Allam v. Pennsylvania Railroad

Opinion by Smith, J., The plaintiff’s claim grows out of the alleged failure of the — 342 — defendant, a carrier, to perform its duty in the transportation and delivery of goods shipped over its railroad. The evidence shows, without contradiction, that the goods were shipped by the plaintiff, in good condition, at Bethlehem, Pa., addressed to Samuel R. Riley, Strafford, Pa.; one shipment, consisting of “jack-rafters” and moldings, having been.made in October, 1893, and another, of doors and moldings, in February, 1894. When received by the consignee, a large number of the jack-rafters were broken or otherwise injured, and the doors were entirely spoiled by exposure to the rain. The defense,- as set forth in the points submitted by the defendant on trial, was “ that Strafford was at the time a prepaid station at which there was no freight station, and that it was the custom of the company not to give notice to the consignee of the arrival of goods; ” that by the terms of the bills of lading, or shipping receipts, “ the shipment at the station was at the risk of the shipper from the time of delivery at the point of consignment,” that “ it was the duty of the consignee to be on the lookout for his property and ready to receive it on its arrival at the point of destination; ” and that the damage to the goods was due to the consignee’s neglect to be at the station on their arrival, to receive and protect them from injury. Altogether, ten shipments appear to have been made by the plaintiff to the consignee. As to eight of these, in which the goods were uninjured, it does not appear whether notice of their arrival was given to the consignee, or whether the latter was at the station to receive them. As to the damaged goods, no notice appears to have been given; but the consignee’s superintendent, on the first occasion, and his foreman, on the last, arrived at the station and saw the goods, a short time after they were unloaded. The damage, however, had already been done. The injury to the jack-rafters appears to have happened in the course of transportation, or in unloading. There is no evidence that it was due to the cpnsignee’s failure to be at the station to receive them, or that the injury happened after they were unloaded. The only testimony on this subject is that the consignee’s superintendent found them unloaded, many of them in a damaged condition, partly on the station platform and partly on the ground. The carrier gave no explanation of the injury, and offered no testimony as to their condition when — 343 — unloaded. Hence, even if its liability was limited by tbe custom alleged, or by the terms of the shipping receipt, the presumption of its negligence follows of course: Express Co. v. Sands, 55 Pa. 140. ’ As to this shipment, the question of the carrier’s duty to give notice to the consignee does not' arise, since there is no evidence that the injury was due to the want of such notice. The carrier’s liability on the shipment of February, 1894, remains to be considered. In relation to this, the question is ■whether, if the carrier was required by law to give notice to the consignee, it was relieved of this duty by reason of the custom alleged, and whether, under the stipulations of the shipping receipt, it discharged its whole duty by the delivery which it made. First, as to the custom alleged. The rule in this state as to relief from the carrier’s liability at common law, by special custom or usage, is thus stated in McMasters v. R. R. Co., 69 Pa. 874: “ In all cases where this is relied on, the custom or usage must be clearly proved, and that the employer knew it, or is presumed to know it by reason of its generality in the neighborhood.” The only testimony as to the alleged custom, and a general knowledge of it, in the present case, was that of Howell, the carrier’s freight claim agent and of McFadden, its freight conductor. The testimony of Howell is as follows: “ Q. Was or was not the custom, and had it been the custom of the Pennsylvania Railroad Company to give notice to the consignees of the arrival of freight at such stations as this? A. It was not the custom. It never is done. Q. Is- that a general custom? A. So far as my knowledge goes it is- a- universal custom with all the railroads in the country not to give notice of the arrival of freight at prepaid stations. Q. That is not only to this defendant, but to all other railroad companies, is it not ? A. I believe it to be a general rule.” The testimony of McFadden is as follows: “ Q. On other occasions has anybody been at the station representing Mr. Riley to receive the freight ? A. Yes, sir. There are parties there every morning receiving freight waiting for us to unload it. Q. You are positive in these other shipments shown in these waybills there were representatives there of Mr. Riley to whom you delivered the freight? A. Yes, sir. — 344 — Q. Anybody with wagons? A. Nobody there at all on this morning. Q. On the other mornings was there somebody there to haul that away? A. Not these shipments of lumber there was not. But there is a grocery store there; the party is ther§ every morning to receive his freight when we come there. That is about the only party who would come to receive the freight would be waiting for us. Q. You say a party came to receive the freight; who was it ? A. Some grocer that receives freight there. Q. Who came from Mr. Riley that you know to get his freight? A. I never saw anybody there. Q. Do you mean on any other occasion or on this occasion alone ? A. None at all.” Thus the testimony of Howell is altogether indefinite as to the extent of his knowledge on the subject, and he is silent as to general knowledge of the alleged custom at Strafford. McFadden says nothing of a custom, .and the only part of his testimony indicating any knowledge of the alleged custom at Strafford is his statement that a grocer at that point “ was about the only party who would come to receive the freight, would be waiting for us.” This testimony falls far short of establishing the requisites of a custom by which a common law liability may be modified. There is by no means the clear proof of the custom or usage, and of the consignee’s knowledge of it, or the presumption of his knowledge “ by reason of its generality in the neighborhood where it is claimed to exist,” which were declared essential in McMasters v. R. R. Co., 69 Pa. 374. The utmost effect that can be given to it is as showing that the railroad company has a rule, for the government of its freight conductors and agents, prescribing the method of disposing of freight at “ prepaid stations,” wholly irrespective of acquiescence, or even knowledge of the rule, on the part of the consignees, or of the community generally at those stations. Under this rule, moreover, the conductor, as he testified, would not have unloaded the freight in the present case had it been raining when his train reached the station. Thus the rule recognizes a duty to protect the freight at such stations, without requiring the consignee to look after it on its arrival. So far therefore, as the defense rests on a custom, it lacks the requisite foundation of proof, and, indeed, is not adequately stated in the point submitted. — 345 — Next, as to the stipulation limiting the carrier’s liability. The thirteenth clause of the conditions indorsed on the shipping receipt stipulates that “When merchandise is destined to or from the several ‘ way stations ’ and platforms, where station buildings have not been established hy the carrier, or where there are no regularly appointed freight agents, it shall be at the risk of the owner until loaded into the cars and when unloaded therefrom.” In considering the effect that should be given to a custom or to a stipulation in a bill of lading or shipping receipt, in limitation of the carrier’s common law liability, we must take into account the situation of the parties. This is very forcibly presented by Mr. Justice Williams, in Willock v. R. R. Co., 166 Pa. 184, viz: “The carrier and the shipper do not stand on equal terms. The latter cannot afford to refuse that which the carrier demands as a condition to the transportation of his goods, and, in ninety-nine cases out of every hundred, if he does so refuse he will find himself discriminated against until his business is ruined and he has nothing left to ship. The rule that stipulations, insisted on by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, should be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive, is one of very large acceptance. Public policy compels its acceptance in all civilized countries.” This principle applies alike to a custom and to a stipulation, for, when demanded, as a condition to transportation, acquiescence cannot he refused in the one more than in the other. Transportation is an absolute necessity of business, with respect to which, in a large measure, the shipper has practically no freedom of choice, while the carrier may dictate terms unless restrained by legal obligation, competition, or enlightened self-interest. We cannot leave out of view the power and too often the disposition of the carrier, unless so restricted, to establish and enforce, with arbitrary hand, an unreasonable and oppressive practice in avoidance of his common law liability, declare it a custom, and demand acquiescence in it as such; or to limit his liability by conditions in a shipping receipt, reducing his obligations to a minimum, and imposed on the shipper nolens — 346 — volens. The contract, so called, implied from such conditions, is practically a dictation of terms by the carrier, to be declined by the shipper at his peril, and affording him only a choice of evils. Whether the shipper may refuse acquiescence, and demand transportation of Ms goods under the common law obligation of the carrier, we need not now decide, since, in the present case, the shipper accepted the receipt tendered, and gave it in evidence to prove delivery of the goods to the carrier. The question before us is to what extent the liability of the carrier is limited by the custom and the condition here set up as a defense. Public policy forbids that any stipulation or condition shall release the carrier from liability for negligence: Willock v. R. R. Co., 166 Pa. 184. Even a provision fixing the value of the property, or limiting the amount to be recovered, will not relieve the carrier if the loss or injury be due to his negligence: Grogan v. Express Co., 114 Pa. 528; Weiller v. R. R. Co., 134 Pa. 310. The reasons for denying effect to such a stipulation or condition apply with equal force to a custom limiting in like manner the carrier’s obligations. One of the first requisites of a custom in derogation of the common law is that it be not unreasonable. The policy of the stipulation and the reasonableness of the custom under consideration are to be tested by the same standard. If a stipulation or a condition be against public policy, assuredly a custom to the same effect must be pronounced unreasonable. Neither contract nor custom, therefore, can relieve a carrier from liability for negligence. When goods have been carried to the place of destination, liability as carrier ceases, and the less onerous liability of a warehouseman is substituted: McCarty v. R. R. Co., 30 Pa. 247; Shenk v. Propeller Co., 60 Pa. 109. This liability is only for negligence: Ibid. We have therefore to consider whether the injury to the doors shipped by the plaintiff in February, 1894, was due to the carrier’s negligeuce in the manner of keeping them after they had reached their destination. We need not here define the precise degree of care demanded in cases of this nature; it is sufficient for the present purpose to hold the carrier, as a warehouseman, to the lowest degree which the law will tolerate in a bailee. Its liability is at least that of a depositary, and this is liability for the want of ordinary care: Bank — 347 — v. Smith, 62 Pa. 47. Such care depends largely on the nature and value of the property; a degree of care which seems to have been required for the preservation of the shipment in this case would be unnecessary in a shipment of pig iron. Strafford was among the “ way stations ” mentioned in the condition indorsed on the shipping receipt, without station buildings or freight agent. The only convenience for receiving freight was a small platform. The carrier neither provided shelter for the goods nor took other steps to protect them from the weather. The plaintiff’s witnesses testified that it had been raining for some time when the doors were unloaded, while the defendant’s freight conductor testified that the rain did not begin until about an hour after the unloading; and this is the only contradiction in the testimony. It is not denied that the doors were ruined by the rain, and the plaintiff’s foreman testified that the ruin was complete upon his first knowledge that they were at the station. Had the carrier taken any measure for the protection of the goods at their place of destination, the question of its sufficiency, under the circumstances, would have arisen. But it did nothing whatever; there was an absolute want of care in any degree. For a carrier to discharge freight without any attempt at making reasonable provision for its protection from dangers which, in the ordinary course of affairs, may naturally be apprehended, must be regarded as not only negligence but gross negligence. If a carrier may do this at one station, he may with equal right do it at all stations, and thus be relieved from his obligation as a warehouseman throughout his entire route, for it is impossible to fix the point between a crossroad station and a large city at which this obligation is to begin or end. He may even dispense with a platform on which to unload freight, and “just chuck it off,” as one of the defendant’s agents testified was sometimes done. The carrier’s duty at a station is not to be measured by the quantity of freight received; as to this, no line can be drawn fixing the point at Avhich the duty of ordinary care begins. This duty is not discharged at any station, by dropping freight at the side of the road, whether on an open platform or in mud or snow, to remain exposed to the elements, to injury from other sources, or to theft, until the OAvner learns , of its arrival and removes it. To give to such a practice — 348 — tlie legal sanction of a custom, or to enforce a stipulation pei’mitting it, would be to place the public at the mercy of the carrier. In this case, the defendant’s freight conductor testified: “If it had been storming when I came to Strafford I would not have unloaded those doors.” But between unloading freight in a storm, and leaving it, after unloading, where a storm may ruin it before the owner can take care of it, the difference in negligence is only one of degree. Upon the principle laid down in Willock v. R. R. Co., supra, that “stipulations, insisted on by carriers or other persons who stand in such a position toward their customers as enables them to compel a compliance with their demands or destroy their customer’s business, should be judged of by their fairness, and held to be void whenever they are unreasonable or oppressive,” the stipulation in the shipping receipt must be pronounced void, so far as it is urged in justification of the practice pursued by the carrier at the point of destination. In this aspect, it is in the highest degree unfair, unreasonable, and oppressive. What effect might justly be given to such a stipulation, expressly made by a shipper not coerced by his business situation or necessities, but with actual freedom of choice, and for a consideration, we need not now consider. In this view of the case, it is not material whether or not the carrier is by law required to give the consignee notice of the arrival of freight. Neither freedom from such obligation, nor its performance, can relieve the carrier from the duty of ordinary care at the place of destination. If notice is unnecessary, the need of care is all the greater. A failure on this point is negligence, from the consequences of which neither notice, custom nor stipulation can relieve the carrier. Therefore the language of the trial judge in relation to the duty of giving notice did the defendant no harm. We do not regard this view of the questions involved as conflicting in any manner with the point actually decided in McMasters v. R. R. Co., 69 Pa. 374. In that case, no question of negligence on the part of the carrier was raised, suggested or considered, except such as might be implied from a failure to deliver the goods. The case turned solely on the question of actual delivery at the station; the defendant contending that — 349 — the goods had been delivered there, while this was denied by the plaintiff. The specifications of error are overruled, and the judgment is affirmed.