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635, 91 Am. Dec. 783; Houston, etc., R.
Co. V. Everett, 99 Tex. 269, 89 S. W. 761.

A shipper can not maintain assumpsit
against a connecting carrier on a bill of
lading to carry the entire distance, exe-
cuted by the carrier first receiving the
goods. Parker v. Alacy (O.), Wright
674.

50. Effect of acceptance of goods with
notice they v/ere shipped under through
bill of lading.— Cobb v. Brown, 193 Fed.
958, 113 C. C. A. 586.

Where a bill of lading issued by an
initial carrier showed that it was a con-



tract for a through shipment, when the
goods were delivered to the connecting
carrier and carried by it under the bil!
of lading, such carrier became a party
to the original contract by adoption and
ratification. Chicago, etc., R. Co. v. Chest-
nut Bros., 28 Ky. L. Rep. 404, 89 S. W.
298.

51. Cobb V. Brown, 193 Fed. 958, 113
C. C. A. 586.

52. Estoppel of connecting carrier to
deny authority of initial carrier to con-
tract for it. — Norfolk, etc., R. Co. v. Read.
87 Va. 185, 12 S. E. 395.

53. When liability of intermediate car-
rier commences and terminates. — Pratt
V. Railway Co., 95 U. S. 43, 24 L. Ed.
336; Alabama, etc., R. Co. v. Mount Ver-
non Co., 84 Ala. 173, 4 So. 356.

Where goods are shipped, under a con-
tract with a common carrier, to be car-
ried over several independent, but con-
necting, lines to their destination, at an
agreed through rate, each carrier to re-
ceive and carry to the end of his route,
and there forward by the next connect-
ing line, and they are lost at the ter-
minus of the route of an intermediate
carrier, while in his possession, and be-
fore delivery to the next carrier, held
such intermediate carrier is liable for loss
at the end of his route before the goods
are delivered to the next carrier, unless
he is exempted from such loss by the
terms of his contract. Erie R. Co. v.
Lockwood & Son, 28 O. St. 358.

But in Maryland it has been held that
where a shipper delivers goods to an ini-
tial carrier to be transported over sev-
eral lines, the liability of an intermediate
carrier, after the goods have arrived at
the end of its line, and until the}'' are de-
livered to the next carrier, is that of
warehouseman, and he is responsible for
ordinary care. Baltimore, etc., R. Co. v.
Schumacher, 29 Md. 168, 96 Am. Dec. 510.



3301



RIGHTS, DUTIES AND LIABILITIES.



§ 3648



order to render the latter's responsibility that of a common carrier.^^ An inter-
mediate common carrier, of a connecting line of carriers, receiving goods from
the first carrier of the route for transportation and dehvery to the third, is not
relieved from responsibility as a carrier by storing them in a warehouse at the
end of its own route. -"^ A contract by an initial carrier as agent for a connecting
carrier which binds the connecting carrier to safely carry live stock, does not
make the connecting carrier liable for any negligence in handling the stock at
stockyards at which they were delivered by the initial carrier for transportation
by the connecting carrier, in the absence of a showing that it controlled the stock-
yards or that the stock was reloaded there by its agents. ^^^ After the initial car-
rier has deposited freight at a junction for further transportation by the next



54. Possession and exclusive control
essential to commencement of succeed-
ing carrier's liability. — United States. —
In re Petitions, 21 Fed. 885.

Georgia. — ^Union Dray Line Co. v. Hurt,
30 Ga. 798.

Illinois. — Illinois Cent. R. Co. v. Mit-
chell, 08 111. 471, 18 Am. Rep. 564.

Massachusetts. — - Gass v. New York,
etc., R. Co., 99 Alass. 220, 9G Am. Dec.
742.

Michigan. — Condon v. Marquette, etc.,
R. Co., 55 Mich. 218, 21 N. W. 321, 54
Am. Rep. 367; Stapleton v. Grand Trunk
R. Co.,. 133 Mich. 187, 94 N. W. 739, 9 R.
R. R. 332, 32 Am. & Eng. R. Cas., N. S.,
332.

New York. — Fenner v. Buffalo, etc., R.
Co., 46 Barb. 103; McDonald v. Western
R. Corp., 34 N. Y. 497.

South Carolina. — Park v. Southern Rail-
way, 78 S. C. 302, 58 S. E. 931, 25 R. R. R.
573, 48 Am. & Eng. R. Cas., N. S., 573.

Tennessee. — Southern R. Co. v. Bick-
ley, etc., Co., 119 Tenn. 528, 107 S. W.
680. 29 R. R. R. 275, 52 Am. & Eng. R.
Cas., N. S., 275, 14 L. R. A., N. S., 859,
14 Am. & Eng. Ann. Cas. 910.

litest Virginia. — Lewis v. Chesapeake,
etc., R. Co., 47 VV. Va. 656, 35 S. E. 908,
81 Am. St. Rep. 816.

Delivery insufficient to render interme-
diate carrier liable. — A steamboat con-
nected with a railroad at a wharf owned
by the proprietors of the latter, and the
railroad connected elsewhere with an-
other railroad, the three forming a con-
tinuous line. Upon the arrival of the
steamboat at the wharf, for goods for
thorough transportation, a list of them,
made up from the freight book of the
boat, was delivered by the clerk of the
boat to the acent of the first railroad,
to be forwarded by an early train to the
agent ot tlic second railroad at the end
of the line, f(;r the purpose of making
out and liaving ready there the con-
signees' bills of the goods upon their ar-
rival by a later train, which soon after-
wards was run down near the wharf on
a track near to tlie berth of the boat.
The eniployees of the boat and those of
the railroad, in equal numbers, then acted
in concert in transferring goods from the
boat to the cars, partly by hand and



partly on trucks, some of which belonged
to the boat and some to the railroad, all
of them sharing both in the removal of
the goods from the boat to the wharf,
and there further removal across the
wharf into the cars, and no account was
kept by any one of goods delivered by
the boat or received by the railroad.
While they were thus engaged, and be-
fore all the goods had reached the wharf,
a fire broke out which stopped the work
and destroyed the boat, wharf, cars, and
all the goods. It was held that the rail-
road company was not liable to the ship-
per for any of the goods destroyed upon
the boat. Gass v. New York, etc., R. Co.,
99 Mass. 220, 96 Am. Dec. 742.

Facts under which delivery to compress
company was sufficient delivery to suc-
ceeding carrier. — A former opinion reaf-
firmed on rehearing, affirming a judgment
against defendant railroad company for a
loss of cotton delivered to a compress
company on its account by a connecting
carrier which received the same under a
contract for through transportation over
its own and defendant's lines, with privi-
lege to compress the same en route, there
being evidence that such delivery was in
accordance with the usual course of busi-
ness between the two carriers, and that
it was defendant's custom to accept de-
livery to the compress company as de-
livery to itself, and that although it was
notified of such delivery in the present
case, and given the waybills and its share
of the freight, it made no objection, and
where it was further shown that defend-
ant had a contract with the compress
company to receive and compress cotton
and load it in defendant's cars, and mak-
ing the compress company responsible
to it for any loss or injury to the cotton
while in its possession. Judgment 146
Fed. 31, 76 C. C. A. 489, affirmed on re-
hearing. Southern R. Co. 7j. Hubbard
Bros. & Co., KO C. C. .\. 200, 150 Fed. 312.

55. Intermediate carrier not relieved
from liability by storage in warehouse. —
I'.ancroft iK: Co. t'. Merciiants' Despatch
'iVansp. Co., 47 Iowa 263, 29 Am. Rep.
482.

66. Effect of contract by initial carrier
as agent for connecting carrier. — ^ Haiti -
mere, etc., R. Co. v. Clift, 143 Ky. 573,
134 S. W. 917.



§§ 3648-3650



CARRIERS.



3302



carrier, the latter's liability on account of such goods does not begin until it has
been notified of their arrival.'*'' But in such case, actual notice is not always
necessary, constructive notice, sanctioned by a well-established custom, being
sometimes sufficient to bind the succeeding carrier. ^'^ If there is an agreement
between two railroad companies, occupying the relative positions of intermediate
and succeeding carrier, that property intended for transportation by the latter
may be deposited at a particular place without express notice to it, such deposit
amounts to notice, and is a delivery, and the possession of such succeeding car-
rier is complete and its liability fixed whenever the property thus, with its as-
sent, comes into its possession.-''^

§ 3649. Liability for Injury Occurring after Delivery by Intermediate
Carrier to Shipper. — If an intermediate carrier deliver horses to the shipper at
a point where they were to be taken by a connecting carrier, or to any one au-
thorized to receive them, other than such connecting carrier, the intermediate
carrier will not be liable for injuries occurring thereafter.*'"

§ 3650. Liability for Loss of or Injury to Property Transported in
Cars of a Preceding Carrier. — A carrier must provide cars reasonably fit for
the conveyance of the particular class of goods it intends to carry, and is not re-
lieved from its duty by transporting the goods over its own line in the car of the
connecting carrier in which it received them, since, if it uses the cars of the con-
necting carrier, it adopts and makes them its own for the purpose of conveying
the goods.''^ A connecting carrier receiving a car of horses of the initial carrier,



57. Necessity of notice of arrival at
junction. — United States. — Texas, etc., R.
Co. V. Reiss, 183 U. S. 621, 46 L. Ed. 358,
22 S. Ct. 253; Myrick v. Michigan Cent.
R. Co.. 9 Biss. 44, Fed. Cas. No. 10,001;
In re Petitions, 21 Fed. 885.

Alabama. — Selma, etc., R. Co. v. Butts,
43 Ala. 385, 94 Am. Dec. 694.

Minnesota. — Irish v. Milwaukee, etc.,
R. Co., 19 Minn. 376, Gil. 323, 18 Am.
Rep. 340.

Missouri. — Dunn v. Hannibal, etc., R.
Co., 68 Mo. 268.

Nezv York. — ^tna Ins. Co. v. Wheeler,
49 N. Y. 516, 3 Am. R. Rep. 390; McDon-
ald v. Western R. Corp., 34 N. Y. 497;
Sprague z'. New York Cent. R. Co., 52
N. Y. 637.

Rule in Alabama — Necessity of ship-
ping directions. — In Alabama it has been
held that where an initial carrier places
a loaded car on the side track of a con-
necting carrier, without notice to the lat-
ter, and without any mark of the name
and address of the consignee, or any way-
bill or shipping directions, the connect-
ing carrier is only a bailee of the car, and
its stringent liability as common carrier
does not attach until such waybill or di-
rections are given, or until it is informed
to what place the car is to be forwarded,
and to whom delivered. Mt. Vernon Co.
V. Alabama, etc., R. Co., 92 Ala. 296, 8
So. 687.

Defendant had received a car loaded
with cotton upon its side track, prepara-
tory to shipm.ent over its line, from the
E. A. Ry. Co., which made the contract
for transportation with the owner. The
two companies had made arrangements
for shipping goods over each other's



lines, and defendant's agent had reported
the car to the car accountant; but there
was no evidence of avy shipping direc-
tions from the E. A. Ry. Co. Held that,
though it was customary for defendant
to receive such company's cars on its
side track for transportation, yet it will
not be presumed that the former as-
sumed the responsibility of a carrier be-
fore knowing to whom and where to ship
the cotton. Alabama, etc., R. Co. v.
Mount Vernon Co., 84 Ala. 173, 4 So.
356.

58. Constructive notice of arrival of
freight. — United States. — Pratt v. Grand
Trunk R. Co., 95 U. S. 43, 24 L. Ed. 336.

Alabama. — Mt. Vernon Co. v. Ala-
bama, etc._, R. Co., 92 Ala. 396, 8 So. 687.

Connecticut. — Converse v. Norwich,
etc., Transp. Co., 33 Conn. 166.

New Hampshire. — Barter & Co. z>.
Wheeler, 49 N. H. 9, 6 Am. Rep. 434.

Neiv York. — Root v. Great Western
R. Co., 55_ N. Y. 636.

JVisconsin. — Conkey v. Milwaukee, etc.,
R. Co., 31 Wis. 619, 11 Am. Rep. 630.

59. Agreement that property may be
deposited at particular place without no-
tice.— Pratt V. Grand Trunk R. Co., 95 U.
S. 43, 24 L. Ed. 336.

60. Liability for injury occurring after
delivery by intermediate carrier to ship-
per. — Southern Pac. R. Co. z:. Meadors &
Co., 104 Tex. 469, 140 S. W. 427, revers-
ing judgment 129 S. W. 170.

61. Carrier not relieved from liability
by transporting goods in car of preced-
ing carrier. — Shea z\ Chicago, etc., R. Co.,
66 ^Minn. 102, 68 N. _W. 608.

A connecting carrier of stock can not
escape liability by carrying the stock in



3303 RIGHTS, DUTIES AND LIABILITIES. §§ 3650-3651

knowing that it is defective, is answerable to the shipper for the fitness of the
car.''- But a connecting carrier which receives a car, apparently in good condi-
tion, of vegetables, and promptly transports and offers it to the consignee, there-
after retaining it at the consignee's request, is not liable for the freezing thereof
because of a defect in the car furnished by the initial carrier/^^ Where a con-
necting terminal carrier accepts a refrigerator car containing peaches, it has im-
plied notice from the character of the car that the goods are perishable, so that it
undertakes to exercise reasonable diligence to protect the peaches and to deliver
them to the consignee within a reasonable time ; and if it fails to properly re-ice
the car and to deliver the peaches to the consignee in proper condition, it will be
liable for the resulting damages.'^'* When freight received by one railroad is to
be carried over connecting roads, in the car on which it is shipped, without being
transshipped to the cars of the connecting road, the liability of the connecting
road does not commence till the car is delivered to, and received by, the latter, and
the first road is liable to the shipper till it shows such delivery.'^''

Liability for Loss of Goods in Cars of Lessee of Terminal Facilities. —
Where a terminal railroad company owning transfer facilities for the transfer
of cars of railroad companies entering a city contracts with one of such companies
whereby it can use, for an annual rent and payment for the maintenance of the
tracks, all terminal facilities, and whereby it obligates itself to deliver to the
terminal company all freight cars for transfer, and wdiereby the terminal com-
panv agrees to transfer cars, such company is a lessee of the terminal company
with the right to use the terminal facilities subject to a similar right by the
terminal company, and other railroad companies, and cars transferred by the
terminal company as ordered by such lessee remain under the exclusive pos-
session of such lessee and the terminal company is not liable for any loss of
goods while such cars are on its terminal facilities.^*'

§ 3651. Liability for Failure to Give Live Stock Rest, Water, and
Food. — In some jurisdictions there are statutes making carriers liable for con-
fining live stock for more than a prescribed period without rest, water, and food.
The jjrovisions of some of these statutes have been construed by the courts to de-
termine the liability of a connecting carrier for failure to conform to their re-
quirements.^"

a car furnished or owned by another in good condition when delivered to a

company. Kinie 7\ Southern R. Co., 160 connecting carrier for transportation

X. C. 4.')7, 76 S. E. oOy. 43 L. R. A., N. S., were "smothered and suffocated" for

GIT. want of ventilation, and were so greatly

But in Louisiana, a railroad company weakened from perspiration they could

which receives as connecting carrier, out- hardly stand, and some of them were

side of the state, cotton in bales shipped "out of breath," the carrier was negli-

in sealed cars, which were in good con- gent in not ventilating the car, and prop-

dition, under through contracts to which erly caring for the animals en route,

it was not a party, and which hauls such Kime 7'. Southern R. Co., 160 N. C. 457,

cars unoi)cncd to their place of destina- 76 S. E. 50'.), 4:! L. R. A., N. S., 617.

tion and delivers the cotton to the con- 63. Defect in car causing freezing of

signee, is not liable for the wet, dirty vegetables while retained at consignee's

condition of such cotton when so de- request. — v^t. l.miis. rtc Iv. C<i. x\ Mycr,

livercd. Vincent v. Yazoo, etc., R. Co., ::, Arl;. 1. •>'.». sc, S. W. '.I'M).

38 So. 816, 114 La. 1021. 64. Liability for injury to peaches in a

The exemption, under Acts 1888, No. refrigerator car. — l'liiladeli)hia, itc, R.

93, from the provision.s of the act, of Co. v. Dirfendal. Id!) .Md. 4<)4, 72 All. 103,

freight received in sealed cars from roads rehearing dcniiil in 72 .\tl. 45S.

outside of the state, is none the le:s ap- 65. When liability of connecting carrier

plicable because the delivering and re- commences. — Konie 1\. Co. r. Sloan, :'.i>

ceiving carriers o])crate within as well Ga. 6:i'').

as without the state. Vincent ?■. N'azoo, 66. Liability for loss of goods in cars

etc.. K. Co.. :!s So. kic, iij I,;i. 1021. of lessee of terminal facilities. — Chicago,

62. Connecting carrier receiving car of etc., K. Co. :. I'roria, etc., R. Co., 250

horses answerable for fitness of car. — 111. :;2(), '.»5 \. I'.. 13 7.

I'.Iair ?■. Wells I'argo »\; Co., 155 Iowa 67. Liability for failure to give live

I'JO. 1.3.5 ,\. VV. 615. stock rest, water, and food. — Under U.

Wliere horses and mules which were S. Conip. St. i'.)01, p. 2'.)!)5, i)roviding that



§§ 3652-3653



CARRIERS.



3304



§ 3652. Liability of a Carrier Diverting Shipment from Route Stipu-
lated. — Where a railroad company which, under a constitutional enactment, is
bound to haul the cars of another company, receives a car to be hauled to a certain
point, and without authority hauls it to another point, where it is burned, it incurs
the liability of a common carrier.''^ Where a contract for a through shipment of
stock by railroad does not specify the lines over which the shipment shall be made,
but the stock is routed by the initial carrier over certain lines, it is not negligence
for an intermediate carrier to divert the shipment to a different line, where, owing
to floods, it can not be delivered to or taken by the next connecting carrier, and
where no danger of loss or injury by reason of the diversion can reasonably be
anticipated.*'^ Where an intermediate carrier, on ascertaining that freight, after
reaching the terminus of its line, could not be forwarded by the stipulated route,
promptly forwarded it by another route, but neglected to notify the shipper of
the change of route, it will not be liable to the shipper for the loss of the freight,
if the want of notice would not have avoided the loss.'^^ What consfitutes a di-
version of a shipment from the route stipulated is to be determined by a proper
construction of the terms of the contract of shipment.'^

§§ 3653-3657. Liability for Loss or Injury by a Preceding- or Subse-
quent Carrier — § 3653. In General. — The liability of a carrier of freight is
for its own acts, or for injuries to the freight while in its custody for transporta-
tion, and not for the acts of preceding carriers, which may have injured the
freight."- In the absence of special contract oi the existence of a relation of



no railroad company shall confine live
stock in cars for a longer period than 2S
hours without unloading for rest, water,
and feed, and that in estimating such
confinement the time during which the
animals have been confined on connect-
ing roads from which they are received
shall be included, a railroad company is
guilty of a violation of the statute if it
fails to give animals rest, feed, and water
when the period of 28 hours from the
time they were 'last fed expires, although
they were in the possession of a con-
necting carrier during part of that pe-
riod. Cincinnati, etc., R. Co. v. Gregg,
80 S. W. 512, 25 Ky. L. Rep. 2329.

A connecting carrier is bound to take
knowledge of the fact as to how long
a shipment of animals had been confined
hy the carrier from which it received the
shipment, that it may be able to perform
its duties under the South Carolina stat-
ute, Rev. St. § 1678, making carriers li-
able for confining animals more than 28
Iiours without food. Comer v. CoKimbia,
etc., R. Co., 29 S. K. 637. 52 S. C. 36.

68. Carrier liable as such for loss of
shipment diverted from stipulated route.
— Peoria, etc., R. Co. v. Chicago, etc., R.
Co., 109 111. 135, 50 Am. Rep. 605, 18 Am.
& Eng. R. Cas. 506.

69. Diversion of shipment on account
of floods. — Empire State Cattle Co. v.
Atchison, etc., R. Co., 135 Fed. 135;
judgment affirmed in 147 Fed. 457, 77 C.
C. A. 601, and 147 Fed. 463, 77 C. C. A.
607.

70. Effect of neglect to notify shipper
of change of route. — Regan v. Grand
Trunk Railway, 61 N. H. 579.

71. A bill of lading for the transporta-



tion of goods from New York to Phila-
delphia was executed in the following
form: "Received of Davis, Rhodes &
Co. (1) one case merchandise, marked
D. W. Mott & Bros., Memphis, Tenn.,
to be transported to Philadelphia, and
there delivered to the Penn. R. R., all
rail to Cincinnati, Ohio." Nothing fur-
ther appeared in the bill, or upon the
package, to indicate its destination. The
goods were duly received at Cincinnati
by the agents of the Pennsylvania Rail-
road Company, and by them forwarded
in the usual course of conveyance to
Memphis, but were lost on their voyage
thither. In an action by the owner of
the goods against the forwarding agents,
it was held that, prima facie, the ultimate
destination of the goods was Memphis,
and not Cincinnati, and that, in the ab-
sence of evidence to the contrary, the
agents were justified in forwarding them
to Memphis, and were not liable to the
owners for their loss. Brown & Co. v.
Mott & Bros., 22 O. St. 149.

72. Carrier not liable for acts of pre-
ceding carriers. — Western, etc.. Railroad
V. Exposition Cotton Mills, 81 Ga. 522,
7 S. E. 916, 2 L. R. A. 102; Bissel v.
Price, 16 111. 408; Smith v. New York
Cent. R. Co. (N. Y.), 43 Barb. 225, af-
firmed in 41 N. Y. 620.

A carrier who delivers goods in a dam-
aged condition is not liable therefor if
they were received in that condition
from a connecting carrier. Goodman v.
Oregon R., etc.. Co., 22 Ore. 14, 28 Pac.
894.

It appeared that plaintiff received
goods in apparent good order from a
previous carrier, but that, subsequent to



3305



RIGHTS, DUTIES AND LIABILITIE:S.



§ 3653



partnership or agency between an initial and a connecting carrier, a connecting
carrier is liable only for loss or damage occurring on its own lineJ^ Where
property is delivered to a carrier, consigned to a point beyond its line, and, in or-
der to reach the place of destination, must pass over the lines of several connect-
ing carriers, in the absence of any arrangement constituting the carriers partners
or joint undertakers, each carrier is liable only for loss or injury occurring on its
own line, and the last carrier is not liable for the property where it is not shown
that it received it.'^'* But where the clerk of a connecting carrier receipts for a
through shipment of goods to the initial carrier, upon the representation that the
goods had arrived at the former's warehouse, when, in fact, owing to mistake in
the initial carrier's direction of the car, it had been landed at an adjacent ware-
house, the connecting carrier is liable to the shipper for its clerk's negligence in
receipting without first ascertaining as to the arrival of the goods. In such case
the question of ultimate liability is one to be settled by the two companies them-



the delivery to the consignee, it was dis-
covered that the goods had been previ-
ously injured by some other carrier.
Held, that plaintiff was not liable for in-
jury to the goods in the hands of a pre-
vious carrier with whom he had no con-
nection, and defendant could not, there-
fore, set off the damages in an action to
recover freight and previous charges
paid bv plaintiff. Carson z\ Harris
(Iowa),' 4 G. Greene 516.

And in an action against a connecting
carrier for damage to freight a nonsuit
is properly ordered where the plaintiff
admits that the damage was done on a
line of road belonging to another com-
panj' before it was received by the de-
fendant company. Exposition Cotton
Mills V. Western, etc., R. Co., 83 Ga. 441,
10 S. E. 113.

73. Southern Exp. Co. v. Saks, 160 Ala.
621, 49 So. 392.

In an action to recover damages for
injury to tobacco shipped over several
lines of road, the evidence showed that



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 38 of 214)