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carriers for damage -to goods, where the
proof showed that the goods were re-
ceived from the shipper by the initial
company at Charleston, S. C, and loaded
in one of its cars, to be conveyed to Ma-
con, Ga., and the car containing them
was delivered to the consignee "at the-
Old Courthouse square on the defend-
ant's railroad" at Macon, it was not er-
ror to refuse a nonsuit on the ground
that there was no evidence connecting
defendant with the shipment; since the
jury might reasonably infer from the ev-
idence that defendant received the goods,
from the connecting carrier, and trans-
ported them over its own line, and was
in possession of them when the consignee
received them. Central R., etc., Co. v.
Bayer, 91 Ga. 115, 16 S. E. 953.

97. Evidence not proving exemption.
from loss by fire. — Where a through bill
of lading provided that, in the event of
the articles being shipped by water, they
should be subject to all customary con-
ditions, and it was claimed by defend-
ant, a connecting water carrier, in whose
possession the goods were destroyed by
tire, that it was customary to stipulate
for nonliability for such loss, but the
proof established that a large part of de-
fendant's business was transacted with-
out any right to such exemptions, and
that through bills of lading issued by
railroads in connection with defendant
were not uniform in stipulating for such-
exemptions, and that one of the defend-
ant's witnesses had been engaged in an
attempt to agree on a uniform bill, con-
taining exemptions, but had been unsuc-
cessful, the custom was not proved, and
defendant was liable for the loss. Judg-
ment 74 N. Y. S. 384, 36 Misc. Rep. 705,
and 78 N. Y. S. 359, 75 App. Div. 431, af-
firmed in Robinson v. New York, etc.,.
Steamship Co., 69 N. E. 1130, 177 N. Y,
565.



§ 3806 CARRmRS. 3410

the initial carrier for injuries to the stock in transit is the value of the animals
killed and the depreciation in value of those injured at the point of destination,
and not at the initial carrier's terminus.'*^

For Failure to Conform to Shipper's Instructions. — Where a shipper de-
livers to a forwarder goods to he forwarded to an express company, and by it
to be forwarded to the consignee on receipt from him of a certain price, and de-
livers to the forwarder with the goods written instructions, with which the for-
warder in forwarding the goods complies in all respects except that he fails to
accompany the goods with a statement of the shipper's charges, the measure of
damages for failure to conform to the instructions is the precise loss the parties
had in contemplation when such instructions were sent, and to prevent which
the agreement was made.^'-^

For Misrouting Shipment. — Where an initial carrier fails to deliver a ship-
ment to the conned ing carrier agreed on, but delivers the same to another con-
necting carrier, the measure of damages for which the initial carrier is liable is
the difference in the value of the shipment in the condition in which it was de-
livered at the point of destination, and its value in the condition it would have
been in if it had been transported to that point with due diligence, and handled
with proper care.^ An initial carrier, which willfully misroutes a special ship-
ment, so that the shipper is compelled to pay a higher rate than that specially
agreed upon, is liable for the full amount of the dift'erence, and not merely for
such a lesser sum as might reasonably have been within the contemplation of the
parties. 2

For Failure to Deliver under a Contract for Through Transportation.
■ — When a railroad company agrees to transport goods beyond the line of its own
road, and fails to deliver them as agreed, the measure of damages will be the
value of the goods at the place of delivery, less the cost of transportation, if un-
paid.^

For Delay in Transportation or Delivery. — Where a carrier contracts to
ship goods over a connecting carrier, but the delivery is delayed, the elements of
damages against the contracting carrier includes the necessary expense incurred
by the shipper in finding and taking possession of the goods.'* The freezing of
apples while being transported by a subsequent carrier is not so direct and nat-
ural a result of unreasonable delay by the first carrier as to make such first car-
rier liable therefore by reason of such delay. '^ In an action against a railroad

98. Measure of damages for injuries to they would have been worth if no injury
live stock in transit. — St. Louis, etc., R. had occurred. St. Louis, etc., R. Co. v.
Co. V. Deshong, 63 Ark. 443, 39 S. W. Lieurance, ]02 Pac. S42, 80 Kan. 424.
2G0; Texas, etc., R. Co. v. White, 35 Tex. 99. Measure of damages for failure to
Civ. App. 521, 80 S. W. 641, affirmed 98 conform to shipper's instructions. — ■
Tex. 635, no op.; Missouri, etc., R. Co. Hutchings v. Ladd, 16 Mich. 493.
V. Webb, 20 Tex. Civ. App. 431, 49 S. W. 1. Measure of damages for misrouting
526. shipment. — Cincinnati, etc., R. Co. v. Pen-
Where a shipper agreed to pay a dleton, 96 S. W. 434, 29 Ky. L. Rep. 721.
through charge for the delivery of horses 2. Pond-Decker Lumber Co. v. Spen-
at a pomt beyond the mitial earner's cer, 86 Fed. S46, 30 C. C. A. 430, revers-
hne, the measure of damages for injuries i„g Central Trust Co. v. Georgia Pac. R.
to the horses on the initial carrier's line Co 81 Fed 277
was to be based on the value of the 3'; Measure'^of damages for failure to



hor«es at the point of destination. South-



deliver under a contract for through



ern Exp. Co. v. Jacobs, 109 Va'. 27, 63 S. transportation.-Perkins v. Portland, etc.,

•R,,V ;« XTo^oo -^ \ u t 1^ ^u 4. R- Co., 47 Me. 573, 74 Am. Dec. 507.

But in Kansas it has been held that c j 1 •

where animals shipped to the end of a 4. Measure of damages for delay in

railroad line and there turned over to transportation or delivery.— -Savannah,

a connecting carrier are negligently in- ^tc, R. Co. v. Pritchard, etc., Co., 77 Ga'.

jured on the road of the original carrier 412, 1 S. E. 261, 4 Am. St. Rep. 92.
and unloaded at its terminus, the shipper 6. Michigan Cent. R. Co. v. Burrows,

can make the measure of his recovery 33 Mich. 6. Compare Fox v. Boston, etc.,

the difference between their market value R. Co., 148 Mass. 220, 19 N. E. 222, 1 L.

as delivered at such terminus and what R. A. 702.



3411 ACTIONS. §§ 3806-3808

company to recover for unreasonable delay in the transportation of cattle, it is
not error to take as the basis for computation of damages the difference in the
market price of the cattle in the market to which they were being shipped, where
the destination was known to the defendant, although its contract covered their
transportation only over its own line, and their delivery to a connecting carrier
for the remainder of the shipment.^

§ 3807. In Action against Intermediate or Last Carrier. — For Stor-
ing Goods in a Warehouse Instead of Delivering Them to the Next Car-
rier. — Where a connecting carrier, instead of delivering a shipment of cotton
to the next carrier in line under the bill of lading, as it should have done, stored
it in a warehouse, subject to. the owner's order, the measure of its liability is
the damage resulting to the owner from its failure to forward the cotton when
it should have done so; and it can not be held liable for the value of the cotton,
3.S for a conversion/

For Failure to Re -Ice a Car Containing Peaches. — In an action against a
connecting terminal carrier for injuries to peaches, resulting from the carrier's
failure to re-ice the car containing them, the market value of the peaches at
the place of destination on the day of their arrival there is the proper measure
of damages, though the defendant had no notice that the peaches were intended
for market on that day.^

For Delay in Transportation or Delivery. — For breach of a connecting car-
rier's duty to dcHver freight at its destination within a reasonable time, such
carrier is responsible for the loss sustained, whether by a falling in the market
price of the goods, or by damages thereto, or both.^ Notice to an initial carrier
that goods are to be used for a certain purpose at the place of delivery is not no-
tice to the connecting carrier of such use, so as to be a basis of a recovery of
loss of profits caused by delay in shipment.^*^ The acceptance by a connecting
carrier of a carload of buggies for delivery was not notice to the carrier that
the only time buggies could be sold at the place of delivery was between the
time the buggies should have been delivered, and the date when they were de-
livered, so as to be a basis of the recovery of loss of profits caused by the delay
in shipment. ^1

For a Wrongful Refusal to Deliver a Corpse. — Five hundred dollars is
not an excessive recovery for the wrongful refusal of a connecting carrier to
deliver a corpse to the consignee. ^^

§ 3808. Instructions. — In an action against a connecting carrier an instruc-
tion by the court to the jury must not be abstract, but must be clearly applicable
to the case.^^ In such an action the defendant is entitled to have the evidence in

6. Judgment 104 Fed. 728, 44 C. C. A. 11. Brand v. Illinois Cent. R. Co., 108
179, affirmed in Missouri, etc., R. Co. v. S. W. 356, 32 Ky. L. Rep. 1335.
Truskett, 22 S. Ct. 943, 186 U. S. 480, 46 12. Measure of damages for wrongful
L. Ed. 1259. refusal to deliver corpse. — Alcorn f. Ad-

7. Measure of damages for storing ams Exp. Co., 140 S. W. 747, 148 Ky. 352.
goods in warehouse instead of delivering IS. Instruction held not abstract, but
them to next carrier. — ^Buston v. Penn- clearly applicable to case. — In an action
sylvania R. Co., 116 Fed. 235, affirmed by a shipper of live stock to recover
in 119 ]<"c(l. SOS. 5() C. C. A. 320. damages from the delivering carrier for

8. Measure of damages for failure to injury to the live stock delivered by the
re-ice a car containing peaches. — Phila- carrier to the shipper, an instruction de-
delphia, etc., R. Co. v. Diffendal, 72 Atl. clared that "where the carriage of freight
193, 109 Md. 494, rehearing denied in 72 is to be over several connecting carriers,
Atl. 458. as was the case here, it seems that if the

9. Measure of damages for delay in consignee, the consignee bringing the
transportation or delivery. — Philadelphia, suit in this case, shows to the jury that
etc., R. Co. 7'. Diffendal, 109 Md. 494, 72 the animals were in good condition when
Atl. 193, 458. delivered to the initial carrier, and that

10. Brand v. Illinois Cent. R. Co., 108 they were not in good condition when
S. W. 35G, 32 Ky. L. Rep. 1335. delivered by the discharging carrier, and

4 Car— 20



§ 3808



CARRIERS.



3412



its favor submitted to the jury under correct instructions as to the law.^"* Where
a connecting carrier is only liable for injuries to goods occurring on its own line, an
instruction that plaintiff is entitled to recover, unless defendant delivered the goods
lo another connecting carrier and ceased from that time to exercise all jurisdiction
and control over the goods before delivery of the same to plaintiff, is erroneous,
as pretermitting any inquiry as to whether the injury to the goods occurred on
defendant's line,, or while in defendant's possession as a carrier. ^^ Where the
court expressly charges that connecting carriers sued for injuries to live stock are
each liable only for its own negligence, an instruction referring to the fact that
the train broke in two and ran together, to the injury of the cattle, while on the
line of one of the defendants, is not erroneous as tending to minimize the injuries
on the line of the other.^'^ Where horses transported by successive carriers are
injured in shipment, and the court charges that, before jjlaintiff can recover of
the defendant line, the jury must be satisfied by the preponderance of the evi-



the suit is against the discharging car-
rier, then these facts alone, without any
more, put the burden on the defendant,
the discharging carrier, to show to the
reasonable satisfaction of the jury that
the harm and injury did not come to the
animals while they were in the keep of
the discharging carrier, and that is the
law in this case." Held, that this was a
clear and explicit statement of the law in
relation thereto, and that the instruction
was by no means abstract, and was
clearly applicable to the case. Central,
etc., R. Co. V. Dothan Mule Co., 159 Ala.
225, 49 So. 243. See ante, "As to Line on
Which Injury or Loss Occurred and the
Responsibility Therefor," § 3801.

14. Evidence for defendant must be
submitted to jury under correct instruc-
tions. — Illinois Match Co. v. Chicago,
etc., R. Co., 250 111. 396, 95 N. E. 492, re-
versing 153 111. App. 568.

Where, in an action against the initial
carrier for loss of freight on a connect-
ing carrier's line, the evidence showed
that plaintiff was constantly shipping
freight in carload lots beyond the line of
the initial carrier, and received bills of
lading from the initial carrer limiting its
liability for loss to that occurring on its
own line, that plaintiff used shipping or-
ders directing shipments as per condi-
tions of the carrier's bill of lading, and
the officers of plaintiff testified that they
had never read a bill of lading and did
not know its contents, the facts raised a
natural inference that plaintiff, through
its officers, knew the conditions of bills
of lading and assented to the limitations
therein, and the carrier was entitled to a
charge that, if plaintiff assented to the
conditions of the bill of lading, it could
not recover. Illinois Match Co. v. Chi-
cago, etc., R. Co., 95 N. E. 492, 250 111.
396, reversing judgment 153 111. App. 568.

Where there was evidence that at a
station on the connecting line between
the starting point and the point where
the goods were received by defendant
the barrels were leaking, the boxes were
stained, and the glass therein rattling, an
instruction that the goods should not be



presumed to be in worse condition at the
point where they were received by de-
fendant than at the starting point was
inapplicable and incorrect. Goodman v.
Oregon R., etc., Co., 22 Ore. 14, 28 Pac,
894.

Where, in an action against several
connecting carriers for damages to cattle
owing to delay in transportation, it ap-
peared that there was no delay on the
line of the final carrier, and that when
such carrier received the cattle they were
not in the same condition as when deliv-
ered to the initial carrier, there was no
ground for an instruction that, if the cat-
tle were in a damaged condition when
delivered to the final carrier, it devolved
on it to show that the damage did not
occur on its line, and that it could
not acquit itself of liability by simply
showing that a part of the damage oc-
curred on the line of a preceding carrier,
but that it must show how much dam-
age, if any, so occurred. Judgment 86
S. W. 18, reversed in Houston, etc., R.
Co. V. Scott, 99 Tex. 326, 89 S. W. 763.

Where the petition alleged that the
goods were delivered to defendant at O.
to be transported to C, and there deliv-
to plaintiff, and that while in the custody
of defendant they became unsound, and
the evidence showed that defendant re-
ceived the goods from another company,
and that it was impossible that the goods
should have become unsound while in
defendant's custody, but must have been
damaged before delivery to defendant, it
was error to charge the jury, under the
Georgia statute, Code, § 2084, that where
goods pass over several connecting" lines
the last to receive the goods is responsi-
ble for their condition. Columbus, etc.,
R. Co. V. Tillman, 79 Ga. 007, 5 S. E- 135.

15. Instruction pretermitting injury as
to whether injury to goods occurred on
defendant's line. — Walter v. Alabama,
etc., R. Co., 39 So. 87, 142 Ala. 474.

16. Instruction not erroneous as tend-
ing to minimize injuries on connecting
road.— Texas, etc.. R. Co. v. Hall, 72 S.
W. 1052, 31 Tex. Civ. App. 464,



3413



ACTIONS.



§§ 3808-3809



dence that they were injured while in defendant's possession, the objection that
the court makes the defendant an insurer beyond its own line is not well taken. ^'^
It is not error to embody in a charge, a statute making connecting carriers liable
for all damages to freight carried under a through billing contract with the initial
carrier, where the bill of lading, though it does not name defendant carrier, bills
the shipment via a junction station from which no other line reaches the point of
destination. i'^ An instruction, in an action against the initial carrier for delay in
transporting cattle, which directs the jury to measure the damages by the dif-
ference between the market value of the cattle at the point of destination at the
time and in the condition of their arrival and at the time and in the condition
they would have arrived had they not been delayed by the initial carrier, is not
erroneous, as authorizing the jury to find any damages sustained to the cattle on
the line of the connecting carrier, especially where the court excludes in its charge
the idea that the initial carrier is liable for any damages done after the cattle left
its line.^^ In an action against connecting carriers for damages sustained by de-
lay in shipping cattle, an instruction which in effect directs the jury to first find
the whole amount of the damage done by all the defendants, and then "appor-
tion" it among them "according to and in proportion to their respective liability,
as indicated by instructions already given," is not open to the objection that it
authorizes the jury to fix the .liability of each according to an arbitrary rule, and
not according to the evidence, wdien read with other instructions that the jury shall
apportion against each defendant only the damage that it has caused, and shall
not apportion against one the damage caused by another. 2"

§ 3809. Province of Court and Jury. — The general rule that it is the ex-
clusive province of the jury to decide all questions of fact, and erroneous for the
court to eliminate any material facts in issue from the consideration of the jury,
applies to actions against connecting carriers.-^ But where there is no legally



17. Instructions not imposing on de-
fendant liability as insurer beyond its
own line. — Milam t'. Southern R. Co., 58
S. C. 247. ;]G S. E. 571.

18. Embodying statute in charge. —
Texas, etc., R. Co. v. Bigham (Tex. Civ.
App.), 47 S. W. 814, affirmed in 93 Tex.
673, no op., so holding where Rev. Stat.
1995, art. 331a, 331b, were embodied in
charge.

19. Instruction as to measure of dam-
ages held not erroneous. — Texas, etc., R.
Co. V. McNairy. 42 Tex. Civ. App. 222,
94 S. W. Ill, affirmed in 101 Tex. 663,
no op.

20. Instruction as to apportionment
of damages held not erroneous. — Gulf,
etc., R. Co. V. Cushnev, (37 S. W. 77, 95
Tex. 309.

21. Question by whom contract of
shipment was made. — Where the ques-
tion whether a contract for shipment of
freight was made by the initial carrier
alone, or was the joint contract of all
the connecting lines over which the ship-
ment was made, depends not only on
written instruments, but on oral testi-
mony it should be left to the jury.
Bradford v. South Carolina R. Co. (S.
C.I, 7 Rich. L. 201, 62 y\m. Dec. 411.

Question of existence of contract for
through transportation. — The weight,
force, or degree of c^■idence as to a con-
tract_ for through transportation is for
the jury and is not open for considera-
tion by the supreme court. Ogdensburg,



etc., R. Co. r. Pratt (U. S.), 22 Wall.
123, 2 L. Ed. 827, 49 How. Prac. 84.

When a common carrier receives ex-
press goods, the question whether the
carrier contracts to carry said goods to
their destination, or only to deliver them
sately to the next carrier at the point
nearest or most convenient to their des-
tination, is one of fact for die jury, de-
pendent upon the circumstances. Phil-
adelphia, etc., R. Co. V. Ramsey, 89 Pa.
474.

If competent evidence of a contract
for through transportation over connect-
ing lines is adduced upon trial of an ac-
tion against the initial carrier for loss of
goods upon a connecting route, the
weight of it is a question for the jury.
Ogdensburg, etc., R. Co. v. Pratt (U.
S.), 22 Wall. 123, 22 L. Ed. 827, 49 How.
Prac. 84.

Where the main issue is whether or
not a contract of shipment to a point
beyond the carrier's terminus was made
by the shipper and the carrier, it is error
to take from the jury the consideration
of that question and to instruct them
that whether or no such a contract was
made, the carrier was liable under the
common law if it failed to ship the goods
to the terminus within a reasonable time.
Central R.. etc., Co. v. Skellie, 86 Ga.
686, 12 S. E. 1017.

Whether a contract for through trans-
portation was made with defendant ter-
minal company, or a contract for line



§ 3809



CARRIERS.



3414



sufficient evidence to entitle the plaintiff, upon whom rests the burden of proof,



terminal transportation with the initial
carrier, held for the jury, in an action for
loss or perishable freight. Catanzaro v.
Pennsylvania R. Co., 83 x^tl. 64, 234 Pa.
218.

On an issue whether a railroad com-
pany adopted a contract made with plain-
tiff by its station agent to transport
freight bei'ond its line over a connecting
line in a through car without transship-
ment or rehandling of the goods , an
agreement to that effect with the agent,
and a payment to him. of an entire freight
charge to the destination, and the send-
ing by the carrier of a car ordered by the
agent over the connecting line, were cir-
cumstances sufficient to take the question
to the jury. Page v. Chicago, etc., R.
Co., 7 S. Dak. 297, 64 N. W. 137.

Whether a receipt for cattle consigned
to a point beyond the end of its line,
upon which was indorsed a "rule of
transportation" that the company would
not be liable as carrier beyond its ter-
minus, constituted a special contract for
through carriage, was a question that
should have been submitted to the jury,
with the evidence of all the attendant
circumstances. Myrick v. Michigan Cent.
R. Co., 107 U. S. 102, 1 S. Ct. 425, 27 L.
Ed. 325.

In an action against a railroad com-
pany in Vermont, a receipt given by its
station agent for pay for "transporting
the merchandise from Ludlow to Charles-
town, Mass.," together with evidence that
it was the usual course of business to re-
ceive freight at all points on the defend-
ant's road and bill it through to Charles-
town, either collecting freight in advance
for the whole line, or collecting at Bos-
ton for the whole line, and giving re-
ceipts accordingh% were held to be proper
and sufficient evidence to warrant the
court in submitting to the jury the ques-
tion whether or not the defendant un-
dertook to transport the goods over the
connecting roads to the point of their
ultimate destination. Mann v. Birchard,
40 Vt. 326, 94 Am. Dec. 398.

Question whether carrier had knowl-
edge or direction that goods should be
transported. — Whether carrier receiving and
transporting goods had knowledge of
the direction that they should be trans-
ported l)y a ditt'erent line, was a question
of fact for the jury. Bird v. Georgia
Railroad, 72 Ga. G55.

Question of condition of shipment
when received by initial carrier. — Evi-
dence in an action against terminal car-
rier held to present question for jury
whether shipment was received by initial
carrier in bad condition. Parnell v. At-
lantic Coast Line R. Co., 74 S. E. 491, 91
S. C. 270.

Question of delivery of goods to con-
necting line. — Where there is a conflict



of evidence as to the fact of the delivery
of goods to the connecting line, the
question of delivery is one of fact for the
jury. Rome R. Co. v. Sloan, 39 Ga. 636.

In an action against a carrier for in-
juries to goods, whether there was a de-
livery to a connecting carrier held under
the evidence a question for the jury.
Reason v. Detroit, etc., R. Co., 113 N. W.
596, 150 Mich. 50.

Question whether delivery of cotton
to compress company constituted a de-
livery to carrier. — Defendant railroad
company made a contract with a cotton
compress company located on a belt line
at Birmingham, Ala., reciting that de-
fendant would receive uncompressed cot-
ton for shipment, but for convenience
desired a portion of the same compressed,
and providing that the compress com-



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 59 of 214)