Philadelphia, W. & B. R. Co. v. Lehman

• Decision Date: 14 April 1881
• Citation: 56 Md. 209
• Parties: THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY v. NATHAN LEHMAN, and ABRAHAM LEHMAN, trading as N. LEHMAN & BROTHER.
• Court: Maryland Court of Appeals

56 Md. 209

THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY v. NATHAN LEHMAN, and ABRAHAM LEHMAN, trading as N. LEHMAN & BROTHER.

Court of Appeals of Maryland

April 14, 1881

APPEAL from the Circuit Court for Howard County.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiffs offered the two following prayers:

1. If the jury find from the evidence that on the evening of the 28th of July, 1878, at a little before seven o'clock thirteen car loads of cattle belonging to the plaintiffs were delivered by the Baltimore & Ohio Railroad, on the tracks of the defendant, at Canton Ferry, to be carried over the defendant's road to Philadelphia, and thence by the Pennsylvania Railroad to Jersey City, for the market of Monday, July 29, 1878, and that defendant was not in the habit of running freight trains over its road on Sunday, but was in the habit of running trains on Sunday, especially for the purpose of transporting cattle from Baltimore, to be delivered in Jersey City in time for the market of Monday and that said cars were taken by the defendant's engine and employes from said Ferry to Canton Yard, and were there allowed to remain standing on defendant's tracks for about five hours; and shall further find, that the ordinary running time for stock trains from Baltimore to Jersey City was from ten to twelve hours, and that in consequence of such delay at Canton Yard, said cattle did not reach Jersey City in time for the market of Monday, and that the plaintiffs thereby sustained loss, then the plaintiffs are entitled to recover.

2. If the jury find for the plaintiffs under their first prayer they may embrace in their verdict any loss which they may find to have been sustained by the plaintiffs from loss in weight, or shrinkage in the cattle, from decline in the market value between the time when they could have been sold, if they had been transported with due dispatch and the time when they were actually sold, and any expenses incurred by the plaintiffs in feeding the cattle during such period for which they were held over by reason of any failure to transport them with due dispatch.

And the defendant offered the six prayers following:

1. That if the jury shall find that at the time of the injury complained of, the defendant advertised no freight trains for Sunday, and ran no regular freight trains on that day of the week, and that having regard to the day being Sunday, and the manner and time of the notification from the delivery by the Baltimore and Ohio Railroad Company, and the means of transportation in the defendant's power, when such notification was received, and the other circumstances of the case, the defendant used reasonable diligence in forwarding the plaintiffs' stock, then the plaintiffs are not entitled to recover, and their verdict must be for the defendant.

2. That if the jury shall find from the evidence, that the defendant gave such notice to the agents of the Pennsylvania Railroad Company, of the intended delivery to it of plaintiffs' stock, and delivered it to that company at such a time as to enable the Pennsylvania Railroad Company, by the use of reasonable diligence to deliver the same at Jersey City in time for Monday's market, then the plaintiffs are not entitled to recover, and their verdict must be for the defendant.

3. If the jury shall find that the intended delivery to defendant of plaintiffs' stock, was not notified to defendant at such a time and in such a manner, and that the same was not delivered to defendant at such a time and in such a manner, as to enable defendant by the exercise of reasonable diligence to forward the same to the Pennsylvania Railroad Company in time for that Company by the exercise of reasonable diligence to deliver the same in Jersey City, in time for Monday's market, (and that the defendant did not receive the cattle for that purpose,) then the plaintiffs are not entitled to recover, and their verdict must be for the defendant.

4. If the jury shall find from the evidence, that at the time of the injury complained of, the defendant advertised no freight trains to run on Sunday, and ran no regular freight trains on that day of the week, and that stock from the west transported over the Baltimore and Ohio Railroad, was received by defendant on Sunday, for transportation over its road, in pursuance of an understanding and agreement between defendant and said Baltimore and Ohio Railroad, that such stock would be transported over its line on Sunday, upon the defendant's receiving reasonable and proper notice of the arrival of such stock for transportation over defendant's road; and if the jury further find, that the stock mentioned in the declaration, did arrive in Baltimore City on Sunday, July 28, 1878, and was delivered by the Baltimore and Ohio Railroad Company to defendant, for transportation over its road, and that the notice to the defendant of the arrival of the stock was not, under all the facts and circumstances of the case, reasonable and proper to enable the defendant to transport the same over its road, so that the same could be delivered to the Pennsylvania Railroad Company for transportation, in time to reach the New York market the succeeding day, and that upon notice to the defendant of the arrival of said stock, the defendant used all reasonable and proper diligence for the transportation of the same over its road, and delivered the same with reasonable and proper diligence to the Pennsylvania Railroad Company for transportation to their point of destination, then the plaintiffs are not entitled to recover.

5. That if the jury shall find from the evidence, that the plaintiffs' cattle were shipped from the west for Jersey City, to be transported over the line of defendant's road, and those of other companies, then the defendant is only liable for delays occurring on its own road, and if the jury shall find that defendant, on receiving the same, used, under all the circumstances of the case, reasonable diligence in forwarding it and delivering it to the next road, that of the Pennsylvania Railroad Company, then the plaintiffs are not entitled to recover, (unless the jury find for the plaintiffs under their first prayer.)

6. That if the jury shall find that the defendant ran no regular freight trains on Sunday, and advertised no freight trains on that day, and the stock in question mentioned in the declaration did arrive in Baltimore on Sunday, July 28, 1878, and was delivered by the Baltimore & Ohio Railroad Co., to defendant for transportation over its road, and that the notice to the defendant of the arrival of said stock was not, under all the facts and circumstances of the case, reasonable and proper to enable the defendant to transport the same over its road, so that the same could be delivered to the Pennsylvania R. R. Co., for transportation in time to reach the New York market the succeeding day, and that upon notice to the defendant of the arrival of said stock, the defendant used all reasonable and proper diligence for the transportation of the same over its road, and delivered the same with reasonable and proper diligence to the Pennsylvania R. R. Co., for transportation to their point of destination, and that said stock was in charge of Richard Harrold, the shipper on part of plaintiffs, and representing the plaintiffs, and that the defendant received said stock, and transported the same over its road, with the knowledge and consent and acquiescence of said Harrold, representing the plaintiffs; and further find, that the said Harrold knew the delay of said stock at Canton, and knew that said stock was intended for the New York market on Monday, then the plaintiffs are not entitled to recover.

The Court (HAYDEN, J.) granted the prayers of the plaintiffs, and rejected the first, second, fourth and sixth prayers of the defendant, and modified its third and fifth prayers, by adding the words contained in brackets, and granted them as thus modified.

The defendant excepted, and the verdict and judgment being rendered against it, appealed.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and IRVING, J.

John J. Donaldson and Henry E. Wootton, for the appellant.

The declaration charges the defendant with negligence in its calling as a common carrier on a Sunday. The defendant could be under no common law duty as common carrier, to carry on Sunday. Art. 30, sec. 178, of the Code; Walsh vs. R. R. Co., 42 Wis., 23; Johnston vs. Commw., 22 Pa. St., 102; Powhatan St. Co. vs. Appomatox R. R., 24 How., 255-7; Merritt vs. Earle, 29 N. Y., 120.

It could only be bound by special contract to carry on that day; and the declaration is defective, in that no such special contract is alleged, or averments made from which the same could be inferred.

The declaration charges defendant as a common carrier, yet makes the gist of the cause of action to lie in a failure to deliver at a given time. In the absence of a special contract for delivery at a given time, common carriers are not bound to such a delivery. Story on Bailments, sec. 545 a; 2 Redfield on Railways, 192, and notes; Taylor vs. Gt. N. Railway, 12 Jur. N. S., 372; Broadwell vs. Butler, 6 McL., 296; Conger vs. Hudson R. R. R., 6 Duer, 375; Wibert vs. N.Y. & E. R. R., 19 Barb., 36, and 2 Kern., 245; Peet vs. Chicago & N.W. R. R., 20 Wis., 594; Hurst vs. Gt. W. Ry. Co., 19 C. B. N. S., 310; Hales vs. Lond. & N.W. Ry., 4 B. & S., 66; Taylor vs. Gt. N. Ry., 1 L. R. C. P., 385; Parsons vs. Hardy, 14 Wend., 215.

It is not even stated that the defendant knew the cattle were intended for Monday's market, for the failure to reach which damages are claimed. Such knowledge is necessary to the carriers' liability for failure to fulfil the...