| Mass. | Sep 15, 1869
The jury were instructed that, while the conductor should have used every reasonable effort for all freight, yet, if it was known to him that some of the freight was liable to freezing, and if he could only take a portion of the train, and he was so situated that he could carry that portion of the train he chose, he was bound, in the exercise of a reasonable judgment, to select that to carry which contained goods liable to injury by freezing,.rather than that of which, in this respect, he knew nothing.
We think the court cannot say that the conductor, or the railroad company as- his principal, was under any such obligation as is stated in this instruction. There is nothing that expresses or implies it in the contract made by the company at Albany. They agreed to take the car containing the plaintiffs’ apples, and make it a part of their freight train which was then about to start for Springfield, (it being Saturday afternoon,) and would be due at West Springfield at midnight. It is not contended that the defendants warranted the arrival of the train at any particular time; or that they were bound to use more than reasonable care and diligence to take the train through in the usual time of its running, or as soon thereafter as they reasonably could. Nor is it contended that they expressly agreed to do anything to .prevent the apples from freezing. At that season of the year (December 7) such property would be exposed to some risk of freezing if there should be a change of weather and any unusual detention of the train. But it is not contended that this was the risk of the carrier if he was guilty of no negligence.
A carrier is in most respects an insurer; but he is not such -in respect to what is called the vis major, or act of God. For example, he does not insure against damage by storm or lightning, or the perils of the sea. The same principle has been held to apply to delays in transportation caused by the freezing of canals or rivers. Parsons v. Hardy, 14 Wend. 215" court="N.Y. Sup. Ct." date_filed="1835-10-15" href="https://app.midpage.ai/document/parsons-v-hardy-5514555?utm_source=webapp" opinion_id="5514555">14 Wend. 215. Bowman v. Teale, 23 Wend. 306. Harris v. Rand, 4 N. H. 259. 2 Redfield on Rail
The conductor was bound to assume that it was important to each owner of freight that bis property should be carried through with all reasonable care and speed, as the company had undertaken to do and had directed him to do; and he could not know that the speedy delivery of the contents of the other cars was not more important than that of the apples. But if any of the freightowners had desired to impose upon the company a special and peculiar obligation in respect to forwarding their particular freight, they might have stipulated for it. In the absence of such" stipulation the obligations of the carriers were alike to each of them. Exceptions sustained.