Toledo, St. Louis & Kansas City Railroad Company v. Tapp

• Decision Date: 03 March 1893
• Docket Number: 777
• Citation: 33 N.E. 462,6 Ind.App. 304
• Court: Indiana Appellate Court
• Parties: TOLEDO, ST. LOUIS & KANSAS CITY RAILROAD COMPANY v. TAPP

33 N.E. 462

6 Ind.App. 304

TOLEDO, ST. LOUIS & KANSAS CITY RAILROAD COMPANY v. TAPP

No. 777

Court of Appeals of Indiana

March 3, 1893

From the Tipton Circuit Court.

Judgment affirmed.

S. O Bayless, C. G. Guenther and C. Brown, for appellant.

J. W Cooper, B. F. Harness, M. Bell and W. C. Purdum, for appellee.

OPINION

REINHARD, C. J.

On the morning of the 12th day of August, 1886, the appellee purchased of the appellant's agent, for himself and wife, tickets over the appellant's railroad as passenger from Kokomo to Russiaville, in Indiana. Appellee and wife had a trunk containing their baggage for which duplicate checks were procured from the agent, one of which was fastened to the trunk and the other delivered to the appellee, who directed that the trunk should be forwarded to Russiaville, upon the same train with himself and wife. The trunk was detained, however, at Kokomo until the arrival of the afternoon train, when it was duly shipped to Russiaville, reaching that place late in the evening, where it was placed in the appellant's warehouse. During the night the warehouse was consumed by fire, and with it the trunk and its contents. The appellee sued and recovered of the appellant the value of the trunk and contents, and from that judgment this appeal is taken.

The appellant disputes its liability on the ground that the facts show that it sustained to the appellee the relation of a warehouseman only, and not that of a common carrier. It is claimed on behalf of appellant, that the warehouse was struck by lightning, which was the real cause of the fire, and that as this was the act of God, rather than that of man, the appellant is exempt from responsibility for the same.

The jury returned a special verdict, and, at the request of one of the parties, also answered certain interrogatories submitted.

Numerous errors are assigned and ably and elaborately discussed by the learned counsel on both sides, but as they are all directed to the question of appellant's liability under the facts found, it is not necessary that we should set them out in this opinion.

The appellee's complaint proceeds upon the theory, and it is the contention of his counsel, that the appellant is liable on its obligation as a common carrier. Such carrier become insurers of the goods, and are responsible for their safe transportation and delivery, unless the loss or injury is the result of an act of God or the public enemy. A carrier may, by special contract, limit his liability in some cases, but he can not even do this as against his own negligence, or that of his servants. Where the plaintiff in such case proves the delivery of the goods to the carrier, the latter's acceptance of the same, under an express or implied contract to deliver them, and the failure to perform on the part of the carrier, it then devolves upon the carrier to show that the loss or injury occurred through some cause which imposes upon him no liability. 2 Am. and Eng. Ency. of Law 904, and authorities cited.

Under this rule, when the appellee had shown the delivery of the trunk and baggage to the station agent of appellant, the purchase of a ticket by the appellee, by which the latter and his baggage were to be transported, and the failure to deliver the trunk and contents, the burden was upon the appellant to prove that the loss occurred from some cause by reason of which it is exempt from liability.

To determine this question, we must look to the facts in the case.

The following is the special verdict returned by the jury:

"1. That upon the 12th day of August, 1886, the defendant was the owner and proprietor of a railroad running through the county of Howard, and State of Indiana, and to and through the city of Kokomo, and to the town of Russiaville in said county, and a common carrier of freight, passengers, and baggage thereon for hire.

"2. That upon said day, in the morning, the plaintiff purchased of the defendant tickets entitling him and his wife to be carried from said city of Kokomo to said town of Russiaville together with their baggage, consisting of one trunk and contents.

"3. That the passenger train going west upon said road was due at the city of Kokomo at 10-23 o'clock in the forenoon of said day.

"4. That said baggage was transferred from the depot of the Lake Erie & Western Railroad in the city of Kokomo to the depot of the defendant in said city, and placed in the usual place of depositing baggage intended to be carried on defendant's road, at which first depot said baggage had arrived on the 11th day of August, 1886, from Bloomington, Indiana, where plaintiff and his wife had before that time been on a visit.

"5. That the plaintiff and his wife arrived at the depot of the defendant about 10 o'clock A. M. on the 12th day of August, 1886, twenty to thirty minutes before the arrival of said train going west, and immediately upon their arrival he, plaintiff, purchased tickets for passage to said Russiaville, and requested the agent to check said trunk to said town of Russiaville, upon which request said agent delivered to him, plaintiff, a check and directed him to place the same upon said trunk, which plaintiff did in the presence of said agent at least fifteen minutes before the arrival of said train, and kept the duplicate of said check in his possession.

"6. That said agent after the arrival of the plaintiff and wife at said depot, and after the purchase of said tickets, and after said check had been placed upon said trunk, said agent and employe of defendant had sufficient and reasonable time, to wit, at least twenty minutes time in which to have placed the same where it could have been put on board said cars when the same should arrive, and ample time to have placed the said trunk upon said train before its departure from said station; that without any fault or negligence on the part of the plaintiff, but through the negligence and carelessness of the agent and employes of defendant, said trunk was not placed upon said train, but it was permitted to remain in said depot until late in the afternoon of said day, to wit, until 5.30 o'clock P. M., when the same was carried to said town of Russiaville, upon a local train upon said road carrying freight, baggage, and passengers, where the same arrived about twenty minutes after six o'clock.

"7. That upon said day, defendant had only one person, viz., W. J. Carroll, in charge of its business at such station of Kokomo, whose duties required him to sell tickets to, and check the baggage of, passengers upon said road, to perform the duties of telegraphic operator, to make out bills and receipts for freight, to attend to trains upon said road upon their arrival, and to transact all and singular the business of said company at said station, and by reason of the carelessness and negligence of the defendant's agents and employes in charge of said business, said trunk was not placed on board said morning train upon which plaintiff embarked.

"9. That upon the arrival of said morning train at Russiaville said plaintiff presented to the agent of defendant in charge of the depot at that station said check, and demanded the delivery of said trunk to him, and was informed by said agent that the same had not arrived, but would be sent down by the local train, to arrive at about 5.47 o'clock P. M.

"10. That the plaintiff, after his arrival at Russiaville, employed one Charles Bowers, a drayman, to go to the depot when the next train from Kokomo should arrive, due there at 5.47 o'clock in the afternoon of said day, and receive and take away said trunk, and delivered to said drayman said duplicate check.

"11. That Charles Bowers, said drayman, at the time when said train was due, viz., 5.47, did go to said depot for the purpose of receiving said trunk, and was informed by said agent of said depot, viz., Sherman Nichols, that said train was one hour late.

"12. That within one hour after said Nichols had informed said Bowers that said train was late, he again started to said depot for the purpose of getting said trunk, and met said Nichols in Russiaville, about one-fourth of a mile from the depot, when said Bowers demanded of said agent the plaintiff's trunk, and then said Nichols then and there informed said Bowers that the trunk had arrived, but was locked up in the depot, and that he, Bowers, could not get it. Said demand and refusal was between 6.45 and 7 o'clock P. M.

"12 1/2. That within from fifteen to twenty minutes after the arrival of said trunk at the town of Russiaville it was placed in defendant's depot at said place by the agent of defendant.

"13. That about twenty or thirty minutes after the time of meeting said Nichols, as set forth in finding No. 12, said Bowers again returned to the depot for the purpose of getting said trunk, and found the door of said depot locked up, with no agent or employe in charge thereof, and was not able to obtain said trunk; that at the time said Bowers last went to said depot for said purpose as aforesaid, said Nichols' attention was directed to him, and said Nichols knew that he, said Bowers, was then going to the depot to get said trunk, but that said agent refused to and did not again go to the depot until it was on fire, about 11 o'clock P. M.

"14. That at the time said mixed train, upon which said trunk was carried, was due at the station of Russiaville, and within a reasonable time after the arrival of said train, the plaintiff caused a demand to be made of the said agent of said company for said trunk and contents, and made reasonable efforts, and within a reasonable time, to demand and procure said trunk and contents, and that defendant refused and neglected to deliver the same.

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