Treleven v. Northern Pacific Railroad

PiNNey, J. 1. It appears, beyond dispute, that the plaintiff’s goods were transported over the defendant’s line and delivered to the next carrier in the line of their transit, and that in due season.they reached their destination at the point to which they had been directed by the plaintiff’s mistake,. The liability of the defendant for their safety, as a common carrier, in any possible view of the law, had terminated. . They were thereafter held at Philadelphia, N. Y., by the company having custody of them, as warehousemen; and it would not be liable for their loss or destruction, unless caused by a want of ordinary care for their safety. When, the plaintiff’s mistake in directing the goods, and that they were held uncalled for at Philadelphia, N. Y., was made-known to the plaintiff and the defendant’s agent at Fond du Lac, the latter, at the instance of the plaintiff, caused proper direction to be given to forward the goods to Philadelphia,. Pa.; but before it was carried into effect they were destroyed by the burning of the warehouse in which they were stored. The assumption of this agency by the agent of the-defendant could not fender it liable as a common carrier.. There was no consideration for the undertaking relied on. It was purely voluntary, and at most would amount to a gratuitous agency on its part, and the defendant would be 602 liable only in case of loss or injury to the goods caused by its negligence. Of this there is neither allegation nor proof. Tbe evidence wholly fails to show any ground of liability on the part of the defendant. 2. The plaintiff did not take proper steps to compel the production of the papers called for, either under the statute (R. S. sec. 4183; Phelps v. A. & P. Tel. Co. 46 Wis. 266) or the rules of the circuit court (Rule XIX; Kraus v. Sentinel Co. 62 Wis. 663). Nor does it appear that proper notice was given to produce them, so as to admit secondary evidence of, their contents. Besides, it is evident that the facts offered to be proved, for want of proper allegations of negligence .and in the light of undisputed facts, could have been of no avail to the plaintiff. Judgment was rightly given for the •defendant. By the Court.— The judgment of the county court is affirmed.