arrival of the goods becomes immaterial, however, when the goods have in fact reached their destination, and on demand. by the consignee, the railroad company informs him that they have not yet arrived. And if through such negligence of the railroad company in wrongfully misleading the consignee, the goods are destroyed, the railroad company will be liable. as a common carrier and not as a warehouseman.17 On the other hand, notice to the consignee is unnecessary where he has actual knowledge of the arrival of the goods,18 or where the address of the consignee is unknown, and the railroad. company has failed to find him after due diligence has been used.19 Sec. 710. (§ 375.) Mode or place of delivery may be established by usage-Effect of usage on consignee's right to notice of arrival of goods.-Railroad companies, in common with all carriers, may be excused from a strict compliance with legal requirements, in the manner and other circumstances of delivery, by an established and known usage of their own, with reference to which the contract for carriage must be supposed to have been entered into. As where goods were sent to a way premises at the terminus of the route, and no time is stipulated for the arrival of the goods or for their delivery, the duty of making delivery involves either the allowance to the consignee of a reasonable time within which to make inquiries respecting their arrival, or else the duty on the part of the carrier of giving notice of arrival to the consignee; and in either case the allowance to the consignee of a reasonable time and opportunity after notice of the arrival of the goods to take them away. Burr v. Express Co., 71 N. J. L. 263, 58 Atl. Rep. 609. See also, Railroad Co. v. Ayres, 29 N. J. L. 393, 80 Am. Dec. 215. Co. 70 Fed. 764; Railroad Co. v. White, 88 Ga. 805, 15 S. E. Rep. 802; Thyll v. Railroad Co., 87 N. Y. Supp. 345, 92 App. Div. 513, modifying 84 N. Y. Supp. 175; Railway Co. v. Kelly, 91 Tenn. 699, 20 S. W. Rep. 312, 17 L. R. A. 691, 30 Am. St. Rep. 902; s. c. 91 Tenn. 708, 20 S. W. Rep. 314; Berry v. Railroad Co., 44 W. Va. 538, 30 S. E. Rep. 143, 67 Am. St. Rep. 781. 18. Pinney v. Railroad Co., 19 Minn. 251; Fenner v. Railroad Co., 44 N. Y. 505; Normile v. Railway Co., 36 Rep. 1087. Wash. 21, 77 Pac. 19. Kohn v. Packard, 3 La. 224, 23 Am. Dec. 455; Pelton v. Railroad Co., 54 N. Y. 214; Fenner v. 17. Central Trust Co. v. Railway Railroad Co., 44 N. Y. 505. station, at which it was known to the shipper the road had no warehouse, but had long been in the habit of putting off the goods upon a platform for consignees, who were expected either to be present to receive them or to come for them immediately after their arrival, and it was shown that the plaintiff, who had sued the company for the loss of his goods, put off in this manner and without notice to him, had frequently received goods delivered in this way, and was well aware of the custom, it was held that the company was protected from liability by reason of the usage, the loss having occurred through the delay of the plaintiff in sending for the goods; and the principle of the cases already referred to, as to the effect of usage in controlling the manner of delivery by other carriers, 20 was said to be equally applicable to railroad companies.21 So a well known and established usage at the point of delivery to give,22 or not to give,23 notice to the consignee of the arrival of the goods is valid and will be binding in the absence of a provision in the contract of shipment to the con 20. Ante, § 666. 21. McMasters v. Railroad, 69 Penn. St. 374. See also, as to sufficiency of delivery by usage or contract, Pindell v. Railway Co., 34 Mo. App. 675; s. c. 41 Mo. App. 84; South, etc., R. Co. v. Wood, 66 Ala. 167; Dresbach . Railroad Co., 57 Cal. 462; The Mill Boy, 4 McCrary, 383; Louisville, etc., R. Co. v. Gilmer, 89 Ala. 534; Chalk v. Railroad Co., 85 N. C. 423; Stone v. Rice, 58 Ala. 95. 22. Herf & Frerichs Chemical Co. v. Railroad Co., 100 Mo. App. 164, 73 S. W. Rep. 346; Bachant . Railroad Co., 187 Mass. 392, 73 N. E. Rep. 642, 105 Am. St. Rep. 408. tion and their deposit by the carrier in a place of safety, by reason of the railway company having observed a usage of notifying consignees of the arrival of goods, it must be affirmatively shown that such usage was of an established and general nature and uniform, and that the notices given in pursuance thereof were of such a character as to indicate, or to reasonably warrant the inference that the railroad company intended to remain liable as a common carrier until the consignee in each instance had had time and opportunity to remove his goods from the custody of the railway company. Railway Co. v. Pound, 111 Ga. 6, 36 S. E. Rep. 312. In order to show the existence of a custom varying the Massa- 23. Gibson v. Culver, 17 Wend. chusetts rule that the liability of 305, 31 Am. Dec. 297; Railroad a railway company ceases upon Co. v. Naive, 112 Tenn. 239, 79 the arrival of goods at destina- S. W. Rep. 124, 64 L. R. A. 443. trary. Thus a custom at the point of delivery not to give notice on the Fourth of July has been upheld.24 Sec. 711. Bulky freight in car load lots must ordinarily be unloaded by party entitled to it-Package freight. It is the uniform rule and custom in this country for bulky freight in car load lots to be unloaded by the party entitled to it. All, therefore, that can be required of the railroad company is that it shall place the cars where they may be safely and conveniently unloaded, or place them at the designated place if a certain place has been named in the contract of shipment, and, if notice is required by some rule of law, a binding usage, or the contract, notify the party entitled to the freight of its action. When this has been done, it is held in those states which follow the Massachusetts rule that the relation of warehouseman is established in the absence of any controlling usage or contract to the contrary. But in those states which follow the New Hampshire and New York rules, the relation of warehouseman would not arise until after the lapse of a reasonable time in which to remove the goods.25 Small or package freight, however, belonging to many owners and usually carried in a single car is ordinarily unloaded by the company transporting it, and an owner cannot insist In Allam v. Railroad Co., 183 Pa. St. 174, 38 Atl. Rep. 709, 39 L. R. A. 535, the shipper entered into a special contract with the carrier to ship his goods to what was termed a "prepaid" station, the same being a small station where the business of the carrier did not warrant it in maintaining a building or keeping an agent. The court held that under the circumstances the shipper must have known that he could not expect notice from the carrier, and that he assumed all responsibility for the goods after they reached their destination. 24. Railroad Co. v. Naive, 112 Tenn. 239, 79 S. W. Rep. 124, 64 25. Kenny v. Railroad Co., 122 on the company utilizing the car as a warehouse for its storage.26 Sec. 712. (§ 376.) What is reasonable time for removal.— What length of time will be considered reasonable for the removal of the goods, at the expiration of which the carrier will be regarded as holding them as warehouseman, when such reasonable time is allowed the consignee, it is said, cannot be determined by any fixed or definite rule, but must depend in a great measure upon the circumstances of each case. When the facts are agreed upon or undisputed, it becomes a question to be determined by the court as one of law; but where they are disputed and unsettled, the question must be submitted to a jury.27 Sec. 713. (§ 377.) Situation or condition of consignee immaterial. It is said, however, that no indulgence will be given to the consignee by reason of the circumstances of his condition or situation, which may make delay in the removal of the goods unavoidable on his part; nor will the distance at which he may reside or have his place of business from the place of their deposit be taken into consideration; but he will be required to remove them with the same expedition as though The party entitled to the goods v. Railway Co., 207 Ill. 199, 69 cannot be compelled to work on Sunday, nor is he bound to receive goods in the night time. Railway Co. v. Wichita Wholesale Grocery Co., 55 Kan. 525, 40 Pac. Rep. 899. N. E. Rep. 825, affirming 108 Ill. App. 520; Hipp v. Railway Co., 50 S. Car. 129, 27 S. E. Rep. 623. 27. Roth v. Railroad, 34 N. Y. 548; Hedges v. Railroad, 49 id. 223; Lemke v. Railroad, 39 Wis. 449; Tallahassee Falls Mfg. Co. v. Railway Co., 128 Ala. 167, 29 So. Rep. 203, citing Hutch. on Carr.; Railway Co. v. Nevill, 60 Ark. 375, 30 S. W. Rep. 425, 28 L. R. A. 80, 46 Am. St. Rep. 208; McMorrin r. Railway Co., 1 Ont. L. R. 561, 1 Canadian Ry. Cases 217; Welch v. Railroad Co., 68 N. H. 206, 44 Atl. Rep. 304; Berry v. Railroad Co., 44 W. Va. 538, 30 S. E. Rep. 143, 67 Am. St. Rep. he lived in the vicinity of the warehouse.28 In other words, the time within which the consignee is required to remove the goods will not be made to vary with his distance, convenience or necessities, but only such time will be allowed as would enable him, if living in the vicinity of the place of delivery, to remove them in the ordinary course and in the usual hours of business. He must, moreover, proceed to remove the goods with diligence after he is informed of their arrival, and must provide himself with ample means for doing so. In Hedges v. The Railroad,29 goods arrived for the plaintiff's early in the morning. They received notice of the fact an hour or two later on the same day, and gave directions to their carman to go for and bring them from the depot. The carman brought away one load, but during the balance of the day carted for the plaintiffs to other places or remained idle. No other directions were given and no further effort was made to remove the goods. During the following night the goods were burned without the fault of the defendant. It was held that the loss must be borne by the plaintiffs, the defendant's relation to the goods having become changed before they were burned by the delay of the plaintiffs in removing them. "The plaintiff's seek to hold the defendant," say the court, "to a strict liability as insurer of the goods. Asking that so rigid a rule be applied to the defendant, it is just that the plaintiff's in turn be held to prompt and diligent action. A consignee cannot, after he has notice of the arrival for him of property, defer taking it away 781; Burr v. Express Co., 71 N. J. L. 263, 58 Atl. Rep. 609. 28. Moses v. Railroad, 32 N. H. 523; Wood v. Crocker, 18 Wis. 345; Leavenworth, etc., R. R. v. Maris, 16 Kan. 333; Derosia v. Railroad, 18 Minn. 133; Lemke v. Railroad Co., 39 Wis. 449; Railway Co. v. Nevill, 60 Ark. 375, 28 L. R. A. 80, 30 S. W. Rep. 425, 46 Am. St. Rep. 208, citing Hutch. on Carr.; Berry v. Railroad Co., 44 W. Va. 538, 30 S. E. Rep. 143, 67 Am. St. Rep. 781, citing Hutch. on Carr.; Backhaus v. Railway Co., 92 Wis. 393, 66 N. W. Rep. 400. Where the owner of the goods prefers to leave them in charge of the carrier until it suits his convenience to remove them, instead of acting promptly, the carrier will not be responsible for their loss if they are destroyed by a fire not caused by its negligence. Stapleton v. Railway Co., 133 Mich. 187, 94 N. W. Rep. 739. 29. 49 N. Y. 223. |