Reed v. Philadelphia, Wilmington & Baltimore Railroad

8 Del. 176

• Court: Superior Court of Delaware
• Decided: July 5, 1865
• Status: Published

Opinion

The Court, Wootten J., charged the jury,

after referring to the facts of the case, that the plaintiffs claim that under this arrangement, they delivered to the defendants, during the peach season of eighteen hundred and sixty-four, at the depot in Dover,.to be shipped for New York,forty-eight thousand, six hundred and eighty baskets of peaches, the value of which was from two dollars to two dollars and fifty cents per basket. And they further allege, that twenty-five thousand baskets which were delivered in time and accepted by the defendants for transportation from the Depot at Dover to Washington street wharf in Philadelphia,were not taken from the Depot and safely and securely carried and conveyed from thence to Washington street wharf in Philadelphia, on the day of their delivery to and acceptance by the defendants for that purpose; but were suffered and permitted by the defendants to remain and lay over; and consequently the peaches contained in those baskets spoiled, rotted and were wholly lost. And the plaintiffs further allege that they shipped to NTew York in the aggregate, forty thousand nine hundred and forty-three baskets of peaches, and that of this number five thousand three hundred and sixty-seven baskets were shipped in a damaged condition by reason of the negligence and delay of the defendants in not shipping them on the day of delivery to, and acceptance by them for that purpose. And the plaintiffs further allege that the defendants did not provide and put on suitable and a sufficient number of cars for the purpose of their undertaking, that is for the transportation of the peaches, which they undertook to carry and convey safely and securely from Dover to Philardelphia; that on some days, as the plaintiffs allege, there were no trains at all, and on other days, and generally, the trains were behind time, and that in consequence of the negligence of the defendants and the insufficiency of the motive power and other necessary means to carry the plaintiffs’ peaches to their place of destination at Washington street wharf in Philadelphia in time to connect with the Gamden and Amboy ¡Railroad to ¡New York, the plaintiffs lost the benefit of the market in New York the next morning after the delivery of their peaches to the defendants and the shipment thereof at Dover. And the plaintiffs further say that there was great delay in the departure of the trains from Dover at the stipulated time, by reason often times of the failure of the train to arrive at-Dover from below at the proper time, and also for the want of hands who ought to have been furnished by the defendants to load or to assist in loading the cars.

For these and other alleged grievances, losses and injuries, the plaintiffs claim damages of the defendants to the amount of twenty-one thousand and twenty-five dollars, . with interest.

The plaintiffs’ declaration contains twelve counts, presenting their case in almost every conceivable aspect as to the default of the defendants complained of. To refer to and explain all these different counts in the declaration would be but a useless consumption of time, without imparting to you any useful information in the discharge of your duty.

- The defendants deny the plaintiffs’ alleged cause of action, and set up by their pleas and rely upon various matters of defence as a bar to to the plaintiffs’ right of recovery. They contend first, that there was no other agreement on their part for the transportation of peaches than that contained in the printed hand-bill, published by their agent, which is in evidence before you, and that they put on and run continuously during the season all the cars they agreed to furnish and run for the purpose.

Second, That they (the defendants) applied and used all the means in their power, and strove to the extent of their capacity to accommodate the class of persons whom they had undertaken to serve. That they gave the peach trains (as they were usually called) the preference over the regular freight trains, and also over the passenger trains, that the cars commenced running about the time specified in the printed hand-bill, published by their agent, and continued to run during the peach season, that is from the first of August to the last of September or first of October following) and that with but few exceptions they left the Depot at Dover at four o’clock and forty-five minutes P. M., and arrived at the place of their destination, at Washington street wharf in Philadelphia, at or about half past nine o’clock P. M. of the same day. ' Third, That there was not sufficient time to deliver and ship the peaches by reason of the extraordinary quantity rushed in at the depot, morning, noon and night, greatly exceeding any representations that had been made to the defendants, and beyond their expectation and their capaci ty to carry them, and unfit for shipment, some too green and others too ripe, that they were all brought to the depot at Dover for shipment, and many of them from places nearer other depots. That the agent of the defendants informed the plaintiffs that the defendants had exhausted all their means of transportation and were unable to do more, and urged the plaintiffs not to purchase any more peaches to be carried by them. The defendants also insist that the New York market was sometimes glutted, that the losses of the plaintiffs arose from their own bad management in not having a sufficient number and careful and skillful hands to pick and deliver their fruit in proper condition for shipment, and not by the negligence or default of the defendants. Fourth, That they (the defendants) carried the full number of baskets of peaches which they were informed there would probably be for transportation from the State over their road. Fifth, That when the trains failed to make time, it was not by reason of the negligence or default of the defendants; but for reasons entirely beyond their control.

These, gentlemen, are substantially the grounds on which the plaintiffs base their right or claim to recover, and those on which the defendants rest their defence.

I will now proceed to announce to you as concisely and intelligently as I am able, the law applicable to the several and respective branches of the case.

In respect to that portion of the plaintiffs’ claim which rests on the assumption of a special contract on the part of the defendants, we have to say to you that we do not consider that any special contract has been proved. To constitute a special contract there must be mutual promises and undertakings obligatory on both parties, and before the one can require the other to comply with his engagements, he must be bound to fullfil his own obligations. It appears from the evidence, that Mr. Felton, the President of the company, promised the committee of the convention of the peach-growers of Delaware, that he would do "all he could to provide ways and means for the transportation of their peaches, provided the Oamden and Amboy Railroad company would co-operate and furnish their proportion -of cars; but there is no evidence that the plaintiffs or any other person bound themselves to ship any peaches at all, and aside from the want of mutuality, which is essential to the validity of every special contract, according to the construction given to the alleged contract by the plaintiffs’ counsel, the defendants were not bound by their proposition until it was accepted by the peach-growers by presenting their peaches to the defendants for shipment, and thereby making themselves parties to the contract—such a construction of the agreement or arrangement of the defendants would make it a separate and distinct contract on each and every delivery of peaches for transportation—in other words, there would have been as many contracts as there were different deliveries of peaches, each delivery constituting a distinct cause of action, in the events of default on the part of the defendants. But although no special contract, such as is contended for by the plaintiffs’ counsel existed, it is perfectly true that each and every delivery and acceptance of peaches for transportation created a contract between the parties, not a special contract however growing out of the alleged arrangement made by Mr. Felton with the committee of the convention of peach-growers, or by the hand-bill published by the defendants, but such a contract as the law applicable to common carriers raises in. all cases under like circumstances. But according to well settled principles of law, Mr. Felton had the right to withdraw his proposition at any time before it was accepted, and it seems that he did withdraw it, so far at least as it was changed or modified by the hand-bill published by the defendants, indicating their purpose and defining their proposition.

In this view of that branch of the case, we feel it our duty to say to you that no special contract has been proved in the cause, and therefore the plaintiffs cannot recover damages in this action for any loss they may have sustained on peaches, which were not accepted from them by the defendants for shipment, nor can they recover the difference of freight paid the Adams Express company, over and above what the defendants would have charged had they .carried the peaches that were carried by the express company—nor can they recover in this action for the work and labor furnished by them to load the cars and attend to the shipment of their peaches, there being no count in the declaration under -which these items of charge can be recovered, supposing them to be recoverable at all; and we say further, that those items of charge claimed by the plaintiffs could not be recovered if the declaration contained suitable counts, if you should be satisfied from the evidence, that it was the custom of the shippers to furnish hands for that purpose, and the custom was acquiesced in by them.

This brings us to that branch of the case which involves the responsibility of the defendants on the ground of negligence and the want of due care and skill in the transportation and delivery of that portion of the plaintiffs’ peaches, which were delivered to and accepted by the defendants for that purpose, and not safely carried and delivered at the place of destination in good order and in due time. It is alleged that forty thousand nine hundred and forty-three baskets were delivered to and accepted by the defendants for transportation, and the plaintiffs say that by reason of the negligence and want of due care and skill on the part of the defendants in the transportation and delivery of these peaches, they spoiled, spotted and rotted, and consequently greatly depredated in value to the great damage of the plaintiffs. This necessarily leads us to the consideration of the law which fixes and defines the obligations of common carriers. Without entering into a general description of the term, it will be quite sufficient for the purposes of this case to say, that they (common carriers) consist of two classes—common carriers of goods, and common carriers of passengers for hire : and Railroad companies being incorporated by law for the transportation of persons and property over their respective roads for hire, are common carriers of both descriptions. These are the purposes for which they are created by law. It is their public employment, their direct duty and principal business, and not a casual or occasional occupation with them, and this it is that constitutes them common carriers of both the classes which I have described. There is a marked difference however between the obligations which the law imposes upon common carriers of goods and common carriers of persons; but as we are only considering their liabilities as carriers of goods, I will'confine my remarks to' the obligations, which the law imposes on them as such. Common carriers of goods are responsible for all losses and injuries thereto, except such as are caused by the act of God, the public enemy, and the default of the owner, even in the absence of negligence, because ¡he law regards them as insurers against all losses and injuries arising from any other cause, whether they result from the want of necessary care, diligence and skill of their servants, or from the want of the necessary and proper means of conveyance and the conduct and management thereof; jin this they are required to exercise every degree of care and diligence which a reasonable man would use, and which is-in their power to exert—the care and diligence required is to be measured in a. great degree by the character of the goods they are transporting, and their liability may be greater or less, according to the condition of the property when received by them, which ought to be in a proper and suitable condition and state of preparation for transportation when delivered and accepted—this obligation is imposed on them as a public duty, and by their undertaking to carry safely, as far as human care and foresight will admit.

Railroad companies using as they do the powerful and dangerous agency of steam, are bound to provide skillful and careful servants, competent in every respect for the posts they are appointed to fill in their service, and are responsible not only for their possession of such care and skill, but for the continued and faithful application of these qualifications at all times. Pierce on American Railroad, law, 469, 470, 471.

These obligations impose on the carrier the duty to carry and safely deliver the goods to the owner or consignee in good order and in reasonable time at the place of destination, and nothing will excuse or exempt them from this responsibility, except, as I have before said, the act of God, the public enemy, or default of the owner. What is meant by the act of God are causes from which loss ensues, and which no human care or foresight could prevent, being such as earthquakes, lightning, tempests and inundations. Pierce on Am. Railroad law, 410. And when defence is predicated on the existence of any of these causes, the onus probandi is on the defendant.

But the principle on which the extraordinary liability of common carriers is founded, does not extend the responsibility to the time occupied in the transportation, unless they expressly contract to deliver within a given time ; if they do so obligate themselves by special contract, they are bound to deliver at all events at the specified time, although the delay may be occasioned by inevitable accident, or necessity beyond the control of human care or foresight. Pierce on Am. Railroad law, 412.

In the absence however of a special contract to deliver on time they are bound to use due care and diligence to complete the transportation within a reasonable time, having regard to the character of the property, and the necessity of its speedy delivery at the place of destination In this case it appears from the evidence, that the defendants put forth for the public eye, a hand bill indicating the arrangement they proposed for the aecommodation of the peach-growers of Delaware, specifying the time of departure of their daily train from the different points or stations on the road. The time thus indicated for departure from the depot at Dover was four o’clock and forty-five minutes P. M., and designed to arrive in Philadelphia at Washington street wharf about nine o’clock and thirty minutes P. M. of the same day—the defendants having thus held themselves out, and proposed so to accommodate the public, were bound to use due diligence, cave and skill, and to exert all the means in their power to make the time mentioned in their hand bill for arrival at Washington street wharf in Philadelphia. And for the same reason that they are not responsible for loss arising from the natural decay of the fruit while in transit, being of a perishable character, they are held to a stricter degree of care and diligence in the transportation and delivery at the specified time.

I now come to that branch of the case which involves the question of delivery by the plaintiffs of their peaches and their acceptance by the defendants lor transportation. This matter has been much discussed and we have been requested to charge you in reference to it. The liability of common carriers commences when the goods have been delivered to and accepted by them, or their agents. Ordinarily the delivery to a Bailroad company is made at its stations to a freight agent.; but if it is the custom of the company to receive goods at some other place, its liability commences from the time of delivery and acceptance according to their custom. As a general rule a delivery does not take effect so as to render the company responsible for a loss by a deposit of the goods where the company are accustomed to receive them until such deposit has been made known to their authorized agents. Pierce on American Railroad law, 426, 426.

In order to charge the defendants as common carriers in this case, the plaintiffs’ peaches must have been delivered to the defendants and accepted by them for transportation in their capacity as common carriers. And here the question arises as to the delivery which the plaintiffs allege they made of their peaches to the defendants to be carried from Dover to Philadelphia. It is a question of fact, gentlemen, and exclusively for your consideration. It is our duty however to instruct you as to what in law constitutes a delivery ; but in doing so I do not purpose or desire to infringe upon your province by referring to the facts, except so far as may be necessary by way of illustration, and to enable me intelligibly to state the law.

It appears from the evidence that the plaintiffs occupied a portion of the defendant’s warehouse- as a place of deposit for their peaches, that they overhauled them while in this warehouse, picked and prepared them for transportation, sold and otherwise disposed of peaches that had been deposited there by them. And it is further proved that when the plaintiffs put their poaches on board the cars at the depot, they rendered an account of the number of baskets and crates to the authorized agent of the defendants, who thereupon made or caused to be made an entry thereof on the forwarding book of the defendants. In the discharge of our duty, which requires us to announce to you the law, we say to you, that to constitute a delivery to the defendants and an acceptance by them, they must have accepted the peaches in their character of common carriers and assumed the exclusive custody and control over them, the plaintiffs having at the same time parted with and entirely surrendered their possession and control over them. If there was not such a delivery the relation of consignor and carrier did not exist. If the plaintiffs merely used the warehouse of the defendants as a matter of convenience to themselves as a place of deposit for their fruit to await transportation when it should he put in a proper condition or state of preparation for that purpose, or to take the chances for cars on which to ship it, no responsibility thereby attached to the defendants. The mere fact of the deposit of the peaches in that portion of the defendant’s warehouse, which was in the exclusive possession of the plaintiffs, or on the platform, or side tracks of the Railroad, would not constitute such a delivery to, and acceptance by, the defendants as would fix their responsibility as common carriers. In other words, if the plaintiffs still held the possession and continued to exercise the exclusive control over the peaches until they were placed on the cars, and the agent of the defendants was furnished by the plaintiffs with the amount or quantity of baskets and crates shipped, the defendants are not responsible for any loss or injury that occurred before that time. 2 Parsons on contracts. Pierce on American Railroad law, 428, 429, 430. Angelí on Common Carriers 129, 130, 131, 134. But if there was consent or an agreement on the part of the defendants, to consider and recognize a deposit in the warehouse occupied by the plaintiffs, or on the platform, or side tracks of the Railroad, a delivery to them and an acceptanceby them, or if there was such an agreement, arrangement or understanding between the plaintiffs and the authorized agent of the defendants it would be a sufficient delivery and acceptance to fix the liability of the defendants, and their liability would commence from the time of such delivery or deposit. Whether such consent, agreement, arrangement or understanding has been proved, is a question of fact, which it is your province and duty to consider and determine, not ours, and when you have settled this question you will be enabled to enter upon the consideration of others depending in a great measure upon this one. If you should be satisfied from the evidence that there was such an agreement, arrangement or understanding between the parties, and that under that arrangement the plaintiffs so delivered and • deposited peaches, the responsibility of common carriers attached to the defendants from the time of such delivery or deposit, and they thereupon became responsible for the transportation and safe delivery of the fruit in good condition and in due season as I have already stated and explained to you in reference to other aspects of the case. But if you should not be satisfied that such an agreement and arrangement was made and existed between the parties, the mere fact of a deposit in that portion of the defendant’s warehouse which was in the possession and exclusive occupancy of the plaintiffs, or on the platform, or side tracks of the Railroad, would not constitute such a delivery to, and acceptance by, the defendants as to fix their responsibility as common carriers.

If there was any negligence or default on the part of the Camden and Amboy Railroad company which resulted in loss and injury to the plaintiffs, it is our duty to say -to you, that the defendants are not in anywise responsible, that the engagements of the former form no part of the obligations of the latter, unless they made themselves responsible by express agreement.

If they engaged or undertook as common carriers to carry and deliver peaches beyond the terminus of their Road they were bound to do so, and would be liable for the consequences of their default.

We have been requested to charge you, that in as much as the hand-bill excepted Saturdays and Sundays, the defendants were not bound to receive and carry the plaintiffs’ peaches on those days, and therefore they are not responsible for not forwarding them on a Saturday. It may be true. that they were not bound to receive and forward this portion of the plaintiffs’ peaches ; but if they accepted them and undertook to carry them, there the relation of carrier and consignor existed, and the responsibility of common carriers attached to the defendants on receiving the property for transportation.

We have been requested to charge you. also that the defendants were not bound by their obligations as common carriers, to receive and forward the plaintiffs’ peaches, unless they were offered for that purpose and the usual freight paid orrtendered. Such, gentlemen, is the law, unless the usage of the company in respect to the payment of freight was otherwise, then a compliance with the custom whatever it might be would be necessary to charge the defendants in their capacity of common carriers. What the custom was in reference to this matter, is a question of fact for you to determine from the evidence in the cause.

We have been requested to charge you also, that if it appears from the evidence, that the loss and injury complained of by the plaintiffs was caused partly by their own negligence in buying bad fruit or shipping it in bad order, and partly by that of the defendant, the plaintiffs cannot recover. This is the law and so conceded to be by the plaintiffs’ counsel, unless, however, by ordinary care the plaintiffs could not have avoided the consequences of the defendant’s negligence. Whether the plaintiffs own negligence contributed to the injury and loss complained of in this case is also a question of fact to be determined by you.

I believe, gentlemen, I have now adverted to, and explained (imperfectly perhaps), all the law applicable to the ease, and it now remains for you to apply the facts in evidence before you, and make up your verdict from the law as given to you by the court, and the evidence as you have it from the witnesses and otherwise.

If you should be of opinion from all the evidence, that the plaintiffs sustained loss or damage in consequence of the negligence and default of the defendants in the transportation and safe delivering of the plaintiffs’ peaches, at the place of destination at the proper time and in good order, which they received from the plaintiffs, and undertook to transport from Dover to Philadelphia, your verdict should be for the plaintiffs. But if from the evidence, you should be satisfied that the defendants were not in default, but complied with all the obligations to the plaintiffs, which the law and their undertakings imposed upon them, in view of all the facts and circumstances of the case as proved, then your verdict should be for the defendants.

Ridgely, E. Saulsbury and Comegys for the plaintiffs. Pratt, Gordon and _D. M. Bates for the defendants.

If your verdict should be for the plaintiffs, the measure of damages will be the value, at the place of destination, of such of the plaintiffs’ peaches, (if any) as were received from the plaintiffs by the defendants for shipment, and which by the negligence or default of the defendants were lost or destroyed, and the difference of price, which such as were delivered to and accepted by the defendants for transportation from Dover to Philadelphia, would have brought in the market delivered in due season, and in good order, and the price they actually sold for when delivered. But in the investigation of these facts, you must consider the condition of the fruit when it was accepted by the defendants, for if the peaches were not in good condition, and properly put up for shipment when delivered to them, they are not responsible for any loss which resulted from depreciation in value in consequence of the imperfect character of the fruit, or for want of its proper preparation for transportation.

Much has been said on the one side about the wealth and power of the defendants as a corporation ; and by the other side in respect to its great convenience and benefit to the public. All this, gentlemen, may be and nevertheless is very true ; but they are matters entirely outside of the case, and should not enter into your deliberations in deciding it. The defendants should be held to the same degree of responsibility that individuals as common carriers would be, and they are entitled to have meted out to them the same measure of justice.

Gentlemen, you will now take the case, retire to your chamber and there give it a deliberate, attentive and impartial consideration, and render such verdict, as in your best judgment the evidence requires.

The plaintiffs had a verdict for $2,438.00.