96 Tenn. 61 | Tenn. | 1896
This action was brought before a Justice of the Peace to recover damages for the loss of 160 barrels of potatoes. The cause, on appeal, was tried in the Circuit Court, before the Circuit Judge, without a jury, and, on request, he reduced his findings to writing, and gave judgment for plaintiff for $218.29 and costs, and the railroad appealed and assigned errors.
The bill of lading, as well as the proof, shows that the potatoes, at the plaintiff’s direction, -were routed' to go by the Louisville & Nashville Railroad Company to Evansville, Ind., and from thence by the Evansville & Terre Haute Railroad, and into Chicago over the Chicago & Eastern Illinois Railroad. The potatoes were loaded on the cars at Nashville at about 5 o’clock in the evening on June 28, 1891. They left the depot at Nashville at 10:20 p.m., and reached Evansville at 10 a.m. the next day. The potatoes were tendered to the Evansville '& Terre Haute Railroad immediately upon their arrival, but that road declined to take them, on. account of a strike then prevailing on the Chicago &. East Illinois Railroad, its Chicago connection. Thereupon the Louisville & Nashville Railroad Company delivered the potatoes to the Peoria, Decatur & Evansville Railroad, which had a line into Chicago, connecting with the Wabash Railroad at Sullivan, and running into the city over that
It is insisted in the assignment of errors that, under the facts in this case, an emergency had arisen which justified a deviation in route, inasmuch as ■ the one chosen by the shipper was closed by a strike, and the other, equally good, was open. There is no doubt that when, in case of an unforeseen necessity, the safety of the shipment demands it, a deviation from the route agreed upon with the' shipper may be made, and will be justifiable, as, for instance, forwarding perishable freight by rail when a storm prevents a boat from proceeding upon its voyage. But, where the goods can be properly cared for and held until the shipper can be communicated with, the carrier will not be justified in selecting another route, without notice to him and instructions from him. Ray on Freight Carriers, Sec. 81; Hutchison on Carriers, Sec. 14. See, also, Railroad v. Campbell, 7 Heis., 261. Unless justified by urgent circumstances, a deviation by the carrier will render it responsible for losses resulting, even from inevitable casualties, and the original carrier becomes, in effect, an insurer for the line he selects. Ray on Freight Carriers, Sec. 79; Hutchi-son on Carriers, Sec.. 314.
It clearly appears in i;his case that the plaintiffs could have easily been consulted by letter or wire,
It is insisted that plaintiff should not recover because he made an effort to secure payment for his loss from the Peoria road, on which the transshipment was made. It sufficiently appears that this was done at the instance of the agent of the Louisville & Nashville Railroad, and with the assurance that it should not prejudice plaintiff’s claims against that road.
We think, upon the facts of this case, that there is no error in the judgment of the Court below, and it is affirmed, with costs.