20 Wis. 594 | Wis. | 1866
At the trial, the circuit court gave to the jury, among others, the following instructions:
“ Third. That press of freight will not excuse failure to carry in ordinary time in cases where such press of freight was known by the company when they received the freight, and had existed a long time when the goods were received, unless they notified the shipper of the necessity of delay.”
“ Fourth. That press of freight will not excuse failure to carry in ordinary time, unless freight is carried in the order in which the same is received.”
“ Fifth. That in case of press of freight and consequent delay, a carrier has no right to give preference to ffreight of one person or company over that of another.,”
The rule then is, that the common carrier is to deliver the goods within a reasonable time. If the carrier received for transportation goods perishable and those not so at the same time, and there was a press of freight, so that he could not transport and deliver all before the perishable goods would perish, but could deliver the perishable in time to save them, if the delivery of the others was delayed, can there be any doubt what his duty would be ? Can there be any doubt that a preference in such a case would be reasonable, and if reasonable, that the perishable goods, if they did not have the preference, would not be delivered in a reasonable time, and the carrier would be liable ? If not, there is no invariable rule that freight of all kinds shall be transported and delivered in the order in which it is received. If the custom of giving such preference has been long established and is well known, the parties are supposed silently to adopt the custom as part
We are also of opinion that there is no rule of law requiring the notice mentioned in the third instruction. We have seen that the general rule is, that the common carrier is to transport and deliver the goods within a reasonable time; and what is a reasonable time is to be determined by all the circumstances of each particular case. If the shipper has not all the information he desires as to the circumstances or causes which will expedite or delay the delivery of the goods, it would be more reasonable that he should make inquiry, than to impose on the company or its agents the duty of giving unasked a statement of such circumstances.
The rule of damages as given to the jury by the circuit court was, that the plaintiff was entitled to recover the difference between the price of the flour when it should have arrived in New York, and the price at the time when it did actually arrive, if it was sold at the latter depreciated price. What is the measure of damages in such a case has been differently decided by different courts of the state of New York, and each has supported its own views by learned and able opinions. See Wibert v. N. Y. & Erie R. R. Co., 19 Barb., 36; Jones v. N. Y. & Erie R. R. Co., 29 id., 635; 22 Barb., 278; 26 Barb., 564. The circuit court followed S. & M. R. R. Co. v. Henry, 14 Ill., 156; G. & C. U. R. R. Co. v. Rae, 18 Ill., 488, and Nettles v. S. C. R. R. Co., 7 Richardson, 190. We think, on principle as well as authority, the ruling of the circuit court as to the measure of damages was right.
Again, it is contended by the appellant that the court below
By the Court. — Tbe judgment of tbe circuit court is reversed, for errors in giving tbe third, fourth and fifth instructions asked by tbe plaintiff, and a venire de novo awarded.