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with his knowledge and consent. The liability of a railroad company as common carrier of goods delivered to it attaches only when the duty of immediate transportation ariseg. So long as the shipment is delayed for further orders as to the destination of the goods, or for the convenience of the owners, the liability of the company is that of warehouseman. The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception when they are in a fit and proper condition and ready for immediate transportation. If a common carrier receives goods into its own warehouse for the accommodation of himself and his cus tomers, so that the deposit there is a mere accessory to the carriage and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods. But on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done or some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence, or to make needful preparations for commencing, the service required of him, before he can be made liable or subjected to responsibility in that capacity. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they are in his custody, is liable only a warehouseman, and his only responsibility as carrier is where goods are delivered to and accepted by him in the usual course of business for immediate transportation. The duties and the obligations of the common carrier with respect to the goods commence with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods. It must rest entirely upon the one or the other, and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for them. The entire weight of the responsibility rigorously imposed by law upon a common carrier falls upon him contemporaneously (eo instanti) with a complete delivery of the goods to be forwarded, if accepted, with or without a special agreement as to reward; for the obligation to carry safely on delivery carries with it a promise to keep safely before the goods are put in itinere", London etc. Ins. Co. v. Rome etc. R. R. Co., 144 N. Y. 200, 43 Am. St. Rep. 752, 59 N. E. 79, per Justice Earl.
II. Goods Arriving at Destination. & Termination of Liability as Carrier, Generally.--It may be said, in a general way, that until a carrier's liability is terminated by the
performance of all duties as such in respect to the property intrusted to it for transportation, its rights as warehouseman cannot begin: Grand Rapids etc. R. R. Co. v. Deither, 10 Ind. App. 206, 53 Am. St. Rep. 385, 37 N. E. 39, 1069. And it must assume the burden of proving facts which terminate its liability as carrier: Kirk v. Chicago etc. Ry. Co., 59 Minn. 161, 50 Am. St. Rep. 379, 60 N. W. 1084.
The undertaking of a common carrier includes the obligation of a safe delivery to the consignee; and its responsibility as a carrier con. tinues until it has made an actual delivery, or done that which may be considered an equivalent to or a substitute for such delivery. He must prove some open act of delivery before his liability can be changed from that of a carrier to that of a warehouseman: Collins v. Alabama etc. R. R. Co., 104 Ala. 390, 16 South. 140; Chicago etc. R. R. Co. v. Warren, 16 Ill. 502, 63 Am. Dec. 317; Segura v. Reed, 3 La, Ann. 695.
b. Arrival of Goods at Destination.—The mere arrival of goods at their destination does not reduce the liability of the carrier to that of a warehouseman. Further action in the way of delivery, actual or constructive, is necessary: Chicago etc. Ry. v. Sawyer, 69 Ill. 285, 18 Am. Rep. 613; Missouri Pac. Ry. Co. v. Haynes & Co., 72 Tex. 175, 10 S. W. 398; Winslow v. Vermont etc. R. R. Co., 42 Vt. 700, 1 Am. Rep. 365. But if the consignee demands the goods immediately after their arrival, the carrier becomes liable as a warehouseman merely: St. Louis etc. R. R. Co. v. Akers (Tex. Civ. App.), 73 8. W. 848. And where the owner, consignee, or other person authorized to receive goods is present at the time of their arrival and bas an opportunity to take them, this may be regarded as equivalent to a dolivery, after which they may be considered as held by the carrier as a bailee: Moses v. Boston etc. R. R., 32 N. H. 523, 64 Am. Dec. 381. After the tender of freight to a consignee, the carrier is a mere bailee: Hull v. Missouri Pac. Ry. Co., 60 Mo. App. 593.
G. Removal or Unloading from Cars.—As we have just seen, the peculiar liability of a carrier is not terminated by the arrival at their destination of goods intrusted to it for transportation. The carrier still has complete control of the goods, and the owner is still in need of and entitled to the same protection as before. Hence, a railroad company is liable as a common carrier for freight destroyed by fire while standing unloaded in a car at its destination: Porter V. Chicago etc. R. R. Co., 20 ml. 407, 71 Am. Dec. 286. And placing the car within the freight depot does not alter the case: Chicago etc. Ry. Co. v. Bensley, 69 Ill. 630.
In the case of portable packages, at least, a carrier cannot terminate its responsibility, under ordinary circumstances, without remove ing them from the cars: Kirk v. Chicago etc. Ry. Co., 59 Minn. 161, 50 Am. St. Rep. 397, 60 N. W. 1084. Perhaps where the carrier is not expected in the usual course of business to remove the freight from its car, as in the case of grain in bulk, coal, lumber, and the like, it may terminate its liability as a common carrier by delivering
the car in a safe and convenient position for unloading at the elevator, warehouse or other place designated by the contract or required in the usual course of business, or, if no place of delivery is thus designated or required, in the usual and customary place for un. loading by consignees: Gregg v. Illinois Cent. R. R. Co., 147 Ill. 550, 37 Am. St. Rep. 237, 35 N. E. 343; Pittsburgh ete. Ry. Co. v. Nash, 43 Ind. 423. But its liability as carrier does not cease until it places the car at a safe and convenient place for unloading: Independence Mills Co. v. Burlington etc. R. R. Co., 72 Iowa, 535, 2 Am. St. Rep. 258, 34 N. W. 320. Moreover, it is believed that the carrier cannot assert its reduced responsibility, although the above cited Illinois and Indiana cases seem to lend themselves to a contrary interpretation, until the consignee has had a reasonable opportunity to remove the freight: Missouri Pac. Ry. Co. v. Wichita Grocery Co., 55 Kan. 525, 40 Pac. 899, citing Leavenworth etc. R. R. Co. v. Maris, 16 Kan. 333; Pindell v. Railway Co., 34 Mo. App. 675; Schen v. Benedict, 116 N. Y. 510, 15 Am. St. Rep. 426, 22 N. E. 1073; North Pennsylvania R. Co. v. Commercial Bank, 123 U. S. 727, 8 Sup. Ct. Rep. 266. In this Kansas case the freight in question consisted of two carloads of sugar, which were placed in the proper position for unloading on Sunday, and were consumed by fire before business hours Monday morning.
We shall see later on that there is a difference of judicial opinion on the effect of unloading freight at its destination and storing it in a warehouse in readiness for the consignee-some authorities holding that the carrier's liability as such is thereby terminated, and others holding that such liability does not necessarily then cease. Probably this diversity of opinion accounts for any discrepancy in the decisions that we are considering
this point. Recurring to the difference in the law where the freight consists of portable packages, rather than of cumbersome and unwieldy property, we quote from Kirk v. Chicago etc. Ry. Co., 59 Minn. 161, 50 Am. St. Rep. 397, 60 N. W. 1084: “We do not mean to lay down as an inflexible rule, applicable to all cases, that in order to terminato the carrier's liability the goods must be removed from the car and put into the carrier's freight-house. The nature of some kinds of goods, such as coal, lumber, and the like, precludes this. It is usual for the consignees themselves to unload and carry away these kinds of freight directly from the cars. It is also true, as suggested by de. fendant's counsel, that there is nothing to prevent a carrier, at least under special circumstances, from using the car as its warehouse for the storage of freight. But in the case of portable boxes or packages of valuable merchandise we think that, under ordinary circumstances, public policy requires that it should be held the inflexible rule that in order to terminate the carrier's liability he must remove the goods from the car in which they were transported and place them for safekeeping in his freight-house. We take notice of the fact that it is the general custom to do so with this class of goods, and to
deliver them to the consignees from the freight-room, and not from the
To allow the carrier to terminate his liability for such kinds of goods by any less formal and expressive act, would be against public policy. The unloading of cars may be, and often is, delayed for the mere convenience of the carrier; and to permit him in such cases to say that his cars constituted his warehouse for the time boing, and that if the goods had been called for they would have been delivered to the consignee, and therefore he is not liable for their loss, would inaugurate a very dangerous rule.”
Where the destination is a mere flag station, without any agent, depot, or warehouse, and this is known to the consignee, and is not un. reasonable in view of the circumstances, the liability of a railroad company of every sort terminates with the delivery of the freight (in this case a carload of corn) in its car on a sidetrack at its destination: South and North Alabama R. R. Co. y. Wood, 66 Ala, 167, 41 Am. Rep. 749.
d. Storage in Depot or Warehouse.—There is a long line of deci. sions to the effect that when goods are shipped by rail and arrive at their destination within the usual time for transportation, and are there deposited or stored by the railroad company in a place of safety and held ready for delivery to the consignee upon demand, he not being present to receive them on their arrival, the company's liability as a common carrier, in the absence of a contrary custom of trade as to delivery, ceases, and its liability as a warehouseman begins: Almand v. Georgia R. R. etc. Co., 95 Ga. 775, 22 S. E. 674; Porter v. Chicago etc. R. R. Co., 20 Ill. 407, 71 Am. Dec. 286; Chicago etc. R. R. Co. v. Scott, 42 Ill. 132; Merchants' Dispatch Trans. Co. v. Hallock, 64 Ill. 284; Rothschild v. Michigan Cent. R. R. Co., 69 Ill. 164; Cahn v. Michigan Cent. R. R. Co., 71 Ill. 96; Bansemer v. Toledo etc. Ry. Co., 25 Ind. 434, 87 Am. Dec. 567; Cincinnati etc. R. R. Co. v. McCool, 26 Ind. 140; Mohr v. Chicago etc. R. R. Co., 40 Iowa, 579; Thomas v. Boston etc. R. R. Co., 51 Mass. (10 Met. 472) 43 Am. Dec. 444; Norway Plains Co. v. Boston etc. R. R.,
67 Mass. (1 Gray) 263, 61 Am. Dec. 423; Hall v. Boston etc. R. R. Co., 96 Mass. (14 Allen) 439, 92 Am. Dec. 783; Rice v. Hart, 118 Mass. 201, 19 Am. Rep. 432; Gashweiler 'v. Wabash etc. Ry. Co., 83 Mo. 112, 53 Am. Rep. 558; Buddy v. Wabash etc. Ry. Co., 20 Mo. App. 206; Hillard v. Wilmington etc. R. R. Co., 51 N. C. (6 Jones) 343; Wardlow v. South Carolina R. R. Co., 11 Rich. (S. C.) 337; Butter v. East Tennessee etc. R. R. Co., 76 Tenn. (8 Lea ) 32; East Tennessee etc. R. R. Co. v. Kelly, 91 Tenn. 699, 30 Am. St. Rep. 902, 20 8. W. 312. Many of the above cases, those of Massachusetts and Tennessee, for example, are authority for the proposition that the mere storage of the goods without affording the consignee a reasonable opportunity to remove them, absolves the carrier from his extraordinary liabílity: See, also, the monographic note to Schmidt v. Blood, 24 Am. Dec, 147, 148.
e. Bemoval of Goods by Consignee. However, merely placing the goods in storage at their destination does not, in our opinion, reduce the carrier's liability to that of a warehouseman. Its liability as carrier continues, according to the sounder reason and the weight of authority, until at least such time as the consignee has had a reason. able opportunity to inspect the goods and take them away in the usual course of business: Graves v. Hartford etc. Steamboat Co., 38 Conn. 143, 9 Am. Rep. 369; Leavenworth etc. R. Co. v. Maris, 16 Kan. 333; Jeffersonville R. R. Co. v. Cleveland, 2 Bush, 468; Bell V. St. Louis etc. R. R. Co., 6 Mo. App. 363; Morris etc. R. R. Co. 1. Ayres, 29 N. J. L. 393, 80 Am. Dec. 215; Moses v. Boston etc. R. R. Co., 32 N. H. 523, 64 Am. Dec. 381; Blumenthal v. Brainerd, 38 Vt. 413, 91 Am. Dec. 550; Wood v. Crocker, 18 Wis. 345, 86 Am. Dec. 773; Parker v. Milwaukee etc. Ry. Co., 30 Wis. 689. This doctrine applies both to carriers by rail and to carriers by water. But the consignee must act with reasonable expedition. If he fails within a reasonable time and after a fair opportunity to take charge of the goods, the carrier's liability becomes that of a warehouseman only: Mobile ete. R. R. Co. v. Prewitt, 46 Ala. 63, 7 Am. Rep. 586; Western Ry. Co. v. Little, 86 Ala. 159, 5 South, 563; Gregg v. Illinois Cent. R. R. Co., 147 Ill. 550, 37 Am. St. Rep. 238, 35 N. E. 343; Union Pac. Ry. Co. v. Moyer, 40 Kan. 184, 10 Am. St. Rep. 183, 19 Pac. 639; Derosia 5. Winona etc. R. R. Co., 18 Mínn. 133; Goodwin v. Baltimore etc. R. R. Co., 58 Barb. 195; Tarbell v. Royal Ex. Shipping Co., 110 N. Y. 170, 6 Am. St. Rep. 350, 17 N. E. 721; Draper y, Delaware etc, Canal Co., 118 N. Y. 118, 23 N. E. 131; Missouri Pac. Ry, Co. v. Haynes, 72 Tex. 175, 10 S. W. 398; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 319.
What is a reasonable time for the removal of goods by the consignee from a station or warehouse after their arrival is a question of fact, under all the circumstances, for the jury to decide, unless the facts are undisputed, and then it is a question of law for the court: Laporte v. Wells, Fargo & Co., 48 N. Y. Supp. 292, 23 App. Div. 267; Berry v. West Virginia etc. R. R. Co., 44 W. Va. 538, 67 Am. St. Rep. 781, 30 S. E. 143. It is such a time as would give one residing in the vicinity of the place of delivery, and informed of the usual course of the carrier's business, a suitable opportunity within business hours to come anil inspect the goods and take them away: Derosia v. Winona etc. R. R. Co., 18 Minn. 133. In determining the question the convenience or necessities of the consignee, and the proximity or remoteness of bis residence or place of business from the depot are not to be taken into consideration: Columbus etc. Ry. Co. v. Ludden, 89 Ala. 612, 7 South. 471. And he cannot defer taking the goods in order to attend to his other business. He must act promptly after notice of their arrival: Hedges v. Hudson River R. R. Co., 49 N. Y. 223. Failure to remove them for two days after knowledge of their arrival, because of inability to secure the services of city draymen, exonerates the carrier from liability for their ac