petent engineers; and a railroad company which fails to use the best generally known practical appliances within its reach, to prevent the destruction of property, does not exercise the care of a man of common prudence." The instruction complained of, given by the court of its own motion, even though it was wrong, could have done no harm to plaintiff, because it was but a repetition, in substance, of the one given at his request.

We find no error in the record, and the order and judgment appealed from are affirmed.

See Note, 7 Am. & Eng. R. R. Cas. 419.

MCGRAW

v.

B. AND O. R. R. Co.

(18 West Virginia, 361. Decided October 22, 1881.)

A common carrier at common law is liable for the loss or damage to goods received for transportation from whatever cause arising, except the act of God, the public enemy or the conduct of the owner of the goods, unless such loss or damage arises from the nature and inberent character of the property carried, provided he has used foresight, diligence, and care to avoid such damage and loss.

When a common carrier undertakes to convey goods, the law implies a contract that they shall be carried and delivered at the place of destination safely and within a reasonable time.

Freezing weather causing a loss of goods cannot be deemed the act of God, and does not come within the definitions given of that term.

But if the goods transported are frozen, it comes within the exceptions to that principle, and exempts the carrier from liability, provided he has been guilty of no previous negligence and misconduct, by which such loss or damage may have been occasioned.

The previous misconduct or negligence, which makes the carrier liable in such case, must be immediately or proximately connected with the loss.

What is "reasonable time," within which goods are to be delivered, cannot be defined by any general rule, but must depend upon the circumstances of each particular case.

The mode of conveyance, the distance, the nature of the goods, the season of the year, the character of the weather, and the ordinary facilities of transportation are matters properly entering into the consideration of what is reasonable time.

B. in Parkersburg delivered potatoes at the B. & O. R. R. Co.'s depot to be conveyed to McG. in Grafton on the 13th day of February, 1866, to be shipped on the 14th; there was a daily train between those points; the weather was mild and so continued on the 14th; the potatoes did not reach Grafton until the 16th, and arrived so frozen as to be worthless, the weather on the 15th and 16th having become cold.

Held, Under the circumstances of this case the company is liable in damages.

Writ of error and supersedeas to a judgment of the Circuit Court of the county of Taylor rendered on the 12th day of September,

1877, in an action in said Court then pending, wherein Thomas McGraw was plaintiff and the Baltimore and Ohio R. R. Co., was defendant, allowed upon the petition of said defendant.

Hon. C. S. Lewis, late judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the court. C. Boggess, for plaintiff in error relied upon the following authorities: 68 Pa. St. 302; 35 Ind. 39; 46 Miss. 458; 10 Wall. 176; 20 Pa. St. 171; 13 Gray, 481.

James Morrow, Jr., for defendant in error cited the following authorities: 7 W. Va. 54; 1 W. Va. 237; 7 W. Va. 171; 11 W. Va. 104; 6 Gratt. 189; 6 How. 344, 381; 5 Strobh. 119, 124; 1 Smith Lead Cas. (5th Am. ed.) 318; 1 Conn. 487; 5 W. Va. 293; 3 Munf. 239.

PATTON, J.-This was an action at law brought in the circuit court of Taylor County by Thomas McGraw against the Baltimore and Ohio R. R. Co. to recover the value of fifteen barrels of potatoes shipped by J. G. Blackford of Parkersburg, to the plaintiff at Grafton, which were so frozen when they reached Grafton as to be worthless, when the plaintiff refused to receive them. The action was commenced on the 28th day of June, 1868, and the cause was tried on the 11th day of September, 1877, when there was judgment for the plaintiff for the sum of $114.07 entered upon a demurrer to the evidence by the defendant, the Baltimore and Ohio R. R. Co. The company obtained a writ of error and supersedeas to this Court.

By the evidence it appears, that on the 10th day of February, 1866, Thomas McGraw by letter ordered from J. G. Blackford, at Parkersburg, some potatoes to be sent to him at Grafton; that the distance from Parkersburg to Grafton was one hundred and four miles; that there was a daily way-freight train between those points leaving Parkersburg at about four o'clock A. M., and arriving at Grafton about four o'clock P. M., or, according to the testimony of one witness, leaving Parkersburg from six to nine A.M.; according to another witness the custom and usage of the company at Parkersburg was to receive no goods for shipment on the following day after three o'clock P. M.; the goods received prior to three o'clock P. M. one day it was understood were to be transported as early the next day as practicable.

J. R. Murdoch testified that he was in the employ of J. G. Blackford, and as directed by the said Blackford he shipped to Thomas McGraw at Grafton fifteen barrels of potatoes on the 14th day of February, 1866, "fifteen barrels were shipped from Parkersburg to the said McGraw on the 14th of February," having been delivered to the Baltimore and Ohio R. R. Co., and the said company having receipted to the said Blackford for them; the said

potatoes were shipped in good order, the weather at the time being safe and sufficiently warm to make the shipment prudent; the weather during the month of February was quite changeable, but at the time of the shipment was just stated, warm and safe; the weather was changeable, so much so as one day to be quite warm and next very frosty and freezing, and it may have grown colder the day following the delivery of this; I am not positive."

It also appears by the evidence, that the 15th and 16th of February were cold, freezing days; the potatoes were received at Grafton on the evening of the 16th of February so frozen as to be worthless. The dispatcher of trains testified, that the day before they reached Grafton, whether in the evening or morning he could not remember, McGraw came and inquired for the potatoes; that trains arrived on time on the 15th and 16th of February. An engineer of a freight train testified, that there was no train from Parkersburg to Grafton on the 13th or 14th of February; that at the instance of the agent at Grafton he looked at the register and found there was no train one of those days, but could not remember which day it was, the 13th or 14th, it might possibly have been the 15th.

Under these facts and upon the demurrer to the evidence, was the Baltimore and Ohio R. R. Co. liable for the loss of these potatoes? The liability of a common carrier at common law for the loss of or damage to goods received for carriage, from whatever cause arising, except the act of God or the public enemy, or the conduct of the owner of the goods, is settled, unless that loss or damage arises from the nature and inherent character of the property carried, such as the natural decay of perishable articles or the fermentation or evaporation of articles liable to these effects, or the natural and necessary wear of certain articles, or from defects in the vessels or packages in which they were put, or in the case of live stock where the loss arises from their own vitality, or where vicious and unruly animals injure or destroy themselves or each other, or starve themselves by refusing food or die of fright or heat, provided the common carrier has used foresight, diligence and care to avoid such damage and loss. Smith v. New Haven and Northampton R. R. Co., 12 Allen 533; Clark v. Rochester and Syracuse R. R. Co., 14 N. Y. (4 Kernan) 571; Cragin v. New York Central R. R. Co., 51 N. Y. 61; Conger v. Hudson River R. R. Co., 6 Duer. 375; Hall and Co. v. Renfro, 3 Metc. (Ky.) 53; Maslin v. B. and O. R. R. Co., 14 W. Va. 180; Friend, etc., v. Woods, 6 Gratt. 189.

In the absence of a special contract it is the duty of the carrier of goods to transport them by the usual route proposed by him to the public and to deliver them within a reasonable time. When a carrier undertakes to convey goods, the law implies a contract, that they shall be carried and delivered at the place of destination safely and within a reasonable time. The Empire Transportation Co. v.

Wallace, 302; Vicksburg and Meridian R. R. Co. v. Ragsdale, 458; Denny v. New York Central R. R. Co., 15 Gray, 481.

It is claimed by the counsel for plaintiff in error, that the loss of the property in this case was occasioned by the act of God, and that the company is not liable. It has been determined, that "such an accident as could not happen by the intervention of man, as storms, lightning and tempests," (Lord Mansfield in Forward v. Pittard, 1 T. R. 27) "those losses that are occasioned by the violence of nature by that kind of force of the elements, which human ability could not have foreseen or prevented, such as lightning, tornadoes, sudden squalls of wind," (Friend v. Wood, 6 Gratt, 195) "an extraordinary convulsion of nature" (Id. 196); "a direct visitation of the elements, against which the aids of science and skill are of no avail" (Id. 196); "physical canses which are irresistible, which human foresight and prudence cannot anticipate, nor hainan skill and diligence prevent, such as loss by lightning, storms, inundations and earthquakes and the unknown dangers to navigation, which are suddenly produced by their violence" (McCall v. Brock, 5 Strobh. 119), are the acts of God or inevitable accidents. It seems to me, that freezing weather coming especially in that season of the year, when such weather may be expected, cannot be brought within the definitions above given of the act of God or inevitable accidents, which are in conformity with the definitions universally given of those phrases. O'Conner v. Foster, 10 Wall. 418; Cooper v. Young, 22 Ga. 272; Sedgewick on Damages, 357. In the case of O'Connor v. Foster the defendant was sued for failure to transport grain from Pittsburgh to Philadelphia according to contract. The transportation was prevented by the freezing of the canal. The defendant was held liable to damages. The only question discussed was as to the measure of damages. It was not pretended that the freezing of the canal presented any excuse. Sergeant, Judge, in delivering the opinion of the court, says: "The defendants were bound by their contract to transport the wheat from Pittsburgh to Philadelphia, and have shown no legal excuse for refusing to do so. The question is, what is the measure of damages to be paid by a carrier for violating such a contract."

If the question in this case depended solely on the question whether the plaintiff in error was liable for the loss of the property from freezing, because that was an act of God, I should have no hesitation in saying that the liability existed. But on the other hand, if the question of liability rested simply upon the question, whether they were liable for the freezing of the property, having been guilty of no negligence or misconduct, by which that injury resulted, I would have as little hesitation in saying, that they were not liable; not because the freezing was an act of God or an inevitable accident, but because of the exception to that principle on account of the nature and inherent character of the property and

its liability to freeze. Maslin v. B. & O. R. R. Co., 14 W. Va. 189. But whenever the common carrier is exempt from liability, either because of the act of God or because of the nature and inherent character of the property and its liability to loss and damage, he must be free from any previous negligence and misconduct, by which that loss or damage may have been occasioned. For though the immediate or proximate cause of a loss in any given instance may have been what is termed the act of God, or from the nature and inherent character of the property, yet if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own, he is not excused. Williams et als., v. Grant et als., 16 Conn. 487.

That previous negligence or misconduct, which makes the carrier liable for loss to property, must be immediately or proximately connected with the accident or loss. If it is remotely the occasion of the loss or damage, the carrier is not liable. He is answerable for the ordinary and proximate consequences of his negligence, and not for those that are remote and extraordinary, and this, liability includes all those consequences, which may have arisen from the neglect to make provision for those dangers, which ordinary skill and foresight is bound to anticipate. Morrison v. Davis & Co., 20 Pa. St. 171; Denny v. New York Central R. R. Co., 13 Gray 481;' R. R. Co. v. Reeves, 10 Wall. 176.

In the case of Morrison v. Davis & Co. the goods were injured by a flood. The evidence showed, that the canal boat, by which the goods were transported, was drawn by a lame horse. The result was that the boat did not make its usual speed. If it had, it would have passed the point, where the goods were injured, before the flood. It was held, that the carrier was not liable, because the lameness of the horse was the remote and not the proximate cause of the injury.

In Denny v. New York Central R. R. Co., the goods were unnecessarily delayed on the way for six days at an intermediate point, and were then carried to their destination and placed in the depot of the company. It was held, that the company was liable for any injury resulting from the delay in transportation, but that it was not liable for the injury done by a flood after the goods were placed in the depot; that the delay was merely the remote cause of the injury by the flood.

On the other hand, in the case of Smead v. Foord, 1 El. and El. 602, the delay was in the delivery of a threshing machine with the knowledge on the part of the company, that it was needed to thresh wheat in the field. The grain was injured by rain, and during the delay had fallen in value. It was held, that the carrier was liable for the injury to the grain, but not for the fall in value. ́ The obligation of the common carrier is to transport the goods safely and within a reasonable time. What is a reasonable time is