86 Vt. 342 | Vt. | 1913
This is case for damage to green'skins of small wild animals occasioned, by delay in delivering to the consignee in New York City to which they were shipped from Newport, Vt.
The plaintiff demurs to this plea (1) because it does not appear that his attention was called to said agreement at, the time of shipment; (2) because the limitation therein relating to strikes is unreasonable in law; (4) because said strike was among employees other than the defendant’s; and (6) because, if the police force refused to assist as alleged, it must be presumed as matter of law that the defendant or its employees were the instigators rather than the victims of the alleged disorder.
The third and the fifth grounds of demurrer need not be noticed, as they go only to the right of the defendant to stipulate against its own negligence, which stipulation is not involved in the other 'grounds of demurrer. Nor do we further notice the fourth and the sixth grounds, as they are not briefed.
• The question is, then, whether it was competent to the defendant to limit its liability as stipulated in respect of strikes, mobs, and riots. This depends upon whether the limitation is just and reasonable in the eye of the law, and not inconsistent with public policy. If both, it was competent; otherwise, not. Davis & Gay v. Central Vt. R. R. Co. 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852; Sprigg’s Admr. v. Rutland R. R. Co. 77 Vt. 347, 60 Atl. 143. This is settled law, as held in Express Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556, and shown by the cases generally. And that it was competent cannot be .doubted, for the stipulation does not materially differ from the law, but is substantially the same as the law, by which as to the mere matter of delay in delivery, the carrier is not an insurer, but only a bailor, with the duty to deliver within a reasonable time in the circumstances, and though temporary interruptions and obstructions that cannot be overcome with proper care and effort will excuse delay, yet they will not relieve from the duty of delivering as soon as practicable after they are removed. This is too well settled to need the citation of cases. And interruptions and hindrances caused by strikes and mob violence are among those that excuse. This, too, is well settled, but we will, nevertheless, refer to some of the cases that hold it. Gulf etc. Railway Co. v. Levi, 76 Texas, 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45, is a leading case on this subject. There, on reargument; the court reversed its former decision of the case, and held that when, as there, the goods are actually transported and delivered, but the time of delivery is delayed by mobs, strikes, or other causes not under control of the carrier, the delay is excused.
So in Pittsburgh etc. R. R. Co. v. Hazen, 84 Ill. 36, 25 Am. Rep. 422, it is held that the plaintiff was not liable for damage to
In Grismer v. Lake Shore etc. R. R. Go. 102 N. Y. 563, 7 N. E. 828, 55 Am. Rep. 837, it is held that in the absence of special contract, there is no absolute duty resting upon a railroad carrier to deliver goods intrusted to it within what, in ordinary circumstances, would be a reasonable time; that not only storms and floods and other natural causes may excuse delay, but that the conduct of men may also excuse it; that an incendiary may burn a bridge, a mob tear up the tracks, disable the rolling stock, or interpose irresistible force or overpowering intimidation, in which cases the only duty resting upon the carrier not otherwise in fault is, to use reasonable efforts and due diligence to overcome the obstacles and forward the goods. There the defendant had employees who were ready and willing to manage its train and forward the goods, but they were prevented therefrom by mob violence that the defendant could not by reasonable efforts overcome, and it was excused. The doctrine of this case is approved and applied in Haas v. Kansas City etc. R. R. Co. 81 Ga. 792, 7 S. E. 629.
So it is held in Lake Shore etc. R. R. Co. v. Bennett, 89 Ind. 457, that where delay in transportation of' stock is caused, not by the negligence nor wrongful act of the carrier nor its employees, but solely by the violence and riotous conduct of a lawless mob that the carrier and the civil authority are unable to resist and control, the carrier is not liable for damages resulting from the delay.
The pro forma judgment sustaining the demurrer and holding the plea insufficient is reversed, the demurrer overruled, the plea adjudged sufficient, and the cause remanded.