1 Steele v. McTyer, 31 Ala. 667. And the occasional transportation of goods on a passenger train, or vice versd, has been thought not to make the carrier a common carrier to that extent. See Elkins v. Boston & Maine Railroad, 3 Fost. 275; Murch v. Concord Railroad, 9 Fost. 9. See further Fuller v. Bradley, 25 Penn. St. 120; Pennewill v. Cullen, 5 Harring. 238.
2 Allen v. Sackrider, 37 N. Y. 341 (1867).
§ 920. A private carrier incurs only the responsibility of an ordinary bailee for hire, namely, of ordinary diligence.1 ward, 5 T. R. 143; 1 Pick. 50; 2 Sumner, 221; Story on Bailm. § 322, 323; Dudley (S. C), 159.
"It will be seen hereafter we hold that, according to the common law as of force in this country in 1776, a common carrier cannot vary or limit his liability by notice or special acceptance, and shall advert to this subject again. For the present we state the proposition broadly, that he is in the nature of an insurer of the goods intrusted to his care, and is responsible for every injury sustained by them, occasioned by any means whatever, except only the act of God and the king's enemies. 1 Inst. 89; Dale v. Hall, 1 Wils. 281; Covington v. Willan, Gow, 115; Davis v. Garrett, 6 Bing. 716; 2 Kent, 597; Coggs v. Bernard, 2 Ld. Raym. 918; 1 T. R. 27; 3 Esp. 127; 5 Bing. 217.
"It is from these definitions and from the two propositions stated, that we are to determine what constitutes a person a common carrier. I infer, then, that the business of carrying must be habitual and not casual. An occasional undertaking to carry goods will not make a person a common carrier; if it did, then it is hard to determine who, in a planting and commercial community like ours, is not one; there are few planters in our own State owning a wagon and team who do not occasionally contract to carry goods. It would be contrary to reason, and excessively burdensome, nay, enormously oppressive, to subject a man to the responsibilities of a common carrier, who might, once a year or oftener, at long intervals, contract to haul goods from one point in the State to another. Such a rule would be exceedingly inconvenient to the whole community, for, if established, it might become difficult in certain districts of our State to procure transportation.
"The undertaking must be general and for all people indifferently. The undertaking may be evidenced by the carrier's own notice, or practically by a series of acts, by his known habitual continuance in this line of business. He must thus assume to be the servant of the public; he must undertake for all people. A special undertaking for one man does not make a wagoner, or anybody else, a common carrier. I am very well aware of the importance of holding wagoners in this country to a rigid accountability; they are from necessity greatly trusted, valuable interests are committed to them, and they are not always of the most careful, sober, and responsible class of our citizens. Still the necessity of an inflexible adherence to general rules we cannot and wish not to escape from. To guard this point, therefore, we say, that he who follows wagoning for a livelihood, or he who gives out to the world in any intelligible way that he will take goods or other things for transportation from place to place, whether for a year, a season, or less time, is a common carrier, and subject to all his liabilities.
"One of the obligations of a common carrier, as we have seen, is to carry
1 Citizens' Bank v. The Nantucket Steamboat Co., 2 Story, 33.
But a common carrier assumes the responsibility of an insurer; and is liable for all losses, except such as happen from inevitable accident, without the intervention of man; or from public enemies; or, as it is usually phrased, from the act of God, or the king's enemies.1 "Whatever, therefore, may be the degree of active diligence and prudence exercised by the carrier and his servants, the carrier will be responsible, if there be human agency connected with the cause of the loss. This responsibility is affixed to common carriers upon grounds of public policy,2 and in consideration of the numerous opportunities afforded to them, by the nature of their business, for fraudulent combination, and clandestine dealings, to the injury of their employers. The law regards them, therefore, with that distrust which has been called "the sinew of wisdom." the goods of any person offering to pay his hire; with certain specific limitations this is the rule. If he refuse to carry, he is liable to be sued, and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character. By this test, was Mr. Fish a common carrier ? There is no evidence to make him one but his contract with Chapman & Ross. Suppose that, after executing this contract, another application had been made to him to carry goods, which he refused, could he be made liable in damages for such refusal upon this evidence ? Clearly not. There is not a case in the books but one, to which I shall presently advert, which would make him liable upon proof of a single carrying operation.
"The extent of his liability, and his inability to vary that liability by notice or special acceptance, is another test. A common carrier is liable at all events, but for the act of God and the king's enemies; and he cannot limit or vary that liability. Whereas a carrier for hire in a particular case is only answerable for ordinary neglect, unless he by express contract assumes the risk of a common carrier; his liability may be regulated by his contract. We do not think this undertaking would give to Mr. Fish that character which would preclude him from defining his liability in any other contract. By this contract he may be liable pro hac vice as a common carrier, for that is a different thing.
"Upon these views we predicate the opinion, that the plaintiff in error was not a common carrier. From the way in which the opinion of the court is expressed in the bill of exceptions, I am left somewhat in doubt whether the able judge presiding in this cause intended to say that the plaintiff in error was a common carrier, or that under his contract he was liable as such. If the former, we think he erred; and if the latter, as we shall more fully show, we think with him. In either event we shall not send the case back; for if he meant to say that the plaintiff upon general principles was a common carrier, thinking as we do that he is liable under this contract as such, he will not be benefited by the case's going back.