Clark v. Pacific R.R.

• Citation: 39 Mo. 184
• Parties: LOGAN CLARK, Plaintiff in Error, v. THE PACIFIC RAILROAD, Defendant in Error.
• Decision Date: 31 October 1866
• Court: United States State Supreme Court of Missouri

39 Mo. 184

LOGAN CLARK, Plaintiff in Error,

v.THE PACIFIC RAILROAD, Defendant in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to St. Louis Court of Common Pleas.

Hicks & Doniphan, for plaintiff in error.

I. Whenever a charter is granted for the purpose of constructing a railroad, and the corporation is clothed with the power to take private property in order to carry out the object, it is an inference of law, from the extent of the power conferred and the subject matter of the grant, that the road is for public accommodation--Inhabitants of Worcester v. The Western R. R. Co., 1 Am. Railw. C., 350; Sanford v. Railway Co., 24 Pa. 378: Weibert v. N. Y. & Erie R. R. Co., 2 Kern. 246; Pierce on Am. R. R. Law, 414-15.

II. The public being so entitled to these advantages, it results from the nature of the right that the benefit should be extended to all alike; that no special favors should be granted to any man, or set of men, and denied to others.--See above authorities, and especially 24 Penn. 378.

III. The special stipulation in charters for the purpose of securing those rights are placed there out of abundance of caution, and affirm nothing more than a common right to equal justice which exists independent of such provision.--See above authorities to this point, and also Blackmore v. Clamorganshire Navigation Co., 1 Myl. & K. 162.

IV. Although the defendant has the power to regulate the manner of transportation on its road, yet such power does not carry with it the right to exclude any particular individual for any length of time whatever, or to grant exclusive privileges in any kind of freight or live stock to others.

V. A regulation to be valid must operate on all alike. If it deprives any persons to equal benefits to the use of the road for ever so short a time, or grants exclusive privilege for any length of time to the shippers of freight of any kind offered on the road for transportation, it is against law and void.

VI. Although there are statutory provisions that in manner define the duties and liabilities of defendant in all these cases, yet there are duties and liabilities other than those enunciated in the statute which it is bound to do and perform; among which is one that when freight, from any cause or causes, accumulates at the stations and stock yards on the road beyond the capacity of the road to carry away in a reasonable time after the same is offered, it is its duty to carry away such accumulated freight and live stock in the order of time in which it is offered at the several stations and stock-yards on the road; that is to say, that the freight and live stock first offered for shipment at any of the stations or stock-yards on the road shall be first shipped--24 Pa. 378; 2 Kernan, 245 & 252.

VII. It was the duty of defendant to provide sufficient accommodation and rolling stock to carry off all the freight and live stock that was or is offered for transport on the road within a reasonable time after the same was and is offered.--See authorities first above cited; R. C. 1855, p. 435, § 44.

VIII. The defendant as a common carrier for hire is subject to the same rules and regulations, to the same duties and liabilities, that com mon carriers for hire by land in wagons or coaches and by inland navigation on our great rivers are--Powers v. Davenport, 7 Blackf. (Ind.) 716; Edw. on Bail. 465; 10 Ohio, 65; 19 Ills. 136 & 578.

IX. That it was the duty of defendant, when its cars were offered for the purpose of transporting freight, to see that the car or cars it affixed were in a suitable condition to transport the freight put therein to the station or place designated by the owner--Ang. on Carr. --; Lyon v. Wills, 5 East, 428; Campbell v. Morse, 1 S. C. 468; Edw. on Bail. 467; 10 Mo. 6.

X. That the defendant was an insurer of the goods for their safe delivery against all but the excepted perils, and that the switching off of the cars that contained the goods of plaintiff and detaining them twenty-four hours was a deviation that rendered the defendant liable for the subsequent loss of the goods--5 Bing. 220-4; 10 Mo. 1; Edw. on Bail. 465-6.

XI. The defendant was guilty of a deviation, or of a detention in the nature of a deviation, in switching off the car that contained the goods of plaintiff and leaving them at Jefferson City, as shown by the proof, and are hence liable for any subsequent loss, no matter from what cause the same may have happened-- 5 Bing. 220; 10 Mo. 7; Edw. on Bail. 465; 9 Mass, 435; 1 Gal. 444; 7 Blackf. 716; 10 Mo. 6; 28 Mo. 328-9; 11 Mo. 309.

Leighton and Glover & Shepley, for defendant in error.

I. The duty of a carrier is to transport safely, and to transport within a reasonable time--Cooper v. Hudson Riv. R. R., 6 Duer, 375; Weibert v. N. Y. & Erie R. R., 19 Barb. 36; S. C. 2 Kern. 251; Denny v. N. Y. Central R. R., 15 Gray (Mass.) 481. The first duty is absolute, but is excused by the act of God or the public enemy--Denny v. N. Y. Central R. R., 15 Gray, 481; Cooper v. Hudson Riv. R. R., 6 Duer, 375; Ang. on Carr. 200. The second (that of transporting within a reasonable time) is relative, and in each particular case depends on its own particular circumstances; when delay is not the result of a failure to use reasonable diligence under the circumstances, the delay is excused--Cooper v. Hudson Riv. R. R., 6 Duer, 375; Weibert v. N. Y. Erie R. R., 19 Barb. 36; S. C. 2 Kern. 251; Parsons v. Hardy, 14 Wend. 216; 12 Barb. 310; Bradwell v. Butler, 6 McLean, 296; Sto. on Bail. § 509; Fland. on Ship. 312; Ang. on Carr. 283, 289; Hodly v. Clark, 8 T. R. 259.

In determining whether delay is reasonable or excusable, there is no better test than that of good faith in expediting the carriage under all the actual circumstances--Galena & Chicago U. R. R. v. Rall, 18 Ills. 490; see Missouri Act of Feb. 10, 1864, § 4.

II. The statutes simply interpret the common law. Our statute is substantially (and almost verbatim) the same as that of New York, Illinois, Ohio, &c. In these States, the idea that a railroad company is bound, under the statutes, to be ready at all events to carry whatever is offered immediately is distinctly repudiated--19 Barb. 36; 2 Kern. 251; 18 Ills. 490. The Illinois and New York statutes were directly before the court and construed in these cases.

III. It is the proximate cause of loss that determines liability-- Denny v. N. Y. Central R. R., 13 Gray (Mass.) 481; Morrison v. Davis, 20 Penn. 175; 2 Pars. on Cont. 456, 1st ed.: 2 Greenl. Ev. § 256; Ang. on Carr. §§ 200-1; Sto. on Bail. § 526; Hayne v. Corbett, 2 Bing.--; Greene v. Eustice--Peake, 212; Walters v. Merchants' Ins. Co., 11 Pet. (U. S.) 213.

IV. It is absurd to apply the law of deviation in marine shipments to this case. The evidence is undisputed that there was no through train upon defendant's road. The trains were made up at Sedalia, Jefferson and St. Louis as completely as if these had been termini of different roads; there was no such thing as a freight train going in its entirety from Sedalia or Warrensburg to St. Louis. There is an essential difference between delay and deviation.

V. If there is unreasonable delay, an action will lie for the delay; but the injury from delay and the injury from loss are entirely distinct. The law is clearly stated in Denny v. N. Y. Central R. R. 13 Gray, 481 a case much resembling this--Powers v. Mitchell, 3 Hill (N. Y.) 545.

HOLMES, Judge, delivered the opinion of the court.

This action is brought to recover the value of goods of the plaintiff, which were received by the carrier at Sedalia to be transported on the railroad and delivered to the plaintiff at St. Louis.

On the arrival of the train at Jefferson City the cars in which the plaintiff's goods were carried were detached from the train and left there for one day, and other cars were taken up in their place and carried through safely to St. Louis in that train, and upon the arrival of those cars which had been left, at Miller's Landing, on the train of the next day, the whole train was burned by the public enemy and the plaintiff's goods were lost. The petition goes upon the ground that the defendant had failed to transport and deliver the property according to contract. The...