Dunham v. Boston & Maine Railroad

Appleton, C. J. The defendants, on July 1, 1876, received from the Fitchburg railroad company certain goods consigned to the plaintiff at Bangor, with a memorandum stating from whom received and to whom and where to be delivered, but the Fitch-burg company neglected or omitted from carelessness to furnish the defendant with the amount of precedent freight earned. The defendants received the goods, and on the third or fourth of July carried them to Portland, where they remained until July 12, when, having received a bill of all previous freight earned, they delivered the goods to the Maine Central railroad, which corporation took them to their place of destination and delivered them to the consignee. The plaintiff, in consequence of the delay in transportation, lost the sale of his goods, and brings this action to obtain compensation for such loss. The acceptance by the defendants of the goods at Portland was complete when the goods by their consent came into their bands. Pratt v. Railway Co., 95 U. S. (S. C.) 43. The defendants receiving the goods and taking them to Portland, in so doing were common carriers and liable as such. But as the goods were to be delivered at a point beyond their line, and as they knew where and to whom they were to be delivered, they were thus to be regarded as forwarders, and it became their duty to forward the goods without unnecessary delay. Plantation No. 4. v. Hall, 61 Maine, 517. Rawson v. Holland, 59 N. Y. 611. Burroughs v. N. & W. R. R. Co., 100 Mass. 26. The defendants manifestly neglected their duty as forwarders. [171] For so doing they rely upon an established rule of the Maine Central railroad company, which is not “ to receive goods from connecting lines to be forwarded unless such goods are accompanied by a regular way-bill or memorandum giving name of consignee, destination and charges due.” But this rule, if proved, cannot avail, because they did in fact receive the goods and carry them part way, and thus receiving them and transporting them they were bound to forward. While the defendants claim all the rights of common carriers they must discharge all the duties of such carriers. Railroads may make arrangements for mutual accommodation. They may have the merit of convenience, but they have not the force of law. They are not obligatory on tlie public. It is claimed that they are to be excused because tlie antecedent charges for freight had not been delivered and they conld not collect the freight earned. But that is no excuse. Because the Fitchburg railroad company neglected to furnish the amount of freight, so that they were unable to state the amount of precedent freight and collect it, is no excuse for not forwarding the goods in their possession. But they would not be responsible for its collection if the negligence of the Fitchburg railroad company prevented their liaving the necessary information to enable them to make such collection. They should not suffer for the negligence- of others for whose acts they are not responsible. They could forward the goods with their own bill for freight earned by them. But the defendants having received and carried the goods were bound to deliver them to the next railroad. In Reynolds v. B. & A. R. R. Co., 121 Mass. 291, the defendants refused to receive the goods because there was no freight bill and expense voucher. In the present case the defendants did receive and transport over their line, but neglected to forward. They cannot deny that they had the custody of the goods as carriers; that they were responsible as such carriers over their road; that when the goods reached its terminus their liability as carriers had terminated and a new duty as forwarders had arisen, which they neglected to discharge. But the defendants are not justified in the delay in this case by [172] the evidence upon which reliance is placed. Hartwell, the general freight agent of the Fitchburg railroad, and Kenney, the general freight agent of the defendant company, agree that in cases where the regular way-bill is not delivered on the same day as the freight, the custom of both railroads “ is to receive the freight with the memorandum and send it forward at once, and afterwards, as soon as received, sending on the regular way-bill.” Neither witness states that the road receiving the freight with the memorandum is to retain it till the way-bill is received, or that the freight received is subject to the further order of the road delivering it until the way-bill is forwarded. If it were so, the road receiving the freight might be compelled to hold it against the will of the owner until the road delivering the freight .should see fit to deliver the way-bill. This would make the subsequent carriage of goods depend upon the action of the railroad delivering, and their carriage might be delayed indefinitely. What the defendant corporation should have done, and what it did not do, was to deliver the freight with their own charges only, and the memorandum stating the place where and the person to whom the freight was to be forwarded, to the next line of railroad over which the goods were to be transported. If the Fitchburg railroad should not forward their freight bill in a reasonable time, so that the defendants could collect the freight, they would not be responsible for it. The loss would be the result of negligence on the part of the Fitchburg railroad, which that corporation could not and should not impose on these defendants. But it has been urged that the Maine Central railroad company would not have received the goods without a way-bill giving the charges due. They were not tendered for transportation, therefore it cannot be known that they would not have carried them to their place of destination. But why should not the Maine Central railroad have taken and carried the goods ? It seems from the testimony of their freight agent they were accustomed to forward freight though the regular way-bill showing charges was not delivered on the same day with the freight. [173] Again, it was the dnty of the Maine Central railroad as common carriers to receive and transport the freight. The defendants had the goods to forward, and it was nothing to the Maine Central railroad that the Fitchburg railroad, or some preceding railroad on the route, had neglected their dnty. The Maine Central would not be liable for precedent freight earned, of which they had no notice. Indeed, they might assume that, if no charges were made known to them, it was because none whatever existed. They would have no right to refuse goods tendered for carriage. Where goods are delivered to a railroad company by a connecting railroad company to be transported to the owners, and the same are received by said company for the purpose, it becomes its duty to send them off immediately; and it cannot justify the detention of the goods on the ground that, by its regulations, goods received from a connecting road are not to be forwarded until the receipt of a bill of back charges, and that no such bill accompanied the goods. Michaels v. N. Y. Cent. R. R. Co., 30 N. Y. 564. This case determines the precise question under consideration. In the case of transporting goods over several railroads constituting a connecting line, neither company is an agent of the owner; each exercises an independent employment as a contractor with the owner and is responsible for its own negligence, and it cannot make the owner responsible for the negligence of a connecting road. Sherman v. Hudson R. R. Co., 64 N. Y. 255. Here' the defendants’ only excuse is the negligence of another railroad, and that, too, when they had all the information needed for the discharge of their own duty. The convenience of the public must have precedence. It is not just that goods consigned should be lost or diminished in value at the cost of the consignee, thereby to exonerate a railroad company from the consequences of its own negligence, still less to exonerate another railroad from the consequences of its negligence. The defendants should have discharged their known duty, whether the Fitchburg company did theirs or not. They should have tendered the goods received with the memorandum to the Maine Central railroad company for [174] transportation, and then they would have fulfilled the legal obligation resting upon them. If the Maine Central railroad had refused to receive and transport, it would then remain to be seen by what right they could refuse goods tendered for transportation so long as they claim to be common carriers. The measure of damages is the difference in the value of the articles (which should have been forwarded) at the time and place when and where they ought to have been delivered and when they were actually delivered. Ward v. N. Y. Cen. R. R. Co., 47 N. Y. 329. Defendants defaulted. Walton, Barrows, Virgin and Libbey, JJ., concurred.