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CHAPTER X.

TERMINATION OF THE SERVICE.

Reasonable Time After Notice.

FENNER v. BUFFALO AND STATE LINE RAILROAD CO. 44 N. Y. 505. 1871.

EARLE, C. From the drift of the decisions in this State, I think we may fairly infer the following rules as to the delivery of goods at their place of destination by a railroad carrier: If the consignee is present upon the arrival of the goods, he must take them without unreasonable delay. If he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he has a reasonable time to take and remove them. If he is absent, unknown, or cannot be found, then the carrier can place the goods in its freight-house, and, after keeping them a reasonable time, if the consignee does not call for them, its liability as a common carrier ceases. If, after the arrival of the goods, the consignee has a reasonable opportunity to remove them, and does not, he cannot hold the carrier as an insurer. The carrier's liability thus applied and limited, I believe, will be found consonant with public policy, and sufficiently convenient and practicable. (See Powell v. Myers, 26 Wend. 591; Fish v. Newton, 1 Denio, 45; Jones v. The Norwich and New York Trans. Co., 50 Barb. 193; Roth v. Buffalo and State Line R. R. Co., 34 N. Y. 548; Northrop v. Syracuse B. and N. Y. R. R. Co., supra.)

Within these rules of law, I think the defendant in this case was not liable for the loss of the goods in question. The teamster, Austin, was plaintiff's agent. He had notice of the arrival of the goods, and paid the freight and gave the defendant a receipt for them. Just at that time the railroad employee was engaged in delivering other freight. But there was no refusal to deliver these goods, and, so far as appears, no unwillingness to deliver

them; and I think we are bound to infer, that if Austin had demanded the goods, they would have been delivered to him. It was getting late, and as Austin intended to return again the next day, for his convenience, the goods were permitted to remain. I say for his convenience. It matters not that it was also for the convenience of the railroad employee, or for their mutual convenience. It is sufficient that Austin could have had the goods, and that they were left under an arrangement in which he participated, and to which he assented, as much for his convenience as for the convenience of the other party. Suppose the arrangement had been to leave the goods there a week, or a month, for their mutual convenience, would the railroad company have remained liable as a common carrier? Here, then, there is a case where the consignee's agent had notice of the arrival of the goods and had an opportunity to remove them, and he left them in the defendant's freight-house, because it was more convenient for him to call for them the next morning. Under such a state of facts, when the goods were thus left in the freight-house for the mutual accommodation and convenience of both parties, should the law impose upon the one party the responsibility of an insurer? I think not, and that neither justice nor public policy requires upon the facts existing in this case the defendant should be held liable as a common carrier.

Surrender of Goods.

RICE v. BOSTON & WORCESTER R. R. CORP.
98 Mass. 212. 1867.

BIGELOW, C. J. The rulings were clearly right. The only objection now urged to them is, that it should have been held that the defendants were not liable as common carriers after the arrival of the cars at the place where the coal was to be delivered. But the position is untenable. The contract of a common carrier includes not only the transportation of merchandise to a particular point, but also its delivery there to the consignee, or the putting it into a suitable place where it can be received by him. A railroad corporation does not discharge itself of its duty as a carrier by merely bringing goods to the terminus of its road; it is bound also to unload them with due

care, and put them in a place where they will be reasonably safe and free from injury. Until this is done, the duty and responsibility which attach to a corporation as carriers do not close. Thomas v. Boston & Providence Railroad Co., 10 Met. 472, 477; Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263, 272. In the latter case, on which the defendants' counsel seems to rely, it is expressly stated that goods must not only be safely carried, but also be discharged on the platform of a depot, or put into a place of safety.

It was a clear breach of the duty of the defendants in this case to unload the coal in an unsuitable place, where it could not be taken away without being mingled with foreign substances, or to unload it in such manner that different sizes and kinds were mixed together so as to render it unsalable. The allegations in the declaration sufficiently set out this breach, and the plaintiff is entitled to recover under them the damages assessed by the court.

Exceptions overruled.

Setting Down Passengers.

CREAMER v. WEST END STREET RAILWAY CO.

156 Mass. 320. 1892.

BARKER, J. The plaintiff's intestate was instantly killed on Warren Street by an electric car, which, it was testified, was running at a speed of fifteen miles an hour. His death under such circumstances gave the plaintiff a right to maintain the action under the St. of 1886, c. 140, if, when killed, he was a passenger, or if, not being a passenger, he was in the exercise of due diligence. He had ridden as a passenger upon another car, which he had left immediately before he was killed. When struck, he was walking across Warren Street, having taken one or two steps from the place where he had touched the ground on leaving his car, and was between the rails of the track on which was the car by which he was struck. He had not reached or had time to reach the sidewalk of Warren Street, but he had left the car on which he had been a passenger, and had begun his progress on foot across the street. We are of opinion that he was not a passenger when the accident occurred, and that he

ceased to be a passenger when he alighted upon the street from his car. The street is in no sense a passenger station, for the safety of which a street railway company is responsible. When a passenger steps from the car upon the street, he becomes a traveler upon the highway, and terminates his relations and rights as a passenger, and the railway company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the sidewalk. When a common carrier has the exclusive occupation of its tracks and stations, and can arrange and manage them as it sees fit, it may be properly held that persons intending to take passage upon or to leave a train have the relation and rights of passengers in leaving or approaching the cars at a station. Warren v. Fitchburg Railroad, 8 Allen, 227; McKimble v. Boston & Maine Railroad, 139 Mass. 542; Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 214. But one who steps from a street railway car to the street is not upon the premises of the railway company, but upon a public place where he has the same rights with every other occupier, and over which the company has no control. His rights are those of a traveler upon the highway, and not of a passenger.

Delivery to the Designated Person.

SAMUEL v. CHENEY.

135 Mass. 278. 1883.

MORTON, C. J. The contract of the carrier is not that he will ascertain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to the directions. If a man sells goods to A., and by mistake directs them to B., the carrier's duty is performed if he delivers them to B., although the unexpressed intention of the forwarder was that they should be delivered to A.

If, at the time of this transaction, the man who was in correspondence with the plaintiff had been the only man in Saratoga Springs known as, or who called himself, A. Swannick, it cannot be doubted that it would have been the defendant's duty to deliver the goods to him according to the direction, although he was an impostor, who by fraud induced the plaintiff to send

the goods to him. Dunbar v. Boston & Providence Railroad, 110 Mass. 26. The fact that there were two bearing the name made it the duty of the defendant to ascertain which of the two was the one to whom the plaintiff sent the goods.

Suppose, upon the arrival of the goods in Saratoga Springs, the impostor had appeared and claimed them; to the demand of the defendant upon him to show that he was the man to whom they were sent, he replies, "True, there is another A. Swannick here, but he has nothing to do with this matter; I am the one who ordered and purchased the goods; here is the bill of the goods, and here is the letter notifying me of their consignment to me, addressed to me at my P. O. box 1595." The defendant would be justified in delivering the goods to him, whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them. It is true the defendant did not make these inquiries in detail; but if, by a rapid judgment, often necessary in carrying on a large business, he became correctly satisfied that the man to whom he made the delivery was the man to whom the plaintiff sent the goods, his rights and liabilities are the same as if he had pursued the inquiry more minutely.

The plaintiff contends that he intended to send the goods to Arthur Swannick. It is equally true that he intended to send them to the person with whom he was in correspondence. We think the more correct statement is, that he intended to send them to the man who ordered and agreed to pay for them, supposing erroneously that he was Arthur Swannick. It seems to us that the defendant, in answer to the plaintiff's claim, may well say: "We have delivered the goods entrusted to us according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your acts in dealing with him, was the man to whom you intended to send them; we are guilty of no fault or negligence."

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