tained by fog for two days, during which the carrier takes no care of nor employs any means to prevent injury to the freight, he is liable in damages: Peck v. Weeks, 34 Conn. 145. So where cabbages are side-tracked during transportation, and they thereby become frozen and worthless, the carrier is liable: Tierney v. N. Y. Central etc. R. R. Co., 76 N. Y. 305. In this case it was determined that where the carrier receives perishable property for transportation, it is his duty to transport it by the first train, in preference to other freight; and if he has not the means of transportation at hand, it is his duty to refuse to receive it. Where a carrier has contracted to carry freight over its own or over that and a connecting line, an extroardinary influx of freight causing a blockade and delay will not excuse the carrier, especially where he has given no notice of the fact to the shipper: Petersen v. Case, 21 Fed. Rep. 885; Maclaren v. Detroit etc. R. R. Co., 23 Wis. 138; Condict v. Grand Trunk R'y Co., 54 N. Y. 500; Chicago etc. R. R. Co. v. Dawson, 79 Mo. 296; Helliwell v. Grand Trunk R'y Co., 10 Biss. 170; Great Western R'y Co. v. Burns, 60 Ill. 284. In Petersen v. Case, supra, it was held that where, while the goods were in course of transportation, the connecting line notified the first carrier that he could not transport the goods owing to a block in freight, this did not relieve the first carrier for the delay, where he failed to notify the shipper, so that he might sell or dispose of or preserve the property. If at the time the goods were received there was already an over-accumulation of freight on his lines incapacitating them, or which might reasonably be expected to incapacitate them and cause unreasonable delay, and if this was known, or might have been known by reasonable effort on the part of the carrier, he is liable for the delay: Helliwell v. Grand Trunk R'y, supra. The other cases cited supra sustain these rules. As to notice, though there is a conflict in the authorities, the better rule is, perhaps, that if at the time the goods are received the carrier knows, or by reasonable diligence should know, that they will not be delivered without delay, because of a blockade of freight on his own or on connecting lines, or from other cause within his knowledge, and he fails to notify the shipper, he will be respon. sible in damages for loss arising from unreasonable delay in transportation from such cause: Great Western R'y Co. v. Burns, 60 Ill. 284; Petersen v. Case, 21 Fed. Rep. 885; Helliwell v. Grand Trunk R'y, 10 Biss. 171; Conkey v. R'y Co., 31 Wis. 637. This last case would seem to conflict with Peet v. Chicago etc. R. R. Co., 20 Wis. 624, where it is held that there is no rule of law requiring notice to the shipper in such case.

Act of God. The authorities agree that when the delay is directly and proximately caused by an act of God, the carrier is exonerated from liability, in the absence of proof of negligence on his part. Thus it has uniformly been held that an unexpected freshet or inundation which occasions delay and causes loss is within this exception, and will excuse him when he is not guilty of negligence. He is not required to foresee and provide against extraordinary floods, but in case of delay from this or other causes directly the act of God, he is bound to exercise only that degree of prudence and care as to the transportation of the goods which would be expected of a careful business man under the circumstances. Amongst those cases which hold that a flood will excuse the carrier's delay, no matter whether the goods or freight being transported was perishable or not, may be cited American Express Co. v. Smith, 33 Ohio St. 511; 31 Am. Rep. 561; Nashville etc. R. R. Co. v. David, 6 Heisk. 261; 19 Am. Rep. 594; Nashville etc. R. R. Co. v. King, 6 Heisk. 271; Nashville etc. R. R. Co. v. Jackson, 6 Id. 271; Railroad Co. v. Reeves, 10 Wall. 176; Wallace v. Clayton, 42 Ga. 443; Read v. Spaulding, 30

N. Y. 630; 86 Am. Dec. 426; Lipford v. Charlotte etc. R. R. Co., 7 Rich. 409; Morrison v. Davis, 20 Pa. St. 171; 57 Am. Dec. 695; Denny v. Railroad Co., 13 Gray, 481; 74 Am. Dec. 645; Vicksburg etc. R. R. Co. v. Ragsdale, 46 Miss. 458. So it has been held that where the carrier was delayed by deep snow making the road temporarily impassable, this was within the exception, and excused him from liability: Ballentine v. North Missouri R. R. Co., 40 Mo. 491; 93 Am. Dec. 315; or the freezing of a canal or river upon which the carrier is transporting the goods: Beckwith v. Frisbie, 42 Vt. 559; Parsons v. Hardie, 14 Wend. 215; 28 Am. Dec. 521; Bowman v. Teall, 23 Wend. 305; 35 Am. Dec. 562; Empire etc. Co. v. Wallace, 68 Pa. St. 302; 8 Am. Rep. 178. The same has been held as to a low stage of water in a navigable river rendering it impossible for the carrier to deliver the goods: Bennett v. Byram, 38 Miss. 17; 75 Am. Dec. 90; Silver v. Hale, 2 Mo. App. 557. As the general rule is, that the carrier is liable only for the proximate, and not for the remote, consequences of his negligence, it has been questioned whether, when the loss or injury occurs by an act of God following the carrier's delay, the carrier should be held liable upon the ground that but for the delay the loss would not have happened; or, in other words, the question is, if the carrier delays the freight for an unreasonable time, but for which he would have been able to deliver the goods safely, or to deliver them to the connecting carrier by whom they would have been carried beyond danger from an act of God causing the loss, is the carrier liable for the consequences of such delay?

Upon this question the courts differ. In Morrison v. Davis, 20 Pa. St. 171, 57 Am. Dec. 695, goods were injured by flood. The canal-boat by which the goods were being carried was drawn by a lame horse, and the result was that the boat did not make its usual speed. If it had, it would have reached and passed the point where the goods were injured before the flood; and it was held that the carrier was liable only for the proximate, and not for the remote, consequences of his negligence; that the flood, and not the delay, was the proximate cause of loss, and for that reason the loss fell within the exception of an act of God excusing the carrier. Again, in Denny v. New York etc. R. R. Co., 13 Gray, 481, 74 Am. Dec. 645, goods had been unnecessarily delayed in transportation, and after they were carried had been deposited in the carrier's warehouse, and while awaiting delivery to a connecting carrier, were injured by flood, which injury would not have occurred but for the unnecessary delay. It was urged that the delay was the direct cause of the damage, but the court held that the flood, which was an act of God, was the direct cause of the loss; that the delay was only the remote cause, and that the carrier was not liable. This ruling was approved in Hoadley v. Northern etc. Co., 115 Mass. 304, 15 Am. Rep. 106, where the injury was caused by an unavoidable fire following an unnecessary delay. These cases were expressly cited and followed by the supreme court of the United States in Railroad Co. v. Reeves, 10 Wall. 176, where the loss occurred by flood following a delay. They were also followed and approved in Daniels v. Ballentine, 23 Ohio St. 532, 13 Am. Rep. 264, where after the carriage had commenced it was voluntarily suspended and delayed by the carrier, but the freight during the delay was not exposed to any of the perils peculiar to the transit. When the transportation was resumed, a storm arose, and the freight was destroyed, and the court held that the carrier, from the mere fact of the delay, was not liable, though the freight otherwise would prob ably have been safely delivered; that the storm was the proximate, and the delay the remote, cause of the loss. So in Michiyan etc. R. R. Co. v. Bur

rows, 33 Mich. 6, the same doctrine is maintained. In that case, a car-load of apples was frozen while delayed by an injury to the track by the great Chicago fire, causing a great accumulation of freight, and an urgent necessity for the immediate shipment of relief goods, and the court held the delay excusable; that it was not the natural and proximate cause of the loss. In another case it was said that where an unreasonable delay is charged against a carrier, and loss of market claimed, he cannot recover upon proof of other delay not chargeable to defendant, but that he must trace some damage to the delay of the defendant: Detroit etc. R'y Co. v. McKenzie, 43 Mich. 609. In MacVeagh v. Atchison etc. R. R. Co., 18 Am. & Eng. R. R. Cas. 651, through an unnecessary delay by the carrier goods were attached. It was held that the attachment, like an act of God, excused the delay, and that the carrier's negligence was the remote, and not the proximate, cause of the injury. The reasoning of these cases is accepted in McGraw v. Baltimore etc. R. R. Co., 18 W. Va. 360; 41 Am. Rep. 696; and in Hewitt v. Chicago etc. R. R. Co., 63 Iowa, 611.

On the other hand, the doctrines stated above and some of the cases cited have met with disapproval and criticism at the hands of other courts. Thus in Michaels v. N. Y. etc. R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415, where a carrier received goods for immediate transportation, but unnecessarily delayed them, in consequence of which they were injured by flood, it was held that he was liable for the loss by reason of the delay, though the flood might have been the immediate and proximate cause of the injury. This ruling was expressly approved in Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426, an action growing out of damages to goods by the same flood during transit. These cases have been followed in Dunson v. N. Y. etc. R. R. Co., 3 Lans. 264; Bostwick v. Baltimore etc. R. R. Co., 45 N. Y. 712; Condict v. Grand Trunk R'y Co., 54 Id. 500. In the latter case, the court, after citing the foregoing New York cases, and disapproving Denny v. N. Y. etc. R. R. Co., 13 Gray, 481, 74 Am. Dec. 645, and Morrison v. Davis, 20 Pa. St. 171, 57 Am. Dec. 695, said: "These decisions are in direct conflict with the law as settled in this state, and cannot control the decision in this case. The defendant's delay was unreasonable. It was attributable to defendant's fault, and it exposed the goods to the fire by which they were consumed. Hence its fault contributed to the loss, and it thus became liable." A similar ruling to this last was inade in Michigan etc. R. R. Co. v. Curtis, 80 Ill. 324, where fruit-trees were destroyed by frost and fire before arriving at their destination, and after an unreasonable delay. So in Wolf v. American Express Co., 43 Mo. 421, 97 Am. Dec. 406, where wine froze after an unnecessary delay, the carrier was held liable; and the court said that the better opinion was, that the act of God which excuses the carrier must not only be the proximate but also the sole cause of the loss; that when the act of God caused the loss, if the negligent delay of the carrier mingled with it, or was an active or co-operative cause, he was still responsible. This ruling is approved and followed in Read v. St. Louis etc. R. R. Co., 60 Mo. 199, Pruitt v. Hannibal etc. R. R. Co., 62 Id. 527, where it is remarked that the later decisions incline to the opinion that where the negligence of the carrier concurs in and contributes to the injury, he is not exempt from liability on the ground that the immediate damage is occasioned by an act of God, or inevitable accident. This case is approved in Davis v. Wabash etc. R. R. Co., 89 Id. 340. Again, in Southern Express Co. v. Womack, 1 Heisk. 256, goods were delivered during the Civil War for transportation, and owing to a blockade of freight the goods remained in the depot for some twenty days, when they were cap

tured by soldiers and lost; and in an action against the carrier, it was held that though the goods were taken by the public enemy, the carrier was liable in consequence of the delay.

Strikes-Riots - Mobs. — The earlier cases maintain that a carrier is liable for the inevitable delay and consequent damage to goods in transit caused by strikes of employees, armed mobs, or rioters, and the like. These decisions are based on the ground that a mob or riot, no matter how great in numbers, cannot be considered as coming within the term "public enemy," so as to excuse delay by the carrier; while a strike of employees will not excuse the carrier, because those who intrust their goods to the carrier have no means of knowing or ascertaining the character or disposition of his employees or agents, no voice in their selection, nor control over their actions. This doctrine, as to a strike of railroad employees, was maintained in Blackstock v. New York etc. R. R. Co., 20 N. Y. 48; and this case was followed with approval in Read v. St. Louis etc. R. R. Co., 60 Mo. 199; and to the same effect is Lewis v. Ludwick, 6 Cold. 368; 98 Am. Dec. 454. On the other hand, the late cases on the subject establish an exactly contrary doctrine, and the previous ruling is disapproved and overruled in Geismer v. Lake Shore etc. R’y Co., 102 N. Y. 563, 55 Am. Rep. 837, where it is said that "not only storms and floods, and other natural causes, may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the track or disable the rolling stock, or interpose irresistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus interposed, and to forward the goods to their destination." In this case, live-stock were delivered to a carrier to be transported over his line of railroad. In an action to recover damages for a delay in the transportation, it was shown that they were carried with reasonable rapidity as far as a certain station on the road, where the train stopped for the purpose of making certain usual changes. The carrier was willing and anxious to proceed, and had the necessary employees and rolling stock to do so, and so attempted, but was prevented by a strike of employees, who not only refused to run the train or obey orders, but, by intimidation and violence, prevented other employees, who were ready and willing to proceed with the train, from doing so. The result was, that the train was delayed for eleven days, when the strike ended, and the stock were at once transported to their destination. The court held that the carrier was not liable for the delay caused by the striking employees, and it was said that when such men abandoned the carrier's employment, they ceased to be his servants or agents for whose acts he was responsible; that, conceding that the strike was organized while the men were in the carrier's employ, it was a matter outside their employment, and excused the carrier from liability; that the delay was not caused by the strike, but by the unlawful conduct of the strikers after they left the carrier's employment. And to the same effect are Pittsburg etc. R. R. Co. v. Hazen, 84 Ill. 36; 25 Am. Rep. 422; Pittsburg etc. R. R. Co. v. Hollowell, 65 Ind. 188; 32 Am. Rep. 63; Lake Shore etc. R'y Co. v. Bennett, 89 Ind. 457.

In these cases, it is held that where the delay in carrying stock is caused, not by the negligence of the carrier, or his wrongful act, or that of his employees, but solely by the riotous conduct of a lawless mob, which neither the carrier nor the civil authorities can resist nor control, he is not liable for damages resulting from such delay. Again, in Indianapolis etc. R. R. Co. v. Juntgen, 10 Brad. App. 295, where the delay was caused by the overpowering of the carrier's servants by a mob, which prevented the running of trains,

the court held that for a delay caused by a refusal of the carrier's servants to do their duty the company would be liable, but that for a delay caused by the lawless violence of men not in his employ, he is not responsible. And to the same effect is Wertheimer v. Penn. R. R. Co., 17 Blatchf. 421, and Sherman v. Penn. R. R. Co., 3 Am. & Eng. R. R. Cas. 274.

Measure of Damages. - Where the goods are intended for sale in the market at the destination to which they are being transported, and the carrier is guilty of unreasonable and negligent delay in their transportation, the authorities are now universally agreed that, in the absence of special circumstances making the rule inequitable, the proper measure of damages for the delay is the difference between the market value of the goods when they are delivered and the market value at the time they should have been delivered: Devereux v. Buckley, 34 Ohio St. 16; 32 Am. Rep. 342; Illinois etc. R. R. Co. v. Cobb, 72 Ill. 148; Rankin v. Pacific R. R., 55 Mo. 167; Louisville etc. R. R. Co. v. Mason, 11 Lea, 116; St. Louis etc. R'y v. Mudford, 44 Ark. 439; Ward v. New York etc. R. R. Co., 47 N. Y. 29; 7 Am. Rep. 405; Sisson v. Cleveland etc. R. R. Co., 14 Mich. 489; 90 Am. Dec. 252; Ward's Central etc. Co. v. Elkins, 34 Mich. 439; Kent v. Hudson River R. R. Co., 22 Barb. 278; Peet v. Chicago etc. R'y Co., 20 Wis. 624; 91 Am. Dec. 446; Ingledeid v. Northern R. R., 7 Gray, 86; King v. Woodbridge, 34 Vt. 565; Cutting v. Grand Trunk R'y Co., 13 Allen, 381; Whalon v. Aldrich, 8 Minn. 346.

To these damages interest is sometimes added, computed from the time the delay occurred: Newell v. Smith, 49 Vt. 255. But the damages recoverable are only those which are actual and legitimate. The carrier is not liable for hypothetical damages, nor for any supposed loss therefrom: Gerhard v. Neese, 36 Tex. 635. Cases sometimes arise where the application of the above rule would be inequitable, as in some instances there are special reasons why the shipper may desire that the transit of his goods may be hastened, and if this is known to the carrier, and he unreasonably delays the transportation, or if having expressly agreed to carry them within a given time, or for a certain purpose, he negligently delays them beyond that time, the above rule will not recompense the shipper. In a case where the owner of the goods had made an advantageous sale of them if delivered within a specified time, and the carrier, knowing this, attempted to carry and deliver them within that time, and negligently failed to do so, whereby the shipper lost such sale, the carrier was held liable for whatever loss the owner had thereby sustained, and this loss was the difference between the contract price and the market value of the goods when delivered: Deming v. Grand Trunk R. R. Co., 48 N. H. 455; 2 Am. Rep. 267. On the other hand, if the carrier is not informed of such special facts as those set out above, or similar ones, and undertakes to carry the goods without knowledge of them, he is only liable in damages as first stated: Scott v. Boston etc. Co., 106 Mass. 468. It is held in Vicksburg etc. R. R. Co. v. Ragsdale, 46 Miss. 458, and in Priestly v. Northern etc. R. R. Co., 26 Ill. 205, 79 Am. Dec. 369, that where the delay is in the transportation of machinery to be applied to a special use, known to the carrier, he is liable for such damages as are fairly attributable to the delay, such as the value of the use of the machinery, to be tested by its rental price, or other approximate means, the expenses of workmen, the loss or gain on work contracted to be done, if such work could have been done if the machinery had been delivered and the gain thereby definitely ascertained in proper time.