Bianchi v. Montpelier & Wells River Railroad

Watson, C. J.

The bill of lading stipulated the Tieman switch as the place of delivery. The contract was controlling in this respect, and the monument was delivered by the terminal carrier at that place, accordingly.

The facts found show that the Tieman switch is a private siding built for the convenience of Tieman who, by reason thereof, became responsible for freight charges on all shipments placed thereon. The fact that the railroad may put goods on that siding, did not make it other than private in this instance where the place of delivery was fixed by contract, with the making of which the terminal carrier had nothing to do.

The bill of lading contains a provision as follows: “Property * * * when received from or delivered on private or other sidings, wharves, or landings shall be at the owner’s risk until the cars are attached to and after they are detached from trains." This’provision is reasonable in the eye of the law, and not inconsistent with public policy; and the law presumes that the plaintiffs assented thereto and agreed to be bound by it. Davis v. *322 Central Vermont R. Co., 66 Vt. 290 , 29 Atl. 313 , 44 Am. St. Rep. 852 ; Leavens v. American Express Co., 86 Vt. 342 , 85 Atl. 557 , Ann. Cas. 1915 C, 1188.

When the ear containing the monument was delivered on the Tieman switch specified, and was detached from the train, and the consignees were given a reasonable opportunity to inspect the monument and take it away, the responsibility of the carrier, as such, ceased. Stone v. Waitt, 31 Me. 409 , 52 Am. Dec. 621 ; Michigan Southern, etc., R. Co. v. Day, 20 Ill. 375 , 71 Am. Dec. 278 ; Schumacher v. Chicago, etc., R. Co., 207 Ill. 199 , 69 N. E. 825 ; Kingman, St. Louis Impl. Co. v. Southern R. Co., 133 Mo. App. 317 , 112 S. W. 721 ; Gulf Compress Co. v. Alabama Great Southern R. Co., 100 Miss. 582 , 56 So. 666 ; 10 C. J. 233; 4 R. C. L. 833. It is urged, however, that the placing of the car upon the side track, as per bill of lading, without notice of its arrival being given to the consignees, and the bill of lading surrendered, was not such a delivery as will relieve the carrier from liability. But this position is unsound so far as surrendering the bill of lading is concerned, for that was not negotiable, and the property was delivered at the place stipulated therein. The terminal carrier had a right to act upon the basis that the consignees still held the bill of lading and were the owners of the property, until it was notified to the contrary. National Bank v. Baltimore & Ohio R. Co., 99 Md. 661 , 59 Atl. 134 , 105 Am. St. Rep. 321 . By the law of this State, the carrier was not bound to give notice to the consignees of the arrival of the property at the place of destination, in order to relieve it, as such, from liability. Blumenthal v. Brainard, 38 Vt. 402 , 91 Am. Dec. 349 . On the facts of record, there is no ground upon which the defendant can be held liable in its capacity as a common carrier.

The question then is whether the defendant is liable in its relation of a warehouseman. Assuming that the provisions quoted above from the bill of lading do not relieve the carrier from its common law duty in this respect, have the plaintiffs made out a case ?

In this relation the carrier is bound only to use ordinary care and diligence in keeping the goods safely. Blumenthal v. Brainard, cited above. And the burden of proof is with the plaintiffs. The record states that there was no evidence of any neglect or shortage of duty on the part of the defendant unless *323 the facts recited constitute such. The nature of the goods was such that in the performance of its duties as warehouseman, the terminal carrier might very properly let the goods remain in the ear on the siding (where it was required to be placed by the bill of lading), instead of putting them in a storehouse. Schumacher v. Chicago, etc., R. Co., cited above. The carrier delivered the monument to no one other than the plaintiffs, nor did it authorize its removal from the car or from the siding by any one except the plaintiffs. The facts recited do not, as matter of law, constitute neglect or shortage of duty by it, and there was no error in the judgment.

Since liability on the part of the defendant is not established, the questions argued touching the amount of damages are immaterial.

Judgment affirmed.