Hill Manufacturing Co. v. Boston & Lowell Railroad

The successive roads of three railroad corporation*, together with the line of a steamboat company whose boats plied from the end of the third road, constituted a route between two cities. The first corporation had a written contract with the second for mutual transportation of goods over and beyond their roads, having in view transportation between the two cities, and providing that the first corporation might “ bill freight through,” and for any loss of goods beyond its own road the second corporation would indemnify it; and the general course in transporting goods from the first city to the second was for the first corporation to receive and receipt for them, as “ to be forwarded” to the second city; te dispatch them over its own road and the second road, with a way bill in which they were marked for through transportation which way-bill the third road took, with the goods, from the second road, and in its turn delivered, with the goods, to the steamboat company; and to collect the entire freight, not only for the transportation over its own road and the second road, in pursuance of the written, contract, but also over the road of the third corporation and the line of the steamboat company. After deducting from tile freight thus collected a portion fixed in its written contract with the second road as due for its own transportation of the goods, it paid the balance to that road, which, after deducting a portion fixed by oral agreement between itself and the third road, paid the residue to the third road, which divided it with the steamboat line in pursuance of an oral agreement between itself and that line. But between the first corporation and the third corporation and steamboat line, and between the second corporation and the steamboat line, there was no agreement except what may be inferred from this course of business. Held, that these facts warranted the inference that the first corporation was liable as a common carrier over the whole route, to a person from whom, in this course of business, it received goods for transportation from the first city to the second city. A common carrier, who ships goods over part of his route on a vessel which he does not own or charter, is not relieved from liability by the U. S. St. of 1851, c. 43, if the goods are destroyed by an accidental fire on the vessel.

Contract, to charge the defendants as common carriers with the loss of thirty cases of bleached cottons, delivered to them by the Lowell Bleachery, in behalf of the plaintiffs, for transportation from Lowell to New York City, consigned to the plaintiffs’ factor in the latter place. The case was submitted to the determination of the court on a statement of agreed facts, of which the following are the material parts : The defendants leased and worked the Stony Brook Railroad, which extended from Lowell to Groton Junction and there connected with the Worcester & Nashua Railroad, which extended from Groton Junction to Worcester and at Worcester connected with the Providence & Worcester Railroad, which extended from Worcester to Providence in Rhode Island, where its tracks ran upon the wharf of the Providence & New York Steamship Company, whose steamers plied from Providence to New York. The defendants, and the Worcester & Nashua Railroad Corporation, the Providence & Worcester Railroad Company, and the Providence & New York Steamship Company, were independent corporations, and had had no connection in business except as hereinafter stated. From and after the 1st of January 1868, a contract existed between the defendants and the Worcester & Nashua Railroad Corporation, which on May 20, 1868, was reduced to writing and signed by their proper officers. The material parts of this writing are printed in the margin.* In May 1868 the plaintiffs delivered the goods to the Lowell Bleachery in Lowell, to be bleached and then sent by the Bleachery to the plaintiffs’ factor in New York City, whose name was Josiah Colby. On May 22 the Bleachery delivered the goods, addressed to Colby in New York City, to the defendants’ agent at the freight depot of the defendants in Lowell, and took from him a receipt, which he signed, as follows: “ Received of the Lowell Bleachery, to be forwarded to New York, thirty packages of goods marked, 22, Josiah Colby, H. C. A.; 7, Josiah Colby, H. C. D.; 1, Josiah Colby, H. C. B.” The Bleachery at the same time delivered to the defendants a for warding order, at the bottom of which was printed in red ink, “ Charge freight to Lowell Bleachery,” it being the invariable usage of the Bleachery to give- orders in this form whenever it was to pay the freight on goods sent by it, and the defendants being used, at the end of each month, to present to and collect from the Bleachery a bill of charges on such freight. “ The defendants charged the whole freight on the thirty cases of goods, from Lowell to New York, at the rate of thirty cents per hundred, and at the end of the month presented their bill to the Bleachery Company, which was paid by them June 9,1868. In thus sending goods to the plaintiffs’ agent in New York, the Bleachery Company were acting for the plaintiffs.” “ The goods were forthwith transported from Lowell by the defendants’ agents over the Stony Brook Railroad to Groton junction, and there delivered, with the cars in which they were transported, to agents of the Worcester & Nashua Railroad Corporation, and by them carried over their railroad to Worcester, where they were by them in like manner delivered to agents of the Providence & Worcester Railroad Company, and carried over their railroad to Providence, the defendants’ cars being used until their arrival at the latter place, where agents of said Providence & Worcester Railroad removed the goods from the cars and delivered them in good order to agents of the Providence & New York Steamship Company, by whom they were placed on board one of said company’s boats bound for New York; and this was the only mode in which goods were ever transported from Lowell to New York by this route. The steamer, with these goods on board, arrived at New York on Sunday morning, May 24, about 9 o’clock, the usual hour of arrival, and was laid alongside of the wharf, and no goods were removed from her. The wharf belonged to the steamship company, and at the head of the dock were the company’s offices, extending to within a few feet of the steamer as she lay at the wharf. No person was present in the offices, except one watchman. About twelve o’clock, he was informed by some one in the street that the offices were on fire; on examining, the fire had made such headway inside of the offices that it was impossible to stop it; and in a few minutes it was communicated to the steamer, which could not be moved, having no steam on, and the steamer, with the merchandise on board, was partly consumed. It has never been known what was the cause of the fire in the company’s office, but it was agreed that it was not caused by design of the owners of the steamer. Colby had received no notice of the arrival of the steamer at the time of the fire; and it was not the custom to unload or deliver the goods arriving on Sunday till the Monday following. The plaintiffs’ loss and damage upon the goods by the fire was $4558.24.” “ The course of business which had subsisted since January 1, 1868, with regard to goods shipped by the Bleachery in the manner in which these were shipped, was this: A way-bill containing a list of all goods sent on each day, in the form printed in the margin,* was forwarded with the goods and delivered by the defendants to the Worcester & Nashua Railroad Corporation at Groton Junction, and by them delivered at Worcester to the Providence & Worcester Railroad Company, who delivered it to the Providence & New York Steamship Company at Providence. A duplicate way-bill, a copy of which is printed in the margin,† (and, when freight was paid in Lowell, marked ' paid,’) was forwarded with the goods and delivered by the defendants to the agents of the Worcester & Nashua Railroad Corporation at Groton Junction, and by them delivered to the agents of the Providence & Worcester Railroad Company at Worcester, who delivered the same to the Providence & New York Steamship Company at Providence; and when the freight had been paid in Lowell, the steamship company sent said bill to the consignee, and stamped the name of the steamer bringing the goods and the date upon it, which was delivered to the consignee with the merchandise. This would have been done in the present instance, but for the happening of the fire. “The Worcester 5c Nashua Railroad Corporation, before the sending of the goods sued for in this action, had directed the defendants to ticket passengers and bill freight from stations on the defendants’ line of railroad, to New York, over the Worcester 5c Nashua Railroad, by way of Providence, according to the contract between them ; and had fixed the rate of freight fiom Lowell to New York under said contract; and this was the rate charged by the defendants, and paid by the Bleachery for the goods sued for. The defendants charged and collected the entire freight for said goods, in pursuance of said contract, and received to their own use the price per ton provided in said contract, and paid over to the Worcester 5c Nashua Railroad Corporation the balance. The said balance was divided between the three remaining corporations over whose routes the goods passed, in the following manner and proportions, viz : the Worcester 5c Nashua Railroad Corporation received to its own use 34 per cent, of the whole charge from Lowell to New York, less the amount retained by the defendants, and paid over the residue to the Providence 5v Worcester Railroad Company; and said residue was divided by the Providence 5c Worcester Railroad Company and the Providence 5c New York Steamship Company, in the ratio of 44 to 66. This division of the balance, after paying the defendants, was effected in pursuance of oral agreements between the Worcester 5c Nashua Railroad Corporation and the Providence 5c Worcester Railroad Company, and between the Providence 5c Worcester Railroad Company and the Providence 5c New York Steamship Company; but there was no agreement, oral or otherwise, between the defendants and either the Providence 5c Worcester Railroad Company or the Providence 5c New York Steamship Company, nor between the Worcester 5c Nashua Railroad Corporation and said steamship company.” “ The court, upon the foregoing facts, so far as the same are competent, are to render such judgment as the law requires, it being agreed that they may draw any inferences from the competent facts stated that a jury would be justified in drawing.”