Cincinnati & Chicago Air Line Railroad v. McCool

Gregory, C. J. This case was submitted to the court below on an agreed statement of facts. Finding for the plaintiff, motion for a new trial overruled, and judgment. The evidence is in the record. The defendant, at the time &c., was a common carrier from Cincinnati to Kokomo. In October, 1864, the appellant received at the former, for transportation to the latter place, a barrel of whisky, the property of the appellee, of the value of $229 92. It was transported over the line of appellant’s railroad by the regular freight train. The train arrived at Kokomo at eight o’clock in the evening, the usual and regular hour for the arrival thereof. The appellee resided in, and was at the time engaged in business at, the latter place. lie was not at the depot on the arrival of the train, and the agents of the railroad company stored the whisky in the company’s warehouse, situated on the side track of the road, at the station, as had been the practice and usage of the company for years, in such cases. No notice was given to the plaintiff of the arrival of the property, nor had he any such notice in fact, nor did ho call at the warehouse to receive the same. The warehouse was securely locked and fastened, and left for the [141] night. During the night, some person, to the parties unknown, crawled through a grain-shoot constructed in the warehouse, and with an auger bored through the barrel, whereby the whisky was lost. The whisky was received at the depot in good order, and the warehouse was reasonably secure and safe. Bi Walker, for appellant. N. B. Linsday and J. A. Lewis, for appellee. After the whisky was discharged from the cars and placed in the warehouse of appellant, the liability was that of a warehouseman, and not that of a common carrier. Bansemer et al. v. The Toledo and Wabash R. R. Company, 25 Ind. 434. Under the facts the appellant i The court below erred in overruling me mumun ^ «, new trial. the whisky. Ordinary care was The judgment is reversed, and the cause remanded, with directions to grant a new trial, and for further proceedings in accordance with this opinion.