Philadelphia, Wilmington & Baltimore Railroad v. Lehman

Alvey, J.,

delivered the opinion of the Court.

The first question that presents itself on this record is that raised by demurrer to the plaintiffs’ declaration. The declaration alleges that the defendant is a common carrier for hire ; that on the 28th of July, 1878, about the hour of 4 o’clock p. m. the defendant received from the Baltimore & Ohio Railroad Company thirteen cars loaded with cattle, belonging to the plaintiffs, to be transported by the defendant, for a reward for that purpose paid or to be paid by the plaintiffs to the defendant, with reasonable despatch over the road of the defendant; but the defendant did not, nor would, transport the same with reasonable despatch, but detained the same upon its road, in the City of Baltimore, from the time of the delivery to the defendant until about half past 12 o’clock a. m. of the morning of Monday, July 29th, 1878. By reason whereof the said cars, so laden with cattle, failed to reach Jersey City stock-yards, their point of destination, until the hour of 3 o’clock p. m. of the day last mentioned, and too late for the market of that day ; and the plaintiffs were compelled to retain the cattle until the market of Wednesday following, whereby a large shrinkage took place in the weight of the cattle, and deterioration of their condition, and the plaintiffs were put to great expense, in feeding the cattle during the period of delay, and loss of time thereby, and suffered loss by reason of the decline in the market value of the cattle, &c.

*226 The Court below overruled the demurrer, aud required the defendant to plead, and the question is, whether that ruling was correct.

As the defendant is charged with failure of duty, in the exercise of its calling as a common carrier for hire, the question raised by the demurrer is, whether on a Sunday there was, in the absence of a special contract, a common law duty imposed upon it, unrestricted and unaffected by statute, to carry or forward the cattle of the plaintiffs on that day, under the facts alleged in'the declaration.

The declaration does not allege in terms that the cattle were delivered to the defendant for transportation on Sunday, but it alleges that the defendant received of the Baltimore & Ohio Railroad Company, a connecting road, the cattle on the 28th of July, 1878, to be transported with reasonable despatch over its road. It is the duty of the Court to notice the days of the week on which particular days of the month fall; and hence we know, without other averment, that the 28th of July, 1878, was Sunday. Hoyle vs. Cornwallis, 1 Strange, 387; Kilgour vs. Miles, 6 G. & J., 268 . And in the regular division of time, Sunday embraces all of the twenty-four hours next ensuing the midnight of Saturday.

Supposing the defendant to have professed and held itself out as a common carrier of live stock on Sunday as on other days of the week, whether it would have been bound to accept for carriage from the plaintiffs, or from a connecting road, stock offered on a Sunday, is a question not necessary to be decided. It is alleged that the plaintiffs’ stock was offered on Sunday and actually received by the defendant to be transported over its road, with reasonable despatch. The action is founded upon the common lav? duty and liability of the defendant as a common carrier of live stock, and not upon any special contract either as between the plaintiffs and defendant, or as between the defendant and other connecting roads. It is *227 alleged that the defendant detained the stock on its road at Baltimore for a period of about seven or eight hours, after receiving it to be transported, whereby loss and injury accrued to the plaintiffs ; and the question is, whether the defendant was justified in the detention by the fact that the stock was received upon the road on Sunday, about 4 o’clock p. m.

Most, if not all, of the States of the Union have what are familiarly known as Sunday laws; and while they may differ in their phraseology and the penalties imposed, they are substantially the same in their general scope and provision ; — all looking to keeping the day sacred, and as one of rest from secular employments. Of these laws there has been great diversity of interpretation. Some Courts holding to them with great strictness, while others have construed them with considerable liberality, — and especially in cases where, by strict construction, impediments and embarrassments would be raised to the great carrying business ef the country. In this Court we have had no case analogous to the present; but, looking to what has been decided elsewhere, we have no doubt in • concluding that our Sunday law, as found in the Code, Art. 30, sec. 178, has no application to this case whatever. That statute forbids all persons to “ work or to do any bodily labor on the Lord’s day, commonly called Sundayand it provides that no person shall command or willingly suffer any of his servants to do any manner of work or labor on that day — works of necessity and charity always excepted ;— and a small penalty is prescribed for a breach of the statute.

According to the principles of the common law, applicable to common carriers, the defendant having accepted the stock to be transported over its road, in the usual course of transit, it at once became its duty to forward the same without unnecessary delay or detention. Its obligation was to carry according to its public profession, *228 and the conveniences at its command. Johnson vs. Midland R. Co., 4 Exch., 367. And if injury he sustained, hy reason of any neglect of this duty, or other wrongful act, in the carrying and delivery of the cattle, the fact of their having heen received to he carried, or having been carried, on Sunday, can afford ho excuse to the defendant, or exoneration from liability. The carrying forward of’ the cattle hy the defendant on Sunday was not illegal; it was fairly and justly a work of necessity, and therefore excepted from the operation of the statute.. And that being the case, there is no ground for the excuse relied on hy the defendant. Powhatan Steamboat Co. vs. Railroad Co., 24 How., 247, 253 ; Carroll vs. Staten Island R. Co., 58 N. Y, 126; Flagg vs. Millbury, 4 Cush., 243 . And even upon the supposition that the plaintiffs were violating the law in having their cattle transported on a Sunday, it is well settled that the defendant could not avail, itself of such infraction of the law hy the plaintiffs, as a. defence to an action for the consequences of a wrong or negligence of its own. Phil. Wilm,. & Balto. R. Co. vs. Steam Towboat Co. 23 How., 209 ; Mohoney vs. Cook, 26 Penn. St., 342; Sutton vs. Town of Wauwatosa, 29 Wis., 21 ; Carroll vs. Staten Island R. Co. 58 N. Y., 126 . The Court below was clearly right, therefore, in overruling the demurrer of the defendant to the declaration of the-plaintiffs.

And having disposed of the question raised upon the-demurrer to the declaration, we come now to consider the questions raised upon the facts of the case as proved upon the trial, under the plea of the general issue, not guilty.

The defendant owned and operated a line of railroad between Baltimore and Philadelphia, connecting at Canton, a mile and a quarter out of Baltimore, by ferry, with the Baltimore and Ohio Railroad, at Locust Point, and at Gray’s Ferry, near Philadelphia, with the Pennsylvania Railroad. Its principal offices, and the *229 home of its rolling-stock, were and are still in Philadelphia, and the men for running its trains come from that point; and all orders for running trains issue from the same place. The defendant ran no regular freight trains on Sunday during the summer of 1878, and none were on the schedules or otherwise advertised for that day of the week. But special trains were run on Sunday for the ■accommodation of the cattle trade, hy an arrangement with the Baltimore & Ohio Eailroad Company, which had been in existence for some time previous. And, according to the testimony of witnesses, the usual and regular course of dealing, as between the two companies, was for the Baltimore & Ohio Eailroad Company to give notice by telegraph, on Saturday, and again on Sunday morning, of what cattle there would be for transportation over the defendant’s road, during the day of Sunday. Such notice was given, as stated by the witness, to the defendant’s agents at Canton, that they might be ready to receive the cattle, and also to the defendant’s agents at the President street depot, in the city, that they might hold over the necessary crews, and bave them and the engines in readiness to take forward the trains: That, upon the arrival of the cattle trains at Canton from Locust Point, the defendant’s agent at the President street depot, upon notice, would send down the crews and engines to take on the ■trains.

With this arrangement existing, the plaintiffs, on Saturday, the -27th of July, 1878, started from the Ohio river, at Parkersburg, West Virginia, thirteen car loads of cattle, over the Baltimore and Ohio Eailroad, destined for Jersey City, The train was regularly due in Baltimore at 12 o’clock, m. of Sunday, the 28th of July. It did not, however, arrive on time. It reached Mount Clare, Baltimore, a little before 5 o’clock of that afternoon; and it left that station for Locust Point about 5.85 p. m.; •and all the cars did not reach the tracks of the defend *230 ant’s road at Canton before 7 o’clock p. m. The distance from Baltimore:to Gray’s Perry, by the defendant’s road, is niney-six miles ; and from the latter point to Jersey City, by the Pennsylvania Railroad, the distance is eighty-nine miles; and the time usually taken for the running of cattle trains from Baltimore to Jersey City is from ten to twelve hours.

It is shown in proof by the testimony of witnesses, and the production of telegrams, that on Saturday, July 27th, at 12.45 p. m. the agents of the Baltimore & Ohio Railroad Company, at Mount Clare, notified, by telegraph, the agents of the defendant, at the -home office in Philadelphia, at the President Street Depot, in Baltimore, and at Canton Station, that there would be, on the following day, from twenty to thirty cars of stock to go through to Philadelphia and New York; and that they would leave Mount Clare Station, at about 3J o’clock p. m. On Sunday, the 28th, several despatches were sent from the office of the Baltimore & Ohio Railroad Co. to the agents of the defendant, announcing stock to be forwarded to Philadelphia and Jersey City, and all of which despatches, were duly received by the agents of the defendant. The first of these appears to have been sent at 3.40 p. m., giving notice of fifteen cars, by numbers and consignments. The next to the defendant’s agent at Canton, at 3.45 p. m., and to the agent at the President Street Depot, at 5.10 p. m. Another was sent at 4.55 p. m., to the agents at Philadelphia, Baltimore, and Canton, giving notice of twenty-four cars, by numbers and consignments ; and another was sent to same agents at 5.20 p. m.; this last giving notice of thirteen cars, by numbers and consignments, and having special reference to the plaintiffs’ stock. By the despatch that was sent to the defendant’s agent at Canton at 3.45 p. m., and to the agent at the President Street Depot at 5.10 p. m., those agents were informed that fifteen cars of stock were still *231 out, — that they were expected by 3-| o’clock p. m.; that they were to go to New York; and the agents were requested to “ arrange to run them through without delay.” The fifteen car loads here referred to included the thirteen belonging to the plaintiffs.

Upon the notification thus given, the defendant had in reserve at Baltimore but two engines and two sets of hands to take forward the cattle trains that arrived during the afternoon of Sunday, the 28th of July. Of the cars that arrived between 3 and 4 o’clock of that afternoon, two trains were made up, and were sent forward about 5 o’clock that evening; the engine for the first train leaving President Street Depot at 4.35 p. m., and that for the second at 4.51 p. m., the whole number of cars in the two trains being thirty-nine — nine more than were given notice of by the despatch of Saturday. The cars with the plaintiffs’ cattle, having been received on the defendant’s road about 1 o’clock p. m., were not taken forward until fifteen minutes after 12 o’clock that night. They were delivered on the tracks of the Pennsylvania Bailroad, at Gray’s Ferry, on the morning of July 29th, at about 5.10 a. m., and they were moved forward on the last mentioned road a few minutes before 6 o’clock of that morning. The cattle, however, did not arrive at Jersey City until about 2-|- or 3 o’clock p. m. of that day, and too late for that day’s market. The next market day was Wednesday, when the cattle were sold.

In the absence of an express contract, the common law duty and liability of a common carrier for the safe carriage and due delivery of live animals are the same as that for the carriage and delivery of other property; the liability in all cases being qualified by the nature and inherent tendencies of the thing carried. In undertaking the carriage of live stock, therefore, the carrier assumes the obligation to deliver safely, and within a reasonable *232 time, having due respect to the circumstances of the case. Balto. & Ohio R. R. Co. vs. Brady, 32 Md., 333 ; Smith vs. Railway Co., 12 Allen, 531 ; Mynard vs. Syracuse R. Co., 71 N. Y., 180 . The same principle, though not necessarily involved, nor expressly decided, was recognized in the case of Bankard vs. B. & Oh. R. Go. 34 Md., 197 .

In this case, there can be, of course, no liability on the part of the defendant for any delay in the transportation of the cattle before they reached the tracks of, and were received by, the defendant; nor is the defendant liable for any delay in carrying forward the cattle after they were delivered on the tracks of the Pennsylvania Railroad Company, at Gray's Ferry. In the case of an intermediate carrier, as the defendant in this case, that accepts property for carriage, directed to a place beyond the terminus of its route, the law, in the absence of a special contract, or of special circumstances, implies an undertaking on the part of the carrier, to deliver the property carried, at the end of its route, to the next succeeding carrier; and for any failure in this duty, within a reasonable time, the carrier is liable to all the consequences of such failure. Railroad Co. vs. Manf. Co., 16 Wall., 318 ; Railroad Co. vs. Pratt, 22 Wall., 123 ; Pratt vs. Railway Co., 95 U. S., 43 ; Rawson vs. Holland, 59 N. Y., 611 ; Phil. Wilm. & Balt. R. Co., vs. Harper, 29 Md., 330 . The principal question here is, whether, according' to the ordinary extent and usual course of the cattle trade on Sunday, over the defendant’s road from Baltimore, and the notice given the defendant's agents of the approach of trains for transportation on Sunday, the 28th of July, the defendant had made reasonable provision, and exerted due care and diligence, to guard against delay in forwarding the cattle trains that might he received from the Baltimore & Ohio Railroad on that day ; or whether, upon the receipt of such notice as ’ was given, the requisite means or eqxxipment could have been provided, by reasonable exertion, to *233 take forward the plaintiffs’ cattle without the delay that actually occurred? And this is a question that should have been submitted to the jury for their determination, upon all the proof in the cause. If the defendant provided reasonable equipment to meet the requirement of the Sunday’s transportation in the usual course, upon the notice received, and the plaintiffs’ cattle were carried forward and delivered with due diligence and as much expedition as it was practicable, under the circumstances of the cáse, the defendant is not liable for the consequences of the unavoidable delay; that is to say, a delay that could not have been avoided by the exercise of reasonable precaution and diligence. But, on the other hand, if the delay could have been avoided, by the use of due diligence, and the making of proper effort to send forward the cattle with ready and convenient despatch, .and injury resulted from a failure in that respect, the defendant is liable therefor. The duty to deliver safely and the duty to deliver in due time, are distinct obligations. The time of delivery is often a matter of express contract; but when, as in this case, there is no express contract, there is an implied obligation to deliver within a reasonable time, and that means the time within which the carrier can deliver, using all reasonable exertion, and taking all reasonable precaution, to avoid delay. That proposition would appear to be well settled upon undoubted authority. Parsons vs. Hardy, 14 Wend., 215 ; Taylor vs. G. N. Railw. Co., L. R., 1 C. P., 385; Sto. on Bailm., sec. 545a; 3 Pars, on Contr., (4th Ed.,) 659, and cases there cited. And in determining the question of the liability of the defendant on the facts of this case, that principle is important to be observed.

With respect to the question of damages and the extent thereof to which the plaintiffs may be entitled to recover, it is only necessary to say a few words, in view of the authorities upon the subject. As it is sought to charge the *234 defendant with the consequences of the delay, and the failure to use such degree of diligence in forwarding the cattle as would have secured their arrival at Jersey City in time for the cattle market of Monday, the 29th of July, it is material and necessary that it should he shown that the defendant had knowledge, or from the circumstances of the case and the course of the trade, it might have reasonably inferred, that the cattle were intended for the market of that day. The defendant, at least, should have had an opportunity of contemplating the special consequences of a breach of duty, or of making some special provision against incurring the liability therefor; and without notice this could not well have been done. Hadley vs. Baxendale, 9 Exch., 341; Great West. Ry. Co. vs. Bedmayne, L. R., 1 C. P., 329; Horne vs. Midland Ry. Co., L. R., 8 C. P., 131; Grindle vs. Eastern Exp. Co., 67 Me., 317.

With these principles in view we may now dispose of the several prayers ruled upon by the Court below, and which were the subjects of exception by the defendant.

The first prayer on the part of the plaintiffs, and which was granted, we think erroneous. By that prayer it was not submitted to the jury to find whether the defendant had made proper exertions, and used due and reasonable diligence, under all the circumstances of the case, to avoid unnecessary delay in the transportation of the cattle ; or whether the cattle could have been carried forward with greater expedition and despatch than they were, by the use of reasonable precaution and diligence on the part of the defendant, under the circumstances in reference to which it was called upon to act. The prayer assumes it as a principle that, the defendant having accepted the property for carriage for a particular market, the delay of five hours more than the the usual time could not be excused, and that the defendant was bound to carry and deliver within, a certain time, without reference to causes *235 and contingencies referred to in the evidence, and whether they were reasonably within the defendant’s control or not. This, as we have shown, is not the law, in the absence of an express contract requiring such delivery. That prayer, therefore, should have been refused.

The plaintiffs’ second prayer, which was also granted, has not been seriously questioned in this Court. It appears to be substantially correct, when construed in reference to the facts required to be found by the first prayer, and other undisputed facts in the case; and we shall therefore say nothing more in regard to it.

The first prayer on the p$rt of the defendant, which was rejected, we think should have been granted. It was not as full and as explicit, perhaps, as it might have been made; but it would seem to embody all the elements of fact to make it a good defence to the action, if found by the jury.

The defendant’s second prayer was properly refused. If the defendant had been guilty of such negligence in the transportation of the stock as to render it liable, it could not relieve itself by showing that a connecting road might have made up for its default. The duties and liabilities of the two roads were entirely distinct; and no recovery could be had against either, unless the injury complained of was caused by or resulted from the default of the particular party sued. The Pennsylvania Railroad Company might well say, that if the cattle train had been delivered on its tracks at Gray’s Perry four or five honrs sooner than it was, it would have reached Jersey City in ample time for the market of Monday, the 29th of July. The defendant’s third prayer was also properly refused, because it made the defendant’s liability, to some extent, to depend upon the exercise or non-exercise of such reasonable diligence as might have been within the power of the Pennsylvania Railroad Company. But we think the fourth and fifth prayers of the defendant, as *236 offered, were unobjectionable, and should have been granted. The sixth prayer was properly refused. The mere fact that the plaintiffs’ agent had knowledge of what had been done, or of what was being done, in regard to the cattle, and their destination, could in no manner affect the defendant’s liability for failure or neglect in the discharge of its duty as carrier.

(Decided 14th April, 1881.)

It follows that the judgment below must be reversed, and a new trial ordered.

Judgment reversed, and new trial aioarded.