The Evansville And Terre Haute Railroad Company v. Keith

• Decision Date: 07 November 1893
• Docket Number: 808
• Parties: THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY v. KEITH ET AL
• Court: Indiana Appellate Court

35 N.E. 296

8 Ind.App. 57

THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY v. KEITH ET AL

No. 808

Court of Appeals of Indiana

November 7, 1893

From the Vigo Superior Court.

Judgment affirmed, at costs of appellant.

J. E Iglehart, E. Taylor, S. B. Davis and G. M. Davis, for appellant.

C McNutt and J. G. McNutt, for appellees.

LOTZ J. ROSS, J., dissents.

OPINION

LOTZ, J.

The appellees sued the appellant to recover for three hundred tons of hay and two warehouses, which were destroyed by fire in January and November, 1887. Their complaint was in eleven paragraphs. There was a trial by jury and a verdict and judgment for appellees in the amount of $ 1,965.50.

The errors assigned and discussed by counsel are the overruling of the demurrer to the amended first, the fourth and fifth paragraphs of complaint, and the motion for a new trial. All other assignments are waived by a failure to discuss them.

The amended first paragraph avers, that on and before the 17th day of January, 1887, appellees were partners, under the firm name of Keith & Bledsoe, engaged in buying, selling and shipping grain; that the appellant was a railroad corporation, operating a railroad through the town of Pimento, where appellant had a station, depot, side-track and switch, and where it received and discharged goods, farm produce, and passengers, and was a common carrier for hire; that on January 1, 1887, plaintiffs had seventy tons of baled hay which they desired to ship over said railroad, and had a chance to buy eighty tons of baled hay additional, at a profit, provided they could procure cars to ship the same at an early day; that previous to said date appellant had not furnished appellees with sufficient cars to carry hay, and the latter had been compelled to refuse hay, or, after purchasing it, to allow it to lie exposed in the open weather, on account of appellant failing to furnish sufficient cars; that at this time, under these circumstances, appellees wrote to appellant a letter, complaining about discriminations and asking for information, and notifying appellant of the offer which appellees had to buy eighty tons of hay, to which the general freight agent answered as follows:

"EVANSVILLE, IND., January 4, 1887.

"Keith and Bledsoe, Pimento, Ind.:

"DEAR SIR--I am advised this morning by our general manager that he will be able to supply all hay and other cars required at once. I think you can safely rely on a full supply of cars as needed henceforth.

"Yours truly, G. J. GRAMMER."

That relying and acting upon said undertaking, obligation and contract, appellees purchased the said eighty tons of baled hay, and one hundred and fifty tons additional, and placed the hay so purchased, as well as the seventy tons already on hand, at a point adjacent and contiguous to appellant's side-track at the town of Pimento, at the usual and customary place of loading hay into appellant's freight cars at the said town and station; that the hay was properly packed and baled; that appellees notified appellant that the hay had been placed at the usual and customary place of loading at said town and station, and demanded cars upon which to ship the same, and requested appellant to transport said hay; that appellees were ready and willing to pay appellant its reasonable charges for said transportation; that appellant wrongfully failed and refused to carry said hay, and wrongfully refused to furnish sufficient cars to transport the same within a reasonable time after said demand; that afterwards said hay was, at the said place, wholly and totally destroyed by fire, to the damage of appellees in the sum of $ 3,000.

The objections urged against the sufficiency of this paragraph are (1) that it does not show that the loss was not occasioned by the negligence of the plaintiffs, and (2) that it does not show the actual delivery of the property to, and placing it in the custody of, the defendant, and (3) that it does not allege that the plaintiffs had tendered the price of carriage, or were ready to pay the same under proper circumstances.

Whether the letters referred to in this paragraph constitute a contract for the transportation of hay, is a matter of some doubt. Chicago, etc., R. R. Co. v. Dane, 43 N.Y. 240; Riggins v. Missouri River, etc., R. R. Co., 73 Mo. 598; Tilley v. County of Cook, 103 U.S. 155, 26 L.Ed. 374.

They may be treated simply as a request for cars, and an offer to comply therewith. In either event, the paragraph proceeds upon the theory that the appellant is liable as a common carrier, for the loss of the hay by fire. A common carrier of goods for hire is an insurer against loss or injury from whatever cause arising, except only acts of God and the public enemy. Walpole v. Bridges, 5 Blackf. 222; Pittsburgh, etc., R. W. Co. v. Hollowell, 65 Ind. 188.

The loss of the goods and the manner in which it occurred are sufficiently averred. In order to invoke the liability which the law imposes upon a common carrier, the goods or articles designed for transportation must be actually delivered to the carrier. When goods are designed for immediate transportation, the placing of the goods in a condition to be carried, at the usual place of loading, and in pursuance of the usage of the parties, constitutes a delivery. Louisville, etc., R. W. Co. v. Flanagan, 113 Ind. 488, 14 N.E. 370; Louisville, etc., R. W. Co. v. Godman, 104 Ind. 490, 4 N.E. 163; Merriam v. Hartford, etc., R. R. Co., 20 Conn. 354.

Such deposit made under such circumstances constitutes a delivery, although made without notice, and although the superintendent of the railroad did not know of the usage which the local agent had permitted to grow up, contrary to the positive order of the management. Montgomery, etc., R. W. Co. v. Kolb, 18 Am. and Eng. R. R. Cases, 512.

The paragraph is sufficient in this respect.

A railroad company, like any other common carrier, has the right to demand that its charges for transporting the goods shall be paid in advance. It is not obliged to receive them unless such charges are paid. Section 3925, R. S. 1881; Randall v. Richmond, etc., R. R. Co., 108 N.C. 612, 13 S.E. 137; 3 Woods Railway Law, section 428; Bastard v. Bastard, 2 Show. 82; 2 Redfield Railway Law, section 176.

As the general custom is to receive and collect the freight upon delivery to the consignee, the right to prepayment is waived, and the carrier can rely only upon its lien or responsibility of the consignee, if it accepts the goods without prepayment. 3 Woods' Railway Law, section 428; Pittsburgh, etc., R. W. Co. v. Morton, 61 Ind. 539; Pittsburgh, etc., R. W. Co. v. Hollowell, supra; Bastard v. Bastard, supra; Barnes v. Marshall, 18 Q. B. *785; Pickford v. Grand Junction R. W. Co., 8 M. and W. 372.

We think the paragraph sufficient.

Appellant's counsel say that the fourth and fifth paragraphs of complaint are defective because it is not averred that the charges for transportation were tendered, and that it is not averred that the fire occurred without the fault of the plaintiff.

Each of these paragraphs proceeds upon the theory of a liability arising against the defendant as a common carrier of goods. Each shows that the goods were tendered to, and accepted by, the appellants, to be transported, and were destroyed by fire before being shipped from the station. No such averments as contended for are necessary.

On the trial, the court permitted appellant Bledsoe and many other witnesses to testify that all the engines of the defendant passing the station where appellee's property was situated threw sparks, and that other fires had occurred along or near the right of way of the railroad, about the time the loss occurred.

The correctness of a ruling on the admission or exclusion of evidence depends, in a large measure, upon the issues, and the other evidence then in hand. Some of the paragraphs of the complaint proceed upon the theory of negligence, in that the appellant's engines were improperly constructed, did not have sufficient and proper spark arresters, and were run at a high and unnecessary rate of speed, etc.

It appears that there were two fires; one on January 17th, 1887, and one on November 5th, 1887, both of which destroyed buildings and hay. Appellees sought to show that the first fire was caused by an engine attached to a passenger train going north, and that the second fire was caused by an engine attached to a freight train going north. It was in this condition of the evidence, and while giving their evidence in chief, that appellees offered the evidence of which complaint is made. Appellant contends that the engines which it was sought to show produced the fires, were sufficiently identified; that the proof of the defective construction and of the throwing of sparks should have been confined to such engines, and that it was error to permit the appellee to give evidence of the faulty construction of, and of the throwing sparks by, other engines. In support of this position, the following cases are cited: Gibbons v. Wisconsin Valley R. R. Co., 58 Wis. 335, 17 N.W. 132; Allard v. Chicago, etc., R. W. Co., 40 N.W. 685; Phelps v. Conant, 30 Vt. 277; Baltimore, etc., R. R. Co. v. Woodruff, 4 Md. 242; Boyce v. Cheshire R. R., 42 N.H. 97; Warner v. New York, etc., R. R. Co., 44 N.Y. 465 (472); Robinson v. Fitchburgh, etc., R. R. Co., 7 Gray (Mass.) 92; Sherman v. Kortright, 52 Barb. 267; Jacques v. Bridgeport, etc., R. R. Co., 41 Conn. 61; Bailey v. Trumbull, 31 Conn. 581.

Some of these cases seem to support appellant's contention. Their application, however, depends upon whether or not the engines had been identified when the testimony was offered. When this evidence was offered, the appellant had not yet identified the engines...