McClure v. Norfolk

• Decision Date: 25 February 1919
• Court: West Virginia Supreme Court
• Parties: McClure and Way, Rec'rs. v. Norfolk & Western Railway Co.

83 W.Va. 473

McClure and Way, Rec'rs.

v.Norfolk & Western

Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted February 18. 1919.

Decided February 25, 1919.

Carriers Carnage of Goods Seasonable Limitation of Liability Application of Limitations.

The following provision in a bill of lading, viz: "Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner's risk until the cars are attached to and after they are detached from trains," is a reasonable limitation upon the carrier's liability and enforcible. But neither clause of said provision has application, except in cases where it appears the loss of goods shipped occurred at stations, wharves or landings at which the carrier did not maintain a regularly appointed agent.

Error to Circuit Court, Wayne County.

Action by L. E. McClure and F. E. Way, receivers of the Kenova Poplar Manufacturing Company, against the Norfolk & Western Railway Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Holt, Duncan & Holt, for plaintiff in error.

Livezey & Irons, for defendants in error.

Williams, Judge:

This writ of error was awarded the Norfolk & Western Railway Company to a judgment recovered by L. E. McClure and F. E. Way, receivers of the Kenova Poplar Manufacturing Company, a corporation, in an action of assumpsit against it to recover the value of two carloads of dressed lumber, which plaintiffs say was delivered to the defendant at Kenova, West Virginia, on the 22nd of July, 1911, to be transported to the City of Detroit, Michigan. There is a private siding leading from defendant's belt line in Kenova into plaintiffs' manufacturing plant and lumber yards. On the afternoon of said 22nd of July plaintiffs loaded the two cars in the mill and shoved them out on the siding about seventy feet away from the building. Bills of lading were then filled out and sent by a messenger to defendant's depot, which was between a half and three-quarters of a mile distant from the mill, to obtain the signature of defendant's agent. They were signed by the agent about 4:45 o'clock, P. M., of the same day and mailed to plaintiffs who received them in due course. About eleven o'clock of the same evening, fire originated in the mill, from some unknown cause, and destroyed both the mill and the loaded cars standing on plaintiffs' private siding. The lumber was the subject-matter of an interstate shipment and the bills of lading, signed by the railway company's agent, contained certain provisions, stipulations and conditions identical with those contained in a form of bill of lading which was made a part of the published tariff rate schedule then filed with the Interstate Commerce Commission and applicable to interstate shipments originating in West Virginia.

Defendant claims exemption from liability under the last clause of the following provision printed on the back of the shipping contract, and made a part thereof, viz.:

"Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into ears or vessels, and...