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while he tends to his other affairs. He may not thus prolong the time during which the carrier shall remain liable as an inThat would be to make the carrier a mere convenience for the consignee, without consideration of any kind to the carrier, and yet resting under a great risk. So much time as the consignee, after notice, gives to his other business, to the neglect of taking charge of his property and removing it from the custody of the carrier, cannot be allowed to him in estimating what is a reasonable time for him in which, after notice of arrival, to take delivery of his goods. He is not to be compelled to leave all other business to take his goods from the hands of the carrier. He may attend first to whatsoever demand of his business he deems the most urgent or the most profitable; but he cannot do this at the hazard and expense of the carrier. It is the duty of the carrier to give notice of arrival; it is the duty of the consignee, at once, and with diligence, to act upon this notice, and to seek delivery and to continue until delivery is complete. Either may neglect this his duty, but then the consequence of the neglect must be borne by him."

Sec. 714. ($378.) Liability of carrier pending removalLiable as warehouseman.-During this reasonable time the liability of the carrier remains unchanged; but so soon as it has elapsed he no longer stands in the relation of carrier to the goods, but in that of an ordinary bailee for hire. Though an

1. Tarbell v. Shipping Co., 110 N. Y. 170; National, etc., Steamship Co. v. Smart, 107 Penn. St. 492; Kennedy v. Railroad Co., 74 Ala. 430; Goold v. Chapin, 20 N. Y. 259; Alabama, etc., R. Co. v. Kidd, 35 Ala. 209; Liverpool, etc., Ins. Co. v. McNeill, 89 Fed. 131, 32 C. C. A. 173; Railroad Co. v. Berry, 116 Ga. 19, 42 S. E. Rep. 371, citing Hutch. on Carr.; Miller v. Railroad Co., 88 Ga 563, 15 S. E. Rep. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170, citing Hutch. on Carr.; Berry v. Railroad Co.,

44 W. Va. 538, 30 S. E. Rep. 143, 67 Am. St. Rep. 781; Frank v. Railway Co., 57 Mo. App. 181.

A statute passed for the benefit and protection of property holders along a railroad's right of way, and in which the liability of the railroad for damage by fire is made absolute, does not cover goods of a consignee in its possession which have not been removed within a reasonable time. Welch v. Railroad Co., 68 N. H. 206, 44 Atl. Rep. 304.

involuntary he is not a gratuitous bailee. He has the right to charge for the storage and keeping of the goods as warehouseman, for whatever length of time they may remain in his custody after the reasonable opportunity has been afforded to the owner to remove them, in addition to his compensation for their carriage. The custody and protection of the goods, in his new character as warehouseman, is a distinct service from that of their transportation, which entitles him to additional compensation, in consideration for which he continues. liable for their safe keeping as the hired bailee of the owner.3 As such bailee he is bound to take ordinary care of the goods, and if he suffers them to be damaged or lost, for want of such ordinary care, or by his failure to keep them in a safe and suitable place, or to store them properly, he will be liable.*

2. White v. Humphrey, 11 Q. B. 43; Cairns v. Robins, 8 M. & W. 258; Schumacher v. Railway Co., 207 Ill. 199, 69 N. E. Rep. 825, affirming 108 Ill. App. 520.

3. Cairns v. Robins, supra; Hardman v. Railroad Co., 83 Fed. 88, 27 C. C. A. 407, 39 L. R. A. 300, 48 U. S. App. 570.

4. Tarbell v. Shipping Co., 110 N. Y. 170, and cases cited supra; 'Aaronson v. Railroad Co., 52 N. Y. Supp. 95, 23 Misc. Rep. 666; Walker v. Eikleberry, 7 Okl. 599, 54 Pac. Rep. 553; Railroad Co. v. Lannum, 71 Ill. App. 84.

If a railroad fails to exercise a reasonable supervision over the storage of articles in its depot by third persons, and a drayman leaves a carboy of sulphuric acid there through which an explosion occurs, the railroad will be liable for the loss of goods held by it as warehouseman pending removal. Farmers' Loan & Trust Co. v. Oregon Ry. & Nav. Co., 73 Fed. 1003.

A railroad company holding

property in its warehouse as a
bailee for hire allowed a car
marked "Powder," which was in
fact empty, but locked, to be
placed in close proximity there-
to. The warehouse caught fire.
and the property was destroyed
solely because the firemen were
prevented, through reasonable
fear of the powder car, from ex-
tinguishing the fire. The circuit
court of appeals for the ninth cir-
cuit held the railroad company
liable saying that the fire com-
pany acted, as it had the right to
do, upon appearances, and that
while it was not shown that the
defendant actually put the powder
label on the car, it had the con-
trol of the car and permitted it
to remain so labelled on its track
by the side of its warehouse and
thus represented to every one that
it did contain powder. Hardman
r. Railroad Co., 83 Fed. 88, 27
C. C. A. 407, 48 U. S. App. 570,
39 L. R. A. 300.

But the fact that the goods in a

If the consignee refuse to take the goods, the carrier will become bailee for the consignor or owner, whoever he may be, under the same terms as to liability. And when he has once become the bailee of the goods in the character of warehouseman, his liability in that character will continue as long as the goods remain in his custody."

Sec. 715. (§ 378a.) Carrier must furnish reasonable opportunity and facilities for getting goods. So the carrier must furnish to the consignee reasonable opportunities and facilities for procuring the goods which are to be delivered to him. This duty includes, of course, reasonable access to the depot, station or warehouse, and reasonable opportunity and facilities for getting away the goods. So if the consignee is bound to unload the goods himself from the car, it is the duty of the carrier to place the car where it can be unloaded with a reasonable degree of convenience, and to furnish the consignee with safe and proper facilities for the purpose. And if the goods consist of live stock, such as cattle, it is the duty of the carrier to provide inclosed lots or yards in or through which the stock may be delivered to the consignee.10

warehouse are damaged by a flood of extraordinary extent and rapidity of rise does not show that the carrier who stored them there was guilty of want of reasonable and ordinary care. Gregg v. Railroad Co., 147 Ill. 550, 35 N. E. Rep. 343, 37 Am. St. Rep. 238.

Where the carrier has no depot or warehouse at the place of destination for the storage of such freight as corn, it may be warehoused in the cars on the side tracks. Gratiot, etc., Co. v. Railroad Co., 77 N. E. Rep. 675.

Ill.

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5. Weed v. Barney, 45 N. Y. 344. 6. Brown v. Railway, 54 N. H. 535; Cairns v. Robins, 8 M. & W. 258; Mitchell v. Railway Co., 10 L. R. Q. B. 256.

7. Independence Mills Co. v.

Railway Co., 72 Iowa, 535; East Tennessee R. Co. v. Hunt, 15 Lea, 261.

8. Independence Mills Co. V. Railway Co., supra.

It is a question for the jury in the light of the surrounding circumstances whether or not when the car has been placed in a position to be unloaded the consignee has the right to presume that the car has been delivered to him. Brown v. Railroad, 133 Mich. 371, 94 N. W. Rep. 1050.

9. Frasier v. Railway Co., S. Car. 52 S. E. Rep. 964. 10. Reynolds V. Railway Co., Wash. 82 Pac. Rep. 161, citing Covington Stock Yards Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 461, 35 L. Ed. 73.

IV. DELIVERY BY EXPRESS COMPANIES.

Sec. 716. (§ 379.) Express companies required to make personal delivery.-Express companies may be said to owe their origin to this modification of the law in regard to the delivery of goods in favor of water carriers and railway companies. Depositing in warehouses, whether with or without notice to the consignee or owner, with the requirement that he should call for them, was found to be unsuitable for the carriage of small and valuable parcels, as well as troublesome to the consignee. To avoid this inconvenience, as well as to secure greater safety. and dispatch in the transportation and delivery of valuable packages, carriers who undertook to make delivery to the consignee personally, although their lines of travel might be identical with those of the water carrier and the railroad carrier, and even though they might employ the vehicles of these carriers to effect the transportation, became necessary. This necessity was supplied by what are known in this country as express companies, which undertake to carry goods of that class, and to make a personal delivery of them to the consignee; and to this public profession they are held by the law with great strictness.11

Sec. 717. Personal delivery excused at small stationsEstablishment of limits in a city beyond which company will

11. Baldwin v. American Express Co., 23 Ill. 197; American Union Express Co. v. Wolf, 79 id. 430; American U. Express Co. v. Schier, 55 id. 140; Marshall v. American Express Co., 7 Wis. 1; Sullivan v. Thompson, 99 Mass. 259; Packard v. Earle, 113 id. 280; Witbeck v. Holland, 45 N. Y. 13; 55 Barb. 443; Southern Express Co. v. Armstead, 50 Ala. 350; American Express Co. C. Robinson, 72 Penn. St. 274; Union Exp. Co. v. Ohleman, 92 Penn. St. 323; Bennett v. Express Co., 12

Oreg. 49; Bullard v. Express Co., 107 Mich. 695, 65 N. W. Rep. 551, citing Hutchinson on Carr.

In Indiana, this duty of express companies to make personal delivery is made obligatory by statute under compulsion of a penalty. That the statute is not invalid as an attempt to regulate interstate commerce, and that it is not complied with by a personal delivery to the consignee at the local office, see United States Express Co. v. State, 164 Ind. 196, 73 N. E. Rep. 101.

not go to make delivery. Their right, however, to dispense with the requirement of a delivery to the consignee personally, and to change the character in which they hold the goods from that of carriers to warehousemen, by giving notice to the consignee, and allowing reasonable time to call for them, at unimportant way-stations of the railways upon which they transport goods, has been recognized in some of the cases. But it is said that this privilege will be confined to the delivery of goods by them at places at which their business is so small as not to justify the employment of messengers or delivery agents or wagons, that it must be in conformity with a usage in reference to which it must be supposed the parties contracted, and that prompt notice must be given.12

So it is held that an express company may, so long as the public have notice of the custom, and so long as the company acts in good faith and with regard to the public requirements, establish limits in a city beyond which its agents cannot be required to go to make delivery; and a person dealing with the company with knowledge that such limits exist cannot compel the company to go beyond them to make a delivery to him.13

Sec. 718. (§ 381.) How far usage may affect duty.-Whether the usage and custom of such companies can be relied upon

12. Baldwin v. Express Co., supra; American Express Co. v. Schier, supra; Gulliver v. Adams Express Co., 38 Ill. 503; Haslam v. Adams Express Co., 6 Bosw. 235; Express Co. v. Holland, 109 Ala. 362, 19 So. Rep. 66, citing Hutch. on Carr.

Where the goods have arrived and notice has been given, but the consignee neglects to take the same within a reasonable time, the express company will not be liable where the goods have been stolen without its fault. Express Co. v. Holland, supra.

in a small village when a postal card notice is sent out on Saturday afternoon and no one calls for the package by 7:30 p. m. on the following Monday. Laporte t. Express Co., 48 N. Y. Supp. 292, 23 App. Div. 267.

In a country village the same degree of security, either as to fire or burglary, cannot be required of an express company when acting as a warehouseman, as in larger cities, where greater facilities for warehousing exist. Laporte v. Express Co., supra. 13. Bullard v. Express Co., 107

A reasonable opportunity is given Mich. 695, 65 N. W. Rep. 551.

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