Powers v. Davenport

Dewey, J. — Assumpsit by Powers against Davenport before a justice of the peace, and appealed to the Circuit Court. The action, so far as its cause need be stated, is founded on the following instrument signed by the defendant: Cincinn. 17th June, 1839, Received of J. P. Powers in good order and condition four packages of merchandize, (describing them,) which I promise to deliver in like good order and condition to J. W. Powers, Cráwfordsville, la., at the rate of two dollars per hundred pounds. Plea, the general issue; verdict for the defendant; motion for a new trial overruled; and judgment on the verdict. On the trial, the plaintiff gave in evidence the ahove-stated written undertaking of the defendant. He also proved that the defendant carried the goods in his wagon; that, before he reached Cráwfordsville, he left the direct and principal road from Cincinnati to that place, taking a more circuitous [498] rou^e’ ^ich Past h*s own dwelling, and thereby in'creased the distance about one mile; that, after the defendant so deviated from the usual route, he drove on to a bridge which gaYe way, thereby upsetting the wagon and throwing the goods into the water, whereby they were injured to the amount of more than sixty dollars. It also appeared in evidence that the bridge was considered safe before the accident; that the road taken by the defendant was preferred by some to the more direct and more generally travelled way to Grawfordsville ; that “ movers ” had been known sometimes to take it, but wagoners in carrying from Cincinnati to Grawfordsville never used it; that the defendant was a farmer,|| making farming his principal business, but frequently carrying!! for hire. The question, whether the evidence showed the defendant to be a common carrier, was made in the Court below. But as the defendant is not sued on the general liability arising from that capacity, but on a special undertaking, we consider the question immaterial, and shall no further notice it. The real inquiry is, whether the evidence justifies the verdiet. A common earner is responsible for all losses and injuries of goods committed to his care, except those caused by the acts of God (including inevitable accidents) and by the public enemy; and a private person, by undertaking for hire to carry and deliver goods safely, subjects himself to the same liability. 2 Stark. Ev. 283.—Coggs v. Bernard, 2 Ld. Raym. 909.—Robinson v. Dunmore, 2 B. & P. 416. The promise of the defendant in this cause was that he would deliver goods, which he received at Cincinnati in good condition, at Grawfordsville, in like condition. He failed to do so; the goods were damaged in the carriage. Pie is, therefore, responsible to the owner of them, unless he’ stands excused on the score of inevitable accident. So far from this being the case, the accident happened in consequence of his own improper conduct. It would have been avoided, had he continued on the most direct and customary route from Cincinnati to Grawfordsville. The personal motive — a desire to go to his own house, which probably induced him to deviate, was not a legal excuse for his doing so. His liability cannot be distinguished from that of any other person, who [499] had done the same thing without the same motive. It has been held that a carrier by water, whether he navigate a general ship, or one hired especially for the occasion, is bound to keep in the usual course of navigation; and that if he deviate unnecessarily, and a loss happen in consequence thereof, he is liable. Davis v. Garrett, 6 Bingh. 716. This principle is equally applicable to a carrier by land, whether he act in a public capacity, or under a special undertaking. The defendant having undertaken for hire to transport goods safely from Cincinnati to Craiofordsville, was bound to pursue the usual and customary route; and he is liable for all loss sustained in consequence of his unnecessary deviation from it. PL. 3. Lane and 3. C. Willson, for the plaintiff. R. C. Gregory, for the defendant. The facts in this case are plain and simple. There was no clashing of testimony. There was no conflicting evidence for the jury to weigh. The question to be determined is one purely of legal liability; and we think the jury came to a conclusion which the law arising from the facts did not warrant ; and that the motion for a new trial should have been granted. Per Curiam.■ — The judgment is reversed with costs. Cause remanded, &c.