| Mo. | Oct 15, 1866
delivered the opinion of the court.
This action is brought to recover the value of goods of the plaintiff, which were received by the carrier at Sedalia to be transported on the railroad and delivered to the plaintiff at St. Louis.
On the arrival of the train at Jefferson City the cars in which the plaintiff’s goods were carried were detached from the train and left there for one day, and other cars were taken up in their place and carried through safely to St. Louis in that train, and upon the arrival of those cars which had been left, at Miller’s Landing, on the train of the next day, the whole train was burned by the public enemy and the plaintiff’s goods were lost. The petition goes upon the ground that the defendant had failed to transport and deliver the property according to contract. The defence was that the goods were lost by the act of public enemies, for which the defendant was not responsible. That the defendant was not liable for a loss arising from that cause alone may be taken
Much was said upon the argument in reference to the order-of priority in which the carrier was' bound to receive and transport goods offered for transportation on the railroad, and it was urged that in making up the train at Jefferson City the defendant had no right to leave cars out of the train which had arrived there and take up other cars at that place in their stead. There not being engines enough to carry forward the whole in the same train that day, two or three cars containing the plaintiff’s goods were left, and two or three other cars loaded with hemp and tobacco were taken into the train and went safely through. This arrangement was made by the conductor. It does not appear for what special rea-, son this was done, further than that all the cars could not be taken and that the conductor saw proper to take those which were taken. It does not appear whether the cars which were thus taken up at Jefferson had arrived there on a previous train from the west, or were cars which had been loaded with goods received for transportation at that station, nor what was the order of preference, if there was any, in point of time, as between the goods received at Sedalia and those received at Jefferson City. So far as this question of priority is concerned, there was nothing in the evidence to show that the one set of cars had any preference or priority in the order of time over the other. Nor do we think this matter was at all material to the determination of the case. The conductor did not know what the cars which were left behind contained. He appears to have acted solely upon his own judgment and discretion in making up and forwarding the train. Nothing to the contrary appearing, it may be presumed that he performed this duty in a proper manner.
There is really no question of priority in the case. • The complaint is not that the plaintiff’s goods were not received
The ground of the complaint is not that the plaintiff lias been damaged in consequence of the negligence or inexcusable delay in respect to the time of delivery, but that the goods were never delivered at all; and the reason assigned for that is, that the property was destroyed by the public enemy and by a cause for which the defendant is not responsible.
It-is said that if the cars had gone forward on that day they would have arrived in safety, and that, therefore, the defendant is responsible for the loss which happened. The carrier was not bound to keep the cars moving onward in the same train at all events. In respect to the time of delivery, the defendent was responsible only for due diligence, and was only bound to transport and deliver the goods in a reasonable time and without unnecessary delay — Parsons v. Hardy, 14 Wend. 215" court="N.Y. Sup. Ct." date_filed="1835-10-15" href="https://app.midpage.ai/document/parsons-v-hardy-5514555?utm_source=webapp" opinion_id="5514555">14 Wend. 215. The evidence fails to show any unreasonable and unnecessary delay for which the defendant might have been held liable if any damage had been thus occasioned. But even if the delay were inexcusable, it was not the cause of the loss. There was no relation of cause and effect between that delay and the destruction of the goods by the public enemy. , Tile lo'ssywas consequential on the delay in no other spnSe than that of-being merely subsequent in time. The good's* arrived safely'on the next day at Miller’s Landing. No damage”had''iheeii;' done by that delay. Then the act-of the public enemy destroyed the property. It was this act that occasioned1-the loss. As to the delay it was at most
It is a principle of the law of damages that they must be the natural and proximate consequence of the act complained of— Sedg. on Dam. 65 ; 2 Greenl. Ev. §§ 254, 256 ; Ang. Carr. § 201.
Though the act of God or of the public enemies be in itself alone a good defence, yet if the loss be directly brought about by reason of the negligence or want of proper care and foresight of the party himself, it would not excuse him. In such case the negligence or want of reasonable care and foresight might be deemed the proximate cause of the damage— Broom’s Max. 105 ; 2 Greenl. Ev. § 219. And if it had been made to appear that the conductor knew of the immediate presence of the hostile forces, and had reason to believe that his train would go through safely on that day, but that there was danger that the train would be attacked and destroyed on the next day, and that he had for that reason left the plaintiff’s goods behind and taken other goods instead to make sure of their safety, and had then without reasonable care and foresight proceeded with the plaintiff’s goods on the next day in the face of the impending danger, there might have been some ground on which the defendant could be held liable — 2 Pars. Contr. 456, 1st ed. But in the case made here we are clearly of the opinion that the defendant was not responsible.
We conclude, therefore, that tb ***” nn giving the defendant’s instructions, andmapffin refusing tpose asked for by the plaintiff'. \k>; ’ _ •
Judgment affirmed.