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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. (8 375.) 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 Co. 70 Fed. 764; Railroad Co. v. route, and no time is stipulated White, 88 Ga. 805, 15 S. E. Rep. for the arrival of the goods or for 802; Thyll v. Railroad Co., 87 N. their delivery, the duty of mak Y. Supp. 345, 92 App. Div. 513, ing delivery involves either the modifying 84 N. Y. Supp. 175; allowance to the consignee of a Railway Co. v. Kelly, 91 Tenn. reasonable time within which to 699, 20 S. W. Rep. 312, 17 L. R. make inquiries respecting their A. 691, 30 Am. St. Rep. 902; s. C. arrival, or else the duty on the 91 Tenn. 708, 20 S. W. Rep. 314; part of the carrier of giving no- Berry v. Railroad Co., 44 W. Va. tice of arrival to the consignee; 538, 30 S. E. Rep. 143, 67 Am. St. and in either case the allowance Rep. 781. to the consignee of a reasonable 18. Pinney V. Railroad Co., 19 time and opportunity after notice Minn, 251; Fenner v. Railroad of the arrival of the goods to Co., 44 N. Y. 505; Normile v. Railtake them away. Burr v. Express way Co., 36 Wash. 21, 77 Pac. Co., 71 N. J. L. 263, 58 Atl. Rep. Rep. 1087. 609. See also, Railroad Co. v. 19. Kohn v. Packard, 3 La. 224, Ayres, 29 N. J. L. 393, 80 Am. 23 Am. Dec. 455; Pelton v. RailDec. 215.

road 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 chat 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 contrary. Thus a custom at the point of delivery not to give notice on the Fourth of July has been upheld.24

20. Ante, $ 666.

tion and their deposit by the car21. McMasters V. Railroad, 69 rier in a place of safety, by reaPenn. St. 374. See also, as to suf- son of the railway company havficiency of delivery by usage or ing observed a usage of notifying contract, Pindell v. Railway Co., consignees of the arrival of goods, 34 Mo. App. 675; 8. C. 41 Mo. App. it must be affirmatively shown 84; South, etc., R. Co. v. Wood, that such usage was of an estab66 Ala. 167; Dresbach 1. Railroad lished and general nature and uniCo., 57 Cal. 462; The Mill Boy, 4 form, and that the notices given McCrary, 383; Louisville, etc., R. in pursuance thereof were of such Co. v. Gilmer, 89 Ala. 534; Chalk a character as to indicate, or to V. Railroad Co., 85 N. C. 423; reasonably warrant the inference Stone v. Rice, 58 Ala. 93.

that the railroad company intend22. Herf & Frerichs Chemical ed to remain liable as a common Co. v. Railroad Co., 100 Mo. App. carrier until the consignee in 164, 73 S. W. Rep. 346; Bachant v. each instance had had time and Railroad Co., 187 Mass. 392, 73 opportunity to remove his goods N. E. Rep. 642, 105 Am. St. Rep. from the custody of the railway 408.

company. Railway Co. v. Pound, In order to show the existence 111 Ga. 6, 36 S. E. Rep. 312. 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.

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 Tenn. 239, 79 S. W. Rep. 124, 64 Pa. St. 174, 38 Atl. Rep. 709, 39

L. R. A. 443. L. R. A. 535, the shipper entered 25. Kenny v. Railroad Co., 122 into a special contract with the Ga. 365, 50 S. E. Rep. 132; Gregg carrier to ship his goods to what V. Railroad Co., 147 Ill. 550, 35 was termed a “prepaid” station, N E. Rep. 343, 37 Am. St. Rep. the same being a small station 238; Schumacher v. Railway Co., where the business of the carrier 207 Ill. 199, 69 N. E. Rep. 825, did not warrant it in maintaining affirming 108 Ill. App. 520; Raila building or keeping an agent road Co. v. Kendall, 72 Ill. App. The court held that under the cir- 105; Anchor Mill Co. v. Railroad cumstances the shipper must have Co., 102 Iowa, 262, 71 N. W. Rep. known that he could not expect 255; Railway Co. v. Reyman, notice from the carrier, and that Ind. -, 73 N. E. Rep. 587; Milhe assumed all responsibility for ler v. Mansfield, 112 Mass. 260; the goods after they reached their Whitney Mfg. Co. v. Railroad Co., destination.

38 S. Car. 365, 17 S. E. Rep. 147, 24. Railroad Co. v. Naive, 112 37 Am. St. Rep. 767.

on the company utilizing the car as a warehouse for its stor

age 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. (8 377.) 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 N. E. Rep. 825, affirming 108 Ill. Sunday, nor is he bound to re- App. 520; Hipp v. Railway Co., ceive goods in the night time. 50 S. Car. 129, 27 S. E. Rep. 623. Railway Co. v. Wichita Wholesale 27. Roth v. Railroad, 34 N. Y. Grocery Co., 55 Kan. 525, 40 Pac. 548; Hedges v. Railroad, 49 id. Rep. 899.

223; Lemke v. Railroad, 39 Wis. Where the car is placed upon a 449; Tallahassee Falls Mfg. Co. spur track and the consignee as- V. Railway Co., 128 Ala. 167, 29 sumes exclusive dominion over it, So. Rep. 203, citing Hutch. on the fact that the carrier permits Carr.; Railway Co. v. Nevill, 60 the goods to remain upon the car Ark, 375, 30 S. W. Rep. 425, 28 L. does not make him liable as R. A. 80, 46 Am. St. Rep. 208; warehouseman for their loss. McMorrin 1. Railway Co., 1 Ont. Vaughn V. Railroad Co., R. L. R. 561, 1 Canadian Ry. Cases 61 Atl. Rep. 695.

217; Welch v. Railroad Co., 68 N. 26. Kirk 0. Railway Co., 59 H. 206, 44 Atl. Rep. 304; Berry Minn. 161, 60 N. W. Rep. 1084, V. Railroad Co., 44 W. Va. 538, 50 Am. St. Rep. 397; Schumacher 30 S. E. Rep. 143, 67 Am. St. Rep.

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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 plaintiffs 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 plaintiffs 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 plaintiffs 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. on Carr.; Backhaus v. Railway J. L. 263, 58 Atl. Rep. 609.

Co., 92 Wis. 393, 66 N. W. Rep. 28. Moses v. Railroad, 32 N. H. 400. 523; Wood v. Crocker, 18 Wis. Where the owner of the goods 345; Leavenworth, etc., R. R. v. prefers to leave them in charge Maris, 16 Kan. 333; Derosia v. of the carrier until it suits his Railroad, 18 Minn. 133; Lemke v. convenience to remove them, inRailroad Co., 39 Wis. 449; Rail- stead of acting promptly, the carway Co. v. Nevill, 60 Ark. 375, 28 rier will not be responsible for L. R. A. 80, 30 S. W. Rep. 425, their loss if they are destroyed by 46 Am. St. Rep. 208, citing Hutch. a fire not caused by its neglion Carr.; Berry v. Railroad Co., gence. Stapleton v. Railway Co., 44 W. Va. 538, 30 S. E. Rep. 143, 133 Mich. 187, 94 N. W. Rep. 739. 67 Am. St. Rep. 781, citing Hutch. 29. 49 N. Y. 223.

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