Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/348

 § 351.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. complement in a right on the part of the public and of every in- dividual citizen ; a right by comity extended to persons who are not citizens. In respect of carriers of goods this right of every person is to have carried whatever harmless and lawful goods he may offer for carriage, 1 and to have them, during the carriage, insured by the carrier against all loss and damage, except such as may arise from one of the causes excepted above ; and in re- spect of carrier of passengers it is the right of every one to be carried, and to have every precaution used to insure his personal safety during the passage. These rights do not depend on any specific agreement, but belong to every person placing himself, in regard to the carrier, in the position of shipper or passenger. 2 The contractual element in the causation of these rights is the voluntary act whereby a person places himself in such a posi- tion. That, without further stipulation, occasions them. § 351. These legal relations are as it were stereotyped ; and from motives of public policy courts hold that with- out the consent of the person dealing with the car- rier, they may not be materially varied; 3 and that even with his consent certain modifications in them may not be made. With the consent of such person Modifica- tions of carrier's common law liabil- ity. ton v. New York, etc., R. R. Co., 39 N. Y. 227; Dunn v. Grand Trunk R'y Co., 58 Me. 187; Creed v. Penn- sylvania R. R. Co., 86 Pa. St. 139. But see Player v. Burlington, etc., R'y Co., 62 Iowa, 723. And it is no defence that the plaintiff, a passen- ger, was pregnant, and her injuries were due rather to her condition than to the accident. Sawyer v. Dulany, 30 Tex. 479. 1 Pittsburgh, Cincinnati, etc., R. Co. v. Morton, 61 Ind. 539; Chicago & A. R. R. Co. v. Erickson, 91 111. 613. See Western Un. Tel. Co. v. Ferguson, 57 Ind. 495; Evansville, etc., R. R. Co. v. Duncan, 28 Ind. 441, 446. Compare Pittsburgh, etc., R. Co. v. Hollowell, 65 Ind. 188; Phelps v. Illinois Central R. R. Co., 94 111. 548; Illinois Central R. R. Co. V. Cobb, 64 111. 128. 328 2 To constitute a passenger it is not necessary that a person should pay fare eo nomine, when he is riding on a train with consent of the company and some form of consideration moves to the company from him. Railroad Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Stevens, 95 U. S. 655; Commonwealth v. Vermont, etc., R. R. Co., 108 Mass. 7; Yeomaus v. Contra Costa Steam Nav. Co., 44 Cal. 71 ; Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160; Pennsylvania Co. v. Woodworth, 26 O. St. 585. 3 A carrier may by special agree- ment restrict his liability for goods carried. The consent of the shipper, however, is necessary; for he can compel the carrier to carry with all responsibilities. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 378; Hollister v. Nowlen,