Schwab v. Line

• Decision Date: 16 January 1883
• Citation: 13 Mo.App. 159
• Parties: ISAAC SCHWAB ET AL., Respondents, v. UNION LINE, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 159

ISAAC SCHWAB ET AL., Respondents,

v.UNION LINE, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

PATTISON & CRANE, for the appellant: “In respect to the time of delivery the defendant was responsible only for due diligence, and was only bound to transport and deliver the goods in a reasonable time, and without unnecessary delay.”-- Clark v. Railroad Co., 39 Mo. 190 (citing Parsons v. Hardy, 14 Wend. 215). This is in accordance with the current of authority. “As to the duty to carry within a reasonable time, the carrier's responsibility is only that of an ordinary bailee for hire.”--Hutch. on Car., sect. 328. “The question is only one of reasonable diligence, and accident or misfortune will excuse him.”-- Wibert v. Railroad Co., 12 N. Y. 251. Although such accident or misfortune is not inevitable, nor produced by the act of God or the public enemy.--Story on Bail. (9th ed.), sect. 545a; Hutch. on Car., sect. 330. “The amount of business ordinarily done by the road is the only proper measure of its obligation to furnish transportation. If by reason of a sudden and unusual demand for stock or produce in the market, or from any other cause, there should be an unexpected influx of business to the road, this obligation will be fully met by shipping such stock or produce in the order and priority of time in which it is offered.”-- Ballentine v. Railroad Co., 40 Mo. 500 (citing Galena, etc., R. Co. v. Rae, 18 Ill. 488); to same effect, 2 Redf. on Rys. (5th ed.) 194, sect. 189.

HENRY W. BOND, for the respondents.

BAKEWELL, J., delivered the opinion of the court.

This was an action for damages alleged to have been occasioned by the breach of the duty of defendant as a common carrier. It is claimed that there was unreasonable delay in the transportation of plaintiff's goods from New York to St. Louis, in consequence of which they depreciated in value. The verdict and judgment were for plaintiff.

There was evidence tending to show the following state of facts:--

Defendant is a through freight line, conveying goods between New York and St. Louis over connecting lines of railroad, of which the last, at the western end, is the Terre Haute and Indianapolis Railroad, extending from Indianapolis to East St. Louis. Defendant received the goods in question at New York, to be forwarded to St. Louis. This was on the 7th of October. The usual time of transit for such freight is from six to seven days; the goods did not reach St. Louis until the 15th of November. There was evidence of the depreciation of the goods by the delay from the 13th of October to the 15th of November.

Defendant introduced testimony to the effect that, at the time the goods were shipped, there was a blockade of goods at East St. Louis, in consequence of which, though the goods reached Knightsbridge, fifty miles from Indianapolis, on the 13th of October, it was impossible to move them from that point. Every effort was made to do so, but, when the car in which these goods were shipped arrived at Knightsbridge, all the side tracks at that point, and between that point and East St. Louis, were full, as were also the East St. Louis yards. During this blockade, everything was forwarded across the river in the order of its arrival, except coal, perishable goods, and live stock, which were preferred.

The St. Louis fair began on the 4th of October and ended on the 9th. There is always an unusual pressure upon the roads at that time. This year there had been unusual rains during August, September, and October, which caused an overflow at Hannibal, and forced freight, usually sent by that route, to go by way of St. Louis. This rain also made it more difficult to remove the goods from the cars as they arrived. On October 15th, a disease among horses broke out, which very much diminished the working force of the transportation company engaged in removing freight from East St. Louis across the river. But the main cause of the blockade was the fact that the railroads were engaged in a war of rates, and merchants were taking advantage of the low rates of freight offered by the lines employed by defendant and the competing lines. This is the testimony of defendant's witnesses; and it also appears from their testimony that the condition of things in East St. Louis was known to the agents of defendant by means of telegraphic communication at least once in every twenty-four hours.

The carrier is bound to deliver goods within a reasonable time; and there can be no doubt that the usual time is the only reasonable time, unless it appears that there were peculiar circumstances which made it practically impossible to deliver in the usual time. Not only the act of God, but unforeseen circumstances of accident or misfortune, have been held to excuse the carrier from delivering within the usual time. Where an obstruction occurred upon the railroad owing to an accident to a train belonging to another company which by law had a right to use the defendant's rails, it was held that the circumstances of the case must be considered by the jury in determining what was a reasonable time. Railroad Co. v. Taylor, 35 L. J. (C. P.) 210. A carrier is an insurer to the extent that the goods be delivered safely; but he does not insure their arrival according to any usual course of dealing; nor, in the absence of any special contract as to the time, does he insure their arrival at any particular day or hour. He must deliver within a reasonable time; and this is, ordinarily, a question of fact for the jury; and the usual course of delivery is, in most cases, prima facie evidence of what is a reasonable time. But it is held that, where there is necessary delay occasioned by some circumstance of which the carrier could not take notice at the time the transit began, or by some circumstance of which the shipper knew, and whose natural effect he was bound to know, what is a reasonable time must depend upon the facts and circumstances of the case. The law will not hold a person responsible for negligence for not doing what it was practically impossible for him to do, where there has been no express contract to do the impossible thing. A delay may be necessary to a safe delivery; but it does not follow from all this that a carrier is excused for a period of passage prolonged beyond a time otherwise reasonable, where the delay was occasioned by an insufficiency of means of transportation known to him when he received the goods. And this is held not to be a legal excuse where the carrier has received the goods and conveyed them a part of the way. And if cases are found looking the other way,--as Wibert v. Railroad Company (12 N. Y. 245), in which the judgment was affirmed by a divided court,--we are bound by the rule adopted in this state. Railroad Company v. Burrows (33 Mich. 6) was a case in which delay was caused by an extraordinary contingency (the Chicago fire), and by humane efforts to convey provisions to a starving people. The contingency was of public notoriety, and its natural consequences in producing delay must have been known to the consignor at the time he shipped the goods. But where the road was blocked with freight, and the carrier failed to inform the shipper of this fact, and received the goods, the carrier was held liable for damages growing out of the delay. Railroad Co. v. Burns, 60 Ill. 284. And this is according to the decisions in our own state.

It is held in Missouri, that, where a common carrier has not the carrying capacity to forward goods without delay, its duty...