Parker v. Milwaukee & St. Paul Railway Co. ( 1872 )

It ON, J.

We think tbat tbe circuit court beld correctly tbat a reasonable time bad not elapsed after tbe goods were ready for delivery and before they were'destroyed, for tbe plaintiffs to taire them away. Tbe plaintiffs were not required to do so out of business hours, and tbe goods were burned before tbe commencement of business hours on tbe day after they were placed in tbe depot of tbe defendant. Hence tbe plaintiffs bad, probably, only about two hours, certainly much less than oue-balf of a business day, in wbicb to remove tbeir goods from tbe depot after tbe same were ready to be delivered to tbem. It is not claimed tbat tbe plaintiffs knew tbat tbeir goods bad arrived at Boscobel until after tbe fire. In view of tbe fact tbat tbe time of tbe arrival of tbe consignment was necessarily uncertain — depending as it did upon tbe regularity of trains, tbe promptness and tbe exigencies of tbe business of tbe various carriers over whose lines tbe goods necessarily passed, and perhaps upon other conditions — we cannot bold, as a proposition of law, tbat tbe plaintiffs were bound, in tbe exercise of reasonable diligence, to have removed their goods from tbe depot of tbe defendant before six o’clock P. M. of tbe day on wbicb they arrived at Boscobel, or, what is tbe same thing, before they were burned. This conclusion is reached without regard to tbe fact tbat tbe plaintiffs were doing business at Eennimore, wbicb place was tbe ultimate destination of the goods, and is several miles distant from Boscobel.

In the case of Wood v. Crocker, 18 Wis., 345, this court beld tbat “ the liability of a railroad company as a common carrier, for goods transported over its road, continues until the goods are ready to be delivered at their place of destination on the road, and the owner or consignee has bad a reasonable' opportunity to take them away.” If the doctrine of tbat case is maintained, the judgment in the present case cannot be disturbed. But we bave been strongly pressed by the learned counsel for the defendant to reconsider that decision, and to bold, as the courts in several of the states bave beld, that when the transit is ended and the goods are placed in the depot of the railway company, the strict liability of a common carrier ceases, and the company from thencefortb is only liable as a warehouseman for the safe keeping of the goods. Among the courts wbicb bave so held, are those of Massachusetts, Pennsylvania, Indiana, Illinois, Iowa, and perhaps some others; and these decisions are sustained by some of the elementary writers, among whom is Judge Story. On the other hand, the doctrine of Wood v. Crocker, is sustained by the courts of New Hampshire, Vermont, New York, New Jerseyand Kentucky, and by ANGell, Redeield, Cooley and Parsons. Indeed some of these authorities go farther, and bold that actual notice must be given to the consignee (if be is accessible), of the arrival of the consignment, and be is allowed a reasonable time thereafter in wbicb to remove the goods, before the extraordinary liability of the carrier, as such, ceases. Moses v. The Boston & Me. R. R. Co., 32 N. H., 523; Blumenthal v. Brainard, 38 Vt., 402; Fenner v. The Buffalo & State Line R. R. Co., 44 N. Y., 505; Morris & Essex R. R. Co. v. Ayers, 29 N. J. L. R. (5 Dutcher), 393; Jefferson R. R. Co. v. Cleveland, 2 Bush. (Ky.), 468; Angell on Carriers, § 313; 2 Redfield on Railways, § 157; 2 Parsons on Contracts (5th Ed.), 189; opinion of Judge Cooley in McMillan v. M. S. & N. I. R. R. Co., 16 Mich., 79. In the last case the court were equally divided on this question. The authorities wbicb sustain the views of the counsel for the defendant are cited in bis brief published herewith.

It will thus be seen that there are two distinct and conflicting lines of authority upon tbe question; and when tbe case oi Wood v. Crocker was decided, tbe court was entirely free te adopt tbe rule which seemed to be sustained by tbe better reasons. While tbe maxim stare decipis may not be applicable to that decision, still, Raving been made npon mature deliberation, it should not be lightly overruled. We had occasion to reconsider the question there decided in Wood v. The Milwaukee and St. P. R. R. Co., 27 Wis., 541, and came to the conclusion that it was correctly decided. We have again considered it in the present case, and fail to find any satisfactory reasons for adopting a different rule. .»

The strongest argument urged against the rule adopted in Wood v. Crocker is, that it is less certain than the opposite rule, and not so easily understood and applied. But we are unable to perceive why the argument does not apply with equal force to all other cases where the question of reasonable time or reasonable diligence is involved. In the application of legal rules to particular cases, absolute certainty is not attainable; and while an approximation thereto is very desirable, it is not desirable that it should be attained by a sacrifice of justice. But an extended discussion of the question under consideration is not deemed necessary. It is sufficient to refer to the opinion by Mr. Justice Cole in Wood v. Crocker, where the question is discussed at some length.

By the Court. — The judgment of the circuit court is affirmed.