as the sudden cessation of his operations, he cannot take the goods, the first carrier will perform his duty, where the goods are perishable, if he forward them by the best means reasonably to be had, and he is not liable if they perish without his "A shipper, who receives a bill of lading for goods consigned to a point beyond the terminus of the initial carrier's line, authorizes the initial carriers to select any usual or reasonably direct and safe route by which to forward after the goods reach the end of his line, unless the particular line by which the goods consigned are to be forwarded is designated in the bill of lading. In such a case, the bill of lading being silent in respect to the line by which the goods are to be forwarded, its effect is the same as if a provision were therein inserted that the carrier should have the right to select at his discretion any customary or usual route which was regarded as safe and reasonable." Snow v. Railway Co., 109 Ind. 422. 9. In Regan r. Railway Co., 61 N. H. 579, perishable goods had been shipped by defendants' railway to its terminus at Portland, whence they were to be shipped by boat to Boston. The goods reached Portland, in due course on Saturday after the boat had gone. Sunday no boat ran, and on Monday the boat agent noti fied defendants' agent that on account of a severe storm raging no boat would run that day, and that he did not know when it would run again as it looked like a long storm. Defendants' agent therefore sent the goods on that day to Boston by railroad, but did not notify consignee of the change. The train got off the track owing to the storm and was delayed, so that when the goods reached Boston they were damaged. Said the court: "The defendants' undertaking was to carry the plaintiff's goods from Groveton to Portland, and deliver them to the boat for transportation to the consignee at Boston. When they had carried the goods to the terminus of their line in Portland, and had notified the agent of the boat line that they were ready to deliver the goods for further conveyance, they had done all that was required by the terms of their contract; and if the ordinary running of the boat had not been interrupted, they would have been relieved from further liability. Gray v. Jackson, 51 N. H. 9; Insurance Co. v. Railroad, 104 U. S. 146. By an unforeseen event, for which the defendants were not responsible, it was impossible to forward the goods by the conveyance specified. The failure of the boat to run as usual did not impose upon them the duty of transporting the goods from Portland to Boston. That duty they had never assumed, and no change of circum fault before he can forward them.10 But if the connecting carrier designated cannot receive the goods and the goods, although perishable, are such as can properly be cared for until the shipper can be communicated with and orders for disposition secured, the carrier will not be justified in selecting another route without instructions to do so from the shipper, and the fact that the bill of lading contains a clause that stances could subject them to the all circumstances of the case. extraordinary responsibilities of Cass v. B. & L. R. R., 14 Allen, carriers beyond the termination of 448, 450. The defendants' agent their route. But, although they learning that the boat would be owed no duty of further transpor- prevented from running on actation, the defendants were bound count of the storm, and knowing to the exercise of reasonable care, the perishable character of the and to so conduct in relation to goods, forwarded them the same the plaintiff's goods that he should afternoon by the Eastern Railroad; suffer no unnecessary loss or dam- and the referee finds that in so age. Though no longer liable as doing he exercised due care and common carriers, they were liable prudence, but that he was neglias depositaries, and required to ex- gent in not notifying the conercise ordinary care in the cus- signee of the change of route. He tody of the goods. In cases of ac- also finds that such notice would cident or emergency, it sometimes not have avoided the loss, and happens, although the transit is that the plaintiff suffered no inat an end, that the duty is cast jury by reason of the negligence on the carrier of taking such rea- of the defendants' agent. Upon sonable care of the property as a these facts the plaintiff's action reasonable owner would take of cannot be maintained. After the his own goods. Railway Co. v. termination of the defendants' liaSwaffield, L. R. 9 Ex. 132. And a bility as common carrier, they carrier is bound to use all reason- were answerable only for injuries able means, such as a prudent happening in consequence of their owner being present would take, own negligence. They were not to save the property from loss by responsible for losses which they natural causes. Edward's Bail., could not have prevented by the sec. 598; Peck v. Weeks, 34 Conn. exercise of due care. Sh. & Red. 145; American Express Co. v. Neg., sec. 8." Smith, 33 Ohio St. 511; S. C., 31 Am. Rep. 561, and notes, 567; Empire Transportation Co. r. Wallace, 68 Pa. St. 302; N. & C. R. R. Co. v. David, 6 Heisk. 261. What constitutes such reasonable care and diligence is a question of fact to be determined with reference to 10. As where goods are to be forwarded by steamboat but boats cannot run because of low water, and before goods can be forwarded they are burned in the warehouse by accidental fire. Hornthal Steamboat Co., 107 N. C. 76. v. any carrier shall have the right in case of necessity to forward property by any route can make no difference.11 If the goods have come into the hands of the first carrier with instructions or conditions as to their ultimate delivery or disposition, it is the duty of the first carrier to see that the same instructions and conditions are transmitted to the succeeding carrier, and if he fails to do so and the goods are thereby lost he will be liable.12 Sec. 131. (§ 103.) (§ 103.) When liability of first carrier terminates. But the responsibility for the safety of the goods can only be shifted when there has been such a change in the possession of them from the one to the other as will be tantamount to a delivery to the latter or succeeding carrier;13 or, in case the succeeding carrier neglects or refuses, after notice of their arrival and a tender of delivery, to receive the goods, then, when the first carrier, after notice of all these facts to the consignor or consignee, has used reasonable diligence to store and care 11. Fisher v. Railroad Co., 99 Me. 338, 59 Atl. Rep. 532, 105 Am. St. Rep. 283, 68 L. R. A. 390. If the shipment consists of perishable goods, and the succeeding carrier refuses to accept them, the first carrier must make a reasonable effort to secure instructions as to their care and disposition; and if he fails to do so and the goods are allowed to spoil, his omission will amount to such a breach of duty as will make him responsible for the injury. Shea v. The Railway, 66 Minn. 102, 68 N. W. Rep. 608. 12. North v. Transportation Co., 146 Mass. 315; Richer v. Fargo, 78 N. Y. Supp. 1007, 77 App. Div. 550. See post, § 139. 13. Reynolds v. Railroad Co., 121 Mass. 291; Insurance Co. v. Railroad Co., 8 Baxt. 268; Lesinsky v. Great Western Dispatch, 10 Mo. App. 134; Gray v. Jackson, 51 N. H. 9; Insurance Company v. Railroad Co., 104 U. S. 146; Regan v. Railway, 61 N. H. 579; McKay v. Railroad Co., 50 Hun, 563; Davis v. Transportation Co., 106 Mo. App. 487, 81 S. W. Rep. 226; Huntting Elevator Co. v. Bosworth, 179 U. S. 415, 45 L. Ed. 256, 21 Sup. Co. R. 183, reversing Bosworth v. Railroad Co., 87 Fed. 72, 30 C. C. A. 541. Where cotton shipped by one railroad arrived at the point of connection with the succeeding railroad in the evening, and next morning the car was placed on the switch or "Y" which connected the two tracks, but the car had not been hauled to the transfer platform of the second road, nor had the cotton been examined or checked off the bill of lading, and the cotton was burned after for the goods, and has renounced his relation of carrier to them.14 So long, therefore, as the first or any succeeding car standing for three hours on the switch, it was held that the delivery was not complete, and that the first company was still liable. Insurance Co. v. Railroad Co., 8 Baxt. 268. For a similar case, see, also, Alabama, etc., R. R. v. Mt. Vernon Co., 84 Ala. 173. And to constitute a delivery, either actual or constructive, even as between the connecting carriers themselves, the goods must have been at least removed from the conveyance on which they have been transported to the point of connection for further shipment. Where a steamboat and a railroad formed by agreement a continuous line, and the steamboat arrived at a wharf owned by the railroad company, upon which the goods had to be unloaded for the railroad, whereupon the employees of both the boat and the railroad commenced unloading the goods by hand and in trucks, and carrying them across the wharf to the cars, no account being kept of the goods taken from the boat or to the railroad or put upon the wharf, and while they were thus engaged, and before the goods had been removed from the boat, the wharf, boat and goods took fire and were burned, it was held that the railroad was not liable for the goods which had not been removed from the boat, having neither actual nor constructive possession of them, and that there had been no delivery even of the goods which had been taken in charge for the purpose of removal by its own servants or employees if not actually removed from the boat. Gass v. N. Y., etc., Railroad, 99 Mass. 220. Delivery of baggage to a connecting carrier, sufficient to relieve the first carrier of liability, is not shown by the common agent of both carriers taking it in charge and placing it in a baggage room used by both carriers in common. Hyman v. Railroad Co., 66 Hun, 202, 21 N. Y. Supp. 119. 14. Lesinsky v. Great Western Dispatch, 10 Mo. App. 134; Regan t. Railway, 61 N. H. 579; McKay v. Railroad Co., 50 Hun, 563; Whitworth v. Railroad, 87 N. Y. 413; Condon v. Railroad Co., 55 Mich. 218. In Whitworth v. Railroad, supra, plaintiff had shipped cotton from Memphis for Liverpool. It was contracted to be carried to New York by a dispatch company which conducted its operations over a number of successive railroads of which the defendant was the last, its terminus being in Jersey City. Defendant carried the cotton to Jersey City, where a portion of it, then in defendant's warehouse, was destroyed by fire, without any negligence on defendant's part. It appeared that the way-bills of the dispatch company consigned the property to its agents in New York. The uniform course of business between defendant and the dispatch company had been for defendant, on arrival of property, to give notice thereof to the agent named in the way-bill, whose duty it then was to obtain a permit from the steam rier permits the goods to remain upon his vehicle awaiting the convenience or necessities of a succeeding carrier who neglects or unreasonably delays to receive them, he will hold them subject to the liabilities of a common carrier until by warehousing them or otherwise, he does some unequivocal act indicative of a purpose to change his office from that of carrier for transportation to that of a mere custodian for safe keeping.15 If the goods consist of live stock, and for any reason they are refused transportation by the succeeding carrier, the carrier in whose custody the stock is may place it in suitable pens and, after giving notice to the proper party, he will be bound to the exercise of reasonable care only.16 But the first carrier cannot relieve himself from his liability as an insurer of the goods by simply unloading them at the end of his route and storing them without having made an attempt to deliver them to the connecting carrier in the route.17 And a mere notice to the connecting carrier to remove the goods, unaccompanied by ship company for delivery to the latter and to give the permit to defendant; and on receipt of it the defendant would deliver the goods on lighters to the proper vessel. On arrival of the cotton in question, prompt notice was given to the proper agent, but permits were not obtained, and defendant, although persistently urging said agent to obtain the permits, was unable to get rid of the cotton. Held that, assuming that there was unreasonable detention of the cotton, defendant was not responsible for the delay in delivery; that it had fully discharged its duty when it gave prompt notice of the arrival and held itself ready to deliver as soon as the permits were obtained. 15. Bennitt v. Railway, 46 Mo. App. 656. 16. Larimore v. Railroad, 65 Mo. App. 167. 17. Railroad Co. v. Manufacturing Co., 16 Wall. 318; Irish v. The Railway, 19 Minn. 376; Gass v. The Railroad, 99 Mass. 220; West. Trans. Co. v. Newhall, 24 Ill. 477; Mer. Des. Co. v. Kahn, 76 id. 520; L. & N. R. R. v. Campbell, 7 Heisk. 253; Brintnall v. The Railroad, 32 Vt. 665; Blossom. Griffin, 3 Kern. 569; Mills v. The Railroad, 45 N. Y. 622; Root r. The Railroad, id. 524; Michaels t. The Railroad, 30 id. 564; Condict v. Railway Co., 54 id. 500; McDonald v. Railroad, 34 id. 497; Ayres v. Railroad, 14 Blatchf. 9; Railway Co. v. Reiss, 183 U. S. 621, 22 Sup. Ct. R. 253, affirming, s. c. 99 Fed. 1006, 39 C. C. A. 679, and 98 Fed. 533, 39 C. C. A. 149. |