Opinion
March Term, 1868
A.P. Laning, for the appellant.
J.H. Reynolds, for the respondent.
I am of the opinion that the court erred in refusing to nonsuit the plaintiff upon the trial. To render a party liable as a common carrier, it must be established that the property was actually delivered to the common carrier or to some person duly authorized to act on his behalf. The responsibility of the carrier does not commence until the delivery is completed. (Angell on Carriers, § 129; Story on Bailments, § 532.) It is not enough that the property is delivered upon the premises, unless the delivery is accompanied by notice to the proper person. ( Packard v. Getman, 6 Cow. 757; Trevor v. U. S.R.R. Co., 7 Hill, 47; Blancard v. Isaacs, 3 Barb. 388; 2 Kent Com. 604; 1 Pars. on Con. 654.) The liability of the carrier attaches only from the time of the acceptance of the goods by him. (Story on Bailments, § 533; 6 Cow. supra.) To complete the delivery of the property within the rules laid down in the authorities, I think it is also essential that the property should be placed in such a position that it may be taken care of by the agent or person having charge of the business, and under his immediate control. It must be accepted and received by the agent. It appears in the case at bar that the cutter of the plaintiff was placed upon the platform of the defendant's freight house, by a servant of the plaintiff, the freight having been previously paid, to be transported to Buffalo. At the time when it was thus left, a baggageman in the defendant's employment, who was then engaged in sweeping out the depot, was notified that there was some freight to go to Buffalo in the noon train. The servant of the plaintiff testifies that he had seen this person receive and put freight on the cars, and at this time he apparently had charge of the depot, although the proof on the part of the defendant shows that another employee was the real freight agent, and the person with whom the contract was made for the carriage of the property, and that the baggageman had no authority to receive it. Upon this state of facts, I am inclined to think that the plaintiff had established sufficient prima facie to submit to the jury the question whether the baggageman was authorized to receive the property, and whether the notice to him was of itself sufficient. Persons dealing with railroad corporations, and parties engaged in the transportation of freight, have a right to consider that those usually employed in the business of receiving and forwarding it, have ample authority to deal with them. It is enough to establish a delivery, in the first instance, to prove that a person thus acting received and accepted the property for the purpose of transportation, and even although it subsequently appears that another employee was actually the agent having charge of this department of business, yet the company who sanction the performance of this duty by other persons in their employment, and thus hold out to the world that they are authorized agents, are not at liberty to relieve themselves from responsibility, by repudiating their acts. So far then as this branch of the case is concerned, it was at least a question of fact, to be submitted to the jury under proper instructions, whether the baggageman of the defendant, to whom it is claimed by the plaintiff the cutter was delivered, was the agent of the defendant, duly authorized to receive the same, and whether notice of its delivery was given to him as such agent. But, whether he was such agent, or the duty of receiving freight devolved upon another person, the defendant could not be held liable under any circumstances, without an actual and complete delivery of the property into the possession of the corporation, and under its control. This, I think, was not done. The undisputed testimony shows, that the cutter was placed upon the platform, and that within two or three hours afterward, it was carried away and broken to pieces by a passing train of cars. The fact that it was thus carried away, evinces, that it was carelessly exposed by the plaintiff's servant; that the destruction of the cutter was occasioned by his negligence, and that the delivery was not as perfect and complete as it should have been.
The accident would not have happened had the cutter been placed beyond the reach of passing trains. It was not enough that the agent was notified, to make out a valid acceptance and delivery. The place of delivery was important, and it was equally essential that due care should be exercised. Suppose the servant had left the cutter on the track of the railroad, and notified the agent, would the defendant have been responsible? Clearly not, for the apparent reason that there was no delivery upon the premises, no surrender of the property into the possession of the agent. Until it was actually delivered, the agent was under no obligation to take charge of the property, even if notified. It is apparent that the plaintiff was in fault in not delivering the property to the defendant, and in leaving it in an exposed condition, which caused its destruction; and, having failed to establish this material part of his case, should have been nonsuited. As a new trial must be granted for the error stated, it is not important to examine the other questions raised and discussed.
Judgment reversed, and new trial granted, with costs to abide the event.