carry safely unless prevented by the act of God or of the public enemy. It may, however, be limited by special contract or by notice to which the law imputes contractual effect. When this defence is made the burden of proof is on the carrier.24 Duties as Forwarders. 118. As to a common carrier's ability to forward freight with due diligence nothing is to be assumed; and since there is no fixed standard by which the carrier's duty is to be measured it cannot be declared as a matter of law. When, therefore, cattle have been delayed in transportation, the questions whether they were transported with reasonable dispatch and if not, whether injury arose from default in transportation, or in the mode of keeping them, while in the carrier's care, are questions for the jury.25 Bills of Lading. 119. Where a bank holding a bill of lading does not notify a railroad company of the existence of a bill of lading, and permits purchasers of the goods to assume the position of consignors, and to direct the movement of the goods, the bank cannot hold the railroad company for any resulting loss. A bank received a bill of lading made out to the order of the consignors with a draft attached drawn on the purchasers of the goods covered by the bill of lading. The bill of lading contained a direction to notify the purchasers. The latter drew a new draft upon a person to whom they proposed to sell the goods, and this draft was discounted by the bank, and the proceeds credited to the purchasers, who drew a check for the amount of the original draft and delivered the check to the bank. The person on whom the second draft was drawn failed to take the goods, and the purchasers sold them to other parties to whom they directed the railroad company to deliver the car. The purchasers never paid the second draft. The railroad company had no knowledge of the bill of lading. 24 Menner & Co. v. Delaware & Hudson Canal Co., 7 Super. Ct. 135 (1898.) 25 Alexander v. Pennsylvania R. R., 7 Super. Ct. 183 (1898.) It was held that the railroad company was not liable to the bank for the goods.26 Demurrage. 120. A railroad company has a right as a common carrier to make reasonable rules to speed the unloading of its cars. It is a reasonable regulation of a railroad company, as a common carrier, to provide by its rules, that "a charge of one dollar shall be imposed for car service for and upon each car carried over any portion of its line of railroad not unloaded by the consignee within forty-eight hours from the time said car arrived at the destination thereof, ready for delivery to such consignee for each day or part of day after said forty-eight hours, not including Sundays and legal holidays, during which said car should remain unloaded, the said charge being payable by the consignee or person receiving the car." In an action of assumpsit by a railroad company to recover demurrage for the detention of cars where the defendant's statement contains a complete copy of its accounts giving car initials, number, contents, exact hour of arrival, date of release, number of days detained and amount of charge, an affidavit of defence is insufficient which shows on its face that the defendant had accurate accounts of the movements of the cars and which merely avers that the detention of a large number of cars caused by reloading was embraced in the charge of delay in unloading without specifying the cars thus detained by a reloading. In such a case the defendant cannot allege as a defence to the railroad company's demand for demurrage that it had no knowledge of the regulation relating to demurrage where it appears that by defendant's own admission bills for violation of the rule had been regularly rendered for months.27 Insurance. 121. Where a shipper of goods has voluntarily insured 26 National Bank of Phoenixville v. Philadelphia & Reading Railway, 163 Pa. 467 (1894.) 27 Pennsylvania R. R. v. Midvale Steel Co., 201 Pa. 624 (1902), reversing 9 Dist. 181 (1900.) them, and after their loss has collected the amount of the policy, and the bill of lading contained a clause to the effect "that the carrier shall have the benefit of any insurance that may have been effected upon or on account of such goods," the carrier may deduct from the total amount of the loss the amount of insurance money which the shipper had received. Thus a shipper of goods insured her goods with an insurance company in the sum of $2,000 against damage to the goods while in transit. The goods were damaged while in transit and the loss fixed at $1,700. The shipper collected from the insurance company the amount of insurance due under the policy, viz., $809.52, and receipted for this amount as a loan to be returned to the company if the amount of the loss should be recovered from the carrier; it was held in an action by the shipper against the carrier that the question whether the payment by the insurance company was really a loan or an adjustment of the loss, was for the jury, and that a verdict obtained by deducting the amount of the insurance ($809.52) from the total loss would be sustained.28 Who May Maintain Suit. 122. Where the right of property is not divested, the consignor can maintain suit, for he is the person who has sustained the loss, if any by the negligence of the carrier.29 28 Roos v. Philadelphia, Wilmington & Baltimore R. R., 199 Pa. 378 (1901), affirming 13 Super. Ct. 563 (1900.) 29 Turner & Co. v. Central R. R. of N. J., 11 Kulp 178 (1901.) CHAPTER XVIII. 123. What Constitutes Baggage. What Constitutes Baggage. BAGGAGE. 124. Limitation as to Value. 123. Baggage includes such articles of necessary or personal convenience as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in trunks by passengers which are not designed for any such use, but for other purposes such as sale or the like, accordingly where a passenger carries with her own personal clothing, an embroidered table centre-piece of her own and a dress belonging to her mother, and the baggage is lost, there can be no recovery for either the centre-piece or dress.1 Limitation as to Value. 124. A railroad company issued an excursion ticket in the form of a paper of some size, setting forth on its face, clearly, prominently and legibly a limitation of liability as to baggage "unless special agreement be made." It was held that the passenger in accepting the ticket will be presumed to have read it, and will be bound by the limitation, if such limitation is reasonable.2 1 Bullard v. Delaware, Lackawanna & Western R. R., 21 Super. Ct. 583 (1902.) 2 Jacobs v. Central R. R. of New Jersey, 208 Pa. 535 (1904.) In this case Justice Brown said: "Whether one who accepts a contract of carriage is conclusively presumed to have assented to its terms, and is bound by them, whether he reads them or not, as has been held by courts of high authority, is not the question now before us. It will be found discussed in Fonseca v. Cunard Steamship Co., 153 Mass. 553,* and the cases there cited. In the absence of proof to the contrary, the presumption is that the appellant read the ticket, to the character of which attention has been called. While in no one of our own cases brought to our attention by counsel for appellee, or which we have been able to find has the question of this pre129 The limitation of liability to one hundred and fifty pounds of baggage at one dollar per pound, unless a special agreement is made, is not an unreasonable one.3 sumption been passed upon, yet that it does arise seems to have been recognized in Penna. Central R. R. Co. v. Schwarzenberger, 45 Pa. 208. In that case the passenger purchased a ticket from Philadelphia to Cincinnati. On the face of it there was printed: 'In selling this ticket for passage over road west of Pittsburgh, the Pennsylvania Railroad Company acts only as agent for the western lines, and assumes no responsibility west of Pittsburgh.' The passenger's baggage was lost beyond Pittsburgh. There was no evidence that Schwarzenberger had read his ticket. The court, through Strong, J., in speaking of the contract between him and the railroad company, said: 'But contemporaneously with the receipt of the fare, and as evidence of the contract into which they entered, they gave to the plaintiff a ticket, informing him that they assumed no responsibility for his carriage, and of course, for the carriage of his baggage beyond Pittsburgh. They notified him that they acted only as agents for the carriers, whose route extended westward from Pittsburgh, and not at all for themselves. With this express disclaimer of personal liability, there is no possibility of implying an engagement.' “If, then, the appellant read, as she is presumed to have done, what was printed on the face of her ticket, she knew the terms upon which she purchased it. She was distinctly notified that the baggage which the appellee would carry for her was limited to 150 pounds in weight and in value to one dollar per pound; but she was notified still further that, by special agreement with the company, its liability would not be so limited, for the limitation is followed by the words: 'Unless special agreement be made.' Without additional compensation, her baggage, limited in amount and value, would be carried; for additional compensation, by 'special agreement,' she could have it carried without the limitation imposed which had been brought to her notice and assented to by her by her acceptance of the ticket: Crary v. Lehigh Valley R. R. Co., 203 Pa. 525. She did not avail herself of her right to make a special agreement by which her baggage, at its full value, would have been carried by the railroad company, and she is, therefore, bound by the reasonable limitation placed upon its liability, for it contravenes no statute, violates no duty to the public and was brought distinctly to her notice." 3 Jacobs v. Central R. R. of New Jersey, 208 Pa. 535 (1904.) |