| Ill. | Apr 15, 1858
The questions presented by the record in this case involve the determination of the extent of the liability of carriers by railway. And upon an examination of the reported cases, it will be found that there is some conflict as to what acts, after the arrival of the goods at their destination, will discharge them from their liability as carriers. It has been said, and we think with reason, “ that the cases have settled the question that carriers by railway are neither bound to deliver to the consignee personally, or to give notice of the arrival of the goods, to discharge the liability of common, carrier.” Redfield on Railways, 251. This mode of transportation is so essentially different from that by wagons and other vehicles, that a delivery to the consignee, at his place of business or residence, would be unadapted to their nature and the course of business by which they exist. // And yet, to say that all duty ceases upon an arrival at the terminus of the road, or at their destination upon the route of the road, would be to leave the owner to a great extent unprotected, and to require less at the hands of the carrier than the law would seem to sanction. To hold that they were thus relieved from the liability of carriers, would be to leave the owner to contend with the same difficulties in showing theft, embezzlement or loss by negligence by the carriers, their agents and servants, that he would have had at any time after they were first placed upon the road. The goods are still as completely under the control of the carrier as before, and the owner or consignee would be as effectually precluded from exercising any control over them. He could do no act for their security and protection while locked up in the car, and none but the carrier and his agents and servants could even know that they had arrived. We are strongly inclined to the belief that no decision can be found that such act releases them'from their liability of carriers, and that it should not, without something further on their part.
While there is some conflict in the evidence as to whether this grain should have been delivered at Flint & Wheeler’s warehouse, it seems that the preponderance shows that all grain, in bags, consigned to Munn, Gill & Co. which arrived after the 11th of August, was to be stored in the depot. And the evidence shows this grain was all in bags, and the evidence tends to show it arrived after that time; and no delivery was made in the car or otherwise after its arrival.
The evidence shows that all of the grain, with the exception of that contained in one car, had been unloaded and placed in the defendant’s freight depot before the fire occurred by which it was destroyed. The question then presents itself, whether, as to that portion destroyed by fire in the warehouse, the defendant’s relation of carrier had ceased, and on this point there seems to be some diversity in the decided cases. While some hold that such character does not cease until the consignee has had notice and reasonable time to remove the goods, others have held that the carrier’s duty ceases as soon as the goods are taken from the cars, and safely stored in a warehouse of the company, or that of some other person. In the case of Thomas v. The Boston and Providence Railway, it was held, that “ where suitable warehouses are provided, and the goods which are not called for on their arrival at the places of destination are unloaded, and stored safely in such warehouses, the duty of the proprietors as common carriers is, in our judgment, terminated.” 10 Met. R. 472. This decision is supported by the cases of Moses v. The Boston and Maine Railway, 32 N. H. R. 523, and The Norway Plaines Company v. The Boston and Maine Railway, 1 Gray R. 263. In the latter of these cases, the court says, that “ this view of the law, applicable to railroad companies as common carriers of merchandise, affords a plain, precise and practical rule of duty, easy of application, well adapted to the security of all persons interested. It determines that they are responsible, as comm'Ón carriers, until the goods are removed from the cars and placed upon the platform; and if, on account of their arrival in the night, or at any other time, when, by the usage or course of business, the doors of the merchandise depot or warehouse are closed, or, for any other cause, they cannot then be delivered, or if, from any reason, the consignee is not there to receive them, it is the duty of the company to store them safely, under the charge of competent and careful servants, ready to be delivered, and actually deliver them, when duly called for by parties entitled to receive them ; and for the performance of these duties, after the goods are delivered from the cars, the company is liable, as warehousemen or keepers of goods for hire.” The court also held that notice to the consignee was not necessary to exonerate the railroad of its liability as a common carrier.
This doctrine, it seems to us, is well adapted to this mode of transportation and the general course of business of the country, as at present conducted. The goods have then reached their destination, and the owner or consignee, by the use of diligence, may be there to receive them, and' take them into his own control, and failing to do so, the presumption should be that he has elected to permit them to be stored by the company, to be held as warehousemen or keepers for hire. The goods are then placed in precisely the same situation as goods in any other warehouse. And the owner has the same opportunity to establish the liability of the company in their new capacity of ware-housemen, as he would have in any other case of a warehouseman.
The fact that the goods in the car were destroyed by an accidental fire, would not excuse the defendants from liability as common carriers. Story on Bailment, 128. Their undertaking as common carriers holds them liable for all losses, except those occasioned by the act of God or the public enemy. Ibid. sec. 529. “ And when a loss occurs, the onus probandi is on the carrier, to exempt himself from liability, for prima facie the law imposes the obligation upon him. It will, therefore, be sufficient prima facie evidence of loss by negligence that the goods have never been delivered to the bailor or his agent, or to the consignee.” Ibid. sec. 529.
In this case, it appears, from the evidence, that the contents of one of the cars had not been unloaded and placed in the depot, and for the failure to deliver the grain destroyed in it, the defendants would be liable, and the court below having-failed to render judgment for the value of its contents, committed an error, for which the judgment of that court should be ¿reversed and the cause remanded.
Judgment reversed.