Verner et al. v. Sweitzer

• Decision Date: 01 January 1858
• Citation: 32 Pa. 208
• Parties: Verner et al. versus Sweitzer.
• Court: Pennsylvania Supreme Court

Page 208

32 Pa. 208

Verner et al. versus Sweitzer.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

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G. T. Hamilton, for the plaintiffs in error, cited Bennett v. Dutton, 10 N. H. 481; Hawkins v. Hoffman, 6 Hill 586; Angell on Carriers, § 521; Id. § 115; Pardee v. Drew, 25 Wend. 489; Bank v. Brown, 9 Id. 85; Jones v. Voorhees, 6 Ohio 358.

Stowe & Hampton, for the defendant in error, cited Beckman v. Shouse, 5 Rawle 188; Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67.

The opinion of the court was delivered by CHURCH, J.

There are two kinds of carriers for hire recognised by law. The one, designated as private, the other, public or common carriers. The former are bound to use ordinary diligence, that is, such diligence, as every prudent man usually takes of his own goods under the like circumstances, and are consequently only responsible for losses resulting from ordinary negligence. The latter are in general liable to answer for all losses, except those occasioned by the act of God, or of the public enemies. This responsibility, imposed by law upon common carriers, is derived principally from the public character of their employment, and is not avoided by any given degree of diligence shown on their part. The plaintiffs in error, with respect to the property in question, undoubtedly belong to one or the other of this class of bailees.

It was indicated very properly, in the case of Harrington v. McShane, 2 Watts 443, that the usage of trade and business, in particular localities, has much to do with fixing the liabilities in these sorts of bailments. And the same doctrine is further developed in Gordon v. Hutchinson, 1 W. & S. 285, where the principle of the case of Gisbourn v. Hurst, 1 Salk. 249, that one who undertakes for hire, to carry for all persons indifferently, who may employ him, is a common carrier, as to the privileges, is fully recognised; and the adjudication made, that a wagoner who carries for hire, is one also as to the responsibilities, whether transportation be his chief business, or only an occasional and incidental employment. The readiness to carry for all who will employ gives the character to the bailment rather than the extent of his business, or the number of trips performed: Fuller v. Bradley, 1 Casey 120.

In view of these plain deductions from the leading cases on the subject, of what constitutes a common carrier, and distinguishes his liability, we are unable to perceive any material error in the charge of the court below; in the omission to instruct the jury as requested by the defendants there; or in the opinion given on the question reserved at the trial. The language of the learned judge, in the first paragraph of the charge, is very clear and explicit, and does, in reality, substantially cover the whole case presented in the evidence. And it is as favourable to plaintiffs in error as they had any right to demand. The very peculiar circumstances of the bailment are of recent origin, but the common law is believed to be sufficiently extensive to meet the exigency.

It was not essential, on the trial, to instruct the jury specially on the question whether the plaintiffs in error were common carriers of freight generally, in the usual acceptation of the term. The court did not do it, nor were they so requested. The question...