if any, to the owner of the goods. The carrier may, however, sue for his carriage and is not obliged to rely entirely upon his lien on the goods where they are not equivalent in value to the amount of the freight.

(13.) A railway company is also entitled to retain possession of the goods until the amount due for freight has been paid.

(14.) We have seen in clause 3 that the liability of a carrier terminates only on the goods being delivered up out of his custody to their owner, but this requires a little elucidation. The law provides that if the terms of the carrier's contract with the sender necessitate his transferring the goods to another company or conveyance in order to complete their transit, he is liable throughout, and the company or person to whom he hands them at the termination of their transit over his own railway is looked upon as his agent; but where, by the terms of the contract, his own duty is complete and the goods have passed out of his hands, the liability is transferred to the third person, until the delivery of the goods is completed.

Practically, this means that if the goods are booked and the carriage paid throughout, the contracting company, in the absence of any special condition to the contrary, is liable for the whole journey; but if the contracting company book the goods and are paid the carriage from A to B only, and there, by the instructions of the sender, hand them over to another company or carrier to convey from B to C, the liability for the latter portion of the journey rests with the carrier from B to C.

(15.) It is the duty of a carrier to deliver the goods within a reasonable time according to the usage of trade, the ordinary course of business, or the terms of the contract.

(16.) We have seen that the responsibility of the carrier continues until he has effected delivery of the goods to the consignee, but much litigation has from time to time arisen as to what constitutes a good delivery. The point is one involving some difficulty, but the following principles have been laid down :—

(a.) The carrier is bound to deliver the goods at the place of business, or residence of the consignee, provided it be known to him, and that he has been paid a charge which includes delivery from the receiving station to the consignee's address.

(b.) If the carrier tenders the goods for delivery at consignee's residence or place of business, and the latter is not in a position to pay for their carriage, the carrier's liability is at an end, as he is not bound to bring them a second time. The consignee must fetch them away when he is in a position to pay the carriage.

(c.) Where it is not part of the duty of the carrier to deliver the goods to the consignee's residence, as in the case of goods carried at station to station (i.e., not carted rates), or where the consignee's residence or place of business is beyond the recognised limits of delivery, the carrier is bound to give notice to the consignee of the arrival of the goods; and when a reasonable time for their removal has elapsed, the liability of the carrier for loss or damage ceases, and he is, in law, held to have effected a constructive delivery.

(17.) If the carrier delivers goods to any other than the person entitled to receive them, he is liable to the proper owner for their value.

(18.) The sender of goods has a right of what is called "stoppage in transitu," which may be exercised in the following circumstances:—If goods are sold upon credit and delivered to a carrier to be conveyed to the buyer, and if, while the goods are in transit, the buyer, not having paid the whole of the purchase money, becomes bankrupt, or fail, or stop payment, the sender may countermand the consignment, and require the goods to be re-delivered to himself, of course upon payment of the carriage.

(19.) When goods have been delivered to a carrier for conveyance the property in them is vested in him for the time being, and he is not obliged to give them up again until he has been paid his charges. Even if the sender changes his mind and does not require them to be forwarded, the carrier may still demand his hire because by taking the goods into his custody he has already incurred risks. The carrier, while he is liable to the owner for the safety of the goods, may maintain an action at law in his own name against a third party who takes them out of his possession or damages them, just in the same way as a letter while in transit through the post, is held to be, at law, the property of the Postmaster-General.

(20.) When goods are directed to be left with the carrier until called for, and the consignee does not remove them within a reasonable time, the carrier is entitled to make a charge for warehousing them.

(21.) In an action against a carrier for loss of goods the amount to be recovered depends upon the extent of the carrier's liability, i.e., upon whether he is liable for the whole value of the goods, or whether his liability has been limited by Act of Parliament (as, for instance, in the case of a horse carried at the uninsured rate), or by any special contract. If no special damage can be proved, the plaintiff cannot recover beyond the value of the goods.

In the case of the non-delivery of goods, a plaintiff is entitled to recover the value of the goods at the place of delivery, at the time at which they ought to have been delivered, so that, in the case of goods sent to a market, the plaintiff is entitled, not merely to the cost price, but to the market value; and in the case of delay in delivery, he is entitled to recover any difference between the market value at the time when the goods ought to have been delivered and at the time when they were actually delivered.

In other cases, special damages for delay may be recovered even when the article delayed has suffered no deterioration in value, as, for instance, when the company has accepted the goods with notice that their non-delivery by a specified date will defeat the object with which they are sent; but only such damages can be recovered as must be taken to have been within the contemplation of the parties to the contract of carriage when such contract was entered into, and as might reasonably be expected to result from a breach of such contract.

(B.)—As to the Law affecting the Conveyance of Passengers and their Luggage.

(1.) A railway company, having constituted itself a carrier of passengers, is bound to convey upon its railway all such passengers as may offer themselves for that purpose, without unreasonable delay, and without partiality, and if a railway company issues time-tables and advertises that a train will run at a particular time, this amounts to a contract on their part to run the train and convey all persons who offer themselves as passengers, provided they are prepared to pay the usual fare, and that there is room in the train.

(2.) The passenger must be in a fit and proper state as to sobriety, health and conduct, so as not to cause offence or danger to the other passengers. A railway company is not compelled to convey upon their railway a person who is intoxicated or insane, or who is suffering from an infectious disease. A passenger is also bound to submit to all reasonable regulations which may be adopted for the convenience, safety and comfort of the public.

(3.) By an Act passed in 1883, called the "Cheap Trains Act," it is provided that if at any time the Board of Trade have reason to believe that upon any railway or system of railways, whether belonging to one company or more than one, but which forms a continuous mode of communication, a due and sufficient proportion of the accommodation provided is not available for passengers at fares not exceeding one penny per mile, or that upon any passenger railway proper and sufficient workmen's trains are not provided for workmen going to and returning from their work at such fares and at such times between 6 p.m. and 8 a.m. as appear to the Board of Trade to be reasonable and necessary, they may hold an enquiry, and, if called upon to do so by any railway company concerned, may refer the matter for the decision of the Railway Commissioners. If the result of the enquiry is to prove to the satisfaction of the Board of Trade or of the Railway Commissioners that such proper accommodation is not provided, then the Board or the Railway Commissioners, as the case may be, may order the company to provide such accommodation, and at such fares as seem to them reasonable. As a matter of fact, this power has, on several occasions, been exercised by the Board of Trade since the passing of the Act.

(4.) A railway company, in carrying passengers, is not subject to the same liabilities as apply to a common carrier of goods. It has been shown in the first portion of this chapter, that as to goods the carrier is in the position of an insurer, and is liable in all events except the act of God or the Queen's enemies, but he is not called upon absolutely to warrant the safety of the passengers. He only undertakes that so far as human care and foresight can go he will provide for their safe conveyance; he is to use the utmost care and diligence, and is responsible for the consequences of the slightest neglect on his part, but his liability goes no further. Thus, in a case where an accident occurred through the breaking-down of a bridge the Court held that if the bridge was constructed by a competent engineer, and of reasonable and proper strength for the purpose, and was maintained with due care and skill, the company was not liable.

(5.) A railway company is responsible for the negligence or default of its servants within the scope of their legitimate employment as if their acts were its own. Thus, if a signalman causes an accident by giving a wrong signal, the company is liable; but if a porter or telegraph boy were to mischievously, or without authority, interfere with the signals, or with an engine and cause an accident, the company would not be liable.

(6.) A railway company is bound to carry free, with each passenger, his personal luggage to an amount fixed by the Acts of Incorporation of the several railway companies, according to the class of carriage in which the passenger travels. This amount varies in different Acts, but, in practice, the railway companies carry free 120 lbs., 100 lbs., and 60 lbs., for 1st, 2nd, and 3rd class passengers respectively, and the company's liability with respect to passengers' luggage is the same as that with respect to goods entrusted to it for conveyance, so long as the passenger's luggage is under the charge of the company. If, however, the passenger takes the luggage under his own control, the company's liability is diminished, and only arises where negligence is shown on the part of its servants.

(7.) The question of what constitutes personal luggage has been the subject of many judicial decisions, but, broadly speaking, personal luggage may be defined as consisting of such articles as the passenger requires for his own use or personal convenience upon or in connection with his journey, although more recent decisions have included articles which might not perhaps fall strictly within that definition. As a negative definition, however, it may be said that personal luggage does not include merchandise and materials intended for trade purposes.

(8.) The provisions of the Carriers' Act apply equally to passengers' luggage as to goods, and the foregoing remarks upon the subject of that Act may be taken as referring to both, with the additional observation that, though the Act protects the carrier from loss or damage under the circumstances stated, it does not protect him from the consequences of delay, unless the delay is such as to practically amount to a loss even though the articles are eventually recovered.

(9.) If a passenger travels upon a railway without paying his fare, or travels a greater distance than that for which he has paid, and there is evidence that he has acted with a fraudulent intent, he is liable to a penalty, and may be detained by any officer of the company, or by any peace officer, until he can be brought before a justice for the purpose of punishment. If there is no evidence of fraud, the company have no right to detain the individual or to use force to expel him from the train after he has commenced his journey; their proper course is to exercise the right, which they possess, of Hen on his luggage for payment of the fare, or to sue him in a court of justice.

(10.) Under the bye-laws of railway companies which they are by Act of Parliament empowered to make, and which are legal and binding, a passenger is bound to show his ticket when requested to do so by any servant of the company.

(11.) In an action against a railway company for refusing to carry, or for not carrying, a passenger within a reasonable time, the plaintiff, on proof of negligence, is entitled to recover any extra expense he may have reasonably incurred in reaching his destination by other means, and he may also, within certain limits, recover damages for any loss or expense which he may have sustained by reason of the delay; but the extent to which these special, or consequential, damages may be recovered involves the consideration of many intricate questions of law which would be beyond the scope of this chapter, although the principles already laid down with regard to the recovery of special damages for delay to goods may be taken as generally applicable.

In an action for loss of, or injury to, the luggage of a passenger, or for delay in delivery, the damages will be assessed upon the same principles which apply to goods.

(12.) Railway companies are also liable for the negligence of their servants, resulting in death or personal injury to any person. In the case of death no action was maintainable until the passing, in 1846, of the Act known as Lord Campbell's Act, under which an action can now be brought for the benefit of the parents, grand parents, children, grandchildren or step-children of the deceased person (but not on behalf of any other relative or person), provided the action be brought within twelve months of the death of the deceased. In any such action, actual pecuniary loss must be shown to have been sustained by the persons for whose benefit the action is brought.

In an action for personal injury the plaintiff is entitled to recover, not only the pecuniary loss sustained by him by reason of the accident, such as loss of salary, wages or business profits, and any expenses incurred for medical fees, extra nourishment, nursing, change of air, assistance in business, and the like, but also compensation for bodily pain and suffering. The claim may, furthur, include compensation for losses or expenses to be incurred before the plaintiff may have completely recovered from the effects of the accident, or for any permanent injury which he may have sustained.