SECTION 4.-ACT OF THE SHIPPER. CONGAR v. CHICAGO & N. W. RY. CO. (Supreme Court of Wisconsin, 1869. 24 Wis. 157, 1 Am. Rep. 164.) The plaintiffs shipped, by defendant's road, trees and other nursery stock from Whitewater, in this state, directed to "Iuka, Iowa," the consignees being resident in a village of that name in Tama County, Iowa. At Chicago, the goods were shipped by defendant's agents, by the Chicago, Burlington & Quincy Railroad Company, and at Quincy were transferred to the Quincy & Missouri Railway, by which they were transported to Iuka, in Keokuk county, Iowa. In consequence of this mistake, they are alleged to have become worthless, and this action was brought to recover damages. Certain averments of the complaint and answer will be found recited in the second paragraph of the opinion, infra. A demurrer to the answer was sustained, and defendant appealed. DIXON, C. J. The decision of the court below, as shown by the written opinion of the learned judge found in the printed case, turned upon the point that, for the purpose of charging the company with negligence in shipping the goods over the wrong road, notice to any of its agents was notice to the company. [The learned judge then discussed the correctness of this holding, and decided that for the purpose of determining whether the carrier was guilty of actionable carelessness in sending the goods to Iuka, Keokuk county, it was immaterial that some of its servants in a different department of its business knew of the existence of Iuka, Tama county.] The complaint charges that the place called Iuka, in Tama county, Iowa, to which the goods were intended to be sent, was known to the agents of the company residing and doing business along the line of its road in the state of Iowa, and that the station where such goods were to be deposited was Toledo. The answer alleges that the same place was unknown to the officers and agents of the company at Chicago; that they were informed that said Iuka was situated in Keokuk county, in the state of Iowa, and near the line of the Burlington & Missouri Railroad; that they examined a map of Iowa used by shippers, and kept in the office of defendant, for the purpose of ascertaining where said Iuka was situated; and that said map represented said Iuka as being in Keokuk county aforesaid. The answer further alleges that the goods were directed to "C. E. Cox, Iuka, Iowa,” without giving the name of the county, or other directions to indicate to what part of the state, or to what railroad station in the state, the same were consigned, or by what line of railroad the same were to be forwarded. It appears to this court, therefore, upon the pleadings that no cause of action for negligence is stated against the company, but that, if there was negligence on the part of any one, it was upon the part of the plaintiff in not having marked the goods with the name of the county, or otherwise with that of the railway station, or with the line of road by which they were to be sent. The demurrer to the answer should, therefore, have been overruled; and the order sustaining it must be reversed, and the cause remanded for further proceedings, according to law.17 HART v. CHICAGO & N. W. RY. CO. (Supreme Court of Iowa, 1886. 69 Iowa, 485, 29 N. W. 597.) The plaintiff shipped a car load of property over defendant's railroad. It was destroyed in transit by fire, and this action was brought to recover for its loss. The property consisted of horses, harnesses, grain, household furniture, and personal effects. The contract of carriage provided that the horses should be loaded, fed, watered, and cared for by the shipper at his own expense, and that one man in charge of them would be passed free on the train that carried the car. Plaintiff placed a man in charge of the horses and he was permitted to ride in the car with them. At Bancroft, Iowa, it was discovered that the hay which was carried in the car to be fed to the horses was on fire. The man in charge of the horses was asleep. Before the fire could be put out, the horses were killed and the rest of the property destroyed. Verdict and judgment for plaintiff. Defendant appeals. REED, J.18 1. There was evidence which tended to prove that the fire was communicated to the car from a lantern which the man in charge of the horses had taken into the car. This lantern was furnished by plaintiff, and was taken into the car by his direction. Defendant asked the circuit court to instruct the jury that if the fire which destroyed the property was caused by a lighted lantern in the sole use and control of plaintiff's servant, who was in the car in charge. of the property, plaintiff could not recover. The court refused to give 17 Acc. Caledonian Ry. Co. v. Hunter (Scotland) 20 Sess. Ca. (2d Ser.) 1097 (1858). And see The Huntress, 2 Ware, 89, Fed. Cas. No. 6,914 (1840); So. Ex. Co. v. Kaufman, 12 Heisk. (Tenn.) 161 (1873); Knorr v. Phil., etc., R. Co. 2 Wkly. Notes Cas. (Pa.) 187 (1875); Lake Shore R. Co. v. Hodapp, 83 Pa. 22 (1877); Erie R. Co. v. Wilcox, 84 Ill. 239, 25 Am. Rep. 451 (1876); Broadwood v. So. Ex. Co., 148 Ala. 17, 41 South. 769 (1906). Compare O'Rourke v. C., B. & Q. R. Co., 44 Iowa, 526 (1876); Downing v. Outerbridge, 79 Fed. 931, 25 C. C. A. 244 (1897); Gulf, etc., Ry. Co. v. Maetze, 2 Willson, Civ. Cas. Ct. App. (Tex.) § 635 (1885). 18 The statement of facts has been rewritten. Part of the opinion is omitted. this instruction, but told the jury that, if the fire was occasioned by the fault or negligence of plaintiff's servant, who was in charge of the property, there could be no recovery. The jury might have found from the evidence that the fire was communicated to the hay from the lantern, but that plaintiff's servant was not guilty of any negligence in the matter. The question presented by this assignment of error, then, is whether a common carrier is responsible for the injury or destruction of property while it is in the course of transportation, when the injury is caused by some act of the owner, but which is unattended with any negligence on the part of the owner. The carrier is held to be an insurer of the safety of the property while he has it in possession as a carrier. His undertaking for the care and safety of the property arises by the implication of law out of the contract for its carriage. The rule which holds him to be an insurer of the property is founded upon considerations of public policy. The reason of the rule is that, as the carrier ordinarily has the absolute possession and control of the property while it is in course of shipment, he has the most tempting opportunities for embezzlement or for fraudulent collusion with others. Therefore, if it is lost or destroyed while in his custody, the policy of the law imposes the loss upon him. Coggs v. Bernard, 2 Ld. Raym. 909 [ante, p. 317]; Forward v. Pittard, 1 Durn. & E. 27 [ante, p. 318]; Riley v. Horne, 5 Bing. 217; Thomas v. Railway Co., 10 Metc. (Mass.) 472, 43 Am. Dec. 444; Roberts v. Turner, 12 Johns. (N. Y.) 232, 7 Am. Dec. 311 [ante, p. 21]; Moses v. Railway Co., 24 N. H. 71, 55 Am. Dec. 222 [post, p. 505]; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42. His undertaking for the safety of the property, however, is not absolute. He has never been held to be an insurer against injuries occasioned by the act of God, or the public enemy, and there is no reason why he should be; and it is equally clear, we think, that there is no consideration of policy which demands that he should be held to account to the owner for an injury which is occasioned by the owner's own act; and whether the act of the owner by which the injury was caused amounted to negligence is immaterial also.19 If the immediate cause. of the loss was the act of the owner, as between the parties, absolute justice demands that the loss should fall upon him, rather than upon the one who has been guilty of no wrong; and it can make no difference that the act cannot be said to be either wrongful or negligent. If, then, the fire which occasioned the loss in question was ignited by the lantern which plaintiff's servant, by his direction, took into the car, and which, at the time, was in the exclusive control and 13 Acc. Loveland v. Burke, 120 Mass. 139, 21 Am. Rep. 507 (1876). In Ames V. Fargo, 114 App. Div. 666, 99 N. Y. Supp. 994 (1906), a mare was injured because the shipper's agent, who tied her in the car, left too much slack in the rope, against the objection of the carrier's employé. It was held that the common carrier was not liable for the injury. GREEN CARR.-24 care of the servant, defendant is not liable, and the question whether the servant handled it carefully or otherwise is not material. This view is abundantly sustained by the authorities. See Hutch. Carr. § 216, and cases cited in the note; also Lawson, Carr. §§ 19, 23. * AMERICAN EXPRESS CO. v. PERKINS. (Supreme Court of Illinois, 1867. 42 Ill. 458.) LAWRENCE, J.20 This was an action on the case, brought by Mary E. Perkins against the American Express Company as a common carrier. There was a trial by the court and judgment for the plaintiff. The plaintiff below delivered to the company a package, containing a wreath, to be taken from Decatur to Cairo. The wreath was partially made of glass, and when it arrived at Cairo the glass was broken. The receipt given by the company to the plaintiff, and put in evidence by the latter, contained a provision that the company would not be responsible "for any articles contained in or consisting of glass." Without holding that the company could discharge itself, by this proviso, from its liability as a common carrier, unless the plaintiff assented to such proviso, we must, nevertheless, hold that such liability, to its common-law extent, did not attach, unless the company was informed what the package contained, in order that a degree of care might be used proportioned to its fragile character. The plainest dictates of fair dealing and good faith required the plaintiff to furnish this information. This principle was settled in the case of Chicago & Aurora R. R. Co. v. Thompson, 19 Ill. 578, where it was sought to charge a common carrier for the loss of money in a valise that had been shipped in a box containing other articles of little value. The company was not informed that the box contained money, and its appearance furnished no indication of that fact, but rather the contrary. The court reviews the authorities, and holds that, in order to charge common carriers as insurers, they must be treated in good faith, and that concealment, artifice, or suppression of the truth will relieve them of this liability. It was held the company should have been informed of the money being in the box, in order to charge them. So, in this case, the company should have been told of the contents of this box before they can be charged for the breakage of so fragile a substance as glass. That they were so informed there is not a particle of evidence. The judgment is reversed and the cause remanded. Judgment reversed. 20 The statement of facts is omitted. ROSS v. TROY & B. R. CO. (Supreme Court of Vermont, Rutland, 1877. 49 Vt. 364.) Case for negligence in carrying machinery, whereby it was injured. Plea, the general issue, and trial by jury, September term, 1876; Wheeler, J., presiding. Plaintiff's evidence tended to show that his workmen, on May 18, 1874, by his direction, loaded on a platform car, that had been furnished him at his shop in Rutland by the Delaware & Hudson Canal Company, certain machinery, consisting, among other things, of a piece of shafting with a flywheel and pulley at one end and a crank and crankwheel at the other, consigned to Strother & Sons of Philadelphia, to be transported by said company to Eagle Bridge, and thence by defendant over its railroad to Troy, whence it was to go by water to Philadelphia; that the machinery was fastened on the car by blocks made of slabs 15 to 18 inches long, split through the middle, and placed as blocking under the flywheel and crankwheel, the thick part being next to the wheels, and nailed to the floor of the car with twenty-penny nails, and was apparently sufficiently fastened. * * * * The defendant's testimony tended to prove that the car on which the machinery was loaded was duly received by defendant and taken to Troy; that after its arrival it was put into a train, and the train carefully backed down towards the docks at a rate of speed not exceeding 3 miles an hour; that while the train was rounding a curve, the outer wheels of the car on which the machinery was rose and tipped, so that the fastenings under the lower side of the flywheel gave way, and the shaft and wheels rolled over and against the abutment of a bridge on the lower side of the car, and finally fell to the ground and were thereby injured; that the engineer and fireman were looking at the wheel as it began to roll; that the engineer instantly reversed the engine, and the fireman applied the brakes, stopping the train within the length of a car, and as soon as possible; that the track was well constructed and in good condition, and that the accident happened without any fault on the part of defendant, its agents or servants, in running the train. * * * Defendant's evidence further tended to show that the injury happened wholly from the unskillful manner in which the nails were driven into the block under the west and lower side of the flywheel. Among other witnesses who testified as to the cause of the accident was Philip H. Hicks, defendant's yardmaster at Troy, part of whose business it was to receive and forward freight cars, and to see that they were in good condition and properly loaded, and who, on crossexamination, testified that he noticed, after the car came into the yard at Troy, that the blocking of the machinery was shaky; that it was not very securely blocked for such big machinery; the wheels being |