Brown v. Grand Trunk Railway

Liability of railroads as common carriers, as warehousemen, and as depositaries. After the responsibility of a railroad as a common carrier has ceased, they may charge for storage of goods as warehousemen, in which case they will be liable for ordinary care in relation to the goods. But where they are acting in good faith as mere depositaries, without 2>ay, they are only responsible for slight care, and would not be liable for an act of ordinary negligence on the 2>art of their servant in taking care of the goods.

Oase, by Francis L. Brown against The Grand Trunk Railway, to recover damages for the loss of twenty gallons from a barrel of kerosene oil, carried by the defendants for the plaintiff from Portland, Maine, to North Stratford, N. H.; also, for an injury to ten barrels (of a lot of fifty barrels) of flour, carried by the defendants for the plaintiff from Island Pond, Yt., to said North Stratford, by wetting, soaking, and impregnating it with kerosene oil. Plea, the general issue. By consent of the parties, the case was tried by the court. The writ contains three counts : the first and second counts seek to charge the defendants as common carriers; the first, for the loss of the oil; and the second, for the injury to the flour. The third count charges that the defendants, “ at their special instance and request, had the care ” of the oil and flour, and that the loss and injury occurred by reason of their not taking “ due and proper care” thereof. The finding of the court upon the facts of the case is as follows: The plaintiff, on July 31, 1867, purchased the oil of Shaw & Haskell, at Portland, who sent it to the defendants’ freight-house, in Portland, August 3, and signed an order and took a receipt, copies of which, upon blanks to be procured from the defendants, are to be furnished as a part of this case. The oil was forwarded on the same day, and arrived at North Stratford, August 5, and was stored there in the defendants’ freight-house. The plaintiff’s agent called for it August 10, paid the freight on it, and receipted for it on the defendants’ book, and it was rolled from its place in the freight-house, and was about to be loaded upon a wagon and taken away, when the person in charge of the team refused to take it on account of its dirty and leaky condition; and soon after-wards it was rolled back by the defendants’ servant, whose duty it was to do such work; and it was placed inside the freight-house by the side of the plaintiff’s flour hereinafter mentioned. Between that day (which was Saturday) and the following Monday morning, a large quantity of the oil leaked out, ran upon the floor under the barrels of flour, and did the injury complained of. As soon as this was discovered by the defendants’ servants on Monday morning, the barrel was rolled outside the freiglit-liouse, and soon afterwards it was taken away by the plaintiff. This leakage was not through any hole in the barrel, but was through the pores of the wood in every part of it. It appeared that the barrel, on or just prior to August 10, through some failure of the shellac composition, or coating inside, or in some unknown manner, suddenly ceased to be impervious to kerosene oil. The plaintiff, on or about August 1,1867, purchased by sample of J. W. House & Co., at Canaan, Vt., fifty barrels of flour, which was then at Island Pond, and was to be delivered at North Stratford. On the next day, House & Go. forwarded 110 barrels of flour from Island Pond to North Stratford, consigned to themselves, and paid the freight upon it. The flour arrived at North Stratford on the following day, and was stored there in the defendants’ freight-house, and the defendants’ agent there was directed by House & Co. to deliver fifty barrels of it to the plaintiff. Amendment. “ The flour had been separated, and the fifty barrels of flour had been set apart for him by House’s direction, and placed near the oil, and the balance was set apart to other persons.” It did not appear that the plaintiff, whose place of business was at Canaan, twenty-two miles distant, caused any of the flour to be taken away until August 10, nor that the defendants ever received, or asked, or expected any compensation for storing it other than what may be incidentally included in the sum (which was the usual price) paid by House & Co. for the transportation of it from Island Pond to North Stratford, nor that the defendants notified the plaintiff of its arrival at North Stratford, but the plaintiff had good reason to expect it to arrive on or about August 3. House & Go., at the time of forwarding the flour,' signed an order and took a receipt similar to the order signed and receipt taken by Shaw & Haskell hereinbefore mentioned. It did not appear that the attention of Shaw & Haskell, or of House & Co., had been called, previous to the injury complained of, to the “ notices and conditions” upon the back of the application and receipt signed and taken by them respectively, nor that they actually knew, previous to said injury, what was upon the back of said orders and receipts; but it is the opinion of the court, that, by reason of having given similar orders and taken similar receipts before, they had no sufficient reason for not knowing what was upon the back thereof. But there was no evidence that the plaintiff ever signed such an order or took such a receipt, or had any knowledge on the subject of said “ notices and conditions,” and lie did not give any notice in pursuance of the 11th article thereof. The 11th and 12th articles of said “ notices and conditions ” were as follows : “ 11. No claim for loss or damage for which this company is accountable will be allowed, unless notice in writing is given to the station freight agent within twenty-four hours after the goods are delivered. “ 12. Storage will be charged on all freight remaining in the depots over twenty-four hours after its arrival.” The conclusions of the court are, that there was no loss of oil or injury to flour until after the defendants had ceased to act in the capacity of common carriers, as to both the oil and the flour (in which capacity as to the flour they never undertook to act, so far as the plaintiff is concerned) ; that the oil was lost by reason of a defect in the barrel containing it, which defect was not occasioned by any act or neglect of the defendants, and the defendants were not, after the leakage commenced, guilty of any negligence which increased the quantity of oil lost; that the act of placing the barrel of oil near the flour in the freight-house after the leakage commenced, and leaving it there from Saturday until Monday, was an act of ordinary negligence, but not an act of gross negligence, on the part of the defendants’ servant, within the scope of his employment; that if the defendants are not exempted from liability by virtue of said “ notices and conditions,” and if, on the 10th of August, 1867, they were bound to take ordinary care of the flour, they are guilty of not having taken “ due and proper care” thereof; but if on said 10th of August they were only hound to take slight care of it, they are not guilty of not taking “ due and proper eai’e ” thereof. Upon the whole case, the finding of the court was, that the defendants were guilty in manner and form as the plaintiff has declared against them, and damages were assessed (for injury to the flour, but nothing for loss of oil) in the sum of one hundred and seventy-five dollars, or that the defendants were not guilty in manner and form as the plaintiff has declared against them, according as the opinion of the whole court shall be upon the foregoing facts. Case reserved.