66 Vt. 290 | Vt. | 1893
The controlling facts found by the county court are : That the grain for the loss of which recovery is sought, came to the defendant from the Ogdensburg Transportation Co., shipped by wholesale dealers from Chicago, on bills of lading running to the order of the shipper; that the plaintiffs purchased the bills of lading, usually, after the grain had arrived at Ogdensburg, and had been received by the defendant into its elevator; that the bills of lading, among other things, provided that the Ogdensburg Transportation Co., and any other common carrier, in the line oí transportation, should not be liable for any loss by “fire, while afloat, in transit or in store, at any place of shipment, transhipment, station, delivery, or on board of boat or cars, * * * unless * * caused by the negligence of the person or party sought to be made liable” ; that the grain was destroyed while in the elevator of the defendant at Ogdensburg, by a fire, which occurred without the negligence of the defendant; but that, if the defendant had acted upon
I. That, under our decisions, Farmers’ and Mechanics’ Bank v. Champlain Trans. Co., 23 Vt. 186; same case, 18 Vt. 131; Kimball v. Rut. & Burl. R. R. Co., 26 Vt. 247; Blumenthal v. Brainerd et als., 38 Vt. 402; Mann & Wheeler v. Birchard & Page, 40 Vt. 326; Hadd v. Express Co., 52 Vt. 335; Gillis v. Telegraph Co., 61 Vt. 461, and, as held generally by courts of last resort, a common carrier may, by contract, limit his common law liability for goods* entrusted to him, so far as in the eye of the law will be considered reasonable ; but that it is unreasonable to •allow such a servant of the public to contract for relief .against his own negligence. Usage may amount to such .limitation, 18 Vt. 131. Notice, unless brought distinctly to the knowlegdge of the consignor in such a manner that the law will imply his assent to the limitation contained in the notice, will not be considered as entering into and forming a part of the contract. Bills of lading are contracts, or receipts and contracts. The carrier thereby acknowledges the receipt of the property to be carried, states the conditions on which he is to carry the property, the person to whom and the place where delivery is to be made, and the rate or compensation for the carriage. This he delivers to the consignor as evidence of the contract between them. By receiving the bill of lading the consignor assents to the terms of the consignment contained in it, and becomes bound thereby, so far as the conditions named are reasonable in the eye of the law. In Farmers’ and Mechanics’ Bank v. Champlain Transportation Co., supra, 206, this court said, in speaking of a contract that would limit the common law liability of common carriers : “This express contract ought,
Where the bill of lading is received by the consignor without objection, and nothing is shown to the contrary, the law presumes he accepts it and becomes bound by its terms, as the contract for the carriage of the goods receipted for, and if limitations are imposed upon the common law liability of the carrier, that he consents to them and is bound by them, so far as they are, in the eye of the law, reasonable. Nothing is found why the consignors named in the bills of lading, receipting for the grain lost, did not consent to the conditions set forth in them. The plaintiffs came into the rights of the consignors by an assignment of the bills of lading. Thereby they became the consignees of the grain. As such they took the rights of the consignors, to whose
II. But it is contended that the delay or negligence of the defendant in not removing the grain as speedily as the county court has found that it ought to have done renders the defendant liable. It is evident that the fire was the immediate, proximate cause of the destruction and loss of the grain. If the fire had not occurred, or if that cause is eliminated, the grain would not have been lost. The causa causans was the fire. The concomitant incident was the delay by the defendant in removing it from the elevator. But that delay would not have destroyed the grain and caused its loss if the fire had not intervened. It is generally held that a common carrier is liable on the ground of negligence only when that negligence is the proximate cause of the loss. On this subject, and on what is the proximate and what the remote cause, these authortities are helpful. Bohen v. City of
But courts differ in holding the carrier liable, when his delay is the remote cause of the loss, and a proximate cause exists therefor, for which he is not liable. Courts of last resort holding the carrier liable in such cases, are those of New York, followed by those of Missouri and Illinois. Holding that the carrier is not liable for such remote cause are the courts of United States, Massachusetts, Pennsylvania, Ohio, Michigan, "West Virginia and Iowa. The cases of these states, fro and con, can be found collected in a note to Norris v. Savannah, etc., Ry. Co., 23 Fla. 182 (11 Am. St. R., 355). To the last named class, apparently, should be added, the courts of Nebraska and of Maine. McLary v. Sioux City and Pa. R. R. Co., 3 Neb. 44 (19 Am. R., 631); O’Brien v. McGlinchy, 68 Me. 557.
In some of the cases cited holding the carrier liable another element existed in addition to the delay of the carrier in moving the goods to their destination, to wit. : the exposure of the property to the action of the elements which was observable to the carrier, like freezing, or the want of food and care when the property consisted of live animals. When the property is of a kind liable to injury or destruction by such exposure, whether moving the property with due despatch or delaying so to move it, the carrier is under a duty to use common prudence to protect the property from dangers which are known to him to exist, and which have come expectedly or unexpectedly, and if the danger came without his fault he may charge for the extra care. Beckwith v. Frisbe, 32 Vt. 559.
Some of the cases holding the carrier for delay might
In Templeton v. Montpelier, 56 Vt. 328, the proximate cause of the plaintiff’s injury was the failure of the town to erect a proper guard rail on the side of its highway; the remote cause, the fright of the plaintiff’s horse, at that point, by a train of cars on the railroad running near the highway. The plaintiff knew that, by going that road, he was liable to encounter a train of cars, and that there was another highway to his place of destination, equally feasible, which would not bring him near a moving train of cars. The referee found that the plaintiff was negligent in using the highway on which he was injured. This court held that the plaintiff’s negligence was only remotely connected with his injury, and that it did not contribute to its proximate cause, and for that reason did not. defeat his right of recovery.
This conclusion, in principle, is the same as that reached by the courts which hold that the earner is not liable where his only fault is that of delay to move the consigned goods with such rapidity as the trier might consider reasonable. We think it is the better conclusion that, in such cases, if the proximate cause of the loss arises in such a manner that it will not support an action, neither will the remote cause, though incidental to the proximate cause. If the proximate
Judgment reversed and judgment for the defendant to recover its costs.