The opinion of the court was delivered by
Rogers, J.This is an action of assumpsit, against the defendants as common carriers, for the loss of a parcel, containing one piece of silk, and two piepes of chintz, which the defendants, proprietors of the New YorlCline of coaches, received in Easton, and undertook, but failed to deliver, at New York. The plaintiffs proved the delivery of the pareel to the defendants, and an undertaking, on their part for a certain stipulated sum, to deliver it at New York. The defendants contend, that they were not common carriers, and if they were, their responsibility was limited.
That the defendants were common carriers, and liable as such, can not, I think, admit of question. A common carrier has been defined to be one who undertakes for hire and reward, to transport goods, of such as choose to employ him from place to place; and *188they are generally of two descriptions, carriers by land and carriers by water. It is unnecessary to say any thing of the latter description, but the former are the proprietors of stage wagons, and stage coaches, &c. which ply between different places, and carry passengers and goods for hire. In addition to the regular business of the company, the defendants were in the continued practice of transporting parcels and packages at a liberal compensation, whenever offered, the parcel being marked on the way-bill, so as to direct the attention of the agents along the line to it, with a view to its security and safety. It is true, that it is not every person, who undertakes to carry goods for hire, that is a common carrier. A private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of any ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. But here the defendants pursued the business as a public employment, and undertook to carry goods for persons generally. They held themselves out, as ready to engage in the transportation of goods for hire, as a business, and not as a mere easuál occupation, pro hac vice. This at least, is the'fair import of the testimony. If the defendants were common carriers of persons, and of the baggage belonging to passengers, they would not on that account be liable as common carriers of merchandize. A stage coach for the conveyance of persons, is not of course a conveyance for goods; but a continual practice, such as has been proved by the owners of a stage coach, of receiving parcels and packages for carriage, and of carrying them, for hire, will make them common carriers.
If the defendants stand in this relation, they are liable for all losses not occasioned by the act of God, or the common enemy, unless the responsibility which the law casts upon them, is limited by special contract or by notice, brought home to the plaintiffs or their agent; and this brings me to the second and most material part of the case. The principal business of the defendants consists as appears from advertisements, in the carriage of passengers in which is necessarily included, the baggage intended for the personal convenience of the traveller. The advertisements are “ cheap travel-ling cheap travelling, in which the rate for passengers, but not for parcels is stated, and to this is appended, a N. B. “ all baggage at the risk of the owner.” It is insisted that the N. B. limits the responsibility of the carrier, not only as regards baggage, strictly so called under the eye and supervision of the owner, but that it includes also, goods and merchandize of whatever description, even when placed under the exclusive care and superintendance of the carrier. This is a doctrine to which we cannot accede. If the defendants wished to be so understood, it is certainly not unreasonable to require something more explicit, than that which is contained in the handbills, on which they rely. The meaning of the word baggage, taken in consideration with the advertisement, is the effects of a traveller, *189and this signification has been attached to it in a case very like the present, decided by the Supreme Court of Massachusetts. Dwight & al. v. Brewster, 1 Pick. 50. In the case cited it is ruled that the practice of conveying for hire in a stage coach, parcels not belonging to passengers, constitutes the proprietors of the coach common carriers: and that in an advertisement stating the route, fare, &c. the clause, * all baggage at the risk of the owners,’ did not apply to such parcels. It manifestly applies to the baggage of passengers, it being in the same advertisement, which states the route, the fare, &e. The clause was intended to guard the proprietors from liability in case the trunks &c. were stolen, without any fault on the part of the owner of the stage or their agents.
It was formerly a question of much doubt, how far common carriers, on land, could by contract limit their responsibility. But that they have the power seems now to.be settled, although, many learned judges have expressed some regret that the validity of notices restricting their liability, was ever recognised. But although this must now be admitted, yet, they cannot by any special notice, or agreement free themselves from all responsibility, particularly where there is gross negligence or fraud, nor in a case like this from the exercise of ordinary care. When a common carrier claims an exemption from the responsibility, which the rule of law casts upon him, on the plea of special notice, it is not affording him a hard measure of justice, to require that not only the notice should be brought home to the employer, but also that the terms of the notice should be clear and explicit, and not liable to the charge of ambiguity or doubt. But on the supposition that the defendants are not common carriers, but ordinary bailees for hire, .the cause may be viewed in another aspect. The defendants undertook for a certain sum, to transport the parcel to New York, and this as already stated, they have failed to do. It is surely then, necessary for them to show why they have not performed the contract. In the absence of all proof of loss, they lay themselves open to the imputation, that the property is still in their possession, or in the possession of their agents, or has been embezzled by them. And in either case, it is clear that they are liable to the plaintiffs. I have looked though the testimony for some account of these goods. All we know, is that they were received by the defendant’s agent, who undertook to convey them to New York, and for some reason, they never reached their place of destination. Less than positive proof would suffice, but some account should be given, from which the jury would be warranted to infer, that the goods had been either discharged, or had been lost by accident, or had gone into other hands, than the defendant’s or his agents. Here the parcel was booked and put on the way-bill, and if mislaid, there must have been some negligence on the part of some of thé agents along the line. If the parcel did not arrive at a particular point, it was the duty of the agent, to make inquiry, and *190ascertain the reason it had not arrived; and if this had been done, we should not now be in doubt, whether the package had been mislaid, or embezzled, and possibly we would then have known, when and where, and how the loss had occurred. It is true, that where a loss has been proved, ordinary care in the carrier is presumed, and the onus is thrown upon the plaintiff, but all a plaintiff has to do, in the first instance, is to prove the contract, and the delivery of goods, and this throws the burthen of proof, that the goods were lost on the carrier. And, this is a salutary principle, for otherwise, owners and employers, would be at the mercy, of bailees, who would rely on a failure to perform the contract, as a complete indemnity against the suit of the bailors. I cannot see how, in the absence of any proof, as to the manner the loss occurred, the plaintiffs can do more than to rely on the fact of the non-delivery of the goods, as evidence of want of ordinary care, on the part of the carriers, or their agents.
Since the above remarks were written, the case of Beardslee v. Richardson, 11 Wend. 25, has been put into my hands, in which the same opinion is intimated. It was'the case of a sealed package of the value of one hundred dollars, which the defendant as bailee, without reward, undertook to deliver. It was.held that the defendant was liable for gross neglect only; and whether he was guilty of any neglect, did not sufficiently appear, from the. testimony. That it did not appear that any demand was made or application of any kind, until the suit was brought. That the plaintiff was bound to show that the money was lost by the defendant’s negligence, or could not be obtained on request. On this ground, and because the suit was for money had and received, the plaintiff failed in his action. But says Chief Justice Savage, “had he shown'a demand and refusal, the defendant, I think, would have been bound to account for the loss, and to indemnify the plaintiffs, unless he could show the property lost, without fault on his part, that is, without gross negligence.”
With the exception of the principles above indicated, we concur with the judgment of the court of Common Pleas..
Judgment reversed, and a venire de novo awarded.