Moses v. Boston & Maine Railroad , 32 N.H. 523 ( 1856 )

Sawyer, J.^*

The first of the five questions submitted to the jury was thus submitted as involving the point on which the question turned as to the liability of the defendants, as common carriers, if it should be settled by this court to be the law that their liability as carriers terminated when the wool was taken from the cars and placed upon the platform of the warehouse at its place of destination, separate from other goods, and ready for delivery. This question was immaterial, if that liability in point of law rests upon other grounds ; and the general verdict would, in that view, be unaffected by an agreement of the jury, one way or the other, or by their failing to agree either way upon it. By the finding upon the second question the fact is established, under the instructions which were given upon that question, that Townsend & Bon, the consignees, had not reasonable opportunity, after the wool was unloaded and before the fire, to remove it from the warehouse, with the exercise of reasonable diligence on their part and on the part of the plaintiff. The finding upon the fifth question is material only upon the view that the defendants may limit their carrier liability, as to such goods, by a public notice to that effect, brought home to the knowledge of the plaintiff. That upon the third question is material only in case it should bécome necessary to consider whether the defendants are to be held liable as warehouse-men on the ground of negligence, they not being liable as common carriers; and that upon the fourth question being in favor of the defendants, is immaterial upon either of the points to be considered in the case.

If the verdict is to be sustained, it is clear that it must be upon one or the other of the grounds, — 1st, that the jury, having found the fact in answer to the second question, that the t wool was not removed from the cars a sufficient time before the fire to enable the consignees to remove it with reasonable diligence on their part and on the part of the plaintiff, it continued down to the time of its loss in the hands of the defendants as common carriers ;l their liability, as such carriers, being held in law not to have terminated until the consignees had that reasonable opportunity after it was taken from the cars^' or, second, that the jury, having found in answer to the third question the other fact, that the wool was lost through the negligence of the defendants, they are liable for the consequences of that negligence in the loss of the wool, in whatever capacity they held it, whether as carriers, as depositaries, or as warehouse-men. There are two aspects, then, in which the case is to be viewed; one presenting the case of a suit against the defendants as common carriers, liable for all losses which may happen except such as arise from the act of God or the public enemy, and in which the question of negligence is not involved; the other against them as warehouse-men, depositaries, or bailees for hire, and in which they are to be held liable only for negligence.

Considering the suit, then, as one proceeding against the defendants as common carriers, it stands upon the original count in the declaration and the second and fourth amended counts. In these different counts the delivery and the receipt of the wool, the undertaking to carry to Boston and there deliver, and the nondelivery and loss, are alleged in substantially the same manner, except that in the amended counts the allegation is inserted, not contained in the original, that the defendants also undertook to keep the wool safely in Boston a reasonable time after its arrival, and then deliver on request; and in the fourth the allegation is inserted, not contained in either of the others, that the defendants kept a warehouse in Boston for storing goods conveyed upon their railroad, in which they undertook to keep the wool for that reasonable time after its arrival, and then to deliver to Townsend & Co. instead of the plaintiff, as stated in the others.

That the amendments to this extent are admissible admits of no doubt. They all proceed against the defendants in the same character — as common carriers — to recover the value of the same ten bags of wool lost, with such modifications of the contract alleged, under which they were received by the defendants, as would seem to be necessary to adapt the declaration to the proof. The amended counts are clearly for the same cause of action as the original, and in no way inconsistent with it. The objection taken by the defendants to the amended counts, that they are for a different cause of action from that set out in the original, or are inconsistent with it, cannot be sustained, so far as it applies to the second and fourth amended counts. The views entertained by the court upon other points in the case render it necessary to determine only upon this point that the second and fourth amended counts are admissible, while the others may be considered as inadmissible.

The defendants also excepted, after the verdict was returned, to the omission by the court in their instructions to the jury to charge that they were to consider the last paragraph in the printed notice in connection with the first. The exception stated in the case is, that in giving "the instructions in relation to the first paragraph the court did not also instruct the jury that if they considered the first as an admission by the defendants, they were also to take into consideration with it the other paragraph. We do not understand the exception to be to the character of the instructions given, but to the fact that those being given in relation to the first clause in the notice, they were not followed by others in relation to the second. That the court did not give instructions upon a particular point, is no ground of exception to the verdict, unless the party excepting requested the judge so to instruct. It is to be understood that no such request was submitted, unless the case states otherwise. The exception must, therefore, be overruled.

The position taken at the trial that the defendants had limited their liability as common carriers to the time when the wool was taken into the depot, by a public notice to that effect, would not have availed the defendants if the finding of the jury upon the fifth question had established the fact that the notice was brought to the knowledge of the plaintiff before the wool was sent. In the case of Moses v. Railroad, 4 Foster 71, it was expressly decided that a public notice to the effect that the railroad company would not be responsible for loss or injury to goods in their hands as carriers, except such as might arise from negligence, would not have the effect thus to limit their common law liability, even when brought home to the knowledge of the owner. This renders it unnecessary to consider any question arising upon the character of the instructions given upon the fifth question ; and the only remaining point in the case, considered as an action against the defendants as carriers, upon the original count and the second and fourth amended counts, is that involved in the second question, raising the principal inquiry in the Case, when does the liability of a railroad company, as carriers of goods, terminate ?

The wool in this case was received and conveyed by the defendants in their ordinary employment as common carriers. It was not of a value, disproportionate to its bulk, and was such that no deception could have been practiced upon them as to the extent of the risk they incurred. In the transportation of such commodities, their responsibility as carriers commences with the receipt of the goods, though not put by them immediately on the transit, and it ceases only when they have reached their destination and their control over them as carriers has terminated. That control must continue until delivery, or a tender or offer to deliver, or some other act which the law can regard as equivalent to a delivery. The delivery of goods conveyed by railroad is necessarily confined to certain points on the line of the railroad track. Railroad companies cannot, like wagoners, pass from warehouse to warehouse, and there discharge their freight to the various consignees upon their own premises. They consequently establish certain points as places of delivery, and there unlade their cars of such of the freight as may most conveniently find its ultimate destination from those respective points. But while it is in the process of unloading, and afterwards, while awaiting removal, it must be protected from the weather and from depredation. Freight is brought over the road at all hours by night as well as by day, and the trains must necessarily be more or less irregular in the hours of their arrival. It cannot be required of the consignee to attend at the precise moment when his goods arrive, to receive and take care of them, and the company cannot discharge themselves from responsibility by leaving them in an exposed condition in the open air. Until the goods have passed out of their custody and control into the hands of the proper person to receive' them, they have a duty to perform in the preservation and protection of the property, even after their responsibility as common carriers is at an end. Smith v. Railroad, 7 Foster 86. It thus becomes a matter of necessity for them to provide depots, or warehouses, for the reception of freight at the stations established for its delivery. If the owner or consignee, or other person authorized to receive the goods, is present at the time of the arrival, and has opportunity to see that they have arrived, and to take them away, this may be regarded as equivalent to a delivery. They must be understood, after this, to remain in the charge of the company, for his convenience, as depositaries or bailees for hire. In such case the grounds upon which the common law liability of the carrier is made to rest have so far ceased to exist that there is no longer any just occasion for holding the company to that stringent responsibility in reference to those goods. They are no longer in the course of transportation, beyond the reach of the owner, and under the exclusive control and observation of the carrier. The owner has again got sight of his property, and is in a situation to some extent to oversee and protect it. Nor is he any longer under the difficulties and embarrassments in attempting to make proof of subsequent fraud or negligence as when it was on its passage beyond the reach of his observation, and under the private control of the carrier. The facilities and temptations to fraud and collusion in the embezzlement or larceny of the goods are also removed, or at least greatly diminished.

It is upon these considerations that the strict liability of the carrier is founded. “ It is a politic establishment,” says Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 918, “ contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else the carrier might have opportunity of undoing all persons who had any dealings with him, by combining with thieves, &c., and yet doing it in such a clandestine way as would not be possible to be discovered.”

In 2 Kent’s Com. 602, it is said that the rule subjecting the carrier to this strict responsibility is founded on broad principles of public policy and convenience, and was introduced to prevent the necessity of going into circumstances impossible to be unravelled. If it were not for the rule, the carrier might contrive, by means not to be detected, to be robbed of his goods, in order to share the spoil.

That the danger of loss by such collusion is not now so prominent a consideration as in the semi-barbarous times when the rule was first adopted, is quite probable. But upon this point it is well said by the court in Moses v. Railroad, before cited, that the immense increase of this business, the great value of the commodities now necessarily entrusted to the charge of common carriers, and the vast distances to which they are to be transported, have multiplied the difficulties of the owner who seeks to recover for the loss of his goods, and have added greatly to the opportunities and temptations of the carrier, who might be disposed to neglect or violate his trust. The reasons upon which the rule is founded apply in all their force to railroad companies as carriers, and the same considerations of public policy which lead to its adoption, continue to require that it be maintained in all its rigor, as to them. Any relaxation of the rule must be attended only with mischief. Many of the most eminent English judges prior to the acts of II. Geo. IV. and I. Vm. IV. expressed regret that their courts had sanctioned the doctrine that the carrier had the right to limit his liability by a public notice, and predicted the necessity for the legislative interference which resulted in those acts restoring the strict responsibility of the ancient rule, in order to remedy the mischiefs which that relaxation had introduced. Moses v. Railroad, quâ sup.

The inquiry then is, at what moment after the goods conveyed by a railroad company in their cars have reached the point on the line of the railroad where they are to be delivered, may the reasons upon which the common law liability of the carrier is founded be said to cease when there is no person present at their arrival authorized to receive them, and ready to take them away.

That it is the duty of the consignee to come for them is clear» but it would be quite as impracticable for him to be at the place of delivery at the precise moment of their arrival, or of their being unladen from the cars, without actual notice to him of their arrival, as it would be for the company to diverge from their line of road in order to deliver them at his place of business, or to send notice to him of their arrival, before proceeding to unload them. The arrival may be in the night, or after the expiration of business hours at the station, or at so late a period before it 1 as to render it impossible for him to get them away within the \ hours of business. If under such circumstances they have been I removed from the cars and placed in the warehouse, it cannot be j said that they are so placed and kept there until the gates are opened, and business resumed upon the following day, for any j purpose having reference to the convenience and accommodation ! of the owner or consignee, nor can the proceeding upon any sound view be considered as equivalent to a delivery. The same persons — the servants of the company — continue in the exclusive possession and control of the goods as when they were on their transit, and they are equally shut up from the observation and oversight of all others.Mfaie consignee has had no opportunity to know that they have^Bved and in what condition, and is in no better situation to disprove the fact, or to question any account the servants of the company having them in charge may choose to give of what may happen to them after they are so removed from the cars, or what has happened prior thereto, than before. If purloined, destroyed, or damaged by their fraud or neglect, subsequently to their removal and before he can have had the opportunity to come for them, he is left to precisely the same proof as if the larceny or injury had occurred while they were actually in transitu — the declarations of the servants of the company — they having, it may well be supposed, feelings and interests adverse to him, and knowing that he has no evidence at command from other sources to impeach their statement. It is obvious, too, that the opportunities and facilities for embezzling the goods and for other fraudulent or collusive practices, must continue to be equally tempting after their removal under such circumstances, as before. The risk of detection in some respects may be made even less than before, by tbe greater facilities which the servant of the company in charge of the warehouse has of manufacturing evidence of a burglary or creating proof of the destruction of the goods by fire, set by himself for the purpose of concealing his agency in their larceny. For all purposes which have reference to the difficulties and embarrassments in the way of the owner in attempting to prove loss or damage by the fault or neglect of the company, to his inability to give to them any oversight or protection, and to his security against fraud and collusion until he can have reasonable opportunity to see, by his own observation, or that of others than the servants of the company, that they have arrived, and to send for and take them away, he stands in the same relation to them as when they were actually in the course of transportation. The same broad principles of public policy and convenience upon which’ the common law liability of the .carrier is made to rest, have equal application after the goods are removed into the warehouse as before, until the owner or consignee can have that opportunity; and the same necessity exists for encouraging the fidelity and stimulating the care and diligence of those who thus continue to retain them in charge, by holding that they shall continue subject to the risk.

It is no satisfactory answer to this view to say that the company, having provided a warehouse in which to store the goods for the accommodation of the owner, after the transit has terminated, may be regarded, by their act of depositing them in the warehouse, as having delivered them from themselves as carriers, to themselves as warehouse-men. The question still is, when, having a proper regard to the principles which lie at the basis of their carrier liability, and to the protection and security of the owner, can this transmutation of the character in which they hold the goods be said to take place, and this constructive deliv-/ ery to be made. If this is held to be at any point of time before there can be opportunity to take them from the hands of the company, then may the owner be compelled to leave them in their possession under the limited liability of depositaries, or bailees for hire, contrary to his intention, and without any act or neglect on his part which may be considered as indicative of his consent thereto. It may have been his intention to take them from their possession at the earliest practicable moment, for the reason that he may not be disposed to entrust them to their fidelity and care without the stimulus to the utmost diligence and good faith afforded by the strict liability of carriers. If he neglects to take them away upon the first opportunity that he has to do it, he may be said thereby to have consented that they shall remain under the more limited responsibility. But upon no just ground can this consent be presumed when his only alternative is to be at the station where they are to be delivered at the arrival of the train, at whatever hour that may happen to be, whether in the night or the day, in or out of business hours, and regardless of all the contingencies upon which the regularity of its arrival may depend. It is to be supposed that the consignee has been advised by the consignor of the fact that the goods have been forwarded, and that he has taken or is prepared to take proper measures to look for them upon their arrival, and to remove them as soon as he can have reasonable opportunity to do so. It must be supposed, too, that he is informed of the usual course of business on the part of the company, and of their agents, in the hours established for the arrival of the trains, and in unlading the cars and delivering out goods of that decription, and that he will exercise reasonable diligence in reference to all these particulars, to be at the place of delivery as soon as may be practicable after their arrival, and take them into his possession. The extent of the reasonable opportunity to be afforded him for that purpose is not, however, to be measured by any peculiar circumstances in his own condition and situation, rendering it necessary for his own convenience and accommodation that he should have longer time or better opportunity than if he resided in the vicinity of the warehouse, and was prepared with the means and facilities for taking the goods away. If his particular circumstances require a more extended opportunity, the goods must be considered after such reasonable time as but for those peculiar circumstances would be deemed sufficient to be kept by the company for his convenience, and under the responsibility of depositaries or bailees for hire only.

In the case now under consideration, there was- conflicting evidence as to the time when the train by which the wool was carried arrived at the depot in Boston. The evidence on the part of the defence tended to show that it arrived at the usual time — between one and two o’clock in the afternoon ; while that of the plaintiff tended to show that it did not arrive until three o’clock. The gates of the depot were closed at five, and from two to three hours were usually required for unloading the cars. Upon the view of the evidence most favorable to the defendants, there was but a period of from three to four hours, at the longest, for the consignee to have come and taken away the wool, before the gates were closed; and it was destroyed before they were reopened for the purpose of delivering out the goods. This view proceeds upon the supposition that the work of unlading the cars was commenced immediately upon their arrival; and in the process of unloading, ordinarily occupying from two to three hours, the wool happened to be the first article taken from the cars and was at once ready for delivery. Upon a view less favorable to the defendants, the jury might have found, upon the evidence in the ease, that the train arrived at three, and that the wool was unloaded at six — one hour after the closing of the gates. That the verdict in answer to the second question submitted to the jury was therefore warranted by the evidence, is quite clear; and as there are no legal exceptions to the proceedings upon the trial, so far as they relate to this point, the answer of the jury to that question establishes the fact that the consignees had no reasonable opportunity, after the wool was taken from the cars, to come and inspect it, so far as to see whether from its outward appearance it corresponded with the letter of advice from their consignor, and to remove it before it was destroyed. This fact being established, upon the views of the law entertained by the court the transit had not terminated, and the defendants continued liable for the wool as carriers down to and at the time of the loss; and the general verdict entered for the plaintiff may well be sustained upon the original and the second and fourth amended counts.

We are aware that this view of the liability of railroad companies as carriers conflicts with the opinion of the Supreme Court of Massachusetts, as pronounced by the learned chief justice of that court in the recent case of Norway Plains Co. v. these defendants, 1 Cray 263. In that case it was held that the liability as carriers ceases when the goods are removed from the cars and placed upon the platform of the depot, ready for delivery, whether it be done in the day time or in the night — in or out of the usual business hours — and consequently irrespective of the question whether the consignee has or not an opportunity to remove them. The ground upon which the decision is based would seem to be the propriety of establishing a rule of duty for this class of carriers of a plain, precise and practical character, and of easy application, rather than of adhering to the rigorous principles of the common law. That the rule adopted in that case is of such character is not to be doubted; but with all our respect for the eminent judge by whom the opinion was delivered, and for the learned court whose judgment he pronounced, we cannot but think that by it the salutary and approved principles of the common law are sacrificed to considerations of convenience and expediency, in the simplicity and precise and practical character of the rule which it establishes.

It is unnecessary, then, to consider the exceptions taken upon the other view 'of the case, as an action against the defendants for negligence in their care of the wool after their liability as carriers had ceased.

Judgment won the verdict.

* Pekley, C. J., did not sit.