Moses v. Port Townsend Southern Railroad

32 P. 488, 5 Wash. 595, 1893 Wash. LEXIS 30

Opinions

The opinion of the court was delivered by

Scott, J.

In April, 1891, the respondent made a contract with the Burlington & Missouri River Railroad Company in Nebraska for the transportation of a car loaded with household goods and horses. A memorandum of this contract, in the form of a shipping receipt, or way bill, was given to the respondent by said company, which is as follows:

“No.-. Haddam, Kansas, April 23d, 1891.

Received from N. E. Moses, in apparent good order, by the Burlington & Missouri River Raili-oad Company in Nebraska, to be transported to ................Beatrice...............the

(Do not insert point not on this road.)

following articles as marked and described below, subject to the conditions and regulations of the published freight tariff of the said company (see extract on back hereof), it being expressly agreed and understood that the said Burlington & Missouri River Railroad Company in Nebraska, in receiving the said freight to be forwarded as aforesaid, assumes no other responsibility for its safety than may be incurred on its own road.

On the back of said exhibit was printed the following:

“NOTICE TO SHIPPERS.

“This compauy will not be responsible for any damages occasioned by delays from storm, accident or other cause, leakage of oil or liquids, injury to or abstraction of the hidden contents of packages, or by decay of perishable articles, or injury by heat or frost to such articles as are affected thereby, or by reason of improper packing when received at their depots. Nor will it be responsible for any property until receipted for by a duly authorized agent; nor will they hold themselves liable for damages by fire, or as common carriers for any articles after arrival at their place of destination on this road.

“Grain.—Grain in bulk to be loaded and unloaded by shipper; will be at owner’s risk of short weight, except when caused by collision, running off the track, or by carelessness of the agents of this company; no receipt will be given for any quantity of grain in bulk, nor any number of sacks when loaded by shipper, except more or less, and the company will not be responsible for any discrepancy in the nümher of sacks when thus shipped. When freight is not taken away within 2i hours after its arrival at destination, it may be put in store subject to charges and customary storage and commission.

‘ ‘ SPECIAL.

‘ ‘ Shippers of grain must give agents shipping directions in writing, as no errors arising from verbal directions will be recognized. ’ ’

The Burlington & Missouri River Railroad Company had no through line to Olympia, nor any traffic agreement with the connecting lines running to said point. Said railroad company hauled the car to Beatrice, Nebraska, the point of destination on its line inserted in the way bill, and there delivered it to the Union Pacific Railroad Company, which company transported it to Portland, Oregon, at which point it was, by said last named company, delivered to the Northern Pacific Railroad Company, and was by it transported to Tenino, in this state. The appellant received the car at Tenino, from the Northern Pacific Railroad Company, and hauled it to Olympia. Upon applying for her goods at this place, the respondent was informed that there was §89.25 due thereon for transporting the car from Portland to Tenino, which sum appellant had advanced to the Northern Pacific Railroad Company on receiving the car, and the further sum of §10 due appellant for transporting the car from Tenino to Olympia, for which, together with §1.50 for*switching, appellant claimed a lien upon the chattels, and refused to deliver the same until such sums were paid. The respondent refused to make these payments, and brought this action to recover the property and for damages for its detention. A trial by jury was had, which resulted in a verdict and judgment for the respondent for a return of the property, and for the sum of §100, damages. Whereupon the cause was appealed to this court.

It is not questioned but that the charges amounting to §100.75, for hauling the car from Portland to Olympia, and for switching, are reasonable; but the respondent contends that as she stipulated for the carriage of the goods to Olympia for the sum of two hundred dollars, and paid the same to the Burlington & Missouri River Railroad Company, that she could not be called upon to make any further payment, and that the appellant and all other transportation companies hauling said car must look for payment to the aforesaid railroad company with which she contracted.

At the trial appellant offered to show that at the time the Northern Pacific Railroad Company took the car at Portland, it had no notice that respondent had made any arrangement with the Burlington & Missouri River Railroad Company for the transportation of the car to Olympia, or that any freight had been paid thereon; and that appellant had no knowledge thereof prior to the arrival of the car at Olympia. The court refused to permit this proof, to which ruling the appellant excepted, and alleges the same as error.

The custom of railroad companies in assuming back charges on goods delivered to them and paying the same, and for the last carrier to collect such amount together with its own charges from the consignee, is well established. Also, that every railroad company has a lien for freight charges of its own, and for charges of previous carriers which it has paid or assumed. This custom is founded on commercial convenience and necessity, and is now well recognized, and the last carrier has the right to retain the goods until its own chai-ges are paid, and all back charges due in transit, including storage charges. And the last carrier has a lien therefor, even if the charges exceed the guaranteed rate, providing it had no notice of such guaranty.

When a consignor delivers goods to a carrier to be carried over successive routes beyond the routes of the first carrier, he makes the first carrier his forwarding agent, and the first carrier who receives the goods and directs them over the route of the succeeding carrier, is the owner’s agent, and the succeeding carriers act under the authority of the owner, and this has ordinarily been held to be the rule even though the first carrier did not follow the instructions of the shipper, where the succeeding carriers acted innocently. 1 Jones on Liens, §§ 291, 292, 294 and 297; Vaughan v. Providence, etc., R. R. Co., 13 R. I. 578; Briggs v. Boston, etc., R. R. Co., 6 Allen, 246; Bird v. Georgia Railroad, 72 Ga. 655; Patten v. U. P. Ry. Co., 29 Fed. Rep. 590; Wells v. Thomas, 27 Mo. 17.

The contract between appellant and the Burlington & Missouri River R. R. Co. was not .a through contract. This company stipulated to carry the freight only to Beatrice, Nebraska, a point upon its own line where it connected with the Union Pacific Railway Company, and it expressly stipulated that in receiving said freight to be forwarded as aforesaid, it assumed no other responsibility for its safety than for such loss as might be incurred on its own road. See Schneider v. Evans, 25 Wis. 241. The authority to turn it over to a succeeding carrier is clearly implied and was a necessary incident under the circumstances, and upon safely delivering the freight to the next carrier at Beatrice its duties as to the handling of the freight were performed. It also agreed that the sum to be paid for the entire distance should not exceed §200, and its further liability after delivering the goods to the succeeding carrier could only arise upon this agreement.

A subsequent carrier having no knowledge thereof or of the prepayment of the freight, would in no wise be bound thereby unless the want of such knowledge should in some way be due to its own negligence. The authorities are not uniform upon this proposition, but the weight of them sustain it. 1 Jones on Liens, §§ 294, 295, 297 and 298; Wolf v. Hough, 22 Kan. 659; White v. Vann, 6 Humph. 70. The way bill in queston, showing the prepayment of the freight, would presumptively afford information to each carrier of that fact. Jones on Liens, ^ 296. But this is not a conclusive presumption. It is possible that the succeeding carriers had no such knowledge, and without fault of theirs. The proof in relation thereto should, have been admitted. If the subsequent carriers did have knowledge of the agreement made by the respondent with the Bui’lington & Missouri River R. R. Co., or if not having it the circumstances were such that they should be held bound by it in consequence of any neglect in not seeking to inform themselves, they would have no claim against the respondent for their transportation charges.

The plaintiff claimed that the horses had been injured by the defendant by keeping them for eight days upon a plank floor after their arrival at Olympia, and the damages were recovered upon this ground. Appellant contends that the court erred in not permitting it to show that it is customary to keep horses upon plank floors in this locality, and that it is impracticable to keep them upon earth floors. The respondent insists that whatever may be the custom with regard to the keeping of horses generally, appellant failed to exercise due care in so keeping these particular animals, in consequence of their having been immediately preceding then confined for some time in the car during transportation, and that this continued subsequent confinement upon a plank floor would necessarily result in a serious injury to them. These are questions of fact for the jury, and, being so, testimony in relation thereto is of course admissible. Appellant was bound to exercise reasonable care in keeping the property, and would only be liable in case of a failure to do so.

Reversed.

Anders, Stiles and Hoyt, JJ., concur.