Ethridge, J.,
delivered the opinion of the court.
This is a suit by Philip S. Craig et al., executors of W. C. Craig, on behalf of W. C. Craig & Co., against [313]*313the Yazoo & Mississippi Yalley Eailroad Company for the loss of nine hales of cotton shipped by W. C. Craig & Co. over the Yazoo & Mississippi Yalley Eailroad to New Bedford, Mass., of the value of eight hundred forty-nine dollars and thirty cents, the cotton having been destroyed at East Freetown, Mass., a station near New Bedford, Mass.; said shipment not having been transported to New Bedford, Mass., and delivered there to plaintiffs or their order.
The railroad company filed a special plea alleging:
' That, promptly after the receipt of said cotton from the plaintiff, it promptly and within a reasonable time after the issuance of the bill of lading transported by successive railroad companies acting as connect-ting carriers until it was finally delivered to the New York, New Haven & Hartford Eailroad Company at Hopewell, ill the state of New York, March 22, 1907, for ultimate transportation to destination, said point of destination being located on the line of the New York, New Haven & Hartford Eailroad Company; that that company within a reasonable time after receipt by said company of said cotton transported the cotton to East Freetown, Mass., being a station in the town of Freetown and being within about nine miles of destination, being the station next to New Bedford on the line of said carrier, said cotton arriving in said town on March 28, 1907; “that owing to the unusual and unexpected congestion in freight traffic at New Bedford, on the line of said New York, New Haven & Hartford Railroad Company, prevailing at the time said cotton would have reached New Bedford had it not been stopped at East Freetown, and owing to the fact that at the time mentioned the local teamsters in said city of New Bedford who were accustomed to handle cotton arriving in said city were so occupied moving freights which had already arrived in said city, as to have been unable to have unloaded the cotton herein referred to upon arrival of said car, the ear containing the cotton re[314]*314ferred to in said plaintiff’s declaration was placed by said New York, New Haven & Hartford Railroad Company on a side track in said East Freetown on tlie 28th day of March, 1907, along with other ears containing cotton in transit to New Bedford, said side track being the point most convenient to New Bedford for placing said cars pending relief of the congested condition prevailing at New Bedford, and the inability of the team-, sters there to handle the cotton; that the said New York, New Haven & Hartford Railroad Company made all reasonable efforts to relieve the congested condition herein referred to at the earliest practical date; that the side track on which the cotton in question was stored belongs to said New York, New Haven & Hartford Railroad Company, though resting upon land of other parties, and lies at right angles with the main line of said New’ York, New Haven & Hartford Railioad Company’s track, and ran for a distance of approximately nine hundred feet, where is located an ice storing plant belonging to the Burns River Ice Corporation, a company in which said New Yorkj New Haven & Hartford Railroad Company had no interest whatever, said ice plant being situated on land belonging to parties other than said railroad company; that the said car of cotton in question was standing on said side track adjacent to the plant of said ice corporation; that without any fault on the part of this defendant, and without any fault on the part of the New York, New Haven. & Hartford Railroad Company, a fire originated in the said plant of said ice corporation; that this defendant did not, nor did said New York, New Haven & Hartford Railroad Company, know or have any reason to believe that the fire herein referred to would occur; that the fire referred to occurred at two o’clock p. m. April 29, 1907; that on the afternoon when the said fire occurred the wind was blowing from the direction of said fire towards the said side track on which said cotton was standing, and embers were blown by said [315]*315wind from the said icehouse across said track; tliat .while the said New York, New Haven & Hartford Railroad Company immediately after said fire started began to remove from said side track the cars standing thereon, and did in fact remove all of said cars except the car containing the cotton referred to in the declaration herein, yet, notwithstanding the fact that said company made every reasonable effort to remove the oar containing the cotton herein referred to, fire was communicated to said car from said ice plant, and said cotton destroyed before it could be removed to a place of safety; that the said New York, New Haven & Hartford Railroad Company was not responsible for and had no connection with the origin of said fire.”
The bill of lading issued by the company did not specifically contain a clause exempting the carrier from loss by fire during transportation. The only clause pertinent to this opinion in the bill of lading in reference to nonresponsibility of the carrier reads as follows :
“'This company shall not be responsible for loss or damage by accidents or delays from unavoidable causes: nor for delay, loss or damage caused by strikes or riots, or by quarantine or custom house regulations.’!
The rule is that a common carrier is responsible for all losses occasioned except those occasioned by the act of G-od, or the public enemy, except as it may stipulate in its contract against loss or liability at common law. It has been held by the federal supreme court in numerous cases that a carrier may modify its common-law liability by contracting against them, provided it does not contract against its own negligence.
Of course, each case must turn upon the specific provisions in its contract. It will be noted from the above quotation from the bill of lading that the exemption is from responsibility for loss or damage “from accidents or delays arising from unavoidable” causes; there being no allegation in the plea of any strike, [316]*316riot, quarantine, or custom house regulations causing or contributing to the risk or loss. The pleadings in this case allege unusual and unexpected congestion in freight traffic at New Bedford prevailing at the time the cotton would have reached New Bedford, and owing to the fact that, at the time mentioned, the local teamsters in the said city of New Bedford, who were accustomed to handle cotton upon arriving in said city, were so occupied in moving freight already arrived in said city they would have .been unable to have moved the cotton referred to upon its arrival. The extent of the congestion is not pointed out. The fact that the congestion may be “unsual and unexpected” would not necessarily mean that the cotton could not have been stored there, and removed from the carrier to the shipper within the time it was side-tracked, or within a reasonable time after its arrival; and, while it is alleged that the teamsters who “usually unloaded the cotton” were busy at the time, it is not alleged that there were not other teamsters or persons who could unload and handle cotton; nor' is it alleged how long they were busy and unable to handle the cotton had it been sent for handling. It is not alleged how long the congestion, such as it was, existed, and there is no issuable fact in the plea on this proposition.
Free access — add to your briefcase to read the full text and ask questions with AI
Ethridge, J.,
delivered the opinion of the court.
This is a suit by Philip S. Craig et al., executors of W. C. Craig, on behalf of W. C. Craig & Co., against [313]*313the Yazoo & Mississippi Yalley Eailroad Company for the loss of nine hales of cotton shipped by W. C. Craig & Co. over the Yazoo & Mississippi Yalley Eailroad to New Bedford, Mass., of the value of eight hundred forty-nine dollars and thirty cents, the cotton having been destroyed at East Freetown, Mass., a station near New Bedford, Mass.; said shipment not having been transported to New Bedford, Mass., and delivered there to plaintiffs or their order.
The railroad company filed a special plea alleging:
' That, promptly after the receipt of said cotton from the plaintiff, it promptly and within a reasonable time after the issuance of the bill of lading transported by successive railroad companies acting as connect-ting carriers until it was finally delivered to the New York, New Haven & Hartford Eailroad Company at Hopewell, ill the state of New York, March 22, 1907, for ultimate transportation to destination, said point of destination being located on the line of the New York, New Haven & Hartford Eailroad Company; that that company within a reasonable time after receipt by said company of said cotton transported the cotton to East Freetown, Mass., being a station in the town of Freetown and being within about nine miles of destination, being the station next to New Bedford on the line of said carrier, said cotton arriving in said town on March 28, 1907; “that owing to the unusual and unexpected congestion in freight traffic at New Bedford, on the line of said New York, New Haven & Hartford Railroad Company, prevailing at the time said cotton would have reached New Bedford had it not been stopped at East Freetown, and owing to the fact that at the time mentioned the local teamsters in said city of New Bedford who were accustomed to handle cotton arriving in said city were so occupied moving freights which had already arrived in said city, as to have been unable to have unloaded the cotton herein referred to upon arrival of said car, the ear containing the cotton re[314]*314ferred to in said plaintiff’s declaration was placed by said New York, New Haven & Hartford Railroad Company on a side track in said East Freetown on tlie 28th day of March, 1907, along with other ears containing cotton in transit to New Bedford, said side track being the point most convenient to New Bedford for placing said cars pending relief of the congested condition prevailing at New Bedford, and the inability of the team-, sters there to handle the cotton; that the said New York, New Haven & Hartford Railroad Company made all reasonable efforts to relieve the congested condition herein referred to at the earliest practical date; that the side track on which the cotton in question was stored belongs to said New York, New Haven & Hartford Railroad Company, though resting upon land of other parties, and lies at right angles with the main line of said New’ York, New Haven & Hartford Railioad Company’s track, and ran for a distance of approximately nine hundred feet, where is located an ice storing plant belonging to the Burns River Ice Corporation, a company in which said New Yorkj New Haven & Hartford Railroad Company had no interest whatever, said ice plant being situated on land belonging to parties other than said railroad company; that the said car of cotton in question was standing on said side track adjacent to the plant of said ice corporation; that without any fault on the part of this defendant, and without any fault on the part of the New York, New Haven. & Hartford Railroad Company, a fire originated in the said plant of said ice corporation; that this defendant did not, nor did said New York, New Haven & Hartford Railroad Company, know or have any reason to believe that the fire herein referred to would occur; that the fire referred to occurred at two o’clock p. m. April 29, 1907; that on the afternoon when the said fire occurred the wind was blowing from the direction of said fire towards the said side track on which said cotton was standing, and embers were blown by said [315]*315wind from the said icehouse across said track; tliat .while the said New York, New Haven & Hartford Railroad Company immediately after said fire started began to remove from said side track the cars standing thereon, and did in fact remove all of said cars except the car containing the cotton referred to in the declaration herein, yet, notwithstanding the fact that said company made every reasonable effort to remove the oar containing the cotton herein referred to, fire was communicated to said car from said ice plant, and said cotton destroyed before it could be removed to a place of safety; that the said New York, New Haven & Hartford Railroad Company was not responsible for and had no connection with the origin of said fire.”
The bill of lading issued by the company did not specifically contain a clause exempting the carrier from loss by fire during transportation. The only clause pertinent to this opinion in the bill of lading in reference to nonresponsibility of the carrier reads as follows :
“'This company shall not be responsible for loss or damage by accidents or delays from unavoidable causes: nor for delay, loss or damage caused by strikes or riots, or by quarantine or custom house regulations.’!
The rule is that a common carrier is responsible for all losses occasioned except those occasioned by the act of G-od, or the public enemy, except as it may stipulate in its contract against loss or liability at common law. It has been held by the federal supreme court in numerous cases that a carrier may modify its common-law liability by contracting against them, provided it does not contract against its own negligence.
Of course, each case must turn upon the specific provisions in its contract. It will be noted from the above quotation from the bill of lading that the exemption is from responsibility for loss or damage “from accidents or delays arising from unavoidable” causes; there being no allegation in the plea of any strike, [316]*316riot, quarantine, or custom house regulations causing or contributing to the risk or loss. The pleadings in this case allege unusual and unexpected congestion in freight traffic at New Bedford prevailing at the time the cotton would have reached New Bedford, and owing to the fact that, at the time mentioned, the local teamsters in the said city of New Bedford, who were accustomed to handle cotton upon arriving in said city, were so occupied in moving freight already arrived in said city they would have .been unable to have moved the cotton referred to upon its arrival. The extent of the congestion is not pointed out. The fact that the congestion may be “unsual and unexpected” would not necessarily mean that the cotton could not have been stored there, and removed from the carrier to the shipper within the time it was side-tracked, or within a reasonable time after its arrival; and, while it is alleged that the teamsters who “usually unloaded the cotton” were busy at the time, it is not alleged that there were not other teamsters or persons who could unload and handle cotton; nor' is it alleged how long they were busy and unable to handle the cotton had it been sent for handling. It is not alleged how long the congestion, such as it was, existed, and there is no issuable fact in the plea on this proposition. The pleading is a general conclusion, and it is difficult to see how issue could have been tendered, and what proof would have been brought forward to justify or sustain the allegations of this plea.
The facts should be set forth, and it ought to have been alleged with 'sufficient certainty to appear that the company could not have stored the cotton at New Bedford on its tracks at the time it should have reached there, and also it should have been alleged how long this condition existed so that the court could have determined whether the facts pleaded would have sustained a verdict for the defendant. So far [317]*317as this pleading shows, it may have been possible to have carried the cotton to N,ew Bedford and stored it there, and, if it was a fact that it could not be moved by the customary teamsters, the plaintiff might have secured other persons, or might have himself unloaded the cotton and disposed of it in some safe manner.
The defendant declined to plead further when the court sustained the demurrer to this plea and suffered final judgment to be entered against it.
A plea is construed most strongly against the pleader, and we are bound to assume that the facts are pleaded as strongly in the plea as they could be under the facts governing the transaction.
We think the carrier failed to exonerate itself from its liability under the bill of lading.
It is insisted here in argument that, unless the loss was caused by the New York, New Haven & Hartford Railroad Company, the defendant is not responsible under the terms of the Carmack Amendment (Act Cong. June 29, 1906, chapter 3591, section 7, pars. 11, 12, 34, Stat. 595 [Comp. St. 1916, sections 8604a, 8604aa]). In other words, as we understand the argument, that the defendant is not responsible unless the loss was caused by some affirmative act of the connecting carrier, the New York, New Haven & Hartford Railroad Company.
As we understand the decision of the United States supreme “court, the connecting carrier is to be treated as though it was a part of the original carrier’s line.
In G., H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 517, the United States supreme court held as follows:
“Under the Carmack Amendment, as already construed in the Riverside Mills Case, wherever the carrier voluntarily accepts goods for shipment to a [318]*318point on another line in another state, it is conclusively treated as having made a through contract. It thereby elected to treat the connecting carriers as its ágents, for all purposes of transportation and delivery. This case, then, must be treated as though the point of destination was on its own line, and is to be governed by the same rules of pleading, practice, and presumption as would have applied if the shipment had been between stations in different states, but both on the company’s railroad. Thus considered, when the holders of the bills of lading proved the goods had not been delivered to the consignee, the presumption arose that they had been lost by reason of negligence of the carriers or its agents. The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract was then cast upon the carrier. The plaintiffs were not obliged both to prove their case and to disprove the existence of a defense. The carrier and its agents, having received possession of the goods, were charged with the duty of delivering them, or explaining why that had not been done. This must be so, because carriers not only have better means, but often the only means, of making such a proof. If the failure to deliver was due to the act of God, the public enemy, or some cause against which it might lawfully contract, it was for the carrier to bring itself within such exception.”
We think the plea in this case insufficient and states no defense. Certainly it states no facts upon which issue could be accepted.
The court below having reached the same conclusion, the judgment is affirmed.
Affirmed.