Bosworth v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 25 February 1898
• Docket Number: 453,,454.,442,452
• Citation: 87 F. 72
• Parties: BOSWORTH et al. v. CHICAGO, M. & ST. P. RY. CO. et al. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

87 F. 72

BOSWORTH et al. v. CHICAGO, M. & ST. P. RY. CO. et al. ^[1]

Nos. 442, 452, 453,, 454.

United States Court of Appeals, Seventh Circuit.

February 25, 1898

These appeals are from decrees against the appellant, C. H Bosworth, as receiver of the Chicago, Peoria & St. Louis Railway Company, in favor of interveners in the case of the Mercantile Trust Company against the Chicago, Peoria & St Louis Railway Company, wherein the receiver was appointed for damages caused by the burning of freight cars and their contents, of which the appellant is alleged to have had possession as a common carrier, on the evening of October 28 1894, at East St. Louis. By an amendment the petitions were made to charge that, while the cars were still in the possession of the receiver at East St. Louis, he negligently caused and permitted them to be placed in proximity to a wooden warehouse filled with baled and loose hay, which was exposed to fire from passing locomotives, and in some manner caught fire, which, communicating to the cars, caused the damage complained of. The amounts decreed to be paid to the interveners, respectively, were: To the Chicago, Milwaukee & St. Paul Railway Company, $9,033.73; to Jacob Ran, $1,144.07; to the Hunting Elevator Company, $2,600.95; to the Carr, Ryder & Engler Company, $777.26; and to others, not parties here, whose decrees it has been agreed shall abide the result of these appeals, various sums, aggregating nearly $10,000. The facts, in the main, were agreed upon; and the controlling question is whether the cars and goods at the time of destruction were in the possession of the receiver, or had passed into the possession of the Terminal Railroad Association of St. Louis, which owned the tracks upon which the cars were standing when they were consumed. It appears that, not having adequate yard facilities of its own at East St. Louis, the Chicago, Peoria & St. Louis Railway Company on August 1, 1892, entered into an agreement with the terminal railway association for the use of its tracks, and either by acquiescence or by formal stipulation, that agreement remained in force between the terminal association and the receiver. Only the first, fourth, and fifth clauses need be quoted:

'It is agreed that the party of the first part (the terminal railroad association) shall furnish the necessary yard room and track facilities in their yards in East St. Louis, Illinois, as now located, and the necessary switch engines and yard men to do the switching of the party of the second part in the making up and breaking up of all freight trains that depart from and arrive in East St. Louis, and to furnish storage room for a reasonable number of cars necessary to properly take care of and handle the business of the party of the second part, not exceeding one hundred and fifty (150) cars at any one time; and the charge for the facilities and the work above named shall be at the rate of fifty (50) cents per loaded car in and out, except cars on which the party of the first part receives a bridge toll, which will be handled free; empty cars in and out free. ' 'Fourth. All cars consigned to and from the East St. Louis freight house of the party of the second part to be switched to and from the Wiggins Transfer tracks without extra charge. Regular switching charges and rules to apply on all other cars to and from connections; the party of the first part to be governed in making its collections by instructions shown on billing to it as to who should pay. In the absence of any instructions the switching charges will follow the car. Fifth. The party of the first part to furnish track room upon which the engines of the party of the second part can be switched and cared for and turned as may be required; the care of such engines to be under the supervision of the party of the first part; the price for the service rendered to be agreed upon by the master mechanic of the party of the first part and the superintendent of motive power and machinery of the party of the second part.'

'These tracks of deposit,' says the master's report, 'were not exclusively used by the C. . & St. L., but the cars seem to have been always placed upon them. ' It is apparent from the evidence, however, that the receiver had no voice in determining where a car should be placed, or with what care it should be guarded.

For the purpose of saving the labor and expense of making proof, the parties stipulated that the property described in the several petitions was destroyed as stated; that the Carr, Ryder & Engler Company, a corporation, on October 20, 1894, delivered the property described in its petition to the Chicago, Milwaukee & St. Paul Railway Company at Dubuque, Iowa, loaded in car No. 1,004 of the Rock Island & Peoria Railway Company, and consigned for transportation as per bill of lading to the May & Thomas Hardware Company, Birmingham, Ala., by way of East St. Louis, Ill.; that the Chicago, Milwaukee & St. Paul Railway Company was the owner of the 38 cars described in its petition; that, during the evening of October 28, 1894, those cars, while on the tracks of the Terminal Railroad Association of St. Louis, commonly used by the receiver under the agreement between that association and the Chicago, Peoria & St. Louis Railway Company, dated August 1, 1892, were damaged by fire to the total amount of $9,003.73; that the cars were consigned as per bills of lading and waybills introduced in evidence; that Jacob Rau, of Wykoff, Minn., at the times and places alleged in his petition delivered to the Chicago, Milwaukee & St. Paul Railway Company two car loads of barley, consigned to the Orthwein Grain Company, St. Louis, Mo., by way of East St. Louis, Ill.; that receipts in the form of exhibits attached to the stipulation, were given by the railway company at the time the barley was received for transportation; and that when destroyed the barley belonged to the petitioner, and was of the value of $1,144.07. The stipulation in respect to the shipment of the Huntting Elevator Company is in the same words, except that the consignee named is the Teichman Commission Company, and the value of the goods destroyed is stated to have been $2,650.95. Like stipulations were made concerning the cases of other interveners, from whose decrees there has been no formal appeal. The agreement was afterwards amended by striking out the clause in respect to the ownership of the barley shipped by the several petitioners, except Rau and one other, whose consignments were for sale on commission.

It is contended by the appellant that the destination of the cars consumed, except five, as shown by the waybills and receipts or copies thereof introduced in evidence by the interveners, was East St. Louis, although in the column under the head of 'Marks and Consignees' the name of the consignee, and the words 'St. Louis, Missouri,' appear. The shipments of barley, except those for sale on commission, were made in pursuance of telegraphic correspondence showing offers of net prices by the brokers or commission men at St. Louis, accepted by the shippers; and it is contended by the appellant that on delivery of the grain to the carrier the title passed to the consignees, and that the interveners have no right of action. On the other hand, proof was offered to show that delivery at St. Louis was intended by the parties, and that on that understanding other shipments were made after the fire in lieu of those destroyed. At the time of the fire, the cars destroyed, together with others which were injured and afterwards repaired, had been on the tracks of the terminal association for various periods of time,-- one since the 28th day of September preceding,-- and of those received in October there arrived on the 10th, 1; on the 16th, 1; on the 24th, 4; on the 25th, 18; on the 26th, 12; on the 27th, at 7:55 a.m., 9; at 6:44 p.m., 2; and on the 28th, at 6:55 a.m., 4; at 1:45 p.m., 1; and at 2:57 p.m., car 1,004. Of the aggregate number (54), all but 8 were cars of the Chicago, Milwaukee & St. Paul Railway Company.

In respect to the manner in which the cars brought in over the receiver's road were handled and disposed of by the employees of the receiver and of the terminal association under their agreement, it appears that after an incoming train had been broken up, and the cars placed on the tracks of the terminal company, they remained there, in the physical control of that company, until the consignee, to whom the receiver was accustomed to send prompt notice of the arrival of a car consigned to him, should indicate the particular destination, which might be on the east or west side of the river, or a point on the line of another railroad, whereupon the receiver would make out and deliver to the terminal company a new waybill on which that company would transfer the car as directed. It appears further than on the delivery of such a new waybill, and not sooner, it was the custom of the receiver, if the car belonged to another company, to send notice to that company that the car had been delivered to the terminal association; it being the custom of railroad companies in that way to keep each other advised of the disposition and whereabouts of their respective cars. It satisfactorily appears further that it was the custom of brokers and buyers at St. Louis to leave in the cars, until sold, certain classes of goods, and particularly consignments of barley received upon the tracks of the terminal railroad association, whether billed to St. Louis or East St. Louis; the mode of selling goods so held being by samples taken on the arrival of cars by agents of the consignees employed to visit daily the yards for that purpose. It further appears that the receiver at the hearing before the master made a...