CACI 2925 Status of Defendant as Common Carrier

California Civil Jury Instructions CACI

2925 Status of Defendant as Common Carrier

[Name of plaintiff] claims that [name of defendant] was a common carrier by railroad. To prove this, [name of plaintiff] must show that [name of defendant] was in the business of transporting [the property of] the general public by rail.

Sources and Authority

FELA: “Common Carrier” Defined. 45 U.S.C. section 57.

“A common carrier has been defined generally as one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation, offering his services to the public generally. The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public servant. The dominant and controlling factor in determining the status of one as a common carrier is his public profession as to the service offered or performed.” (Kelly v. General Electric Co. (E.D.Pa. 1953) 110 F.Supp. 4, 6.)

“According to these cases various considerations are of prime importance in determining whether a particular entity is a common carrier. First—actual performance of rail service, second—the service being performed is part of the total rail service contracted for by a member of the public, third—the entity is performing as part of a system of interstate rail transportation by virtue of common ownership between itself and a railroad or by a contractual relationship with a railroad, and hence such entity is deemed to be holding itself out to the public, and fourth—remuneration for the services performed is received in some manner, such as a fixed charge from a railroad or by a percent of the profits from a railroad.” (Lone Star Steel Co. v. McGee (5th Cir. 1967) 380 F.2d 640, 647.)

Secondary Sources

42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35 (Matthew Bender)