"In conflict with these views, it has been held in Pennsylvania, that ' a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment.' Gibson, C. J., in Gordon v. Hutchinson, 1 Watts & Serg. 285. This decision no doubt contemplates an undertaking to carry generally, without a special contract, and" does not deny to the undertaker the right to define his liability. There are cases in Tennessee and New Hampshire which favor the Pennsylvania rule, but there can be but little doubt that that case is opposed to the principles of the common law, and its rule wholly inexpedient. See Story on Bailm. § 457, 495; Bac. Abr. Carrier, A.; 2 Bos. & Pul. 417; 4 Taunt. 787; Jones, Bailm. 121; 1 Wend. 272; 6 Taunt. 577; 2 Kent, 597.
"Assuming, then, that Mr. Fish was not a common carrier, what is he?
§ 921. A common carrier is responsible for all losses except such as arise from the "act of God" or the "king's enemies." And if the proximate cause of the loss is the act of God or the public enemy, the carrier is not liable, although his own negligence or laches contributed as a remote cause.3 It becomes, therefore, necessary to inquire into the meaning of these two phrases. A loss by the act of God, in its legal sense, is understood to be any loss directly occasioned by a violent and irresistible natural occurrence, wholly unconnected with human agency, and which could not have been avoided by the exercise of the greatest prudence.1 Thus, if a fire be occasioned by lightning, and tlje goods be destroyed thereby, the carrier is nut responsible.2 But if the fire occur through the negligence or fault of man, or be merely accidental, every possible precaution having been used to prevent it, he would be liable.3 Losses arising simply from natural causes, however violent, would not, if they might have been avoided, be losses by the "act of God." Thus, where a steam-boiler was cracked by the frost, and the steam issued so as to injure the cargo, it was held, that the carrier was responsible, because, by proper care in filling up the boiler over night, he might have prevented the accident;4 and, therefore, that the loss arose partly from human
This is a bailment for hire, ' locatio operis mercium vehendarum;' the fifth in the learned classification of bailments, made by Holt, C. J., in Coggs v. Bernard. Mr. Fish is a private person contracting to carry for hire. The next question is, what are his liabilities ? And this brings us to the main point of error charged upon the court below, and that is, that it erred in ruling that according to his contract the plaintiff in error was liable as a common carrier. In all cases of carrying for hire by a private person, we state that he is bound to ordinary diligence and a reasonable exercise of skill, and is not responsible for any losses not occasioned by ordinary negligence, unless he has expressly by the terms of his contract taken upon himself such risk. Story on Bailm. § 457; 2 Ld. Raym. 909, 917, 918; 4 Taunt. 787; 6 Taunt. 577; 2 Marsh. 293; Jones on Bailm. 103, 106, 121; 1 Bell, Comm. 461, 463, 467; 2 Bos. & Pul. 416; 8 C. & P. 207; 2 Kent, 597."
1 Coggs v. Bernard, 2 Ld. Raym. 909; Story on Bailm. § 511; Jones on Bailm. 103-107, 122; Co. Litt. 89; Forward v. Pittard, 1 T. R. 33; Abbott on Shipping, pt. 3, ch. 4, § 1, 5th ed.; Williams v. Grant, 1 Conn. 487; The Maria and Vrow Johanna, 4 Rob. Adm. 348; Riley v. Home, 5 Bing. 217; Dusar v. Murgatroyd, 1 Wash. C. C. 17; Thorogood v. Marsh, Gow, 10."); Mershon v. Hobensack, 2 Zab. 372; Friend v. Woods, 6 Gratt. 189; Chevallier v. Straham, 2 Tex. 115; Chase v. Washington Ins. Co., 12 Barb. 595; Steele v. Franklin Fire Ins. Co., 17 Penn. St. 290.
2 See Thurman v. Wells, 18 Barb. 500.
3 Railroad Co. v. Reeves, 10 Wall. 176 (1869).
1 McArthur v. Sears, 21 Wend. 190; Backhouse v. Sneed, 1 Murph. 173;
1 Smith, Leading Cases (Am. ed.). Mr. Wallace's note to Coggs v. Bernard, p. 231, 232; Colt v. M'Mechen, 6 Johns. 160. See Fish v. Chapman,
2 Kelly, 319; Walpole v. Bridges, 5 Blackf. 222.
2 Forward v. Pittard, 1 T. R. 27; Hyde v. Trent Nav. Co., 5 T. R. 399.
3 Ibid. See also Hyde v. Trent, etc, Nav. Co., 5 T. R. 389; Charleston, etc, Steamboat Co. v. Bason, Harper, 264; Gilmore v. Carman, 1 Sm. & M. 279; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Parker v. Flagg, 26 Me. 181; Parsons v. Monteath, 13 Barb. 353; Chevallier v. Straham, 2 Tex. 115; Morewood v. Pollok, 1 El. & B. 743; 18 Eng. Law & Eq. 341; Graff v. Bloomer, 9 Barr, 114; Swindler v. Hilliard, 2 Rich. 286; Singleton v. Hil-liard, 1 Strob. 203; Moore v. Michigan Central Railroad, 3 Mich. 23; Miller v. Steam Nav. Co., 6 Seld. 431; Cox v. Peterson, 30 Ala. 608.
4 Siordet v. Hall, 4 Bing. 607. See also Campbell v. Morse, Harper, 468; Richards v. Gilbert, 5 Day, 415. In M'Call v. Brock, 5 Strob. 119, Frost, J., said: "The plaintiff's cotton was burnt together with the boat. Fire is not an excepted peril. A loss by fire, which, occurring in another boat, renders a carrier liable, will render him equally liable if he carries in a steamboat. But it is argued that though fire, originating from other causes, may not excuse the carrier, yet if it proceeds from the bursting of the boiler, it should be referred to the act of God, or inevitable accident. The well-settled legal import of these phrases limits inevitable accidents to such as may be produced by physical causes which are irresistible, which human foresight and prudence cannot anticipate, nor human skill and diligence prevent." "The boiler of a steam-engine is an implement of mechanical power, in common use. The ingenuity, which applied steam to the purposes of manufactures and navigation, provided also the means for its emagency.1 The same rule has been applied to a loss by collision at sea, no fault attaching to either party.2 So, also, if a bargeployment with safety. Terrific accidents are the inevitable and too frequent consequence of inattention to these means, or of wilful and rash counteraction of one or more of them. A boiler may be burst by the production of a pressure of steam greater than it was constructed to resist, or greater than, in its actual condition and state of repair, it may be capable of resisting. Certain fixtures are provided for the escape of any dangerous excess of steam, and other fixtures are provided to regulate its production, and to give warning of a deficiency of water in the boiler, which is the most frequent cause of disaster. Intelligent witnesses Lave testified that the safeguards are sufficient to prevent an explosion, if properly attended to. A loss, then, which results from an excess of steam, must be attributed to misconduct or negligence. An explosion may also occur if the boiler be defective in its construction, or if its strength be impaired by use, so that it cannot resist the pressure of steam, which, in its careful and prudent employment, may be necessary for the power it is required to exert. The carrier is bound to provide a safe boiler and keep it in good repair, and supply its place by a new one when its strength is impaired by use; and he is also bound to employ servants and mechanics who shall possess the necessary vigilance and skill to observe the condition of the boiler, at all times, and form a correct opinion of its strength and safety. An explosion can only happen from excess of steam, or the insufficiency of the boiler, and, therefore, may be prevented by proper vigilance and skill. It does not weaken this conclusion, that, frequent as such disasters are, they are always represented to be unaccountable; that is, they are not accounted for. But that is readily explained. The cause of the accident is left in obscurity, either by the destruction of the only witnesses who might explain it, or by testimony which negatives every possible cause for its occurrence. The persons, who alone can know, and who are responsible for what caused it, cannot have the hardihood to confess negligence or misconduct, which must expose them to criminal liability, and the more dreaded imprecations of bereaved relatives and friends, and of the whole community, shocked by the tragical consequences of an explosion.