Bernard, where they were mentioned only as so many instances of
bailees exercising a public calling. We do not get a new and
single principle by simply giving a single name to all the cases
to be accounted for. If there is a sound rule of public policy
which ought to impose a special responsibility upon common
carriers, as those words are now understood, and upon no others,
it has never yet been stated. If, on the other hand, there are
considerations which apply to a particular class among those so
designated,--for instance, to railroads, who may have a private
individual at their mercy, or exercise a power too vast for the
common welfare,--we do not prove that the [205] reasoning extends
to a general ship or a public cab by calling all three common
carriers.
If there is no common rule of policy, and common carriers remain
a merely empirical exception from general doctrine, courts may
well hesitate to extend the significance of those words.
Furthermore, notions of public policy which would not leave
parties free to make their own bargains are somewhat discredited
in most departments of the law. /1/ Hence it may perhaps be
concluded that, if any new case should arise, the degree of
responsibility, and the validity and interpretation of any
contract of bailment that there may be, should stand open to
argument on general principles, and that the matter has been set
at large so far as early precedent is concerned.
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