"Q. What did he say in answer? A. He said he had instructions from the general freight agent not to deliver the car until the freight was paid. This was about two weeks after the arrival of the car."

Of this conversation, Mr. Clisbee had no recollection. About August 26th appellees tendered to appellant the freight charges and demanded the lumber, but their demand was refused, appellant claiming an additional one dollar per day for use of car, or demurrage.

A number of questions arise in different ways, but the vital question is, whether or not appellant had performed its duty in full prior to the tender and demand. If it had not, or fails to show a good excuse for its nonperformance, then it was in the wrong in claiming storage, even if, under proper circumstances, such a charge may be made and sustained by a lien on the goods. Without stopping to determine whether or not a lien is allowed for storage charges, in the absence of a contract, and without stopping to inquire whether the goods were received under the bill of lading, we assume the duty of the appellant to have been simply to safely carry 209 the lumber to the end of its line, and there deliver it to a connecting carrier to be forwarded to its final point of destination. This obligation rested upon it without any special contract: Hutchinson on Carriers, secs. 102 a, 149, 149 a; 2 Redfield on Railways, sec. 180; 2 Am. & Eng. Ency. of Law, 867; McDonald v. Western R. R. Corp., 34 N. Y. 497; Lawrence v. Winona etc. R. R. Co., 15 Minn. 390; 2 Am. Rep. 130.

The appellant, as a common carrier, was entitled to demand payment of its charges in advance, but, by accepting the goods for carriage without requiring prepayment, this right was waived: Hutchinson on Carriers, sec. 469.

A common carrier, which has received goods for carriage without requiring prepayment, does not then become entitled to demand its freight charges until its duty has been performed, either by delivery or an offer to deliver at the place of destination: Hutchinson on Carriers, sec. 469; Holliday v. Coe, 3 Ind. 26; Rogers v. West, 9 Ind. 400; 2 Redfield on Railways, sec. 188, pars. 1, 33.

The utmost, then, that could have been rightfully claimed by appellant was, that its charges should be paid when it had carried the goods to the end of its line and was ready to deliver them to the succeeding carrier. Until this was done, or at least a good excuse shown for its not being done, appellant was not entitled to demand payment of its charges from anyone.

Whether or not, having received these goods as a connecting carrier for shipment to a point beyond its line, without demanding payment in advance, it thereby waived any right to demand its charges until the final point of destination was reached, and should have asked of the succeeding carrier that it should collect its charges 210 rather than to have demanded an absolute assumption of them, we do not find it necessary to determine.

The notice given to appellees on July 22d was given before appellant had made any attempt to deliver the goods to the succeeding carrier, and without having carried them to the end of appellant's line. Appellant was, therefore, not entitled to charge storage by reason of the failure of appellees to pay the charges at that time or to receive the goods at the place where they then were, and there was no default upon the part of appellees by reason of their failure to comply with the requirements of that notice. When, then, if ever, did the appellees become in fault?

According to the evidence of appellant, this notice was the only communication between the parties until the tender and demand were made. Counsel for the appellant, in his argument, assumes that appellees had wrongfully refused to pay. For this we are unable to find any support in the evidence.

That appellant never did place the car upon the Y at the end of its line where it could have been received and carried forward by the connecting carrier is undisputed. For its nonperformance of that which was essential to justify a demand for the payment of their charges, no excuse is offered by the evidence, save the fact that the connecting line, when asked about receiving this car, refused to receive it and assume charges. This refusal alone was not sufficient to excuse the appellant from any further attempt at performance, and to authorize it to treat the contract as fully performed upon its part and its duty as carrier terminated.

No notice of this refusal was given to appellees. There was not even an offer by appellant to put the car upon the Y if appellees would pay their charges.

The evidence of Diether, that the agent asked him by 211 telephone if they would take that car and pay the freight, cannot be construed as an offer to deliver at the Y if they would pay the freight. Diether was under no obligation to pay the freight and take the car at the appellant's station, where it then was. This conversation gave no intimation to appellees that appellant was willing to move the car a single foot from the place where it was then standing. Had the car been placed upon the Y, and appel

lees notified of that fact, and that the car would not be forwarded without payment of charges accrued, or if the evidence even showed that appellees had been notified of the connecting carrier's refusal to receive the car upon the terms offered, quite a different question would be presented.

We are called upon to deal simply with the case brought before us by the record, and, as to that, it is sufficient to say that the facts show neither performance nor excuse for nonperformance of its duty by appellant. Its duty as a carrier had not been fulfilled when the demand and tender were made; until its liability as a carrier terminated, its rights as a warehouseman would not begin: Pittsburgh etc. Ry. Co. v. Nash, 43 Ind. 423.

Appellees were entitled to notice of the succeeding carrier's refusal to accept the goods: Hutchinson on Carriers, sec. 103 a.

These views of the law applicable to the facts in this case render it unnecessary for us to take up in detail the consideration of the various propositions advanced by appellant's learned and ingenious counsel. Neither is it necessary to consider each instruction given or refused, for with the law and the facts as we have found them to be, any errors in the instructions complained of could not but be harmless, and therefore no cause for reversal: Rev. Stats. 1894, sec. 670; Lafayette v. Ashby, 8 Ind. App. 214.

212 As a general rule, the insufficiency of the evidence to sustain answers to interrogatories which could in no event control the general verdict will not justify the court in granting a new trial for want of evidence: Staser v. Hogan, 120 Ind. 207 (228); Chicago etc. R. R. Co. v. Kennington, 123 Ind. 409.

It is further contended that the court erred in permitting the money to be paid into court as a tender, for the reason that the money paid in was not the identical money tendered. In this there was no error: Colby v. Stevens, 38 N. H. 191; Michigan etc. R. R. Co. v. Dunham, 30 Mich. 128; Curtiss v. Greenbanks, 24 Vt. 536.

In Evansville etc. R. R. Co. v. Marsh, 57 Ind. 505, it is held that in an action such as this it is necessary to plaintiff's recovery that he should follow up his tender by paying the "amount of the lien tendered into court."

This was done in this case.
Judgment affirmed.

ON PETITION FOR A REHEARING.

GAVIN, J. After a re-examination of the original opinion in this case, there would not seem to be a very wide difference between the theory of the law upon which the case is there decided

and the views expressed by counsel in their petition for rehearing, although we did not then, and do not now, deem it necessary to decide some of the questions so ably presented by appellant.

The learned counsel says: "I concede that the appellees were entitled to notice that their lumber had arrived, and that it was not forwarded, and the reason why such was not the case, if they did not know it already. The reason of this is, that the owner may be enabled to protect himself from loss."

213 The only source from which counsel claim this information to have been shown to be possessed by Diether is from his conversation with Clisbee, set out in the original opinion. We are unable to construe this conversation to convey to appellees knowledge of the connecting carrier's refusal to receive the car and pay the freight, which fact alone would have justified their demand for the payment of their freight at that time.

Attention is called to one or two slight inaccuracies in the statement of facts. Granting them to exist, they are such as could not in the slightest degree affect the result in the cause.

As to the damages recovered in the court below, since the appellees offered to remit ten dollars thereof, but the court seems to have overlooked it, we have concluded to order a credit upon the judgment for that amount as of the date thereof.

Upon this condition, the petition for rehearing is overruled, at the costs of appellant.

EARNED.-Freight

is

not

CARRIERS-FREIGHT-WHEN earned except by the performance of the voyage and the delivery of the goods at the place of destination, unless the contract provides for the payment of freight pro rata itineris: China Mut. Ins. Co. v. Force, 142 N. Y. 90; 40 Am. St. Rep. 576, and note. This subject is fully treated in the extended note to Crawford v. Williams, 60 Am. Dec. 149-154.

CARRIERS-LIABILITY.-Where property delivered to a carrier, consigned to a place beyond its route, is at the end of such route received by another carrier for transportation to the place of destination, it becomes answerable to the owner for any negligence or nonfeasance in completing the carriage, whether there is an express contract or not: Cavallaro v. Texas etc. Ry. Co., 110 Cal. 348; 52 Am. St. Rep. 94, and note.

CARRIERS-WHEN LIABLE AS WAREHOUSEMEN.-If the owner of goods shipped over a railroad permits them to remain at the depot of their destination for an unreasonable time, the liability of the railroad company as carrier is thereby terminated, and it becomes liable only as warehouseman: Union Pac. Ry. Co. v. Mayer, 40 Kan. 184; 10 Am. St. Rep. 183, and note; notes to Gregg ▼. Illinois Cent. R. R. Co., 37 Am. St. Rep. 247, and Lancaster Mills ▼. Merchants' Cotton Press Co., 24 Am. St. Rep. 613.

REID V. EVANSVILLE & TERRE HAUTE RAILROAD Co.

[10 INDIANA APPEALS, 385.]

CARRIERS-WHEN INSURERS OF GOODS.-Railroads that undertake to carry freight for hire are insurers of the goods, and in the absence of any stipulation in the contract of carriage, are exempt from liability only when the failure to deliver occurs through the act of God or the public enemy.

CARRIERS-LIMITATIONS OF LIABILITY-BURDEN OF PROOF-FIRE.-A carrier may restrict its liability by special contract, although it cannot thus exonerate itself from the consequences of its own negligence, and when the loss happens from one of the excepted causes, the burden is on the owner of the goods shipped to prove the negligence of the carrier. Fire is a casualty against which a carrier may protect itself by special contract.

CARRIER'S DELAY IN FORWARDING-LOSS BY FIRE— NEGLIGENCE-PROXIMATE CAUSE.-If a railroad company, specially contracting against loss by fire, negligently delays to forward the goods, and they are destroyed by fire communicated from a burning building, while standing upon the railroad track, the company is not liable for the loss, unless it is shown that its negligence caused the fire, and that such negligence was the proximate cause of the loss.

NEGLIGENCE.-PROXIMATE

CAUSE IS THAT CAUSE which, in natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred. The cause must be efficient; it is not every intervening agency that shields the wrong doer from responsibility when injury results from his wrongful act.

NEGLIGENCE-PROXIMATE CAUSE.-If injury is attributable to two causes, both proximate, one the result of negligence and the other not, and the injury would not have occurred but for the negligent act, the party guilty of the negligent act is liable.

NEGLIGENCE—PROXIMATE CAUSE.-If the injury complained of followed in unbroken sequence, without an efficient intervening cause, even though the wrongdoer could not have foreseen the particular result, he is liable, if he could reasonably have anticipated some injurious consequences, but it is otherwise if there was an intervening efficient cause in itself sufficient to break the causal connection between the original wrong and the injury.

NEGLIGENCE-PROXIMATE CAUSE.-If an injury results from the negligent act or omission of a wrongdoer, such act or omission is deemed the proximate cause, unless the consequences are so unnatural and unusual that they could not, by the highest practical care, have been foreseen, and provided against.

J. S. Bays, for the appellant.

J. E. Inglehart, E. Taylor, and J. T. Hays, for the appellee. 386 REINHARD, J. This action was instituted by the appellant against the appellee to recover the value of a carload of flour, which, it was alleged in the complaint, was delivered by the appellant to the appellee and received by the latter as a common carrier for shipment, but was, by the negligent delay of the appellee in transporting the same, destroyed by fire. The com