Schmidt v. Chicago & Northwestern Railway Co.

Newman, J. The question on which the case turns is whether defendant’s custody of plaintiff’s goods at the time when they were destroyed was the custody of a mere warehouseman, or whether it was the custody of a' common carrier. If the former, it is not liable; if the latter, it is liable. The rags were originally delivered in bales, to be kept in the warehouse until further orders. Until such further orders were received the defendant’s responsibility for them was that of a warehouseman only. Upon receipt of orders to ship the goods so in warehouse, the responsibility as common carrier attaches, although the goods remain unmoved in the warehouse. If, without putting them in transit, the carrier, for his own temporary convenience, keeps them in store, still the liability of a carrier attaches. The more stringent liability of a common carrier attaches whenever the duty of immediate transportation arises, — 2 Redf. Railways (6th ed.), § 174; Barron v. Eldredge, 100 Mass. 455,— and not-until then. It does not seem to be entirely clear upon the evidence whether the duty of immediate transportation of the goods by the defendant had not arisen previous to the fire. Apparently the goods were remaining in the warehouse for the temporary convenience of the defendant, and against the wishes of plaintiff. The delay does not seem to have been at the instance of the plaintiff, but, in some degree at least, against his will and compulsory upon him. The question whether the liability of a carrier had attached depends upon what was the real situation disclosed by the evidence in respect to this fact. Were the goods remaining in the warehouse contrary to plaintiff’s order to have them shipped? This depends upon what was the real understanding between the plaintiff and the defendant’s foreman. Was it, in effect, an order to ship the goods ? and, as bearing upon that question, Was the delay for the defendant’s convenience, and was it acquiesced in by the plaintiff, or was it really against 508 his will? How did the parties understand it? It seems to this court that this question was not so clearly in the defendant’s favor, upon the evidence, as to justify the direction of a verdict for the defendant. By the Oourt.— The judgment of the superior court of Milwaukee county is reversed, and the cause remanded for a new trial.