43 Ind. 423 | Ind. | 1873
The assignments of error call in question the correctness of ‘the ruling of the court below in overruling the demurrer to the complaint and appellant’s motion for a new trial. The material averments of the complaint were substantially proved on the trial. The questions presented for our decision are the same. Instead, therefore, of considering the assignments of error separately, we will condense the averments of the complaint and the facts proved.
The appellant had a depot and side tracks at Crown Point for the reception and discharge of passengers and freight. The plaintiffs were partners engaged in the lumber business on one of the side tracks and near to the said depot in said town; that one Jacob Schell was also engaged in the lumber trade in the said town and at the depot aforesaid, and had
The question presented for our decision is, whether, under the facts and circumstances stated, the railway company is liable to the plaintiffs for the value of the lumber destroyed. The solution of which question depends upon whether the duty and liability of the defendant as 'a common carrier had terminated, and the duty and liability of the defendant as warehouseman had commenced, at the time when the lumber was destroyed. If the appellant had performed its whole duty as a common carrier, by placing the cars on the side track, at the place and in the manner stated, then its liability as such had ceased. As the appellant was in no manner responsible for the fire, it is very obvious that it is not liable as warehouseman.
We are referred by counsel for appellant to the following cases in this court, which they insist conclusively show that no liability attaches to the appellant upon the facts, stated in-the complaint and proved upon the trial: Bansemer v. The Toledo, etc., R. W. Co., 25 Ind. 434; The Cincinnati, etc., R. R. Co. v. McCool, 26 Ind. 140; The Adams Express Co. v. Darnell, 31 Ind. 20.
In the case first cited, the distinction between the duty and liability of common carriers and those of warehousemen is drawn with great clearness and accuracy. In that and the most of the adjudged cases, the property shipped consists of merchandise, which can be safely stored in the depot or warehouses provided for that purpose. In that case it was said to be the duty of a railroad company to erect depots or warehouses at places where goods are received and discharged, in which they may be safely stored, and to provide agents at such places for the transaction of the necessary business; that such warehouses constitute the proper places of delivery; that the consignees must be presumed to know
It was further held in such case that “when the goods have reached their destination, the transit is at an end, and we think that when they are discharged from the cars, and, in the absence of the consignee or his agent to receive them, are safely stored in the warehouse, the liability of the company as a common carrier is then terminated, without notice to the consignee of their arrival. When the goods are thus safely stored, the character of a warehouseman attaches to the company, and as such it is required to keep the goods in store for the consignee for a reasonable time for him to receive and take them away, without additional reward. But, during such time, the railroad company is only liable as a warehouseman, for the want of that degree of care and diligence incident to that relation.”
In the quotation made in that case from a leading English case, it is said that the rule applicable to carriage of goods by railroad “ determines that they are responsible as common carriers until the goods are removed from the cars and placed on the platform,” etc.
In the above case reference is made to a number of adjudged cases where it was held “ that so soon as the goods arrive at their destination, or at the terminus of the road, and are unloaded and placed safely and securely in the railroad company’s warehouse, the responsibility of the common' carrier ceases, and that of warehouseman attaches.”
The case referred to in 26 Ind. adheres to the ruling in the above case.
In the case cited in 31 Ind., which was an action against an express company for the loss of a package of money, and where the question was, whether the company was liable as a common carrier or bailee in deposit, the court say:
“ It may not be possible always to fix the exact time when the carrier’s responsibility as insurer ceases, and when he becomes a mere bailee in deposit or otherwise. But where, as is alleged here, the consignee has notice of the arrival,,
The liability of a common carrier is usually regulated and controlled by the terms of the contract between the parties, but in the absence of any'express agreement, the usage and course of business have much weight in determining such liability. Redfield on Railways, vol. 2, p. 61, says:
“ But this mode of delivery has no application to the ordinary business of railways as common carriers of goods. The transportation being confined to a given line, according to the- ordinary and reasonable course of business, goods must be delivered and received at the stations of the company. And unless they adopt a different course of business, so as to create a different expectation, or stipulate for something more, there is no obligation to receive or deliver freight in any other mode. But where such companies contract to receive or to deliver goods at other places, or where such is the course of their business, they are undoubtedly bound by such undertakings, or by such usage and course of business.”
Professor Parsons, in commenting upon the decision of the Supreme Court of Vermont in Farmers & Mechanics' Bank v. Champlain Transportation Co., 23 Vt. 186, says: “All the cases, almost without exception, regard the question of the time and place when the duty of the carrier ends as one of contract, to be determine^ by the jury from a consideration of all that was said by either party at the time of the delivery and acceptance of the parcels by the carrier, the course of business, the practice of the carrier, and all other attending circumstances, the same as any other contract, in order to determine the intention of the parties.” 1 Parsons Con. 661, and quoted in 2 Redf. Railways, 62, note 3.
It having been alleged in ■ the complaint and proved upon the trial, that it had been the custom of the appellant, in previous shipments of lumber for the plaintiffs and Shell, to
But there seems to be no room to doubt the liability of the appellant as a common carrier, because the local agent of the appellant recognized its obligation to run the cars down to the usual place of delivery, and agreed so to do, but before the agreement was carried out the lumber was destroyed by fire.
We think there was no error committed by the court below.
The judgment is affirmed, with costs.