Milton v. Denver & R.G.R. Co.

• Decision Date: 08 February 1892
• Citation: 29 P. 22,1 Colo.App. 307
• Parties: MILTON v. DENVER & R.G.R. Co.
• Court: Colorado Court of Appeals

29 P. 22

1 Colo.App. 307

MILTON v. DENVER & R.G.R. Co.

Court of Appeals of Colorado

February 8, 1892

Error to district court, La Plata county; CHARLES D. HAYT, Judge.

Action by William E. Milton against the Denver & Rio Grande Railroad Company to recover for the loss of nursery stock frozen while in defendant's possession. Judgment for defendant on nonsuit. Plaintiff brings error. Reversed.

Russell & McCloskey, for plaintiff in error.

Wolcott & Vaile and Henry F. May, for defendant in error.

BISSELL J.

The liability of a common carrier for the safe and reasonably expeditious transportation of goods intrusted to his care has been established by a continuous and practically unbroken series of authorities. The reduction in the charges for the carriage of freight which has resulted from the enormous competition between carriers, and the unprecedented extension of the railroad system throughout the western country, has led to repeated assaults upon the principle, and many attempts to escape from its force by the preparation of long and elaborate contracts between the carrier and the consignor and the consignee. A contract was executed in this case between the consignor and the receiving railroad company which, by its terms, if it were an independent obligation would have absolved all lines upon which the freight might go for damages sustained from any other cause than derailment and collision. We are relieved, however, from any consideration of this contract, or any speculation as to what the liability is or ought to be, since this matter has been set at rest by antecedent adjudications in this state. Whatever the contract may be, it is impossible for the carrier, by his agreement to escape responsibility for any loss which may result from his negligence or the malfeasance of his employes. Transportation Co. v. Cornforth, 3 Colo. 280; Carr v. Schafer, 15 Colo. 48, 24 P. 873. This element of difficulty is therefore eliminated from the case.

It appears from the record that early in November, 1886 Elwanger & Barry shipped a lot of nursery stock to Milton, the plaintiff in error, over the New York Central & Hudson River road. Over that and connecting lines the stock reached Denver on the 12th of that month, and, according to the system prevailing between the connecting roads, was delivered to the defendant in error, the Denver & Rio Grande Railroad Company, on what is called the "receiving track," designated for this purpose. The stock remained in Denver, in the custody of the Denver & Rio Grande Company, for a very considerable time, reaching Durango on the noon of the 23d of November. The delay is unexplained. Nor can it be ascertained on what day the freight was forwarded to Durango; the record simply showing that it could not have been shipped prior to the 17th or 18th. When the goods reached Denver, and were delivered to the Rio Grande Company, their agent in Durango was notified; and he was directed to see that $608 was deposited for the freight claimed to be due on material. The demand for this sum led to the production of a bill of lading issued by the New York Central & Hudson River Company which provided for a through freight rate of $248 per 100, which at the specified weight would make the sum due $496. This contention on the part of Milton led to telegraphic communication between the agent at Durango and the general agent of the company in Denver. Subsequently the Durango agent notified Milton that the freight "racket" was all right, and the matter disposed of. For some reason, however, when the freight was forwarded to Durango, there had been no correction of the bill of lading; and the freight arrived subject to the collection of $608, in place of the agreed rate of $496. On the afternoon of the 23d, which was the day of the arrival, the agent and the consignee verified the amount of the shipment by counting the number of boxes, and opened one box for the purpose of learning its condition. There seemed to be but little if any frost in the package, and the stuff was apparently in good condition. At any rate, from the evidence upon that subject, the jury would have been entitled to find, in the absence of adverse proof, that on the day of arrival the freight had been uninjured by the weather. Milton insisted upon the delivery of his goods, and that the demand of $608 was...