Bell v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 December 1878
• Citation: 6 Mo.App. 363
• Parties: HENRY BELL ET AL., Respondents, v. ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 363

HENRY BELL ET AL., Respondents,

v.ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 31, 1878.

1. A common carrier's liability does not terminate with the deposit of the goods at their destination, or with the delivery of them to a warehouseman, but continues for a time reasonably sufficient to enable a diligent consignee to examine and receive the goods.

2. “Reasonable time” is such as would enable one residing in the vicinity of the place of delivery, and who was informed of the probable time of the arrival of the goods and of the course of the carriers business, to inspect and remove the goods during business hours. When such time has elapsed, the carrier's liability becomes that of a warehouseman.

3. A common carrier does not discharge his obligation to keep the goods until reasonable time has elapsed for removal by the consignee by delivering them to a third person to keep before the reasonable time has passed.

4. The burden is on the carrier to show that his liability as such was discharged.

APPEAL from St. Louis Circuit Court.

Affirmed.

THOROUGHMAN & WARREN, for appellant: The carrier's liability ceases when the goods are unloaded at their place of destination, and are ready for removal by the consignee.--Whart. on Neg., sects. 570, 571. If after the arrival of the goods the consignee has a reasonable opportunity to remove them, and does not do so, he cannot hold the carrier as an insurer.-- Fenner v. Railroad Co., 44 N. Y. 505; Pelton v. Railroad Co., 54 N. Y. 214. “The rule in respect to notifying consignees of the arrival of goods does not apply to railroads where the goods are delivered on time.-- Rankin v. Railroad Co., 55 Mo. 171; Railroad Co. v. Ayres, 5 Dutch. 393; Norway Co. v. Railroad Co., 1 Gray, 274.

J. M. & C. H. KRUM, for respondents: The common-carrier liability of a railroad does not terminate until a reasonable time has elapsed after the arrival of the goods at the place of destination to enable the consignee to come and remove them. During such time the railroad must hold the goods in its common-carrier capacity.-- Moses v. Railroad Co., 32 N. H. 523; Wood v. Crocker, 18 Wis. 345; Railroad Co. v. Cleveland, 2 Bush, 468; Railroad Co. v. Maries, 16 Kan. 333; Blumenthal v. Brainard, 38 Vt. 402; Railroad Co. v. Ayres, 5 Dutch. 393; Railroad Co. v. Kidd, 35 Ala. 209; Railroad Co. v. Prewitt, 46 Ala. 63, 67; McMillan v. Railroad Co., 16 Mich. 79; Graves v. Hartford, etc., Co., 38 Conn. 143; Maignan v. Railroad Co., 24 La. An. 333; Derosia v. Railroad Co., 18 Minn. 133. It being proved that goods were delivered to a common carrier, the burden of proof is on him to prove delivery by him to the consignee, or to account for the goods.-- Reade v. Railroad Co., 60 Mo. 199; Drew v. Red Line, 3 Mo. App. 495; Wolf v. American Express Co., 43 Mo. 421; Levering v. Union, etc., Co., 42 Mo. 88; Hill v. Sturgeon, 28 Mo. 323.

HAYDEN, J., delivered the opinion of the court.

This is an action against the defendant as a common carrier, to recover the value of goods delivered to it for transportation to Birge, Nichols & Co., consignees at Fulton, Arkansas. The petition alleged a failure to deliver the goods. The answer alleged that the goods were duly transported to Fulton; that the consignees were not ready to receive them; that after search for the consignees, and waiting a reasonable time, the defendant caused the goods to be stored, for account of their owners, with warehousemen at Fulton, and that while in the warehouse the goods were destroyed by fire.

Upon the trial it appeared from the bill of lading that the defendant received the goods, being sheetings, etc., and agreed to transport them to Fulton and there deliver them to the consignee or connecting common carrier, the marks being, “ Via Fulton: Birge, Nichols & Co., Jefferson, Texas;” that the goods left St. Louis on October 4, 1873, and arrived at Fulton after dark on October 7th. The defendant's agent at Fulton testified that, it being too late to handle the goods on that night, and the company having then no freight-house at that point, as the road had been completed there only a short time, the goods, after being kept in the cars upon the night of the 7th, were turned over to Lowry & McGee, who had a warehouse about seventy-five or one hundred feet from the road, and whose receipt for them was taken; that inquiry was made for the consignees, and that then the goods were stored, as had been the course of business there since the road had been in operation in case of non-resident owners. The goods, it would appear, were placed in this warehouse on October 8th. On October 9th, before daylight, the warehouse accidentally took fire and was burnt, with every thing in it. The consignees did not live in Fulton, and had no agent there. The ordinary time employed in carrying goods from St. Louis to Fulton was four days; but sometimes, though not often, as many as six days were consumed. The jury found for the plaintiffs.

The defendant complains that erroneous instructions were given. The court below instructed the jury to the effect that though it might be customary with the defendant to store goods intended for transportation beyond Fulton, yet such custom could not relieve the defendant from the necessity of holding the goods for a reasonable time after their arrival, before storing them on account of the owners. The jury were also instructed to the effect that the fact that the consignees did not reside at Fulton, or were not there immediately upon the arrival of the goods to receive them, was not sufficient to excuse a non-delivery, or to authorize the defendant to at once store the goods; but that it was incumbent upon the defendant to show that it held them a reasonable time after their arrival (sufficient to lead a man of ordinary prudence to conclude that the consignees would not soon appear to receive the goods) before depositing them in the warehouse. The defendant asked the court to instruct to the effect that if the goods were carried safely to Fulton and stored in the warehouse, subject to the order of the consignees, on the morning of October 8, 1873; that the warehouse was safe, etc.; and that after the storage the consignees did not call within a reasonable time, and the goods were destroyed by fire, then the jury should find for the defendant. The court so modified this instruction as to require the defendant to have held the goods a reasonable time before storing them. The following instruction as to notice was given for the defendant: “The court further instructs the jury that it was the duty of the consignees to take notice of the course of business of defendant at Fulton at the time of the arrival of the train, when the goods might be expected there, and to be ready to receive them in a reasonable time after their arrival, and when, in such common course of business, they might fairly be expected to be ready for delivery; and the defendant was not bound to notify them of the arrival of the goods.”

It has been a vexed question whether in cases like the present the responsibility of the carrier, as such,...