Sherman v. Pennsylvania R. , 21 F. Cas. 1279 ( 1880 )

McKENNAN, Circuit Judge.

This suit was brought to recover from the defendant j the value of certain wool, delivered to it at i Chicago for transportation to Philadelphia. ! A jury having been waived, the case was ¡ tried by the court upon the evidence submit- ! ted by the parties. The following facts are i found as established by the evidence (The I court here stated the facts set forth in the | foregoing part of this report).

| The court is requested by plaintiff to find ! as matter of law:

(l).That defendant’s duty as a common carrier was to carry plaintiff’s goods from the several points of shipment to . . . Philadelphia, the point of delivery of all. without any unusual or avoidable delay; and apart from the special conditions in the bill of lading, defendant is liable for loss from any cause save the acts of Cod or a public enemy. Answer. This proposition is aifirm-ed.

i (2) That defendant did not cease to be a common carrier by reason of the conditions ■ in the bill of lading, but continued subject | to all liabilities of common carriers, except ¡ for losses happening for causes enumerated ! in said conditions, without default or negli- ! gence on the part of defendant’s servants | or employés, while defendant was actually | discharging its duty of carrying the goods from the point of shipment, in the usual and proper manner. Answer. This proposition is also affirmed.

; (3) That the interruption of the transit by reason of the refusal of the servants of defendant. in charge of its freight trains, on which plaintiffs' goods were being carried, to perform their duty, was a default on part of defendant. Answer. As it was the duty ! of the defendant, as a common carrier, to transport the goods of the plaintiff's to their ■ point of destination without unreasonable i delay, any injurious interruption of such ■ transportation, by the refusal of the defend- ; ant’s servants to perforas their duty, would ■ be a breach of duty imputable to it; and for any loss to the plaintiff, caused by such delay, the defendant would be liable in damages.

(3(4) That tlie strike, and refusal to perform duty on the part of the men. does not justify or excuse the interruption of the transit of plaintiff’s goods; and that defend-j ant’s election not to pay the ten per cent. | additional wages demanded, and in lieu i thereof to allow the goods to remain at Fitts- ! burgh, wholly or partly in the control of per- ¡ sous who prevented defendant "operating i its road” and performing its contract as a common carrier, makes defendant liable for' all the consequences, including the destruction and loss of said goods, during the period that the transit was thus interrupted and the plaintiff’s property thus wrongfully controlled, without proof of any other negligence or misconduct on the part of defendant. Answer. I decline to affirm this proposition. The evidence does not show that the loss complained of was caused by the “strike,” nor that any permissive allowance of the retention of the goods at Pittsburgh can be imputed to the defendant. On the contrary, it is admitted by the plaintiff that the defendant was coerced by the superior power of a lawless mob, which usurped control of the train containing the plaintiffs’ goods, and prevented the defendant from operating its road; that the defendant took prompt steps to meet the emergency by an-appeal to the civil authorities for protection and assistance; that these authorities, with the military force summoned by them, were repelled; and that the train with these goods was thereupon destroyed by an incendiary fire. While these circumstances would not protect the defendant against a failure to fulfil its obligation as a common carrier, yet I cannot say that an involuntary technical default warrants an imputation of negligence to the defendant touching a cause of loss, which is expressly excepted from its liability.

(4) That allowing or suffering others than their own employés to take from defendant the possession or control, whether in whole or. in part, of plaintiffs’ goods, and to use that control not for the purpose of furthering- or continuing the transit, but for the purpose of suspending and preventing it, was a default on the part of defendant. Answer. The defendant was deprived of the control of the train containing the plaintiffs’ goods, and was prevented from continuing their transit by a force it was unable to resist. It cannot be held responsible for the purpose of the mob, although the act of the mob in intercepting the transportation oí the goods might subject the defendant to compensation to the plaintiff for any loss sustained by him by reason of such interrupted transit of his goods. I decline, therefore, to affirm this proposition.

(5) That, however proper it may have been for defendant to call on the public authorities for protection and assistance, “in retaking and redelivering to defendant the entire possession and control of said property,” such act of propriety in no way justifies the previous default in suffering the possession and control thereof to pass out of their hands. Answer. This proposition is affirmed, with the qualification that I do not say that the defendant was in default, otherwise than as, and for the reason, stated in the answer to proposition 3%.

(6) That the various risks enumerated in said conditions, which are assumed by plaintiff in relief of defendant’s general liability, and more especially the risk “of fire while in transit,” are limited to losses occurring while the defendant is engaged in carrying the goods, in the proper discharge of its duties under its contract, and do not include loss by fire, occurring while the transit is suspended, and the goods in question have been suffered by defendant to pass into the possession and control of persons acting adversely to the duties defendant assumed to discharge. Answer. I decline to affirm this proposition. The exception in the bill of lading is, that the carrier shall not be liable “for loss or damage on any article or property whatever, by fire or other casualty, while in transit, or while in depots or places of transshipment.” The engagement of the carrier is to assume the custody of the property entrusted to him at the point of shipment, and to deliver it at the place of destination, and the obvious intent, as well, I think, as the clear import, of the exception is to protect him against the consequences •of fire during the continuance of his duty as a carrier. His qualified liability is coextensive with his duty, and he forfeits its protection only by some fault of his own, in connection with the casualty to which the exception refers. Nor can I regard it as within the reason of the exception to hold, that it is eliminated from the contract when the property in the carrier’s charge is wrested from him by a hostile force, which he is unable to resist, and it is consumed in an incendiary fire, although his exclusion from the possession and control of it may last for two days before it is thus destroyed.

(7) That it-was gross default and negligence on the part of defendant to allow freight trains to come into Pittsburgh on the 19th, 20th, and 21st of July, under the circumstances in the 7th clause of the facts, which the court is requested by plaintiff to find, mentioned. Answer. I decline to affirm this proposition.

(8) That it was gross default and negligence to allow cars loaded with petroleum to continue to stand on the track, under all the circumstances and manner, and for the period of time in the 8th clause of said facts mentioned. Answer. I decline to affirm this proposition, for the reasons that the petroleum cars were presumably in the usual and proper place for them in the depot yard; that they were at a safe distance from the cars containing the plaintiffs’ goods, and were there secured by mechanical appliances usually employed for that-purpose, that they might lawfully be kept there, and that their removal into contact with the other cars was the act of the incendiary mob which had, for two days before, maintained a forcible mastery of the situation.

(9) That defendant is responsible for the misconduct and default of the persons whom it suffered to take control and possession, wholly or jointly with itself, of plaintiff’s property, and to continue in such control for the space of two or three days, during the period of time while that* control and possession continued, and for all loss resulting from such misconduct. Answer. I decline to affirm this proposition.

(10) On the facts and law aforesaid, plaintiff prays the court to enter judgment for $20,973.97, and interest from July 22d, 1877, to the day judgmént is rendered.

Upon, the whole case I am of the opinion, and so find, that the loss complained of was caused by fire while the plaintiffs’ goods were in transit by the defendant within †lie meaning of the exception in the bill of lading; that the defendant is not shown to have been guilty of any negligence by which the efficiency of the exception is in any wise impaired; and hence that the plaintiff is not entitled to recover. Judgment will, therefore, be entered in favor of defendant.