In the foreclosure of a mortgage on the Green Bay & Minnеsota Railroad, in this court, the respondent was appointed receiver, and as such, was empowered to operate the road pending the receivership. In October, 1881, ho was so operating the road, the eastern terminus of which was Ft. Howard, where there existed connections with the Chicago & Northwestern Railway for the transportation of freight shipped on the receiver’s line of road, and destined for Chicago. On the third day of October, 1881, the petitioner Petersen shipped over the respondent’s road, at Amherst Junction, Wisconsin, two car-loads of potatoes consigned to a commission house in Chicago. On the fifth day of the same month he shipped from the same place, over the same line of road, two other car-loads of potatoes, consigned to the samе parties as were the first. On the third day of the same month the petitioners Allington & Co. also shipped over the receiver’s line of road, at Amherst Junction, one car-load of potatoes, consigned to a commission firm in Ghieago. The course of transit was over the Green Bay & Minnesota road, from Amherst Junction to Ft. Howard, thence, via the Ghieago & Northwestern Railway, to Chicago.
In the Petersen Gases bills of lading were issued to the shipper, wherein it was stated that the potatoes were received “in apparent good order by the receiver of the Green Bay & Minnesota Railroad, *- *- ■» ¿o jjG transported over the line of this railroad to Chicago, and delivered after payment of freight,- in like good order, to a company or carrier, (if the same are to be forwarded beyond the lines of
It appears from the proofs that the potatoes shipped at Amherst Junction on the third of October, reached Ft, Howard at 5 o’clock p. at. of that day; that of the shipments of October 5th, one arrived at Ft. Howard at 5 p. m. of that day, and the other at the same time of day on the 6th; and the evidence shows that within 24 hours after the arrival at Ft. Howard of each of these shipments, a freight train left that place for Chicago on the Chicago & Northwestern road.The precise character of the running connections between the two roads at Ft. Howard is not shown; but it is evident that there was a business arrangement between them by which freight brought to Ft. Howard over the Green Bay & Minnesota'road, and consigned to points south and east, was transferred to the Chicago & Northwestern road, and forwarded to its destination; and that the cars of the former road, containing bulk freight brought from points inland, were run upon the track of the latter road at Ft. Howard, without breaking bulk, and were put into the trains of the Chicago & Northwestern Company, and taken through to points on its road to which the freight was consigned. It is shown that at Ft. Howard there was a Y track cоnnecting the Green Bay & Minnesota road with the Chicago & Northwestern, and by the course of business, cars from points on the former road, containing freight destined south, were switched from the respondent’s yard tracks, by his employes, to the Y track, and were there taken by the employes of the Chicago & Northwestern Company and placed in the trains of that company; so that delivery of such cars to the latter company was accomplished when they were placed on the Y. ,
In resisting the pеtitioners’ demands, the respondent claims that the potatoes were unsound when they were shipped at Amherst Junction, and there is considerable testimony bearing upon this issue of fact. It is unnecessary to discuss this testimony in detail. The bills of lading issued by the respondent state that the potatoes were received for transportation in apparent good order, and on the part of the petitioners it is shown thаt the potatoes were loaded from wagons into the cars as received; that they were examined and assorted with care; and that when shipped they wore in sound merchantable condition. This is very positively sworn to by the shippers, and by various witnesses who handled tho potatoes. It is also in proof that other potatoes shipped to Chicago at about that time, and which were transportеd in the usual time over another lino of road, arrived in good merchantable condition. On the part of the respondent it is shown that the season of 1881, in consequence of continued wet weather through tho month of September, was an extremely unfavor
So, too, upon the evidence before the court, the ''conclusion must be that the injury to the potatoes resulted from the delay in their transportation. Each car contained between 400 and 500 bushels. The weather at the time, in the language of the witnesses, was warm, damp, and muggy. The potatoes may not have been, striсtly speaking, perishable property, according to the ordinary classification of railroad freight. But the season was such that delay in their transr portation was hazardous. The proofs show that from the third to the eleventh of October the temperature at Et. Howard ranged at midday from 50 degrees to 76 degrees above zero. It appears that the three, car-loads shipped on the 3d, and which were consequently longest delayed, w'ere most seriously injured, and one of these is described as steaming with heat and decay on arrival’in Chicago. This was a car containing 470 bushels, then worth if in sound condi
The question of legal liability upon the facts as proven, remains to be considered. The learned counsel for the respondent argued at some length, and cited many authorities upon the point, that, as a common carrier, he was not liable for any negligence or delay in transportation occurring on the connecting carrier’s line. Admitting this to be so, it does not appear that the point is a material one in thе case. The respondent was under obligation to safely deliver the potatoes to the next carrier in the line in. as good order as when received. As we have seen, according to the course of business between the two carriers, delivery of such freight was made by placing the cars on the Y at Ft. Howard, where they were taken away by the Chicago & Northwestern Company. Until the cars containing these potatoes were thus delivered, they .remained in the possession of the respondent, and his common-law liability as a carrier continued until,such delivery. The law on this subject was settled in Railroad Co. v. Manufacturing Co. 16 Wall 318, where it was held that when goods are delivered to a common carrier, to bo transported over his railroad to his depot, in a place named, and there to be delivered to a second line of cоnveyance for transportation further on, the common-law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. Ilis obligation while the goods a,re in his depot does not become that of a warehouseman. While, therefore, these cars of potatoes were in the possession of the respondent at his depot in Ft. Howаrd, they were, in the eye of the law, still in transit, and the liability of the respondent therefor, continued unbroken, except as such liability may have been limited by the bills of lading, until they were actually delivered to the next carrier in the line. Railroad Co. v. Mitchell,
The respondent’s general liability being as heretofore stated, was his failure to promptly deliver this freight to the Chicago & Northwestern Company excused by the refusal of that company to take it in consequence of the blockade at Chicago, and what duty, if any, in view of the action of that company, did the respondent owe to the petitioners ? It is to be observed that the notice of the Chicago & Northwestern Company to the respondent that it would not receive further shipments of potatoes and barley from his road until October 10th, was not given until after the petitioners’ property was in transit. The first carrier was then in possession of the property, exercising control over it, as a common carrier. It may be doubtful whether the evidence shows such an inability to deliver freight to Chicago consignees at that time as would excuse the last carrier from the obligation to complete the transрortation of freight which had been previously received by the first carrier and was then actually in transit. But I take it that is exclusively a question between the two carriers, and with winch the petitioners have no concern. If the refusal of the Chicago & Northwestern Company to receive this freight from the respondent was a violation of any business arrangement between the two carriers,—-a question not arising here,—thаt might raise a controversy between them, but it would concern them alone, and the rights of the petitioners ought not to be affected thereby. I do not -forget the case of Helliwell v. Railway Co.
In Conkey v. Railway Co.
The measure of damages in these casos, is tho difference between the market value of the potatoes in Chicago when they ought to have been delivered, and their market value when they were delivered. Under this rule of damages, the petitioners, upon the testimony, are entitled to recover the amounts claimed by them in their petitions; and orders will be entered requiring the respondent to pay to the petitioner Petersen the sum of $863.63, and to the petitioners Allington & Co. the sum of $367.70.