But see Brinilson v. Chicago R. Co., 144 Wis. 614.
As to liability to children licensees, see Jansen v. Siddal, 41 Ill. App. 279; Cleveland R. Co. v. Means, (Ind. App.) 104 N. E. 785; Benson v. Baltimore Traction Co., 77 Md. 535; McCoy v. Walsh, 186 Mass. 369; Romana v. Boston R. Co., 218 Mass. 76; Bottum v. Hawks, 84 Vt. 370.
But see Knapp v. Doll, 180 Ind. 526 (citing cases); Wilmes v. Chicago R. Co., 175 Ia. 101; Lyttle v. Town Coal Co., 167 Ky. 345.
As to liability where there is a known, permissive, general use by the public, see Pomponio v. New York R. Co., 66 Conn. 528; Western R. Co. v. Meigs, 74 Ga. 857; Green v. Chicago R. Co., 110 Mich. 648; Barry v. New York R. Co., 92 N. Y. 289; Taylor v. Delaware Canal Co., 113 Pa. St. 162; Delaney v. Milwaukee R. Co., 33 Wis. 67. Compare Tucker v. Draper, 62 Neb. 66.
Liability in case of gratuitous carriage: [The judge at the trial in charging the jury] “suggested that the measure of duty towards a bare licensee is different, where the licensor accepts the duty of carrying him, from what it is where he merely permits him to pass through his premises; and I think the cases support this view.... I think it was competent for the jury to find, as they must be taken to have found, a failure of that ordinary care which is due from a person who undertakes the carriage of another gratuitously. The principle in all cases of this class is that the care exercised must be reasonable; and the standard of reasonableness naturally must vary according to the circumstances of the case, the trust reposed, and the skill and appliances at the disposal of the person to whom another confides a duty. There is an obvious difference between the measure of confidence reposed and responsibility accepted in the case of a person who merely receives permission to traverse the premises of another, and in the case where a person or his property is received into the custody of another for transportation: see in the case of goods, Southcote’s Case, (1601) 4 Rep. 83 b. cited in Coggs v. Bernard, 1 Smith, L. C., 11th ed., p. 173, and the notes thereto. In the case of persons received for carriage, Parke, B., says in Lygo v. Newbold, (1854) 9 Ex. 302, at p. 305: ‘A person who undertakes to provide for the conveyance of another, although he does so gratuitously, is bound to exercise due and reasonable care.’ In Austin v. Great Western Ry. Co., [1867] 2 Q. B. 442, at p. 445, Blackburn, J., says: ‘I think that what was said in the case of Marshall v. York, Newcastle and Berwick Ry. Co., (1851) 11 C. B. 655, was quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely.’”
Collins, M. R., in Harris v. Perry, [1903] 2 K. B. 219, 225, 226. And see, also, Sington on Negligence, 61, 62. But compare Beard v. Klusmeier, 158 Ky. 153.
In the case of a gratuitous loan of a chattel, the lender owes no duty to the borrower except to give warning of any defects actually known to the lender. Gagnon v. Dana, 69 N. H. 264; Coughlin v. Gillison, [1899] 1 Q. B. 145. “A contract of gratuitous service, however, such as one of carriage, involves a duty of reasonable care, and must therefore be distinguished from a contract of gratuitous bailment or a gift, which does not.” Salmond on Torts, 361.
[144]. Foster v. Portland Min. Co., (C. C. A.) 114 Fed. 613; Central R. Co. v. Robertson, 95 Ga. 430; Chicago R. Co. v. Reinhardt, 235 Ill. 576, 139 Ill. App. 53; Indianapolis Water Co. v. Harold, 170 Ind. 170; Lawson v. Shreveport Waterworks Co., 111 La. 73; Schaaf v. St. Louis Basket Co., 151 Mo. App. 35; Furey v. New York R. Co., 67 N. J. Law, 270; Fogarty v. Bogart, 59 App. Div. 114; Toledo Real Estate Co. v. Putney, 20 Ohio Cir. Ct. Rep. 486; Bush v. Johnston, 23 Pa. St. 209 Accord. Compare Moffatt v. Kenny, 174 Mass. 311.
[145]. The case is reprinted from the Law Times Reports, except the opinions of Crompton, J., and Blackburn, J., which are taken from the Weekly Reporter.
[146]. The reference should be 25 L. J. (N. S.) or 34 L. J.