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A treatise on the law of carriers (Volume 4) online

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the only contract of shipment was the
receipt given by the line of road which
received the tobacco from the shipper.
The defendant was not a party to the re-
ceipt. Held, that the defendant was not
hound by such receipt, and in the ab-
sence of any contract, by defendant, ex-
press or implied, defendant was only
bound to deliver the goods, as forward-
ing agent, to the next line of road. Knott
V. Raleigh, etc., R. Co., 98 N. C. 73, 3 S.
E. 73.'-., 2 Am. St. Rep. 321.

In a Georgia case, where it was con-
ceded tiiat the damage to goods occurred
♦luring an ocean voyage, and was com-
plete before their delivery to the defend-
ant railroad company, the liability of the
latter to the consignees therefor was
held to depend upon the contract of af-
freightment i)etwcen the steamship com-
pany and the plaintiffs. If the steamship
company was not Iial)le, and the railroad
roniijany would have no recourse on it,
it was held that tlie railroad company
would not be liable to the consignees.

East Tennessee, etc., R. Co. v. Wright,
76 Ga. 532.

74. Each carrier liable only for loss or
injury occurring on its own line. — Church
V. Atchison, etc., R. Co., 1 Okla. 44, 29
Pac. 530.

In an action to recover for damages
done to tobacco while being carried over
defendant's road and other lines, the
court instructed the jury that if they
found that the tobacco was not damaged
while it was in the custody of the defend-
ant, but that the same was delivered in
good condition to the P. & W. road, the
plaintiff was not entitled to recover.
There was no proof of an agreement or
partnership between the roads over
which the tobacco was carried. Held,
that the instruction was correct. Knott
V. Raleigh, etc., R. Co., 98 N. C. 73, 3 S.
E. 735, 2 Am. St. Rep. 321.

Where injuries to goods in transit
over several connecting lines occur, be-
fore the goods reach the last carrier, by
reason of a defective car being furnished
by a preceding carrier, the last carrier is
not liable therefor. Louisville, etc., R.
Co. 7'. Tennessee Brewing Co., 96 Tenn.
(12 Pickle) 677, 36 S. W. 392.

An instruction authorizing a recovery
against the delivering carrier for injury
to hops in transportation, if the injury
occurred through the failure of the first
or any connecting carrier to furnish suit-
able cars, without limiting defendant's
liability to injury received in such cars
on its own line, is reversible error. Louis-
ville, etc., R. Co. T'. Tennessee Brewing
Co., 96 'I\'mi. (l;.> Tickle) 677, 36 S. W.

But in Maine it has been held that in
;i.n action for injuries to goods shipped
brought against the last of a succession
of connecting carriers, tliough on the ev-
idence it is manif("-t Mi;\( [.art of the dam-
ages occurred on the line of a i)receding
carrier, no apportionment of the dam-
ages is to be m:ide, l)nt the last carrier is
liable f<ir all the damages. Colbalh v.
Bangor, ttr., R. Co., 74 Atl. 918, 1o:. .\le.




selves.'''* Where a delivering carrier receives mules in bad condition, as the re-
sult, apparently, of neglect in the hands of the receiving carrier, and, having un-
loaded, fed, and watered them, forwards them to their destination, it is not lia-
ble for damages sustained in depreciation in value of the animals, but, being a
party to the contract vmder which they were transported, such carrier on refusal
of the owner to take them is at liberty to deal with the matter as it sees fit, and, if
it agrees that the mules shall be cared for at its expense until other provision is
made, is liable for their care and feed."*''

§ 3654. Liability Imposed by Statute. — By statute in some jurisdictions
a conditional or limited liability is imposed on an intermediate or terminal carrier
for the loss of or injury to freight, whether the loss or injury occurred on its own
line or not.'^'^

75. Liability of connecting carrier for
negligence of clerk in receipting for
goods that have miscarried. — Northern
Transp. Co. r. AlcClary, G6 111. 23:5.

76. Delivering carrier receiving mules
in bad condition. — Thompson z'. Southern
Pac. Co., 121 La. 994, 4C> So. 993.

77. Liability imposed by statute. — Un-
der the Georgia statute, Civ. Code 1895,
§ 2298 (Code 1882, § 2084), when there
are several connecting railroads of dif-
ferent companies, and the goods are in-
tended to be transported over more than
one, each company is responsible to its
own terminus Ijefore delivery to the con-
necting railroad, and the last company
which received the goods as ''in good or-
der" is responsible to the consignee for
any damage, open or concealed, done to
the goods, and the companies must set-
tle among themselves the question of ul-
timate liability. Southern R. Co. v. Wa-
ters & Co., 54 S. E. 620, 135 Ga. 520;
Western, etc., Railroad i'. Exposition
Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L.
R. A. 102.

Under this statute, if a railroad com-
pany receives from another railroad com-
pany goods to be transported, and re-
ceipts for them as "in good order," the
company so receiving and receipting is
concluded by the receipt from setting up
as against the consignee that the goods
were in fact not in good order when re-
ceived. Southern R. Co. v. Waters &
Co., 54 S. E. 620, 125 Ga. 520; Western,
etc.. Railroad v. Exposition Cotton Mills,
81 Ga. 522, 7 S. E. 916. 2 L. R. A. 102.

Where the receipt of the goods in
good order by the initial carrier has been
shown presumptively, a delivering carrier
can only escape the liability imposed
upon it by the statute by showing that
it did not, as a matter of fact, so receive
and receipt for the consignment. Unless
this is done it stands as to lial^ility to
the shipper in the place of the initial
carrier and its defense must rest upon
the same ground. Forrester v. Georgia
R., etc., Co., 92 Ga. 699, 19 S. E. 811. See,
also, Georgia R. Co. v. Gann, 68 Ga. 350.

The policy of the law contained in this
statute is to relieve the patrons of rail-
road companies of the burden and diffi-

culty of ascertaining and fixing liability
on that one of the several connecting
carriers handling the shipment, upon
whose line the damage occurred. For-
rester V. Georgia R., etc., Co., 92 Ga. 699,
19 S. E. 811; S. C, 96 Ga. 428, 23 S. E.

It does not change the rule of liability
of railroad companies as common car-
riers as it existed at the time of its adop-
tion. It only declares the rule of liabil-
ity to be the same as that theretofore
existing, where there was no contract,
express or implied, general or special, by
the first carrier to transport the goods to
their final destination; and it gives a cu-
mulative remedy to the consignee in ad-
dition to those which he already had.
Falvey v. Georgia Railroad, 76 Ga. 597,
2 Am. St. Rep. 58.

The "good order" mentioned in the
statute hardly means the manner in
which goods are packed or stored in the
car. Faramore z'. Western R. Co., 53 Ga.

In order that a connecting carrier may
relieve itself from the liability imposed
by the statute, it has simply to decline
to receive goods as in good order when
in point of fact they are not in good or-
der. Forrester z'. Georgia R., etc., Co.,
92 Ga. 699, 19 S. E. 811.

If the last carrier who receives them
finds that they are not in good order,
that damage has already occurred, he can
protect himself. It might be his duty to
receive them in such order and to de-
liver them — that is, he may be compelled
to receive even damaged goods — but he
is not bound to receive them when they
are so badly packed that they can not be
removed without loss. Paramore v.
Western R. Co.. 53 Ga. 383.

Under the statute, if any company, ac-
tually or constructively, received a con-
signment of freight as in good order, it
will become responsible, even though the
freight before delivery to it was dam-
aged through the negligence of some
other carrier and it must look to the car-
rier actually at fault for reimbursement.
Forrester z'. Georgia R.. etc., Co., 92 Ga.
699. 19 S. E. 811.

The provisions of the statute apply to



§§ 3655-3656

§ 3655. Liability under Contract. — A contract by a carrier to carry goods
to their destination renders the carrier liable for injury to the goods by the negli-
gence of its connecting lines, even though such carrier is itself only a connecting
line with that to which the goods were originally delivered by the shipper J* But
the last carrier's receiving freight for the whole route, merely as an act of agency
for the other carriers, will not render the contract one for carriage over the whole
line, so as to make the last carrier liable for damage to goods occurring before he
received them.''" The last of several connecting carriers delivering goods in
damaged condition, having receipted, in turn, to its next preceding carrier for the
good order and condition of the goods, demanding and receiving freight in full
from originating point to that of delivery, making no claim of separate contracts
with several connecting lines and agreeing that consignees file their claim for
damages with it, recognizes but one contract for transportation ; and, being un-
able to show that the injuries complained of were caused by other agencies be-
yond its control, a judgment for the amount of damages admitted will not be set
aside. ^°

§ 3656. Effect of Failure to Examine Goods or to Inspect Manner of
Loading. — W here cotton is received by a carrier from a connecting carrier in
apparent good order, but, when delivered to the consignee, it is found to be badly
damaged by water, the failure of the carrier to open and examine the bales, on
receiving the cotton from the connecting carrier, is not such negligence as makes

freight which is of a perishable nature
and will, by mere lapse of tim€, become
worthless from natural inherent causes.
Forrester v. Georgia R., etc., Co., 92 Ga.
699. 19 S. E. 811.

The principle of liability fixed by the
statute applies whether the goods pass
over all the lines on the same car, or at
any terminal point are transferred or
loaded from the car of one line onto that
of another, and it makes no difiference
whether the goods go all the way on the
same bill of lading or how often new ones
are substituted on the way. Central R.
Co. V. Rogers & Sons, 66 Ga. 2.51.

An action for damages to goods,
brought against a railroad company, un-
der the statute, is not maintainable when
it affirmatively appears that the goods
in question were consigned from a point
beyond the limits of this state under a
contract stipulating for their delivery at
a point within the state which could not,
in the usual and ordinary course of trans-
portation, be reached, and was not in-
tended to be reached, by defendant's
railroad. Kerr v. Georgia R. Co., :U S.
R. 114, lO.'', Ga. 371.

In an actir)n against the last of a num-
ber of connecting carriers for damage to
goods, where it is not shown that such
carrier received the goods in good order,
and it ai)pears that, before reaching such
carrier, they were carried l>y steamship,
a nonsuit is j)roi)erly granted; the case,
under such circumstances, not being
within the statute. Joseph v. Georgia
R.. etc.. Co.. HH Ga. 426. 14 S. R. r>91, fol-
lowing Rvans 7'. Atlanta, etc., R. Cf)., r.6
Ga. r.t'^.

The South Carolina statute, Civ. Code

1902, § 1710, provides that when, under
contract for shipment over the lines of
connecting carriers, the responsibility of
each shall cease on delivery to the con-
necting line in good order, if freight be
lost or damaged, it shall be the duty of
the initial or terminal line, on notice, to
adjust the same within 40 days, and on
failure to do so, or to trace such freight
and inform the person giving notice by
what carrier it was lost or damaged, such
carrier shall be liable for all such loss or
damage. Held, that the failure of a ter-
minal carrier to comply therewith ren-
ders it liable for goods lost from a con-
signment over its line, whether lost on
its own road or not. Burress 7'. Atlantic,
etc., R. Co., 60 S. E. 692, 79 S. C. 250.

Connecting carriers, being by Act May
i:i. 1903 (24 St. at Large, p. 1). made
agents of each other, in case of an intra-
state shipment, so that the terminal car-
rier is estopped to deny, as against the
consignee, receipt by the initial carrier
of all the goods for which it issued a
bill of lading, proof that the terminal
carrier did not receive part of such goods
does not relieve it of lial)ility to the con-
signee for nondelivery thereof. Daughty
V. Northwestern R. Co., 7.") S. R. ").">:{, 92 S.
C. :}6i.

78. Liability under contract. — Heard v.
St. Louis, etc., R. Co.. 79 Iowa 527, 44 N.
W. 803.

79. Hunt 7'. New
(N. Y.), 1 Hilt. 228.

80. Cleveland, etc.. Railway 7'. l'>arron-
I'.oyle Co., 31 O. C. C. 112. II (). C. C,
.\. S., 602, judgment aHirnu-d in S9 N. IC.
1118, 80 O. St. 707.

^■(.rl<, etc., R. Co.

§§ 3656-3659 carriers. 3308

it liable for the damages. ^^ It is not the duty of a railroad company which re-
ceives a loaded car from another railroad company to make an inspection of the
manner of loading, when the defect can not be discovered by external examina-
tion. ^2

§ 3657. Effect of Refusal to Deliver Goods until the Whole Freight

Is Paid. — Where goods destined to a certain place are shipped by boat, with priv-
ilege of transshipment on the way, and provision is made in the bill of lading that
the owners of the second boat shall not be liable for damages on board the first,
and the goods are injured on board the first boat, but the owners of the last boat
refuse to deliver them until the whole freight is paid, the owners of the second
boat are not thereby made liable, in an action of tort, for damage caused on
board the first boat.^^

§ 3658. Recovery Over by Initial Carrier from a Subsequent Carrier.

— Where a carrier contracts for the transportation of goods over its own route
and that of a connecting carrier, and the goods are lost after delivery to, and
while in the custody of, the connecting carrier, and the shippers recover the value
of the goods from the contracting carrier, such carrier is entitled to recover the
amount recovered from it from the connecting carrier.^'* An initial carrier con-
tracting for the through transportation of goods, which delivers them to a packet
company, to be by it delivered at a designated point to another carrier, by whose
negligence or fault the goods are lost, so that the initial carrier is compelled to
pay for them, can recover therefor only from such negligent carrier, and not
from the packet company.^^

§ 36 59. Facts Not Relieving Carrier from Liability.— Bill of Lading
Not Signed by Carrier's Agent. — A railroad company that receives freight
from a connecting line and transports it over its own line can not escape liability
for negligence in handling such freight on the ground that the bill of lading was
not signed by its agent.-'

Contributory Negligence of Shipper in Loading Goods. — In an action
against a connecting carrier for injuries to goods, contributory negligence of the
shipper in loading the goods on the car of the initial carrier is no defense. ^^

81. Effect of failure to open and exam- the regular course of their business, they
ine bales of cotton. — Knight 7'. Provi- receipted for goods to be delivered at P.,
dence, etc., R. Co., 13 R. I. 572, 43 Am. the railroad company, who were the de-
Rep. 46. fendants in the suit, to be paid their pro-

82. Carrier not required to inspect portion of the freight therefor, landed
manner of loading car. — Judgment 104 them on Sunday, and deposited them in
S. W. 424, reversed in Gulf, etc., R. Co. the warehouse of the railroad company
V. Wittnebert, 101 Tex. 368, 108 S. W. to be forwarded on the next day, the
150, 14 L. R. A., N. S., 1227, 16 Am. & labor being performed by the agents of
Eng. Ann. Cas. 11.53. the plaintiffs, vv^ith the exception of the

Where goods are improperly loaded in unlocking and opening of the warehouse,

a closed car, which comes from the ini- which was done by the defendants' serv-

tial carrier to a connecting carrier with ant. Afterwards, and on the same day,

its doors closed, the improper loading is the warehouse and goods were destroyed

not apparent to the connecting carrier, by fire. The plaintiffs having been sued

nor need it open the car to see whether and obliged to pay the value of the goods

the loading was properly done. McCar- to the shippers, it was held that they

thy V. Louisville, etc., R. Co.. 102 Ala. were entitled to recover in the suit

193, 14 So. 370, 48 Am. St. Rep. 29. against the railroad company for their

83. Effect of refusal to deliver goods lo?s. Powhatan Steamboat Co. v. Appo-
until the whole freight is paid.— Wilson mattox R. Co. (U. S.), 24 How. 247, 16 L.
V. Harry, 32 Pa. 270. Ed. 682.

84. Recovery over by initial carrier 85. Chicago, etc., R. Co. v. Northern
from a subsequent carrier. — The plain- Line Packet Co., 70 111. 217.

tiffs, a steamboat companv, were accus- 86. Bill of lading not signed by car-

lomed to stop at an intermediate station rier's agent. — St. Louis, etc., R. Co. v.

on their route, and there connect with a Henderson, 57 Ark. 402, 21 S. W. 878.

railroad running from thence to P. In 87. Contributory negligence of shipper


Goods in Bad Condition When Delivered by Connecting Line. — Where
goods were shipped in good condition, properly packed, but when dehvered to
the consignee by the last carrier, were greatly damaged, and in condition to suf-
fer additional injury by the movement of the car, it is not a sufficient defense for
such carrier to show in a general way that the goods were in bad condition when
delivered to it by a connecting line, it not being shown that they were then placed
in condition for shi])ment the remainder of the way without further injury. ^^

Directions Given by Cartman without Authority of Owner of Goods. —
Where a cartman, without authority from the owner of goods, gives to a railroad
company directions in regard to them, different from instructions previously
given by the owner, the company is not protected by them.'^^

Custom to Haul Cars Received from Connecting Carrier without
Changing the Cargo. — Where a carrier receives a shipment of butter from an-
other carrier in a sealed car, and it is the custom to haul cars received from such
carrier, without changing the cargo, such facts do not excuse the carrier's negli-
gence in failing to take precautions to preserve the butter.-"*

Failure to Get Waybill or Other Information as to Whom Goods Are
Consigned. — That a carrier, receiving goods from a connecting line, fails to get
a waybill or other information as to whom the goods are consigned, whether
through its own negligence or not, will not relieve it from the duty to safely
transport the goods, where the owner does not prevent it from obtaining the
waybill or information. ^^

Freight Consigned to Point Beyond Its Destination by Mistake of Ini-
tial Carrier. — Where by a mistake of the initial carrier freight was consigned
to a point beyond its destination and was so received and carried by a connecting
carrier, the latter is liable for damages occurring by reason of its negligence,
while the freight was at the place to which it was carried through mistake. ^^

Inability of Initial Carrier to Say in What Car Freight Was Delivered
to Terminal Carrier. — In an action against a railroad company to recover dam-
ages for its failure to deliver a quantity of flour delivered to it by a connecting
line for shipment, the fact that the company to which the flour was first delivered
was unable, by reason of a mistake in billing the flour, to say in what car the flour
was delivered to defendant, does not deprive plaintiff of the right to recover; it
being shown that the flour was delivered to defendant in one or the other of two
cars, and there being no explanation by defendant as to what became of the

in loading goods.— Walter 7'. Alabama, Co. v. Edloff, 89 Tex. 454, ,34 S. W. 414,

etc., R. Co., 142 Ala. 474, 39 So. 87. 35 S. W. 144.

A carrier may protect himself against ^- I>irections given by cartman with-
liability for receiving goods in bad order 0"t authority of owner of goods.— Mo-
or not so prepared for transportation by ses v. I'.oston, etc., Railroad, 24 N. H. 71,
tlie shipper as to be safely carried, l)ut '''•"' -^"^- 1^^'^'- ■-'-■-•

as the carrier has full control of the man- 90- Custom to haul cars received from

ner in which the goods shall l)e packed connecting carrier without changing the

in his cars or in those which he makes cargo.— Ik-ard v. Illinois Cent. R. Co., 79

his own l)y receiving from another line, Iowa 518, 44 N. W. 800, 18 .\m. St. Rep.

he can not set up as a defense to liability •'^^l- " L- '"^^ ■'^- '-*^"-

for injury caused by the wrongful man- 91- Failure to get waybill or other in-
ner in which the goods were packed, tlic formation as to whom goods are con-
fact that they were improperly packed signed.— Western Railway r. Hart, IfiO
when he received them, as by the contin- '''^ki- ■■'•''•*. '■' v^o- ''•~'-

uar.ce of that wrongful act, damage has 92. Freight consigned to point beyond
prol)ably ensued. In such a case the bur- its destination by mistake of initial car-
den is on him of showing tliat it was rier. I'.ryanl 7-. South uistrrn i\. Co., 08
not by his fault or negligence that the C.a. .s()5.

injury was caused. Paramorc v. West- 93. inabiHty of initial carrier to say in

ern K. Lo., 53 (,a, .'.83. what car freight was delivered to termi-

88. Goods in bad condition when deliv- nal carrier.^ — Cincinnati, ilc, i\. Co. v.

ered by connecting line, ^f.ili, rlc, \{. MiUs ^: Son, 13 Ky. L. Rrp. 539.

§ 3660



§§ 3660-3672. Effect of Agreements between Connecting Carriers
and Joint Liability — § 3660. In General. — Where an undertaking by con-
necting carriers to transport goods is a joint one, every carrier is liable for the
negligence of each.'-*-' A contract for through transportation over the connecting
lines of several railroad companies, as between themselves composing a partner-
ship, or holding themselves out as such, is binding on all, and one is responsible
for the act of another."^ The facts that a through bill of lading was given hy the
initial carrier, that through freight charges were made, that the freight was to be
carried in a designated car for the whole distance, and that the agent of one of
the carriers at the end of the route received the freight money, are sufficient to
establish a joint liability.^*' Where goods are shipped in bond over connecting
lines, and both carriers take part in taking them out of bond, in consequence of
which they are of less value, and in carrying them to their destination, as be-
tween the two carriers, the responsibility is solidary. ^''^ The giving of trans]jor-
tation by each of two or more connecting carriers to the person accompanying a
cattle shipment does not tend to show a partnership or joint contract between
the different carriers."*^ Certain facts or agreements which have been held not
to create a partnership or joint liability between connecting carriers, will b^
found in the appended note.^^

94. Liability for negligence under joint
undertaking. — Chicago, etc., R. Co. z'.
Halsell, 35 Tex. Civ. App. 126, 80 S. W.
140, judgment affirmed in 98 Tex. 244, 83
S. W. 15.

95. Carriers composing a partnership
or holding themselves out as such. —
Gulf, etc., R. Co. V. Baird, 75 Tex. 256, 12
S. W. 530.

96. Facts sufficient to establish a joint
liability. — International, etc., R. Co. v.
Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R.
A. 545.

97. Facts rendering responsibility, as
between two carriers, solidary. — Smith
Bros. & Co. 7'. New Orleans, etc., R. Co.,
106 La. 11, 30 So. 265, 54 L. R. A. 923, 87
Am. St. Rep. 285.

98. Giving transportation to person ac-
companying cattle shipment. — Gulf, etc.,
R. Co. r. Baird, 75 Vex. 256, 12 S. \V. 530.

99. Facts or agreements not creating a
partnership or joint liability. — An action
was brought against three railroads as
joint contractors for damage to goods
transported over them in November,
1852. In 1849 one of them published a'
notice by which they made themselves
liable as joint contractors with the oth-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 39 of 214)