The opinion of the court was delivered by
Rogers, J.
This is an action of assumpsit against the defendants as common carriers. The material facts were these: Eagle & Co. purchased goods from Eagle, Westcott & Cambless, which were packed, marked, and taken to the defendants’ store, who undertook to deliver them to the plaintiffs, merchants living in Columbia, Lancaster county. The plaintiffs gave in evidence the receipt of White & Co., and the bill of lading of the goods: and also proved, that when the cars came to be unloaded at Columbia, one of the trunks, No. 445, mentioned in the receipt and bill of lading, was rifled of its contents. There is no room for doubt that the goods never came to the possession or' custody of the owners; but it is clear they were lost after the defendants took charge, and before they were actually delivered. It was also proved, that the cars which contained the goods were sent on Haldcman’s sideling, by the direction, and at the request of the plaintiffs, on the evening ofSaturday, the 12thofMarch.
The defence taken at the trial was, that the goods were delivered, or if not delivered, that the delivery was prevented by the interference of the plaintiffs, who took charge of the goods before they arrived at their ultimate place of destination.
A common carrier undertakes generally, and -for all people indifferently, to convey goods and deliver them at a place appointed for him, and with or without a special agreement as to price. He is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which do not fall within the excepted cases of the act of God, or inevitable accident, without the intervention of man and and public enemies. This, as Chancellor Kent remarks in his Commentaries, title Bailment, has been the settled law for ages; and the rule is intended as a guard against fraud and collusion, and is founded on the broad principles of public policy and convenience. It [517]*517is a principle of extraordinary responsibility, -which has stood the test of experience, and which we are unwilling to see frittered away further than has been already done in those cases where carriers have been, as I think, unwisely, permitted to limit their own responsibility. In the contract of carriage, the defendants engage, for a certain price, to deliver the goods entrusted to them into the actual custody of the plaintiffs. They cannot discharge themselves from their responsibility as carriers, except by proving that they have performed their engagement, or by showing clearly that they are excused from the performance of the contract by some act of the plaintiff, or that the case falls within some of the excepted cases.
The court very properly charged the jury that it was the duty of the defendants, as common carriers, to cause the goods to be actually delivered to the plaintiffs. And that they were not so delivered, scarcely admits of doubt. The cars arrived at the head of the inclined plane on the afternoon of Saturday, and in pursuance of directions from one of the plaintiffs, were placed on Haldeman’s sideling, about sundown of that day. The testimony of two- witnesses, Plaines and Moss, shows, that so far from the goods being delivered, the plaintiffs refused to receive them, on the allegation that they were engaged, and that it was too late to unload the cars. It also appears that the key of the cars and the manifest were retained by the carriers, and that there was no tender or offer to deliver them to the plaintiffs. It must be remarked, as in Ostrander v. Brown, (15 John. R. 48,) the question is not as to the place of delivery, on which I give no opinion, but whether there was any delivery at all. Common carriers are ordinarily bound to carry goods entrusted to their conveyance to the residence or place of business of the consignee; but whether this rule can be conveniently applied to the business usually transacted by canal or railroad, may admit of doubt. M‘Clelland & Younge’s R. 129. Stone v. Cowly, (5 T. R. 394.) It cannot be pretended that there was an actual delivery. But was there any thing proved which is equivalent to an actual delivery ? And if there was, it must be in the alleged tender, or because the delivery was prevented by the interference of the plaintiffs.
In Stone v. Cowly, above cited, it is taken as a general rule, that a carrier, having once tendered a delivery, has discharged himself from his obligation as carrier; because, otherwise, says Alexander, C. B., where is his liability to cease 1 Where is the line to be drawn, ■if not there 'Í To construe his undertaking in any other way would be attended with the greatest inconvenience: and I would therefore hold the rule to be as stated in ordinary cases. I take no' exception to the rule when confined to his extraordinary responsibility as carrier, and with the qualification that the tender must be made at a proper time, in a proper manner and at the proper place. If the tender is wanting in any one of these essential requisites, his responsibility as carrier still continues. If this point was made at the time, [518]*518no notice is taken of it, in the charge. No question of the kind is submitted to the jury, and whether there was a tender in proper time, is obviously a question, depending as it does on a variety of circumstances, for their consideration. The cars were put on the sideling at or perhaps after sundown, on Saturday; and it is in testimony that it would take at least two and perhaps three or four hours to unload them and remove the contents to the plaintiffs’ store. It would be for the jury to say whether the reasons given for refusing to receive the goods were sufficient to excuse the plaintiffs. A tender merely of the goods, to the consignee, as is said in Ostrander v. Brown, (15 John. R. 43,) without their acceptance, would not be a performance of a carrier’s duty. And in case of the refusal of the consignee to receive the goods, he is not justified in abandoning them. ’ Although his strict accountability as carrier may cease, he becomes a bailee, and as such must take ordinary care of the goods. We cannot avoid seeing, that in this case neither party supposed the goods were delivered, or that the responsibility had ceased. This was an after thought, after the loss had been incurred, when, as is usual, the ingenuity of the carrier was tasked to find reasons to escape from the consequences of the negligence of his agents.
The court gives an affirmative answer to the several propositions of the plaintiffs, but always with a qualification of which the plaintiffs complain. To the first point, they say, “But the defence taken here renders it necessary for me to add, that if the usual and proper steps towards an actual delivery were prevented by the interference and conduct of one of the plaintiffs, the rule is not applicable; and the jury will decide the facts.
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The opinion of the court was delivered by
Rogers, J.
This is an action of assumpsit against the defendants as common carriers. The material facts were these: Eagle & Co. purchased goods from Eagle, Westcott & Cambless, which were packed, marked, and taken to the defendants’ store, who undertook to deliver them to the plaintiffs, merchants living in Columbia, Lancaster county. The plaintiffs gave in evidence the receipt of White & Co., and the bill of lading of the goods: and also proved, that when the cars came to be unloaded at Columbia, one of the trunks, No. 445, mentioned in the receipt and bill of lading, was rifled of its contents. There is no room for doubt that the goods never came to the possession or' custody of the owners; but it is clear they were lost after the defendants took charge, and before they were actually delivered. It was also proved, that the cars which contained the goods were sent on Haldcman’s sideling, by the direction, and at the request of the plaintiffs, on the evening ofSaturday, the 12thofMarch.
The defence taken at the trial was, that the goods were delivered, or if not delivered, that the delivery was prevented by the interference of the plaintiffs, who took charge of the goods before they arrived at their ultimate place of destination.
A common carrier undertakes generally, and -for all people indifferently, to convey goods and deliver them at a place appointed for him, and with or without a special agreement as to price. He is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which do not fall within the excepted cases of the act of God, or inevitable accident, without the intervention of man and and public enemies. This, as Chancellor Kent remarks in his Commentaries, title Bailment, has been the settled law for ages; and the rule is intended as a guard against fraud and collusion, and is founded on the broad principles of public policy and convenience. It [517]*517is a principle of extraordinary responsibility, -which has stood the test of experience, and which we are unwilling to see frittered away further than has been already done in those cases where carriers have been, as I think, unwisely, permitted to limit their own responsibility. In the contract of carriage, the defendants engage, for a certain price, to deliver the goods entrusted to them into the actual custody of the plaintiffs. They cannot discharge themselves from their responsibility as carriers, except by proving that they have performed their engagement, or by showing clearly that they are excused from the performance of the contract by some act of the plaintiff, or that the case falls within some of the excepted cases.
The court very properly charged the jury that it was the duty of the defendants, as common carriers, to cause the goods to be actually delivered to the plaintiffs. And that they were not so delivered, scarcely admits of doubt. The cars arrived at the head of the inclined plane on the afternoon of Saturday, and in pursuance of directions from one of the plaintiffs, were placed on Haldeman’s sideling, about sundown of that day. The testimony of two- witnesses, Plaines and Moss, shows, that so far from the goods being delivered, the plaintiffs refused to receive them, on the allegation that they were engaged, and that it was too late to unload the cars. It also appears that the key of the cars and the manifest were retained by the carriers, and that there was no tender or offer to deliver them to the plaintiffs. It must be remarked, as in Ostrander v. Brown, (15 John. R. 48,) the question is not as to the place of delivery, on which I give no opinion, but whether there was any delivery at all. Common carriers are ordinarily bound to carry goods entrusted to their conveyance to the residence or place of business of the consignee; but whether this rule can be conveniently applied to the business usually transacted by canal or railroad, may admit of doubt. M‘Clelland & Younge’s R. 129. Stone v. Cowly, (5 T. R. 394.) It cannot be pretended that there was an actual delivery. But was there any thing proved which is equivalent to an actual delivery ? And if there was, it must be in the alleged tender, or because the delivery was prevented by the interference of the plaintiffs.
In Stone v. Cowly, above cited, it is taken as a general rule, that a carrier, having once tendered a delivery, has discharged himself from his obligation as carrier; because, otherwise, says Alexander, C. B., where is his liability to cease 1 Where is the line to be drawn, ■if not there 'Í To construe his undertaking in any other way would be attended with the greatest inconvenience: and I would therefore hold the rule to be as stated in ordinary cases. I take no' exception to the rule when confined to his extraordinary responsibility as carrier, and with the qualification that the tender must be made at a proper time, in a proper manner and at the proper place. If the tender is wanting in any one of these essential requisites, his responsibility as carrier still continues. If this point was made at the time, [518]*518no notice is taken of it, in the charge. No question of the kind is submitted to the jury, and whether there was a tender in proper time, is obviously a question, depending as it does on a variety of circumstances, for their consideration. The cars were put on the sideling at or perhaps after sundown, on Saturday; and it is in testimony that it would take at least two and perhaps three or four hours to unload them and remove the contents to the plaintiffs’ store. It would be for the jury to say whether the reasons given for refusing to receive the goods were sufficient to excuse the plaintiffs. A tender merely of the goods, to the consignee, as is said in Ostrander v. Brown, (15 John. R. 43,) without their acceptance, would not be a performance of a carrier’s duty. And in case of the refusal of the consignee to receive the goods, he is not justified in abandoning them. ’ Although his strict accountability as carrier may cease, he becomes a bailee, and as such must take ordinary care of the goods. We cannot avoid seeing, that in this case neither party supposed the goods were delivered, or that the responsibility had ceased. This was an after thought, after the loss had been incurred, when, as is usual, the ingenuity of the carrier was tasked to find reasons to escape from the consequences of the negligence of his agents.
The court gives an affirmative answer to the several propositions of the plaintiffs, but always with a qualification of which the plaintiffs complain. To the first point, they say, “But the defence taken here renders it necessary for me to add, that if the usual and proper steps towards an actual delivery were prevented by the interference and conduct of one of the plaintiffs, the rule is not applicable; and the jury will decide the facts. The consignee may take charge of the goods before they arrive at their ultimate place of delivery, and the carrier’s risk will then terminate.” And again, to the second point, the court, after instructing the jury that placing the cars on Iialdeman’s sideling was no delivery to the plaintiffs, add, “ But if they were so placed by the plaintiffs’ direction, and an actual delivery was thereby prevented, such delivery could not be required.” In this, I understand the court to instruct the jury explicitly, that if they believe the cars were put at the place directed by one of the plaintiffs, the carrier’s risk terminated; which was in fact equivalent to instructing them to find for the defendant. They put the case entirely on the interference and conduct of the plaintiffs, whereby an actual delivery was prevented, and on the consignee taking charge of the goods before they arrived at the ultimate place of destination. I have looked through the testimony in vain for any evidence on which the court could submit such a point to the jury, and find nothing on which it can be raised except the direction that the cars should be put upon,, Haldeman’s sideling. On this part of the case, I throw out of view the point that the plaintiffs began to unload the cars before the arrival of the agent, on Monday, because that is only material as bearing on the question, if it be one, whether [519]*519the goods were lost while in the custody of the defendants. It cannot affect this point, because it took place after the goods had been stolen, or lost,- and of course after the carrier’s responsibility had attached. If the defendants were injured, which is not very clear, this is not the mode or manner to seek redress. I agree that if a carrier is prevented by the owner from performing his contract, or if the owner takes charge of the goods before their arrival at their place of destination, his responsibility as carrier ceases; but I cannot admit that there is any evidence in the case, from which the jury should be.permitted to make any such inference. The direction given amounts to nothing more than a designation, or at any rate a change, of the place (acquiesced in by the carriers) where the goods were to be delivered. It was not supposed by either that it excused him from a delivery at all. His duty to deliver remained entirely unchanged. A designation, or change, in the place of delivery, of an alteration in the destination, which the owner undoubtedly has a right to make, may, under certain circumstances, be a reason for refusing to obey the instructions, or of charging an additional compensation for the increased trouble or risk, but it cannot be considered as operating so as to exempt him from the responsibility attached to his character as a common earner, when he obeys the . directions of the owner without-objection. If we once permit carriers to relieve themselves from the consequences arising from their or their agents’ negligence, there will be no want of pretences and excuses for that purpose, proved, as they can readily be, by thé oaths of the persons whose fault or fraud has caused the loss. To avoid all temptations of this kind, the rule which places common carriers on a different footing from other bailees, has been wisely adopted, and must be firmly enforced. The great and increasing extent of our internal trade renders all such questions extremely important; and there is great danger in relaxing the ancient rules, which must end in producing uncertainty, and of course numerous and perplexing controversies.
Huston, J.
This suit was instituted to recover the value of á box of merchandise delivered by the plaintiffs, to be carried to Columbia, in this state, and there delivered to the plaintiffs.
And first, it appears that when the property arrived at Columbia, the carrier was not to deliver it at the door of the owners. The rail- ■ road did not in any way approach nearer than thirty or forty yards of the plaintiffs’ store, and the plaintiffs employed the drays or wagons tt> receive it from the cars an'd carry it to their store. They did not allegé that the defendants were to do this. Three cars were loaded with goods belonging to the plaintiffs, or consigned to them. " It appears that after arriving in Columbia, there is a sideling, i. e., a side track, which approaches nearer to the plaintiffs’ store than the main track of the state. This is the private track of Mr. Ilaldeman. Stephen [520]*520Eagle, when the goods were near to Columbia, saw the owmer of the cars and told him he had got permission from Haldeman to put the cars on Haldeman’s sideling: that was the nearest t point to the plaintiffs’ store to which a car could be brought. The cars were put at this place, and the plaintiffs notified of it. It was then about sundown, and the plaintiffs said it was too late to unload, and besides, they were busy; and it was agreed that the carrier should come on Monday morning and unload. He did come, but before he arrived, Eagle had procured a key, opened and unloaded two of the cars. In doing this, he discovered that one box -had been broken open and the goods in it stolen. It was further proved, that if Eagle had not interfered and given directions to put the cars on Haldeman’s sideling, they would have been taken to Borbridge’s warehouse and put into it, under the care of him or his keeper, and that two other cars, brought in the same train, and not consigned to Eagle, were taken to that warehouse and unloaded there, and the goods found safe. It was further proved, that if the goods had been taken to this warehouse, the cost to Eagle & Co. would have been 2^ cents per hundred pounds. Pie saved this by putting the cars where he ordered them.
This is the amount of the testimony. Certain points of law were propounded to the c'ourt, and each of them answered. The first was, “ It was the duty of the defendants as common earners to cause the goods to be actually delivered to the plaintiffs.” The court said, “this is true; but the defence here renders it necessary for me to add, that if the usual and proper steps towards the actual delivery were prevented by the interference and conduct of one of the plaintiffs, the rule is not applicable, and the jury will decide the facts. The consignee may take charge of the goods before they have arrived at - the ultimate place of destination, and the carrier’s risk will then terminate.”
I refer to the statement of the case for the other points and answers, which are all in substance the same, and all present the same question, viz., whether any substantial interference by the owner such as directing a different route or a different place of leaving the goods overnight, does not discharge the carrier, so far as relates to what occurred on that route or at that place, without any fault of the carrier. I am not disposed to alter the general liability of carriers; but one exception has been made, and I would adhere to it; I mean in cases in which the owner takes the direction and management from the carrier. The carrier is answerable for every- accident and misfortune to the goods, arising from any cause other than the act of God or a public enemy; among other reasons, because he has the exclusive direction of the route and place of deposit at night; but if the owner can interfere and change these, the -carrier is to answer to the owner for the acts of the owner; that is, he is to answer not only for himself, but to another, for what that other did. •
[521]*521It will not do to inquire whether the .direction of the owner increased the risk, though in this case it obviously did. . In a case of such general, occurrence, there must be a general rule; he who does an act, or occasions it to be done, must bear the consequence; it will not do to take the direction and make another answer for the event. Any interference must discharge the carrier, if it changed the risk, or even if to all appearance it did not change it, or no interference of the owner can have that effect; so any deviation discharges the insurer, though done by the agent or captain, without the knowledge of the insured. The facts were not stated so as.that there was any direct contradiction of the witnesses, but the witnesses used different expressions. The judge must leave this testimony to the jury; and his opinion is in substance this: The usual mode and proper mode was to put these goods overnight in a warehouse. If you believe from the testimony, that the carrier would have so placed them, and was prevented from taking care of them, and left them in the public street of Columbia by the direction of the plaintiffs, and one box was stolen, the fault is not that of the carrier, but of the owner, and he must bear the loss which he occasioned. It matters not whether Eagle ordered them to be put on Haldeman’s sideling, because it was near his own store, or because it saved him the price of storage. He ordered it; and I can see no reason why he shall make another pay for a loss which arose in consequence of the owners’ order, and not from any act of, the carrier. I say, in consequence of the owners’ order, for it occurred where he directed the cars to be placed.’ The goods put in the warehouse were found there in safety.
Judgment reversed; and a venire de novo awarded.