Ellsworth, J.
There is no question, in our view of the constitution, that the legislature could properly authorize a court to nonsuit the plaintiff upon the defendants’ motion. The clause in the constitution, which provides that the trial by jury shall remain inviolate, presents no obstacle to this legislation. Its object is simply to preserve a jury trial in questions of fact, and it does not relate to questions of law with the court. The jury have nothing to do with the relevancy and materiality of evidence, or with inferences of law from facts fully established or not.' denied. If all the facts, claimed to be proved by the evidence of the plaintiff, cannot, if true, make a prima facie case for,him, it would be worse than idle to proceed further with the trial; since no verdict • could be rendered in his favor, which c.ould be retained. It is no uncommon thing to raise the question of the sufficiency of evidence upon demurrer to evidence, wherever the court will give its consent, as the readiest way to end the trial, and this is not a violation of the constitution. The trial by jury would indeed^present a singular spectacle, if because an issue in fact is joined to the jury, whatever evidence is offered by the plaintiff, to prove his case, must be received and considered, lest the province of the jury should be invaded, or if the fact, claimed to be proved, is admitted, its materiality or sufficiency may not be decided by the court. If the court come to a wrong decision, there may be an appeal to the supreme court to correct the error, and beyond this, there is no relief known to the law. The statute, as well as the com[479]*479mon law, requires the plaintiff to introduce evidence which fairly tends to establish a prima facie case, in his favor, and if he has not done this, as we think he had not, in this instance, he sustains no injury, by the order for a nonsuit. Harris v. Thampson, 24 E. L. & Eq., 380. Besides, this mode of trying a question of law, had always been practised at the common law, and was familiarly known to the men who framed our constitution; and it is not to be believed, thatthey meant, by this clause in the constitution, to restrict the courts and the legislature itself, in relation to this ancient practice.
The more important question in the case is, did the plaintiffs make a case, which should have been submitted to the jury ? A majority of the court think they did not. This declaration is in the form of case for default of duty as common carriers from Winchester, or Waterbury, to New' York or Boston, or both, varying somewhat in the different counts in the declaration, and is doubtless the only form for obtaining relief, which could have been adopted, with any hope of success. The termini of the defendant’s duties as set forth, are quite important to the issue, not only as descriptive of the evidence to be adduced on the trial, but as to the place and circumstances, where the loss of the property happened, and if the defendants are not common carriers to Boston or New York, as described, they are not liable for any default on this declaration. 2 Greenl. Ev., § 209. 1 Bing., 162. 2 B. & P., 54. 12 East., 89. A common carrier is one who holds himself out to the public, to carry persons or freight for hire. If this is so, we of necessity look to see from the evidence, or facts detailed in the record, what there is which conduces to prove that the defendants held themselves out to the public as common carriers to New York, or Boston, or to any place beyond their own road. If the mark, on boxes of freight, “ Boston” or “ New York”, proves this fact, then if they had been marked Philadelphia, New Orleans, or London, this would have proved they were com[480]*480mon carriers to those places. The defendants, too, have a known and public charter and character as carriers over their own road, from one terminus to the other, and it is quite unreasonable, and absurd, to say that by using their own road in the usual and appropriate manner of using it, they hold themselves out to the world as common carriers to any and every point and place, to which their freight happens to be marked, however that place is to be reached, by railroads, sail boats, freight wagons, pack horses or footmen. In the ordinary course of business, freight, prepared for transportation, must be so marked arid forwarded,' and every sort of common carrier takes it in his public capacity, in that exact condition and must so take it if at all. The defendants, we conceive, were obliged to receive the boxes in question just as they were marked, and to carry them to the southern terminus of their road, and thence forward them according to the course of business; and their being marked to go to a place beyond Bridgeport has nothing to do with the defendants’ character or duty, except as just expressed. Ifpersonswho send freight, expect or desire more than this from common carriers, let them exact an agreement from the carrier,to whom they first deliver the property, that he will be responsible, as the common carrier throughout the entire transit. We believe that business men look at this matter in the light we have expressed, and that it is not supposed that a mere reception of goods implies that the receiver of them, whose known and customary business is to carry to a given place, promises to carry them beyond it. We forbear to say more, because in the late case of Elmore, against these defendants, 23 Conn. R., 474, we went over this whole ground and came to the conclusion that the defendants were not liable, as already expressed. The same doctrine as held in Nutting v. Conn. R. R. 1 Gray., 502. Vansantvoord v. St. John, 6 Hill, 157. F. & M. Bank v. Champ. Tr. Co., 18 Verm., 140, 23 Verm., 209. Hood v. N. Y. & N.H. R. R. Co., 22 Conn. R., 1.
We need hardly remark, that we see no evidence of a [481]*481usage or practice, by the defendants, or of any promise, or undertaking by them, (were that important in this suit,) to carry persons, or freight, beyond the line of their own road; nor is it pretended that they have ever made any arrangement with any other railroads to carry their freight for them, to New York or Boston, or elsewhere. These several companies run over their own road, and that is all that is pretended to exist in fact.
The other piece of evidence, supposed to make in favor of the plaintiff, is an advertisement in the Waterbury American and other papers, and set up in certain public places. We commented upon this testimony at length in the case of Elmore against the present defendants, when we said we attached but little or no importance to its import, and we still entertain the same views; that it furnishes no proof, that the defendants were carriers to New York, or that they undertook by special promise, to become such, even if a special promise could do it. The present argument has served to strengthen those convictions. It is even now said on the part of the defendants, that this advertisement, instead of making a case for the plaintiffs, makes against them. It begins, “ Naugatuck Railroad,—summer arrangement,—five trains to and from Waterburyit then goes on to say, what passenger trains, and what freight trains leave Bridgeport to go north to Winsted, and what trains go south from Winsted to Bridgeport. Not a word is said about their trains running beyond Bridgeport. Nor do I believe that the plaintiffs, or any one else, from a mere perusal of this notice or advertisement, inferred anything more. What it says in allusion to the N. Y. & N. H.
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Ellsworth, J.
There is no question, in our view of the constitution, that the legislature could properly authorize a court to nonsuit the plaintiff upon the defendants’ motion. The clause in the constitution, which provides that the trial by jury shall remain inviolate, presents no obstacle to this legislation. Its object is simply to preserve a jury trial in questions of fact, and it does not relate to questions of law with the court. The jury have nothing to do with the relevancy and materiality of evidence, or with inferences of law from facts fully established or not.' denied. If all the facts, claimed to be proved by the evidence of the plaintiff, cannot, if true, make a prima facie case for,him, it would be worse than idle to proceed further with the trial; since no verdict • could be rendered in his favor, which c.ould be retained. It is no uncommon thing to raise the question of the sufficiency of evidence upon demurrer to evidence, wherever the court will give its consent, as the readiest way to end the trial, and this is not a violation of the constitution. The trial by jury would indeed^present a singular spectacle, if because an issue in fact is joined to the jury, whatever evidence is offered by the plaintiff, to prove his case, must be received and considered, lest the province of the jury should be invaded, or if the fact, claimed to be proved, is admitted, its materiality or sufficiency may not be decided by the court. If the court come to a wrong decision, there may be an appeal to the supreme court to correct the error, and beyond this, there is no relief known to the law. The statute, as well as the com[479]*479mon law, requires the plaintiff to introduce evidence which fairly tends to establish a prima facie case, in his favor, and if he has not done this, as we think he had not, in this instance, he sustains no injury, by the order for a nonsuit. Harris v. Thampson, 24 E. L. & Eq., 380. Besides, this mode of trying a question of law, had always been practised at the common law, and was familiarly known to the men who framed our constitution; and it is not to be believed, thatthey meant, by this clause in the constitution, to restrict the courts and the legislature itself, in relation to this ancient practice.
The more important question in the case is, did the plaintiffs make a case, which should have been submitted to the jury ? A majority of the court think they did not. This declaration is in the form of case for default of duty as common carriers from Winchester, or Waterbury, to New' York or Boston, or both, varying somewhat in the different counts in the declaration, and is doubtless the only form for obtaining relief, which could have been adopted, with any hope of success. The termini of the defendant’s duties as set forth, are quite important to the issue, not only as descriptive of the evidence to be adduced on the trial, but as to the place and circumstances, where the loss of the property happened, and if the defendants are not common carriers to Boston or New York, as described, they are not liable for any default on this declaration. 2 Greenl. Ev., § 209. 1 Bing., 162. 2 B. & P., 54. 12 East., 89. A common carrier is one who holds himself out to the public, to carry persons or freight for hire. If this is so, we of necessity look to see from the evidence, or facts detailed in the record, what there is which conduces to prove that the defendants held themselves out to the public as common carriers to New York, or Boston, or to any place beyond their own road. If the mark, on boxes of freight, “ Boston” or “ New York”, proves this fact, then if they had been marked Philadelphia, New Orleans, or London, this would have proved they were com[480]*480mon carriers to those places. The defendants, too, have a known and public charter and character as carriers over their own road, from one terminus to the other, and it is quite unreasonable, and absurd, to say that by using their own road in the usual and appropriate manner of using it, they hold themselves out to the world as common carriers to any and every point and place, to which their freight happens to be marked, however that place is to be reached, by railroads, sail boats, freight wagons, pack horses or footmen. In the ordinary course of business, freight, prepared for transportation, must be so marked arid forwarded,' and every sort of common carrier takes it in his public capacity, in that exact condition and must so take it if at all. The defendants, we conceive, were obliged to receive the boxes in question just as they were marked, and to carry them to the southern terminus of their road, and thence forward them according to the course of business; and their being marked to go to a place beyond Bridgeport has nothing to do with the defendants’ character or duty, except as just expressed. Ifpersonswho send freight, expect or desire more than this from common carriers, let them exact an agreement from the carrier,to whom they first deliver the property, that he will be responsible, as the common carrier throughout the entire transit. We believe that business men look at this matter in the light we have expressed, and that it is not supposed that a mere reception of goods implies that the receiver of them, whose known and customary business is to carry to a given place, promises to carry them beyond it. We forbear to say more, because in the late case of Elmore, against these defendants, 23 Conn. R., 474, we went over this whole ground and came to the conclusion that the defendants were not liable, as already expressed. The same doctrine as held in Nutting v. Conn. R. R. 1 Gray., 502. Vansantvoord v. St. John, 6 Hill, 157. F. & M. Bank v. Champ. Tr. Co., 18 Verm., 140, 23 Verm., 209. Hood v. N. Y. & N.H. R. R. Co., 22 Conn. R., 1.
We need hardly remark, that we see no evidence of a [481]*481usage or practice, by the defendants, or of any promise, or undertaking by them, (were that important in this suit,) to carry persons, or freight, beyond the line of their own road; nor is it pretended that they have ever made any arrangement with any other railroads to carry their freight for them, to New York or Boston, or elsewhere. These several companies run over their own road, and that is all that is pretended to exist in fact.
The other piece of evidence, supposed to make in favor of the plaintiff, is an advertisement in the Waterbury American and other papers, and set up in certain public places. We commented upon this testimony at length in the case of Elmore against the present defendants, when we said we attached but little or no importance to its import, and we still entertain the same views; that it furnishes no proof, that the defendants were carriers to New York, or that they undertook by special promise, to become such, even if a special promise could do it. The present argument has served to strengthen those convictions. It is even now said on the part of the defendants, that this advertisement, instead of making a case for the plaintiffs, makes against them. It begins, “ Naugatuck Railroad,—summer arrangement,—five trains to and from Waterburyit then goes on to say, what passenger trains, and what freight trains leave Bridgeport to go north to Winsted, and what trains go south from Winsted to Bridgeport. Not a word is said about their trains running beyond Bridgeport. Nor do I believe that the plaintiffs, or any one else, from a mere perusal of this notice or advertisement, inferred anything more. What it says in allusion to the N. Y. & N. H. road, is that the defendants’ trains will, at Bridgeport and Milford, meet the trains of that company. In the former case, we likewise commented upon that part of the advertisement, which speaks of the freight-bill; we will not now repeat what we then said, but refer to that as our present opinion, viz. that no argument can be derived from it, in behalf of the plaintiff,
[482]*482Another question of general importance is raised by the defendants’ counsel, which is not altogether unworthy of notice ; we mean the power of the defendants, under their charter, to become common carriers to New York, Boston, &c. We do not mean definitively to decidethis question, but a majority of the court are not satisfied that the Naugatuck E. E. Co., can become common carriers beyond their own road to New York, or Boston, or Philadelphia, or New Orleans, or London. Such extensive authority would not seem to be contained within the express powers or objects of the charter, or to be fairly implied as within the exercise and enjoyment of any powers which are given. If this be so, where then shall we find the power ? If indeed there be no limits in the charter, then may the defendants become common carriers, universally, and without limit, certainly of that freight which has had any part of its transit over the defendant’s road. But can this be law ? The only clause, which has been spoken of as authorizing it to be done, is a clause, directly following the provision which enables the defendants to obtain their right of way, and is in these words, “ with permission also to make any lawful contract with any other railroad corporation in relation to the business of said company.” We do not understand this as authorizing the defendants to extend their road to Boston or New York or elsewhere, either bya buying, leasing, or using other roads under their respective charters1, or under the defendants’ charter ; certainly not, in any such sense as being themselves the common carriers on those roads, possessing, and controlling the freight as their own. We think permission was given to enable the defendants to contract with the N. Y. & N. H. road for the common use of that portion of their road which lies within the charter bounds of the Naugatuck road, and to enter into an arrangement With the N. Y. & N. H. road, to run the same car entirely through, but each company, running for itself over its own road, and at its own risk and expense, as much so as if no arrangement had been made. [483]*483It is no uncommon thing for the same cars to pass continuously over the entire road, from New York, to Boston, but the several companies own, and use, each one its own road as absolutely as if no such arrangement had been made, and it is idle to pretend that a person, who takes his seat in one of these cars, sustains a different relation to the company, over whose road he passes, from what he would, had he changed his car from road to road. Thompson v. Worcester & Boston Railroad, 9 Cush., 30. All railroad companies, like individual carriers, may at the end of their own route forward the freight which has been entrusted to them, but this power does not grow out of any specific provision in the charter; it is a mere incident depending on the necessity of the case, or the general course of business.
It has been claimed, that if the defendants are common carriers to Bridgeport, and no further, they are even then liable, in this instance, since it does not appear that the Alice, which was burnt, with the plaintiffs* goods on board, in the harbor, was a suitable vessel to receive the goods, to be transported to New York. It is obvious that the motion was not drawn upon the idea of any such question, for none such was made, or alluded to below, as we understand from the judge who presided, nor, as we have a right to presume, from the fact that it was not made, will it be. of any benefit to the plaintiff, if we grant a new trial; hence, we do not feel bound to grant a new trial on that account, and besides, if the defendants are not common carriers as described in the declaration, they cannot recover, in this suit.
In this opinion, Storrs, J. concurred.
Hinman, J.
said he felt bound to yield to the opinion of the court in the case of Hood v. The New York & New Haven Railroad Company, 22 Conn. R., 502, and Elmore v. The Naugatuck Railroad Company, 23 Conn. R., 457, and, on the authority of those cases, did not dissent from the foregoing opinion, although, but for those eases, he should have felt bound so to dissent.
A new trial not granted.