NATURE OF THE CONTRACT OP CARRIAGE. 461 



Though it may be optional with the railway companies 

 whether they will accept this full responsibility, yet if they do 

 so without any express restriction, they are liable as common 

 carriers.^ But they may for a less hire agree simply to trans- 

 port cattle, furnish cars, etc., and if the shipper agrees to the 

 lower rate, he cannot hold them as common carriers. "For 

 a given reward they proffer to become his carrier ; for a less 

 reward they proffer to furnish the necessary means that the 

 owner may be his own carrier." ^ Thus, the liability of a 

 common carrier does not attach to a company that has con- 

 tracted to move a menagerie or circus in the latter's own cars, 

 controlled by its own agents, and run on schedule to suit the 

 menagerie;* though the mere fact that it uses the shipper's 

 private car will not alone have this effect.' So, the company 

 may decline to hold itself out as a common carrier of dogs, 

 and merely take them as an ordinary bailee for hire or for 

 the accommodation of passengers.® 



cases it will be found that, whatever may be the form of the rule laid down 

 upon this subject, the carrier will be held liable under the same circum- 

 stances.'' 



See also Hutchinson Carriers, §§ 221, 222; Kan. Pac. R. Co. v. 

 Nichols, 9 Kan. 235; Mo. Pac. R. Co. v. Harris, 67 Tex. 166; Cohen v. 

 Hume, I McCord (S. C.) 439. 



The question was held a doubtful one in McManus v. Lancashire & Y. 

 R. Co., 2 H. & N. 693, 4 H. & N. 327, and in Honeyman v. Or. & C. R. 

 Co., 13 Oreg. 352. 



The decisions will be considered in detail in the next section in discuss- 

 ing the restriction of liability, negligence, etc. 



" Palmer v. Grand June. R. Co., 4 M. & W. 749, where they were held 

 liable for an injury to a horse by the train colliding with a horse straying 

 through a broken fence. 



° Kimball v. Rutland & B. R. Co., 26 Vt. 247. And see East Tenn. & 

 Ga. R. Co. V. Whittle, 27 Ga. 5351 Harris v. Midland R. Co., 25 W. R. 63. 



*Coup V. Wabash, St. L. & P. R. Co., 56 Mich. 11 1; Robertson v. Old 

 Colony R. Co., 156 Mass. 525; Chic, M. & St. P. R. Co. v. Wallace, 66 

 Fed. Rep. 506. 



" Fordyce v. McFlynn, 56 Ark. 424. 



' Dickson v. Gt. North. R. Co., 18 Q. B. D. 176; Richardson v. N. E. R. 

 Co., L. R. 7 C. P. 75; Honeyman v. Or. & C. R. Co., 13 Oreg. 352. 



But notice of that fact must be given to the owner, or the carrier will 



