69 Pa. 374 | Pa. | 1871
The opinion of the court was delivered, October 30th 1871, by
The important question of this case is, whether the common liability'bf common carriers, in its application to carriers by rail, has been or is subject to be modified by usage or custom. That it has been materially modified in its application to the mode of carrying from what it was and is, under the old modes of transit by wagons or by water-craft, every one knows. By the former, the carrier’s liability only ceased with a delivery of the goods to the person, or at the residence or place of business of the consignee; and by the latter, on giving.notice of their arrival at the usual place of delivery to the consignee, and care of j the goods for a reasonable time to enable him to take them away. Custom has modified this, as is shown in 2 Red. on Railways 51, 52; 5 Dutcher (1 N. J.) 393; 10 P. F. Smith 109; manifestly because of the inapplicability of the old system to the new mode of transit. Every day the old rule is being gradually modified by contract, usage or notice, to fit it to the new order of business in that line. Indeed, the whole system of the law of common carriers grew out of customs moulded into form and made practical by the courts in England, and hence for a long time, when suits were brought against persons engaged in the carriage of goods and merchandise, the action was called an action upon the custom of the realm. In modern times the practice is to sue upon the contract. It would be strange if the process of improvement by custom and usage is to stop just here and go no further. I regard it as a matter not debateable at this day, that a custom so long persisted in as to be known and practised by a community, shall not be
On the 8th of August 1868, the plaintiff bought a barrel of sugar at the city of Pittsburg, and directed his merchants to ship it to him at Turtle Creek, a way-station on the defendants’ road, some dozen or fourteen miles from the city, the next day. They did so, and paid freight, but the plaintiff never got the sugar, although he sent for it, but from the evidence most likely not on the day it was shipped, but on the second day. It became a question, therefore, on the trial, whether the defendants’ servants actually delivered the sugar on the platform of that station on the day it should have arrived there. The verdict of the jury was a finding that it was so delivered as stated by defendants’ witnesses.
The defendants had no warehouse at that place, and gave no notice to the consignee that the sugar had been delivered at that place, but insisted that it was the custom for consignees to be present themselves, or by somebody for them, to receive goods shipped for them by rail to that place. This custom was testified to by the plaintiff himself, and also by the conductor of the local. freight-train, and the proof was not at all controverted. Was this uncontroverted custom sufficient excuse for the want of ware-. housing, and of notice to the consignee by defendants? The learned judge thought it was, and so instructed the jury, and there was a verdict for the defendants. In other words, he held a delivery on the platform a good delivery under the custom.
That a custom or usage will control the general law of liability of carriers is shown by many cases. I will quote, briefly from a few of the decisions to that effect, as also from some of our most reliable text-writers. Amongst the clearest and strongest of the decisions on the point, is, The Farmers’ and Mechanics’ Bank v.
The case below was well ruled. Both points, the delivery of the sugar and the custom, were found, on proper instructions, in favor of the defendant. There being no error in the record,
The judgment is affirmed.