McMasters v. Pennsylvania R. Co.
| Citation | 69 Pa. 374 |
| Parties | McMasters v. The Pennsylvania Railroad Co. |
| Decision Date | 30 October 1871 |
| Court | Pennsylvania Supreme Court |
October 12, 1871
1. A custom so long persisted in as to be known and practised by a community, is the law of the particular business in which it exists; and the presumption arises that it is in the view of parties who contract about its subject-matter.
2. To establish such custom it should be reasonable, continued and acquiesced in by all acting within its operations.
3. There was a custom that a railroad company should deliver freight on the platform of minor stations, whose business would not justify a warehouse, & c., to be received there by the consignee on discharge from the car. Held, a good custom.
4. A custom will control the general law of liability of carriers.
5. To relieve a carrier, the custom must be clearly proved, and that the employer knew it, or is to be presumed to know it by reason of its generality in the neighborhood.
6. Distinction between carriage by rail and by wagon or water-craft stated.
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Allegheny county No. 159, to October and November Term 1870.
This was an action brought before an alderman, by John H McMasters against The Pennsylvania Railroad Company, in which judgment was rendered for the plaintiff for $38.81; the defendants appealed to the Court of Common Pleas: in which court the plaintiff declared in assumpsit.
The facts upon which the plaintiff's claim was founded were these: On the 5th of August 1868, the plaintiff, through Arbuckles & Co., grocers, delivered to the defendants at their freight depot in Pittsburg a barrel of sugar to be delivered to him at Turtle Creek, a way station, about twelve miles from Pittsburg, on the line of the defendants' road.
The plaintiff proved that he had not received the barrel.
Samuel Honz testified:
There was other evidence tending to show that the sugar had not been delivered at the station.
The defence was that the sugar had been transported on the " Local Freight" train, which stopped at all the stations along the road, and had been delivered at Turtle Creek station, which is one of the minor stations of the company, at which the business is not of sufficient importance to warrant the erection of warehouses, or to have freight agents; that there is a notorious custom, which had been acquiesced in by all persons in the neighborhood receiving freight, to deliver goods at the station without storing them; and that plaintiff had been in the habit of receiving goods in this way for a long time and was aware of the custom and acquiesced in it.
They gave evidence by the conductor of the " Local Freight" train, that on the manifest were marks showing the delivery of the sugar; that it was delivered on the platform at Turtle Creek.
The plaintiff asked the court to charge the jury:--
1. That in the absence of a special agreement to the contrary, and when the goods do not pass into the hands of the consignee or owner on arrival at their destination, the liability of railways as common carriers does not terminate until a reasonable time after unloading the goods upon the platform, within which time the owner or consignee might, by proper watchfulness, have had an opportunity to remove them.
2. That in the absence of express notice to the consignee of the arrival of the goods, and when the same have not been taken away by him within a reasonable time the liability of a railway in ceasing to be that of a common carrier becomes that of a warehouseman.
The court (Collier, J.) refused the points " as not applicable to the undisputed facts of the case."
The verdict was for the defendants.
The plaintiff took a writ of error; he assigned for error the answer to his points.
R. E. Stewart, for plaintiff in error.--The responsibility of the carrier, as such, ceases only when he has deposited the goods in a depot of his own, or some other safe warehouse: Redfield on Railways, ed. of 1869, § 175, pl. 7, 8, 11; Thomas v. Boston and Providence Railway, 10 Met. 472; Chicago and Rock Island Railway v. Warren, 16 Ill. 502; Shenk v. Penna. Steam P. Co., 10 P. F. Smith 109; Ostrander v. Brown, 15 Johns. 39. The usage claimed in this case is invalid, as being contrary to public policy: Hemphill v. Chenie, 6 W. & S. 62; C. & A. Railroad v. Baldauf, 4 Harris 67; Duff v. Budd, 3 Brod. & B. 177; Cole v. Goodwin, 19 Wend. 251; Eagle v. White, 6 Whart. 505.
J. Dalzell (with whom was J. H. Hampton ), for defendants in error.--The question as to where the duty of the carrier ends, is one of contract, to be determined from all that was said at the time of the delivery and acceptance of the goods, the course of the business, the practice of the carrier, and all other attending circumstances, as in any other contract, in order to determine the intention of the parties: Southcote's Case, 4 Reports 84; Mors v. Slue, 1 Vent. R. 238; Gibbon v. Payntin, 4 Burr. 2301; Leeson v. Holt, 1 Stark. R. 186; Nicholson v. Willan, 5 East R. 507; Anonymous v. Jackson, Peake's Add. N. P. Cas. 185; Angell on Carriers 227, 316; Riley v. Horne, 5 Bing. 217; 2 Redfield on Railways, p. 51, pl. 2; 53, pl. 4; F. and M. Bank v. Champlain Transportation Co., 23 Vt. 186; Story on Bailments, § 543. If there is any local custom, or usage of trade on the subject, that will govern. The carrier may prove, that the uniform usage and course of business in which he is engaged, is to leave the goods at his usual stopping-places, in the towns to which they are directed, without notice; and if such usage has been of so long continuance as to justify a jury to find that it was known to the employer, the carrier will be discharged: Angell on Carriers, pl. 316; Gibson v. Culver, 17 Wend. 305; Van Stantwood v. St. John, 6 Hill 157; Beckman v. Shouse, 5 Rawle 179; Bingham v. Rogers, 6 W. & S. 475; Laing v. Colder, 8 Barr 479. From either notice or custom there results a special contract, and under this contract the carrier is an insurer only to the extent of its terms: Farnham v. C. & A. Railroad Co., 5 P. F. Smith 53; Cope v. Cordova, 1 Rawle 203; Hemphill v. Chenie, 6 W. & S. 62; Graff v. Bloomer, 9 Barr 114. A common carrier is not bound to be also a warehouseman: Thomas v. B. & P. Railroad Co., 10 Metc. 476; McCarty v. N.Y. & Erie Railroad Co., 6 Casey 252. Where the carrier is bound to store, when he has provided a warehouse the shipper knows that fact, and thereby there is " created an expectation" that his goods will be stored a reasonable time, if necessary: 2 Redfield, § 175, pl. 7, 8, 11. The usage proven is reasonable. To apply the same rule of law to a local train, carrying small freight to way stations that is applied to a through train carrying heavy freight in great quantities, from city to city, would work great injustice: Morris and Essex Railroad Co. v. Ayres et al., 5 Dutcher 393.
The points of the plaintiff were not applicable to the facts of this case: McKnight v. Ratcliff, 8 Wright 156. In this case there was no " absence of a special agreement; " on the contrary, it was fully understood by each party, shipper and carrier, what was to be his duty, to wit, what in a long course of dealing had always been the duty of each.
The opinion of the court was delivered, October 30th 1871, by THOMPSON, C. J.
The important question of this case is, whether the common liability of common carriers, in its application to carriers by rail, has been or is subject to be modified by usage or custom. That it has been materially modified in its application to the mode of carrying from what it was and is under the old modes of transit by wagons or by water-craft, every one knows. By the former, the carrier's liability only ceased with a delivery of the...
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