small stations where there is no warehouse or freight agent to look out for the arrival of goods and take charge of their parcels when they are set down from the train the carriers are relieved from all responsibility as to the goods carried after their arrival at the station and they are then at the risk of the consignee.1 Delivery. 110. If a common carrier attempts to deliver goods to a consignee and fails, and then gives notice to the consignor that the goods would be held at his risk, their liability as common carriers ceases and they become liable only as warès housemen. But in such a case if it appears that the goods could be neither produced nor accounted for, the implication of negligence rests upon the carrier as warehouseman and the consignor may recover the value of the goods.5 It is essential to the establishment of liability as a common carrier for the loss of goods to show delivery to the carrier at a customary place, during the usual business hours and to an authorized agent. A delivery to a railroad warehouse about dark and after it was closed and locked for the night by plaintiff's agent, by opening the upper door and putting the goods in, there being no one in charge, does not show such delivery as will charge defendants as a common carrier nor as a warehouseman without affirmative proof of some act of negligence on the part of defendant." Delivery to Wrong Person. III. Where a railroad company has negligently permitted the wrong person to take goods from its station, and it appears that the goods had been consigned by the shippers to themselves but for delivery to a purchaser and it also appears that the purchaser had paid for the goods partly in advance and partly by lifting a draft attached to the bill of lading, the railroad company after settling for the loss with the purchaser, 4 Allam v. Pennsylvania R. R., 183 Pa. 174 (1897), reversing 3 Super. Ct. 335 (1897); 18 Pa. C. C. R. 65 (1896); 5 Dist. 54 (1896.) 5 Koch v. National Express Co., 1 Lacka. 289 (1895.) may take an assignment of his claim and use his name in a suit for the company's use against the person who had wrongfully taken the goods. A shipping receipt provided that: "The acceptance of this receipt for goods made subject to the provisions of the bill of lading of this company makes this an agreement between the Merchants Despatch Transportation Company and the carriers engaged in transporting said goods and all parties interested in the property." Suit was brought by plaintiffs against the Merchants Transportation Company for alleged mis-delivery of goods which were consigned to Robinson, of Tyler, Texas, and which were delivered to Michell & Co., at Dallas, Texas. It was held that the bill of lading furnished by the defendant to the plaintiff should be received in evidence and that the facts relating to the delivery of the goods by the defendant to the consignee should be submitted to the jury.8 A common carrier cannot be charged with negligence in the delivery of goods where it appears that the carrier company. delivered the goods to the man to whom they were sent, and whom the company was induced by the acts of the shipper in dealing with him (by sending to him the bill of lading) to believe was the man to whom the shipper intended to send them." Delivery by Express Companies. 112. When a shipment arrives at its destination and inability to deliver arises from lawful cause, it is not the law that the carrier is bound promptly to redeliver the shipment to the consignor and cannot set up any excuse for its failure to do so. An express company is bound to use due and reasonable diligence in the care and delivery of an article intrusted to it, but if the consignor for its own reasons, sees fit not to put his name or address on the package, and in spite of diligent inquiry the carrier is unable to discover who the consignor is, the court 7 Breisch v. Leitzel, 22 Super. Ct. 25 (1903.) 8 Goodman v. Merchants Despatch Transportation Co., 3 Super. Ct. 282 (1897); Goodman v. Merchants Despatch Transportation Company, 6 Super. Ct. 168 (1897.) 9 Seibert v. Philadelphia & Reading Ry., 15 Super. Ct. 435 (1900.) cannot declare as a matter of law that the failure promptly to notify him is negligence.10 Connecting Carriers. 113. Where goods were destined to a point beyond the carrier's line, and the contract provided that there should be no liability for damage not occurring on its own road, the first carrier is not liable for acts done by the second carrier after delivery of the goods to the second carrier.11 A common carrier is bound to exercise reasonable diligence in forwarding freight, having regard to its character and his facilities for transportation. The fact that a connecting carrier to whom it is to be transferred may be unprepared to continue the transportation with due promptness, will not excuse a neglect to observe such diligence. The obligation of the first carrier is in no sense contingent on the readiness or liability of the second to act in the premises. It is for him to discharge his own obligation, as it arises and he cannot be relieved from default therein by any default of the other.1 12 In Hughes v. Pennsylvania R. R. Co.,13 a contract which was made in New York for the transportation of a valuable horse to a point in Pennsylvania contained a stipulation that the liability of the initial carrier and any connecting carrier should be limited to an amount not exceeding one hundred dollars. The court held that the limitation, although good in New York, would not be sustained in favor of a connecting carrier in Pennsylvania upon whose line the horse was injured. Potter, J., said: "Where a contract containing a stipulation limiting liability for negligence is made in one State, but with a view to its performance by transportation through or into one or more States, it should be construed in accordance with the law of the State where its negligent breach causing injury occurs. If such a contract comes under construction in this State, whose policy prohibits such exemption and the injury has taken place 10 Walsh v. Adams Express Co., 15 Super. Ct. 292 (1900.) within the limits of the State the contract will be declared null and void. A bill of lading contained a clause that "no carrier shall be liable for loss or damage not occurring on its own road," accordingly where it was shown that it was the custom of two railroad companies in the transfer of freight at a connecting point to place the cars containing the freight upon a certain track during the night and to check the freight jointly the next morning before delivery to the connecting carrier, the connecting carrier cannot be held responsible for a loss discovered in the morning when the joint checking of the freight in the cars took place and which occurred after the car containing the freight was placed upon the proper track and before delivery of the freight to the connecting carrier. 14 Railroads that are not parallel and competing may enter into a traffic agreement by which goods are shipped from one road to another without rebilling, through coupon tickets sold to passengers and trains run in close connection. 15 Seizure of Goods by Legal Process. 114. Where the parties to a transfer of a bill of lading know that the property has, prior to the transfer, been by legal process taken from the possession of the carrier, the indorsement and delivery of the bill of lading does not operate as a transfer of the possession of the property. A contractor agreed to sell nineteen flat cars and to deliver them at a designated point, further agreeing to put the cars at his expense in such shape that they would be accepted by a railroad company for shipment. The vendor procured a bill of lading for the nineteen cars made to the order of himself, "notify consignee," named, who were the vendees. The bill of lading was duly indorsed and was attached to a draft and mailed to the consignees. Subsequently the railroad company notified the contractor that four of the cars were not in a condition to be accepted. The contractor thereupon paid the company money for the repair of the cars and they were sent to the 14 Adler v. Pittsburg & Western Ry. Co., 29 Pitts. 409 (1899.) 15 Cumberland Valley R. R. v. Gettysburg & Harrisburg Ry., 177 Pa. 519 (1896.) repair yard while the other fifteen cars were forwarded in accordance with the terms of the bill of lading. Before the repair of the four cars were finished they were levied upon by the sheriff as the property of the contractor. When the fifteen cars reached their destination the consignees were informed of the execution levied upon the four cars and they thereupon entered into an agreement with the contractor by which they accepted the fifteen cars and paid a portion of the draft, and agreed to pay the balance when the four cars were delivered; it was held that the consignees named in the draft had no title to the four cars as against the plaintiff in the execution. 18 Bills of lading are symbols of property and when properly indorsed and delivered operate as a constructive delivery of the property itself which serves all the purposes of an actual possession. When according to the terms of the bill of lading the property is to be delivered to the order of the consignor the carrier becomes the agent of the consignor for the purposes of transportation and the possession of the agent is the possession of the consignor. When the consignor indorses and delivers the bill to another it works a constructive transmutation of possession and the carrier who was agent for the consignor becomes the agent of his indorsee. There must, however, be an actual possession of the property in the agent in order to sustain a symbolic delivery by the principal.17 Where goods consigned to a consignee were uncalled for and the carrier stores them in its warehouse, where they were levied upon as the property of the consignee and while subject to such levy part of the goods were stolen, the consignor upon demand of the goods, upon proof of ownership, can only recover the goods which the carrier refused to deliver to the consignor on the demand made after the theft.18 Notice to Consignee. 115. Although as a general rule a common carrier must give notice of the arrival of goods to the consignee still he may modify his liability so far as to provide that notice of the ar 16 Storey v. Hershey, 19 Super. Ct. 485 (1902.) 17 Storey v. Hershey 19 Super. Ct. 485 (1902.) 18 Frank Bros. v. Central R. R. of New Jersey, 9 Super. Ct. 129 (1898.) |