Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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the things were in them just as they were when we loaded them
at the warehouse ; I helped to load them at the warehouse ; I locked
up both the cars after I got my coat out. We started and got at the
head of the Columbia Inclined Plane the same day before sundown;



1841.] OF PENNSYLVANIA. 508

[Eagle v. White.]

we went down the plane, put the cars on Haldeman's sideling the same
evening between sundown and dusk ; we put the cars in the place
where Mr. Eagle directed us. There was another agent came up the
same day with three cars : one of them was for Mr. Eagle, and two
more to go to Borbridge's warehouse. I was with the cars from the
time they started from the plane at Philadelphia, until they were
put on the sideling, where Mr. Eagle directed. They could not
have been opened or anything taken from them without my knowl-
edge or observation from the time they left the plane at Philadel-
phia until they arrived on the sideling ; as the engine only stopped
a few minutes to take in water, during which time I oiled the cars;
to my knowledge there was nothing taken out in the intermediate
points. Mr. Eagle was not present when the cars arrived ; he
was up at the store. There was no person present acting for Mr.
Eagle when the cars arrived on the sideling; after the cars were
put on the sideling, I took off the side-chains and put them in
a small box on the side of the cars and locked them ; I walked
around the cars to see if all was right ; I found all was right, and
locked up tight ; I had the keys in my pocket ; I then left them,
and went up to Borbridge's along with the other agent, and over to
Wrightsville, that same evening, and did not return to Columbia
until Monday morning, between six and seven o'clock. I went to
the place I put the cars, and found them there still ; Eagle was
there, and had two cars unlocked and one unloaded, and the other
one about half unloaded. After the cars the same cars were
unloaded, we took them over the river, loaded them, and brought
them back." Cross-examined. " They were Fusey & Smith's cars.
I am in no way responsible for goods lost ; we have no contract
for the liability of goods lost. I had the manifest in my possession ;
it's the bill of lading ; the bill of lading was given to Mr. Robert
\V. Smith, when we were going across the bridge on Saturday even-
ing to Wrightsville, by me ; this was between seven and eight o'clock
on Saturday evening the 12th of March 1836. Mr. Smith staid at
Wrightsville that night ; didn't go back before morning that I know
of; his family reside there. We generally unloaded at Borbridge's
warehouse. I never had any goods for Columbia in my charge be-
fore these two cars. The Saturday we arrived at Columbia was a
clear starlight evening. The sun was just going down when we
put the cars on the sideling ; it was a clear evening. It's about
twenty or thirty yards from the sideling to Mr. Eagle's store. The
goods would have to be hauled *from there to the store in r*cnq
drays or wagons; they could be wheeled or carried. ^
The draymen and workmen had not stopped work yet when we
placed the cars on the sideling ; the sun was about going down ; I
don't know whether it was time to quit work or not. I didn't
deliver these cars over to the custody of any other person,



509 SUPREME COURT [March Term,

[Eagle v. White.]

but put them where I was directed. I didn't put the cars into
the custody of Mr. Eagle, or any other person for him ; there waa
no person there to receive them. I put them where I was told.
When I delivered goods, I generally gave the bill of lading to Robert
W. Smith, of all the cars when I arrive at Columbia, or if he ain't
there, I give it to him at Wrightsville. Mr. Smith delivers the
goods, and sees that all is right ; the persons to whom the goods are
sent, don't get the manifest until the goods are delivered, so much
as I know. When I examined the cars at Philadelphia at the head
of the plane, I didn't examine every box. I couldn't see every
box ; the cars were loaded all full, and I couldn't see that any-
thing had been disturbed from the way they were put in the
cars."

Stephen Smith testified as follows. " I have hauled goods several
times for Eagles. I have generally unloaded the goods on the sideling
nearly opposite their store for them what I mean by hauling is by
my cars ; one or two instances I have unloaded in the main track
opposite their door. It is usual for my agent or clerk to receive
the manifest from the conductor of the cars. The custom is to let
the owners of the merchandise know as soon as the goods are arrived
at Columbia." Cross-examined. " We take good care of the
manifest until the goods are delivered and see that all's there ; the
manifest is used in taking out the merchandise; it's marked as each
box is taken out ; when I inform the persons for whom the goods
are, of their arrival. I don't deliver up the manifest, nor the key
of the car. I was never asked for it. The sideling belongs to Mr.
Haldeman. It would take, I think, three hours to unload the goods
and haul them to Mr. Eagle's; I think so, with one wagon. I gen-
erally place the cars to the place directed by the owners ; if not
directed, I place them in my own warehouse."

Robert W. Smith, having been released by the defendant, testi-
fied : " I went over the river to the head of the Columbia Plane
from Wrightsville on Saturday, the 12th of March 1836, expecting
our cars up from Philadelphia. While I was waiting for them the
passenger train arrived. Stephen Eagle got out of one of the
passenger cars, and told me our cars were loaded for him, and
directed me to have them put on Haldeman's sideling, as he had
made arrangements with Mr. Haldeman to that effect to have them
placed there. When the cars arrived I directed the agents to have
them put there according to his directions. I directed our agent,
James Moss, to go and inform Mr. Eagle that they were there.



* r



r !01
*



we f UT) d *that we couldn't be unloaded that evening,



we then left the cars there. I know that Flurey gave me
the manifest that evening, and I had it on Monday morning, but
where he gave it I don't know. We went over on Monday morning
from Wrightsville to Columbia we all live in Wrightsville, the



1841.] OF PENNSYLVANIA. 510

[Eagle p. White.]

agent and myself. When we arrived at the cars we found two of
them open: one of them was entirely unloaded, the other about
half some persons busily engaged in taking out the goods. I then
went up to the store and learned at the store that some of the goods
had been stolen. Mr. Eagle then told me that the goods had been
stolen : that he supposed they were in the upper part of the town
at Tow Hill. He advised me to consult with James Collins, who
lives a few doors above Mr. Eagle's ; I did, and found he had been
spoken to before on the same subject. As soon as I found one of
the cars had been unloaded and the other part, 1 went up and
handed the manifest to Mr. Eagle. In walking along the street I
considered over the matter and thought we had performed our part,
and went in and told Mr. Eagle so. This was on my way down
from Collins's." Cross-examined. " When Mr. Eagle directed me
to put the cars on Haldeman's sideling, the cars that contained the
goods hadn't arrived yet. The cars were put on the sideling
between sundown and dark I suppose when I sent the agent to
inform Mr. Eagle that the cars were on the sideling, I didn't send
the manifest or keys to be given to Mr. Eagle. It is not cus-
tomary for us to do so. As we direct the agent to bring the manifest
to us to take a copy of it as also the clearance, we have no particular
time that the manifest should be given to the consignee, we gen-
erally give them an account of the goods, in many instances no
manifest at all."

" There is a place appropriated for cars when there are no iii-
structions how to dispose of them. We put them on the public
state sideling, to be there a certain length of time ; that is our
usual place when we have no direction. We have a warehouse
and depot at Wrightsville, across the river. In case no direc-
tions from Mr. Eagle had been received, we should have taken
them up to a warehouse at the Basin. They would have been in
the custody of the keeper of the warehouse. Our custom was to
leave our cars, with goods for Columbia, at the warehouse, if not
otherwise directed, in the custody of the keeper of the warehouse,
for which the keeper of the warehouse usually receives pay from
us. It is to the benefit of the merchant that goods do not go to the
warehouse."

Thomas Borbridge testified : " In March 1836 I resided in
Columbia ; I kept a warehouse. The cars of Fusey & Smith run
to me frequently. They run good substantial cars, as good as any
on the road. I never examined the fastening to their cars parti-
cularly. The time in which one of the cars can be unloaded is
from half an hour to an hour into a warehouse ; it depends on the
help pretty "much, and on the nature of the load. I do r*-i-i
not recollect receiving a load from these cars on the llth of
March 1836 ; I received so many, it would be impossible for me to



511 SUPREME COURT [March Term,

[Eagle v. White.]

remember." Cross-examined. "In the spring of 1836, I was in
a receiving, forwarding, and commission house in Columbia. I had
a warehouse, but not for my cars. The warehouse was for receiving
goods. We always took the goods into the warehouse out of the
cars and distributed them. We frequently left goods out all night
in the cars ; never when we had room in the warehouse, and had
time to place them there. I have no doubt I received goods by
Fusey & Smith's cars in 1836. I cannot say for certain whether
I received any during that year from the defendants' cars. It
would take three or four or five hours to unload three cars at Halde-
man's sideling and carry them to Eagle's warehouse in drays. It
would depend altogether on the disposition of those the goods were
coming to, whether it would be too late to unload at sunset. In
my warehouse the floor was level with the cars, which was not usual.
There would be between two and three hours difference in unloading
these cars at Haldeman's sideling into Eagle's and from the same
number of cars at my warehouse into it. Cars must go into side-
lings or warehouses to unload. I think Haldeman's sideling is the
nearest to Eagle's." Re-examined. "I frequently have carried
goods for Mr. Eagle, which were consigned to me and unloaded at
Haldeman's sideling. Can't recollect whether he ordered it to be
done. It was more convenient for him, as there would be a shorter
distance to haul them, than from my warehouse. When I had a
full load, as a matter of accommodation to Eagle, I unloaded at the
sideling. I had the same commission if unloaded at the sideling as
if put in my warehouse. It was sometimes a convenience to myself
to unload Eagle's goods at Haldeman's sideling, when my warehouse
was full."

James Moss testified as follows : " I am about 44 years of age ;
I have been on Fusey & Smith's line since they began running.
To the best of my knowledge on the llth day of March 1836. I
loaded goods at the defendant's in Broad street, on the same day
we arrived at the head of the inclined plane at the Schuylkill. On
Saturday the 12th day of the month we arrived at Columbia in the
afternoon near the border of sundown. We put the cars on Mr.
Haldeman's sideling. I then went up to Mr. Eagle's and told him
the number of cars we had for him, three cars, and we wished to
have them unloaded that afternoon ; he refused to receive them
that afternoon. I asked him the reason why ; he said it was too
late, and he was busy in the store ; on Monday morning, said he,
we will unload you.- I then left the store; I went to Mr. Bor-
bridge and unloaded two cars for him, that belonged to the same
train. I took home those two cars to Wrightsville on the other
side of the river. I came back on Monday morning with the Mr.
Smiths, the *owners of the cars from Wrightsville to
Columbia; when we arrived Mr. Eagle had two of the said



1S11.J OF PENNSYLVANIA. 5J2

[Eagle 0. White.]

three car* nnloaded ; one entirely unloaded, and another partly
unloaded. Those three cars belonged to' John S. Fusey and Robert
Smith ; neither of those persons are defendants in this case. I
went from Philadelphia to Columbia on the occasion mentioned, as
running agent for the said John S. Fusey and Robert Smith. I
and Henry Flury, the other agent, kept possession of the keys of
three cars, from Saturday until Monday. The three cars were
substantial, good cars ; as good as any on the road. They had
doors at the side. They were fastened with locks and keys, with
staples and hinges, such as are necessary to fasten doors of the
kind. There was an iron bar from one side of each door to the
other to fasten the door with. The bars were about half an inch
thick and two inches wide. The lock was a common padlock, such
as are used in the cars on that road. The three cars were left
about forty or fifty yards from Mr. Eagle's store. If goods can be
unloaded, it is generally done ; if not, it is customary to leave
them in the cars all night." Cross-examined. "We left Phila-
delphia on the afternoon of Friday, the llth of March. It was
between 1 and 6 o'clock that we left. Got to inclined plane
(eastern) not ter than sundown. The cars staid there on the
state sideling all night, until the next morning. I was at Mr.
Hansell's tavern, at the head of the plane, all that night. It may
be a hundred yards from the head of the plane to Mr. Hansell's
tavern. There was another agent on that trip. His name is
Henry Flury ; he accompanied me to the inclined plane that night;
he had charge of them all that night, but I can't tell whether he
was present watching them. 1 cannot tell the hour when we
arrived at Columbia; it was before sundown that we arrived at the
head of the Columbia plane ; I can't tell how long we were at the
head of the plane before we descended. To the best of my know-
ledge, it was about sunset when I arrived at Mr. Eagle's. When
they told me they could not unload the cars that evening, I left
them and went to Borbridge's. The three cars for Mr. Eagle were
left on the sideling. No one was left in charge of them. They
were put in no car-house that night. Fusey & Smith have no car-
house in Columbia; they have one in Wrightsville. The other lines
have sidelings with covers to them. I have left cars out all night
and with goods in them, before that time and since too. There was
nothing in this padlock peculiar or different from the ordinary pad-
lock. There are two staples, one on the one door and the other on
the other door. There are two doors. The bar is fastened at one
end by the padlock. The other end is fixed in a staple fastened in
the jamb of the other door. When not 'locked, the bar is of no use,
except to keep the door shut. I think we came to Columbia on
Monday, between the hours of 8 and 9 A. M. Mr. Eagle was at the
cars at Haldeman's sideling ; that was the reason I did not go to



512 SUPREME COURT [March Term,

[Eagle 0. White.]

him. He met me before I got to the cars. I went to the sideling
*""I31 *f r the purpose of unloading the cars for Mr. Eagle. I
J was then, have been ever since, and now am in the employ
of Fusey & Smith. Fusey & Smith had three cars at Mr. White's
and two at Mr. Hunt's on the morning of the llth March. We
took the three cars from Mr. Hunt's to Mr. White's that morn-
ing. I don't recollect whether any of Mr. White's cars went over
the road that day. It is about thirty yards from the engine-
house, on the head of the eastern plane to the state sideling.
The state employs a watchman at the Schuylkill River Inclined
Plane, to watch the property of the state and everything else that
is there. His employment is to watch at night. Fusey & Smith
live in Wrightsville, and have their establishment there. Wrights-
ville is on the west, and Columbia the east side of the river. I had
not the time with me. On Monday morning, as near as I could
come at it, it was between eight and nine, I saw Mr. Eagle."

The plaintiffs' counsel requested the court to charge the jury:

1. That it was the duty of the defendants, as common carriers,
to cause the goods to be actually delivered to the plaintiffs.

2. That placing the cars on Haldeman's sideling was no delivery
to the plaintiffs.

3. That, to constitute a delivery, it is incumbent on the car-
rier to have the goods carefully separated, and designated for the
consignee.

4. That the retention of the keys of the car, and the manifest or
bill of lading, by the carrier, is in law conclusive that no delivery
had been made till Monday.

5. That the inability or refusal of the plaintiffs to receive the goods
on Saturday evening, did not justify the carrier in leaving or aban-
doning them.

6. That the goods were at the risk of the defendants until there
had been a delivery in person to the plaintiffs.

7. That, to constitute a valid delivery, it ought to be at a sea-
sonable time of the day, with reference to the accustomed hours
of business.

The court charged the jury in answer to the first point :
" This is true ; but the defence taken here renders it necessary for
me to add, that if the usual and proper steps towards the actual
delivery were prevented by the interference and conduct of one of
the plaintiffs, the rule is not applicable ; and the jury will decide
the facts. The consignee may take charg of the goods before they
have arrived at the ultimate place of delivery, and the carrier's risk
will then terminate."

To the second point, the court answered :

*K1 4.1 " ^is ^ * s true ' k u t ^ l ^ e y were 80 pl ace d by the plaintiffs'
J direction, *and an actual delivery was thereby pre



1841.] OF PENNSYLVANIA. 514

[Eagle . White.]
vented, such delivery could not be required. The facts are for the



To the third point, the court answered :

" This is true ; but if such separation and designation was pre-
vented by the conduct of the plaintiff, the rule does not apply. The
facts are for the jury."

Upon the fourth point, the court answered .

" Unconnected with any interference of the plaintiffs, this may
be conceded ; but connected with such interference, the circumstances
have no conclusive effect, particularly if the actual delivery was
rendered impossible by the conduct of the plaintiffs. The facts are
for the jury."

Upon the fifth point, the court answered :

" This is also true, if unconnected with the plaintiffs' interfer-
ence ; but whether the conduct of the plaintiffs was such an inter-
ference as authorized the defendants to place and leave the goods as
they did, is a matter of fact for the jury."

To the sixth point, the court answered :

" This is true, unless a delivery was prevented by the plaintiffs'
own conduct ; and of this, the jury will judge as matter of fact."

As to the last point, the court answered :

" This is true."

The jury found for the defendants ; whereupon, the plaintiffs took
this writ of error, and assigned the following errors :

1. The answers' of the court to the several points propounded
by the plaintiffs.

2. That the court erred in leaving to the jury as a matter of
fact, to say whether the delivery was prevented by the plaintiffs'
conduct.

3. Because, whether the circumstances in this case excused an
actual delivery, or amounted to a delivery, was a question of law,
which the court ought to have decided, and not left to the jury.

4. That on the facts in evidence, the court should have charged
the jury that the plaintiffs were entitled to recover.

The case was argued at December term, 1840, by Mr. Hazle-
Aurgtand Mr. McOall, for the plaintiffs, and Mr. Meredith, for the
defendants.

A re-argument having been ordered, it was again agreed at this
term by Mr. Hazlehurst,for the plaintiffs, and Mr. Meredith, for the
defendants.



*For the plaintiffs.

In Duff v. Budd, 3 Brod. & Bing. 177 ; 7 E. C. L. R.



[*515



403, Burrough, J., says, " Carriers are constantly endeavoring to



515 SUPREME COURT [March Term,

[Eagle 0. White.]

narrow their responsibility and to creep out of their duties ; and I
am not singular in thinking that their endeavors ought not to be
favored." In Hart v. Allen, 2 Watts 116, Chief Justice Gibson
says, " A carrier is an insurer against all losses, without regard to
degrees of negligence in the production of them, except such as have
been caused by an act of Providence," &c. It is the duty of a
carrier to deliver. Here there was no delivery. Some of the wit-
nesses show a mere offer to deliver, and an inability or refusal to
receive at the time, and placing them on the sideling at the plain-
tiffs' request, the carrier keeping the key and custody, and promising
to come on the Monday morning following. The defendant's
agent did not consider that he had delivered the goods, because he
undertook to return for the purpose. This is like the case of
Ostrander v. Brown, 15 Johns. 42. It is said that there was no
notice in this case ; but Cope v. Cordova, 1 Rawle 203, holds that
notice need not be given. The effect of the direction was not to
absolve the carrier, but merely to substitute a different place to
remain at : the delivery was yet to be made, and the goods remained
at the risk of the carrier. It has never been held that a notice of
arrival is equivalent to a delivery. 1 McClelland & Younge 129.
A direction to deliver at the sideling, did not mean that they -were
to be there abandoned. Gatliffe v. Burne, 4 Bing. N. C. 314 ; 33
E. C. L. R. 364. If after being on the sideling, the defendant
ceased to be liable as carrier, yet he was liable as bailee, for negli-
gence. The goods were left out from Saturday evening to Monday
morning without protection, at a place where many depredations
had occurred to the knowlenge of the defendants. In Smith v.
Home, 8 Taunt. 144 ; 4 E. C. L. R. 50, it was held that gross neglect
will defeat the usual notice given by carriers for the purpose of
limiting their responsibility. Batson v. Donavan, 4 Barn. &
Aid. 21 ; 6 E. C. L. R. 333 ; Langley v. Browne, 1 Moore &
Payne 583 ; 17 E. C. L. R. 193. A consignee may take charge
before arrival ; and then I admit the carrier is discharged, as in
4 Bos. & Pul. 16. But that was not the case here. Bradley v.
Watchhouse, Dan. & Lloyd Merc. Cases 3 ; Todd v. Figley, 7
Watts 542.

For the defendants.

This is in effect a motion for a new trial ; since there is nothing
complained of but that the jury erred upon the facts. I admit that
a carrier is bound to deliver personally ; but as the court said, the
owner shall not give a positive order as to his goods, and then seek
to make the carrier liable for obeying the order. These goods were
to go to Eagle: the cars were sound and secure ; if not interfered
with, the cars would have been placed in the warehouse at the basin,
in the custody of the keeper. Part of this very train was unloaded



1841.] OF PENNSYLVANIA. 516

| Eaglet?. White."|

*for Borbridge. But here was a positive order to put them r*,-ip
on Haldeman's sideling. This was done, with an offer to *
deliver, and arrival at a seasonable time to deliver, as appears by
Borbridge's evidence. The case in McClelland & Younge, shows
that a carrier having once tendered the goods, is discharged. The
plaintiffs broke open the cars themselves, showing that they con-
sidered that they had been delivered. 2 Str. 1236 ; Ackley v.
Kellogg, 8 Cowen 223 ; Hyde v. Trent., &c., Nav. Co., 5 Term Rep.
389. The drift of the plaintiff's points below was that the court
should charge that on the facts the plaintiffs could not recover, there-
by deciding fact and law. But whether there was evidence of facts
discharging the defendants, was for the jury. The principles of the
court were right, and the learned judge leaned rather in favor of
the plaintiffs. Garside v. Trent. Nav. Co., 4 Term Rep. 581. In
re Webb, 8 Taunt. 443 ; 4 E. C. L. R. 59 ; Dixon v. Baldwin, 5
East 181.

The opinion of the court was delivered by

ROGERS, J. This is an action of assumpsit against the defend-
ants as common carriers. The material facts were these : Eagle &
Co. purchased goods from Eagle, Westcott & Cambless, which were
packed, marked, and taken to the defendants' store, who undertook
to deliver them to the plaintiffs, merchants living in Columbia, Lan-
caster county. The plaintiffs gave in evidence the receipt of White
& Co., and the bill of lading of the goods ; and also proved, that



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 58 of 75)