Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/346

 § 350.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. important class of cases in which carriers are held liable for . misfeasance of their employes which causes a breach Liability of, , ,,. ,: ;, .. carriers for of the carrier s obligations, are cases 01 negligence. And here we may consider, first, the responsibility of carriers for negligence towards persons to whom they owe some special duty, 1 and, secondly, their responsibility to per- sons towards whom they are affected only with the general duty arising under the maxim, Sic utere tuo ut alienum non Icedas. § 350. The primary or fundamental obligations and liabilities of a common carrier are imposed on him by law, on account of the nature of his employment ; and do not arise exclusively from the expressed contract between the carrier and the person dealing with him ; although these obligations may be modified and limited by contract.* The preceding proposition requires explanation. When a common carrier is incorporated, the law, from motives of public policy, imposes on it certain duties. Its primary duty is to carry ; and to carry whatever freight is offered, and whatever passengers present themselves, to the extent of its capacity. 3 Moreover, common carriers of freight Carrier's fundanien tal obliga- tions. 1 In actions by passengers against railroad companies for personal inju- ries caused by negligence, whether the action is in tort or on contract, the burden is on the plaintiff either to prove negligence of the company or show facts which raise a presump- tion of such negligence. Stokes v. Saltonstall, 13 Pet. 181. A passenger makes out a prima facie case by show- ing that he was injured through a de- fect in the road, in the cars, or in any portion of the apparatus used by the company in carrying passengers. Curtis v. Rochester, etc., R. R. Co., 18 N. Y. 534 ; Meier v. Pennsylvania R. R. Co., 04 Pa. St. 225 ; Pittsburgh, C. and St. L. R'y Co. v. Thompson, 56 111. 138; Toledo, W. and N. R. R. Co. v. Beggs, 85 111. 80; George v. St. Louis, etc., Ry. Co., 34 Ark. 613; Yonge v. Kinney, 28 Ga. Ill; Hig- 326 gins v. Hannibal and St. Jo. R. R. Co., 36 Mo. 418; Wilson v. Northern Pac. R. R. Co., 26 Minn. 278; Wall v. Livezay, 6 Col. 465; Railroad Co. v. Waliath, 38 O. St. 461; Pittsburgh, C. and St. L. R. R. Co. v. Williams, 74 Ind. 462. Proving injury from a collision of trains raises prima facie presumption of negligence. Iron R. R. Co. v. Mowery, 36 O. St. 418 ; New Orleans J. and G. N. R. R. Co. v. Allbiitton, 38 Miss. 242. 2 Hannibal R. R. Co. v. Swift, 12 Wall. 262. 3 A common carrier is bound to carry when called on, and to charge only a reasonable compensation. Winona, etc., R. R. Co. v. Blake, 94 U. S. 180. See § 309, note. In some states this is provided for by statute. But a carrier is not bound to allow a business interfering with his interest