delivered the opinion of the court.
The defendants were the contractors for the construction of the Hannibal and St. Joseph Railroad, and used so much of the road as was finished in running cars for transporting materials for the work and in carrying passengers and freight
It is not necessary for us, in the decision of this case, to determine the legal effect of the notice which the defendants gave the public, nor whether they were common carriers, for, whether they were such or not, the notice would not excuse them from loss occasioned by their negligence or want of ordinary care, and beyond that, in this case, they are not liable. Assuming, however, that they were common carriers, the fair construction of the contract is that they undertook to carry the hemp safely to the terminus of the railroad, and there to deliver it on board of a steamboat to be transported to St. Louis ; and the contract subjected them to the liability of common carriers until the hemp reached the point where it left the road, and then to the liability of forwarders for storage and delivery to a steamboat. (Pierce Railroad Law, 451.) Both duties were embraced in one contract for hire, and, although there was no separate charge for taking care of the hemp after it reached Hannibal, and for shipping it to St. Louis, yet the freight, which the plaintiffs were bound to pay, covered the compensation for the whole services,' for the storage and forwarding as well as for the carriage. The contract imposes distinct duties, for a failure in which the defendants were subjected to two separate liabilities in different degrees of responsibility; first, that of common carriers, and next, that of warehousemen and forwarding agents. (Sto. Bail. § 446.) As common carriers they were, to a certain extent, insurers of the hemp as long as it was in tran-situ, subject only to the exceptions which will excuse a delivery, arising either from the act of God or from the public enemies. But after the hemp reached the terminus of the road and was removed from the cars, a different and less
It was the duty of the defendants to exercise ordinary care, skill and diligence in preserving the hemp after it was taken from the cars; and in determining what is reasonable care, the nature of the commodity, its liability to injury from exposure to rain, the kind of weather at the time it arrived, the usual mode of storing or piling on the levee, and the ordinary manner of protecting such property out of doors, are circumstances to be considered by the jury; for what would be deemed ordinary care in reference to lead, pig-iron, or other articles of commerce not easily injured by exposure, would be gross negligence in reference to flour, grain, hemp or other produce affected by dampness and requiring greater attention. When the plaintiffs delivered the hemp to the defendants, they had a right to expect that they would deal with it in good faith and take reasonable care of it, and they must answer for any loss the plaintiffs have sustained for the want of ordinary care on their part.
The other judges concurring, the judgment will be reversed and the cause remanded.