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to a stand. As the stream rose the train was shifted from place to place to keep it in safety, and because of wash-outs ahead and behind it could not proceed far either in the direction of returning or advancing. After remaining in this position for several hours the South Fork dam, which was located on a tributary stream a few miles above where the train stood, and formed a reservoir there at a very much greater elevation, broke, and let into the narrow valley what witnesses described as a great wall or wave of water from twenty to thirty feet high. Of course everything was swept before it. Trees, houses, railroad tracks, cars and engines, iron bridges and stone viaducts, were carried before its force, and sɔ complete was the devastation wrought, it was testified in the case that it cost the railroad company $600,000 to put its road-bed, tracks and bridges, within a distance approximating seven miles, in the condition they were in before the flood. Only those persons who were on the alert and on the hillsides escaped death. The engineer of the locomotive to the train in question escaped only by fleeing up the hillside. His locomotive was turned over, and the baggage car, which was coupled to it and in which plaintiff's trunk was being carried, was swept away, and it was testified that the car was never afterwards found in recognizable form."

BURNHAM & BALDWIN, for appellant:

The implied undertaking is that passenger and baggage shall travel together on the same train throughout the journey, and if the passenger and his trunk become separated and the trunk is lost, the carrier is liable. Schouler on Bailments, (2d ed.) pars. 672, 675; Wilson v. Railway Co. 56 Me. 60; Fairfax v. Railroad Co. 73 N. Y. 167.

The flood in which plaintiff's trunk was lost was not entirely free from human intervention, and was therefore not an act of God. Polack v. Pioche, 35 Cal. 416; Railroad Co. v. Sawyer, 69 Ill. 285; Merchants' Dispatch Co. v. Smith,

76 id. 542; Steele v. McTyers, 31 Ala. 667; Transportation Co. v. Tiers, 24 N. J. L. 697.

Where the negligence of a carrier concurs with an act of God, and is one of the causes, in a direct sequence, producing the loss, the carrier is liable. Railroad Co. v. Curtis, 80 Ill. 324; Michaels v. Railroad Co. 30 N. Y. 564; Read v. Spaulding, 30 id. 630; Condict v. Railroad Co. 54 id. 500; Bostwick v. Railroad Co. 45 id. 712; Dunson v. Railroad Co. 3 Lans. 265; McGraw v. Railroad Co. 18 W.Va. 61; Deming v. Railroad Co. 48 N. H. 455; Read v. Railroad Co. 60 Mo. 199; Pruitt v. Railroad Co. 62 id. 527; Wolf v. Express Co. 43 id. 421; Express Co. v. Womack, 57 Tenn. 256; Williams v. Grant, 1 Conn. 487; Crosby v. Fitch, 12 id. 410; Davis v. Garrett, 19 E. C. L. 716; Shearman & Redfield on Negligence, (4th ed.) par. 39; Phillips v. Brigham, 26 Ga. 617; Rodgers v. Railroad Co. 67 Cal. 606; Salisbury v. Herchenroder, 106 Mass. 458; Higgins v. Dewey, 107 id. 494; Railroad Co. v. Anderson, 94 Pa. St. 360; Railroad Co. v. School District, 96 id. 65.

A contract to carry passenger and baggage is to be construed according to the place of complete performance, which is at the end of the journey. Story on Conflict of Laws, par. 233; Wharton on Conflict of Laws, sec. 401; Brown v. Railroad Co. 83 Pa. St. 316; Curtis v. Railroad Co. 74 N. Y. 116; Brown v. Railway Co. 4 Manitoba, 396.

GEORGE WILLARD, for appellee:

Motions by each party to direct a verdict are sufficient, in the absence of some clear expression to the contrary, to warrant an inference that a submission of the cause to the court was intended. New York Code, 1889, sec. 1009; Trustees v. Kirk, 68 N. Y. 459; Bradley v. South P. Co. 14 id. 917; Baird v. Mayor, 74 id. 382; Koehler v. Adler, 78 id. 287; Bank v. Dana, 79 id. 108; Hand v. Kennedy, 83 id. 149.

The general proposition of law submitted was in conflict with the following authorities: Railroad Co. v. Smith, 74 Ill. 197; Pennsylvania Co. v. Fairchild, 69 id. 260; Burchard

v. Dunbar, 82 id. 450; Merchants' Despatch Co. v. Furthman, 149 id. 66; Railroad Co. v. Boyd, 91 id. 268.

Plaintiff's written request that the court find specially whether the defendant was negligent in the care of the baggage before it was put on the train at Cincinnati was properly refused. It involved a question of fact, and therefore was unauthorized under the rules of practice in this State. County of La Salle v. Milligan, 143 Ill. 321; Field v. Crawford, 146 id. 136.

The loss was occasioned by vis major, to foresee or to guard against which defendant was not negligent, and consequently not liable for damages, nominal or otherwise. Long v. Railroad Co. 147 Pa. St. 343.

Mr. CHIEF JUSTICE MAGRUDER delivered the opinion of the court:

Appellee's contention is, that the flood, by reason of which appellant's baggage was lost, was an act of God; and that it is not liable for such loss under the well established rule, that "a common carrier, liable as an insurer for the property intrusted to him for the purpose of transportation, is, nevertheless, excused from responsibility for losses which are caused by an act of God." (1 Am. & Eng. Ency. of Law,-2d ed.-p. 592).

It is appellant's contention, that the railroad company should, by placing a white tag on his trunk at Cincinnati, or by some other means, have provided that it should travel with him by the same train throughout the journey; that it did not do so; that as a result of its negligence in so failing properly to check his trunk, it was separated from him during the journey and was lost; and that, even if this flood was an act of God, yet the appellee's negligence in failing properly to check the trunk concurred with the act of God, and thereby made appellee liable for the resulting loss or damage.

First-The "Johnstown flood," as it is called, by reason of which appellant's baggage was lost, was an act of God.

In Long v. Pennsylvania Railroad Co. 147 Pa. St. 343, which was an action brought to recover the value of two trunks and their contents delivered to the Pennsylvania Railroad Company in Cincinnati for transportation to Washington, and where it appears, that the trunks lost were contained in the baggage car of the day express which was destroyed by the Johnstown flood, so called, on May 31, 1889, the Supreme Court of Pennsylvania held, upon substantially the same evidence which is found in the record in the case at bar, that said flood was "an inevitable accident, properly described as actus dei." In the Long case, however, there was no question as to whether or not the goods lost were upon the right train; that is to say, the point was not there made, that the personal baggage of the passenger had been shipped upon a different train from that on which the passenger himself took passage.

Second-There is some conflict among the authorities as to the liability of a common carrier where the loss of goods in its or his possession is due, not solely and only to an act of God, but to an act of God combined with the negligence of the carrier. Many cases hold, and such seems to be the tendency of the decisions in this State, that a common carrier is not exempt from liability for a loss which takes place because of an act of God, if such carrier has been guilty of any previous negligence or misconduct which brings the property in contact with the destructive force of the actus dei, or unnecessarily exposes it thereto. A loss or injury is due to the act of God, when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight; and where property, committed to a common carrier, is brought by the negligence of the carrier under the operation of natural causes that work its destruction, or is, by the negligence of the carrier, exposed to such cause of loss, the carrier is responsible. "It is universally agreed, that, if the damage is caused by the concur


ring force of the defendant's negligence and some other cause for which he is not responsible, including the act of God, the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage." (1 Shearman & Redfield on Negligence,4th ed. sec. 39). The doctrine is thus clearly stated by the Supreme Court of Missouri in Wolf v. American Express Co. 43 Mo. 421: "The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause, he is still responsible."

In line with this principle many authorities hold, that, where the unnecessary delay of the carrier subjects the goods in his possession to a loss by an act of God which they would not otherwise have met with, the delay is of itself such negligence as will make him liable for the loss. (Michigan Central Railroad Co. v. Curtis, 80 Ill. 324; Michaels v. New York Central Railroad Co. 30 N. Y. 564; Read v. Spaulding, id. 630; McGraw v. Baltimore and Ohio Railroad Co. 18 W. Va. 361; Deming v. Grand Trunk Railroad Co. 48 N. H. 455; Read v. St. Louis, Kansas City and Northern Railroad Co. 60 Mo. 199; Williams v. Grant, 1 Conn. 487; Davis v. Garrett, 19 Eng. C. L. (6 Bing.) 716; Crosby v. Fitch, 12 Conn. 410; Rodgers v. Central Pacific Railroad Co. 67 Cal. 606; Salisbury v. Herchenroder, 106 Mass. 458; Higgins v. Dewey, 107 id. 494; Philadelphia and Reading Railroad Co. v. Anderson, 94 Pa. St. 360; Baltimore and Ohio Railroad Co. v. School District, 96 id. 65). We are inclined to think that this is the correct doctrine. There are cases which hold to the contrary among which are the leading cases of Denny v. New York Central Railroad Co. 13 Gray, 481, and Morrison v. Davis, 20 Pa. St. 171-upon the ground that such delay, whether justifiable or not, should not be regarded as the proximate, but only as the remote cause of the loss. It will be found, however, upon examination, that most



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