Pierce v. Milwaukee & St. Paul Railway Co.

The following opinion was filed at the September term, 1867 DowNEE, J. The court below instructed the jury as follows: “ If you find, from the evidence, that it was the custom of the [388] defendant to return the bags in which grain had been carried, free of charge, such free carriage must be considered as incident and accessory to the principal contract, and a part of one transaction, and would not affect the liability of the defendant as a common carrier.” The appellant contends that this instruction was erroneous. The instruction supposes that the plaintiff’s grain had been carried over the road in these bags, and that there was a custom proved that in such case the bags should be returned by the road, free of charge. The plaintiff testified that the bags had been sent from Genoa, Wis., to Mr. Starr, his 'agent at Lake City, Minnesota, and used in May and June, 1863, in the transportation of wheat on the Mississippi river from Lake City to La Crosse; and that he did not think any of his wheat came from La Crosse over the defendant’s road that year in the bags, but in bulk. His is the only testimony on this point. There was, therefore, proved no transportation, and no agreement for the transportation, of the plaintiff’s wheat that year in bags over the defendant’s road, or any part of it, to which the return of the bags, free of charge, was an incident. The instruction seems to be abstract, or not based upon a contract proved. The custom the deiendant’s evidence tends to establish is, that bags used in the transportation of grain, either on the river or railroad, by the customers of the railroad company, were carried both ways by the company over its road, free of charge, at the owner’s risk, as often as necessary. A customer of the railroad company might, during the season, ship grain to be carried over the l’oad in bags or in bulk, at any number of different times, and make each time a different agreement; and, according to the alleged custom, if he was engaged in carrying grain on the Mississippi river or beyond the terminus of the road, his bags would be carried, if he desired it, both ways over the road, free of charge. We do not see how, in such case, the carriage of the bags can be a part of, or incidental to, any one agreement, [389] or shipment, or be considered otherwise than gratuitous. An agreement between the parties that the bags should be carried free at the owner’s risk would be valid, so far as to protect the defendant against losses other than those resulting from gross negligence or fraud. If the usage or custom is established, it must have, in the absence of any different understanding of the parties, the same force as such agreement, provided it be of such age, uniformity, and notoriety that the jury can ■ clearly say it was known to the plaintiff. , By the Court. — Judgment' reversed for error in the instruction, and venire de novo awarded. ■