[§ 82] b. Application, Extent, and Limits of Rule. Facilities for caring for animals a reasonable time prior to shipment. A carrier which has provided at a station the yard facilities for the loading and unloading of shipments must use reasonable care to keep its facilities in such condition and so equipped that animals awaiting shipment may receive proper care and attention during a reasonable time prior to loading."

58

Proper racks, mangers, and troughs for feeding and watering are necessary equipments in stock pens.59 But in the absence of statutory provisions, a railroad company is not required to furnish feed or water to live stock in its pens awaiting shipment, unless the company has accepted the care and control thereof.60

The pens should be kept reasonably clean and dry. Animals should not be compelled to stand or lie in mud.61

Infected pens. So the carrier will be liable for loss or injury caused by unloading live stock into infected pens from which the stock contract disease, if the infected condition existed and the carrier knew or had notice of it before the stock were

62

58. Zakrzewski v. Great Northern R. Co., 131 Minn. 175, 154 NW 966; Zakrzewski v. Great Northern R. Co., 125 Minn. 125, 145 NW 801; and cases infra this section notes 59-80.

59. Zakrzewski v. Great Northern R. Co., 125 Minn. 125, 145 NW 801; Bell v. Chicago, etc., R. Co., (Mo. A.) 171 SW 41. See also Lackland v. Chicago, etc., R. Co., 101 Mo. A. 420, 74 SW 505 (holding that, where pens are without shade, shelter, or water and contain an embankment shutting off the breeze, it is at least a question for the jury to find whether such pens are suitable for fat hogs during the summer months). Contra San Antonio, etc., R. Co. v. BroadDavis Cattle Co., (Tex. Civ. A.) 140 SW 514 (holding that Rev. St. [1851] art 4519, requiring a railroad company to erect suitable buildings or inclosures to protect freight of every description, does not impose on a carrier its the duty of equipping cattle pens with facilities for watering stock preparatory to loading).

its

[a] Thus, (1) where an animal is injured in the racks of a pen provided by the carrier, through negligence in making the racks so low that the animal could get into them by its own voluntary action, the carrier is liable for the injury sustained. Gulf, etc., R. Co. v. Dunman, (Tex. Civ. A.) 81 SW 789.

(2) Where hogs died because they could not be watered at the pens where they were delivered by the carrier, it will be liable for the resulting damages. Bell v. Chicago, etc., R. Co., (Mo. A.) 171 SW 41.

[b] Covered pens.-Rev. St. (1895) art 4519 provides that a railroad must erect at every station buildings or inclosures to protect merchandise and freight of every description from damage by exposure to the weather, stock, or otherwise. In an action against a railroad by a shipper of cattle. the court instructed that every railroad is required to erect at every station suitable pens and inclosures to protect such cattle may be delivered from exposure to the weather, stock, or otherwise. was held that the instruction erroneous, since, even if the statute requires railroads to keep pens for

as

It was

it was the duty of the railroad to provide covered pens, if not warm stalls. Ft. Worth. etc., R. Co. V. Cage Cattle Co., (Tex. Civ. A.) 95 SW 705. 60.

Zakrzewski v. Great Northern R. Co., 125 Minn. 125, 145 NW 801. 61. Zakrzewski v. Great Northern R. Co., 125 Minn. 125, 145 NW 801.

62. Nashville, etc., R. Co. v. Farrell, (Ala. A.) 70 S 986; Baltimore, etc., R. Co. v. Dever, 112 Md. 296. 75 A 352, 26 LRANS 712, 21 AnnCas 169; Larimore v. Chicago, etc., R. Co., 65 Mo. A. 167; International, etc., R. Co. v. McCullough, (Tex. Civ. A.) 118 SW 558.

[a] Risk not assumed by shipper. -Where plaintiff shipped certain hogs over defendant's railroad to a fine stock show, he did not assume the risk of the exposure of the hogs to cholera in an infected zone wherein he knew cholera to exist, where there was no necessity for diverting the car containing the hogs into such infected zone. Council v. St. Louis, etc., R. Co., 123 Mo. A. 432, 100 SW 57.

63. Nashville. etc., R. Co. v. Farrell, (Ala. A.) 70 S 986.

[a] Notice held sufficient.-Where the shippers of live stock from a point in Kentucky informed the agent of a connecting carrier at a point in Tennessee, on the day before the initial carrier delivered the shipment to the connecting carrier, that such connecting carrier's stockyard at Nashville was infected, the information was sufficient to put the connecting carrier on inquiry as to the condition of its yard, rendering it negligence on its part to unload the shipment in such yard for feeding and watering, as required by the federal statute, without investigation. Nashville, etc.. R. Co. v. Farrell, (Ala. A.) 70 S 986. 64. International, etc., R. Co. v. McCullough, (Tex. Civ. A.) 118 SW

558.

65. Baltimore, etc., R. Co. v. Dever, 112 Md. 290, 75 A 352, 26 LRANS 712, 21 AnnCas 169. 66. Norfolk, etc., R. Co. v. Harman, 91 Va. 601. 22 SE 490, 50 AmSR 855, 44 LRA 289 and note.

67. Louisville. etc.. R. Co. V. Hedger, 72 Ky. 645, 15 AmR 740.

68. Missouri, etc.. R. Co. v. Byrne, 3 Ind. T. 740, 49 SW 41; St. Louis, etc.. R. Co. v. Beets, 75 Kan. 295, 89 P 683, 10 LRANS 571 and note; Mason v. Missouri Pac. R. Co., 25 Mo. A. 473, Texas, etc., R. Co. v.

[a] Defective fastenings.—(1) Escape of cattle is a consequence which might have been anticipated by the company as the probable result of defective fastenings of stock pens, and recovery for damage to the cattle resulting therefrom may be had. Texas, etc., R. Co. v. Bigham, 90 Tex. 223, 38 SW 162. (2) It has been held, however, that if, by reason of a defective gate of which the shipper has knowledge, cattle escape from the pen and are lost, the failure of the shipper to notify the carrier of the defect in the pen will bar a recovery, as the loss will be imputed to the negligence of the shipper. St. Louis, etc., R. Co. v. Law, 68 Ark. 218, 57 SW 258. [b]

Rotten posts.--Where a shipper of live stock arranges with the station agent to ship two carloads of cattle, and afterward places the cattle in the company's stockyard for shipment, and one entire side of the pen falls down because the posts are rotted off, and the cattle escape, the company is liable for the resulting injuries. St. Louis, etc., R. Co. v. Beets, 75 Kan. 295, 89 P 683. 10 LRANS 571. To same effect Mason v. Missouri Pac. R. Co., 25 Mo. A. 473.

to

[c] Hogs rooting out of pens.It is the duty of a railroad which transports hogs to provide stock pens reasonably calculated to prevent their escape, and, while a carrier of live stock is not liable for injuries caused by the inherent vice of the animals, the railroad is liable for an escape of hogs which rooted out of pens not reasonably calculated hold them. Missouri, etc., R. Co. v. Rogers, (Tex. Civ. A.) 141 SW 1011, 1013 (where Jenkins, J., in his opinion said: "It does not follow that, because of the natural propensity of hogs to root, appellants would not be responsible for their rooting out of the pens Such propensities must be presumed to have been known to the appellant, for which reason it was the duty of appellant, in the exercise of ordinary care, to provide pens reasonably calculated to hold the hogs, notwithstanding such propensities").

[d] If the animals are unloaded en route, and escape from the pen in which they are placed. and are damaged while at large, the carrier is liable as insurer for such damage. Texas, etc., R. Co. v. Turner, (Tex. Civ. A.) 37 SW 643.

Guarding against danger from dogs or wild animals. If surrounding conditions are such that injury to the stock confined in pens, from dogs or wild animals, might be expected, the carrier is bound to make reasonable provisions for their safety.69

70

Carrier's or shipper's knowledge of defects. As affecting the liability of a carrier for injuries to live stock due to defective pens, it is of no importance that the carrier had received no notice that the pens were insufficient." And, on the other hand, mere knowledge on the part of the shipper that the pens are defective will not relieve the carrier of liability." The carrier cannot absolve itself from liability by showing that its pens were so badly kept or constructed as to make it contributory negligence on the part of the shipper to use them.72 It has been held, however, that if the shipper himself undertakes to pen his animals and fastens the gate so insecurely that the cattle escape, the carrier is not liable for loss or injury sustained thereby."

73

Contract imposing duty of inspection on shipper." It has been held that the duty of inspecting inclosures belonging to a common carrier rests on the carrier. It cannot be imposed on the shipper by contract, and any provision to that effect in a contract of shipment is void.75

Pens used jointly with connecting carrier. The rule requiring the carrier to maintain suitable pens applies with full force and effect to pens which are maintained and used jointly with another connecting carrier."

Loss occurring on line of another carrier. Where the carrier fails to provide safe and suitable pens, it is liable for loss or injury caused thereby, al

69. Beckman v. Southern Pac. Co., 39 Utah 472, 118 P 118.

70. Texas, etc., R. Co. v. Slator, (Tex. Civ. A.) 102 SW 156. 71. Paddock v. Missouri Pac. R. Co., 60 Mo. A. 328; Mason v. Missouri Pac. R. Co., 25 Mo. A. 473; Gulf, etc., R. Co. v. Trawick, 80 Tex. 270, 15 SW 568, 18 SW 948; Galveston, etc.. R. Co. v. Jackson, (Tex. Civ: A.) 37 SW 255. See also Lackland v. Chicago, etc., R. Co., 101 Mo. A. 420, 74 SW 505 (holding that a shipper of live stock is not guilty of contributory negligence in putting them in the pens furnished by the carrier therefor until they are loaded for transportation, unless they are SO obviously unsafe as to make it reasonably certain that injury to the animals must inevitably result); and infra § 93.

72. Lackland v. Chicago, etc., R. Co., 101 Mo. A. 420, 74 SW 505; Gulf, etc., R. Co. v. Trawick, 80 Tex. 270, 15 SW 568, 18 SW 948.

"When a railroad has invited and obtained the shipper's business by holding itself out as a common carrier of live stock, it is presumed to have safe means of handling the stock it has accepted and engaged to transport, and it can not be heard to say that in adopting the means offered the shipper was negligent." Lackland v. Chicago, etc.. R. Co., 101 Mo. A. 420, 427, 74 SW 505.

73. St. Louis, etc., R. Co. v. Law, 68 Ark. 218, 57 SW 258. For a case somewhat similar on the facts and conclusions reached see Smith V. Maine Cent. R. Co., 114 Me. 474, 96 A 778 (where plaintiff arranged to ship cattle over defendant's railroad; after starting to drive them to the station he learned that no car was ready, but that there would be one the next morning; on plaintiff's asking where he could put them, defendant's agent said he might use the yard at the station; plaintiff, without informing [10 C.J.--6]

79

the agent, and without feeding the cattle, put them in a yard properly fenced, but failed to put up all the gate bars, and left no one to guard the cattle; and the cattle broke through the gate, and some were killed by defendant's train, it was held that plaintiff, being a mere invitee, defendant was under no obligation to guard the cattle and was guilty of no negligence).

74. Contract imposing on shipper duty of inspecting and selecting cars see infra § 98.

75. Ward v. Chicago, etc.. R. Co., 87 Kan. 824, 126 P 1083; El Paso, etc., R. Co. v. Lumbley, 56 Tex. Civ. A. 418, 120 SW 1050. And see Buck v. Oregon R., etc., Co., 53 Wash. 113, 101 P 491 (holding that a provision that the shipper of live stock shall inspect the cars and stockyards and shall satisfy himself that they are sufficient and report any visible defects, and that the fact of his loading his stock in the cars, or occupying the yards. shall be an acknowledgment of their suitability, to be valid, can be construed only as requiring the shipper to use reasonable diligence to discover visible defects; and, where a shipper with his stock was taken to yards at night, and but one pen was unoccupied. and he walked about this one and observed the sufficiency of the fence, and that the gate was fastened, such contract did not require such careful inspection as would reveal that the hook fastening the gate was bent so that it might not hold against pressure). 76. Texas, etc., R. Co. v. Felker, 40 Tex. Civ. A. 604, 90 SW 530. See also Texas, etc., R. Co. v. Felker, 44 Tex. Civ. A. 420, 99 SW 439 (holding that the rule applies in respect to pens for the delivery of live stock, whether delivery is made to the owner or to a connecting carrier. The carrier cannot shift its responsibility by showing delivery in pens

83

provided by a stockyards company).

77. Norfolk, etc., R. Co. v. Harman, 91 Va. 601, 22 SE 490, 50 AmSR 855, 44 LRA 289 (as for instance, where lambs filled up on salt water in the shipping pens and died on the line of the connecting carrier).

78. Casey v. St. Louis Southwestern R. Co., 37 Tex. Civ. A. 49, 83 SW 20.

79. Beckman v. Southern Pac. Co., 39 Utah 472, 118 P 118.

80. Chicago, etc., R. Co. v. Crenshaw, 59 Tex. Civ. A. 238, 126 SW 602.

81. Ga.-Western. etc., R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 SE 916, 2 LRA 102.

Ill.-Dunseth v. Wade, 3 Ill. 285. Ky. Jeffersonville R. Co. v. White, 6 Bush 251.

Me.-Colbath v. Bangor, etc., R. Co., 105 Me. 379, 74 A 918, 134 AmSR 569; Sager v. Portsmouth R. Co., 31 Me. 228, 50 AmD 659.

Mass.-Wright, etc., Wire Cloth Co. v. Warren, 177 Mass. 283, 58 NE 1082; Hastings v. Pepper, 11 Pick. 41.

Mo. Mellier V. St. Louis, etc., Transp. Co., 14 Mo. A. 281.

N. Y.-Goodrich v. Thompson. 27 N. Y. Super. 75 [aff 44 N. Y. 324]; Uptegrove v. New Jersey Cent. R. Co.. 16 Misc. 14, 37 NYS 659.

Pa.-Pavitt V. Lehigh Valley R. Co.. 153 Pa. 302. 25 A 1107. Tex.-Texas R. Co. v. Davis-Fowler Co., (Civ. A.) 133 SW 309. Wis. Congar v. Galena, etc., R. Co.. 17 Wis. 477.

Eng. Streeter v. Horlock, 1 Bing. 34, 8 ECL 389, 130 Reprint 15.

Sask.-Armstrong V. Canadian Northern R. Co., 6 West Wkly 246.

Duty of carrier by water to follow shipping directions see Shipping [36 Cyc 231, 256].

82. Streeter v. Horlock, 1 Bing. 34, 8 ECL 389, 130 Reprint 15. 83. See infra § 84.

85

transport goods in the particular manner and position directed.84 And where the carrier is notified by the freight bill that a designated person was the consignee of the goods, the fact that the freight bill contained the direction to notify another person did not authorize it to treat such person as the consignee, and the carrier will be liable for damages resulting from its act in so doing. Where a bill of lading consigns goods to the order of one person and contains a direction to notify a second person, the carrier is bound to obey the direction of the consignor and must indemnify the consignor for any loss suffered by him in consequence of the failure to obey his directions.80 The carrier is bound to use reasonable care to follow the shipping

84. Me.-Colbath v. Bangor, etc., R. Co., 105 Me. 379, 74 A 918, 134 AmSR 569 (holding that, where the shipping directions marked on the crate containing the goods are "Lay Flat" and injury results from failure to observe these directions, the carrier is liable).

Mass.-Hastings V. Pepper, 11 Pick. 41 (holding that, where a box containing a glass bottle filled with oil of cloves, delivered to a common carrier, was marked "Glass-with care this side up," this was a sufficient notice of the value and nature of the contents, to charge it for the loss of the oil occasioned by its disregarding such direction).

Mo.-Mellier V. St. Louis, etc., Transp. Co., 14 Mo. A. 281 (holding that a carrier of bonded goods receiving goods in bond for carriage, the bill of lading for which recites that they are to be transported in bond, is liable for a loss resulting from a shipment of them on an unbonded vessel).

N. Y.-Goodrich v. Thompson, 27 N. Y. Super. 75 [aff 44 N. Y. 324] (holding that, if carriers agree to forward goods by a particular conveyance, they are bound to do so and are liable for loss or injury sustained, where the goods are sent by another conveyance); Uptegrove v. New Jersey Cent. R. Co., 16 Misc. 14, 37 NYS 659 (holding that if the directions are that the goods are to be shipped in one car, and notwithstanding the fact that the goods can be so shipped they are shipped in two cars, the carrier will be liable for loss or injury caused by disobedience of such instructions).

Pa.-Pavitt V. Lehigh Valley R. Co., 153 Pa. 302, 25 A 1107 (holding that if a railroad company deviates from a contract to transport live stock by shipping it by freight service instead of passenger service as agreed on, and the stock is injured by the delay and rougher service, the company cannot avail itself of the stipulations in the contract relieving it from liability as insurer at common law).

Tex.-Texas. etc., R. Co. v. DavisFowler Co., (Civ. A.) 133 SW 309 (holding that, where a shipper directs the carrier to carry goods with ventilators in certain condition, and the carrier fails to follow the instructions, and injury occurs thereby, it will be liable therefor).

85. Wright, etc., Wire Cloth Co. v. Warren, 177 Mass. 283, 58 NE 1082 (in this case plaintiff shipped a car of zinc dross to its own order, care of defendants, who operated a line of steamships, and sent the bill of lading to C. with draft attached. The draft was not paid, and it and the bill of lading were returned to plaintiff.

The car was placed on defendants' wharf, and the freight bill delivered to them showed plaintiff to be the consignee, and was indorsed "Notify C." F had accepted freight rates on a shipment of zinc dross obtained from defendants, and requested defendants to deliver the permit for loading to C. Several

88

barrels of dross were hauled to the wharf by C's teamster and loaded on defendant's steamer under the permit. The barrels bore the same mark as those in the car, and defendants also permitted the contents of the car to be loaded, and all the dross was carried abroad. It was held that there was nothing in the transaction with F which could relieve defendants from liability for conversion of the dross).

86. Armstrong v. Canadian Northern R. Co., (Sask.) 6 West Wkly 246. See also infra § 372.

87. Western, etc., R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 SE 916, 2 LRA 102 and note; Blakeslee Mfg. Co. v. Hilton, 5 Pa. Super. 184, 18 Pa. Co. 553; Congar v. Galena, etc., R. Co., 17 Wis. 477.

[a] Thus, if the address is such as to indicate to the carrier, in the exercise of reasonable care, the deswill tination of the goods, he be liable as for negligence in failing to transport to such destination. Blakeslee Mfg. Co. v. Hilton, 5 Pa. Super. 184, 18 Pa. Co. 553.

83. Myers v. Norfolk Southern R. Co., 171 N. C. 190, 88 SE 149. See also cases infra note 89.

89. Jeffersonville R. Co. v. White, 6 Bush (Ky.) 251; Marshall, etc., Grain Co. v. Kansas City, etc., R. Co., 176 Mo. 480, 75 SW 638, 98 AmSR 508; Wiggins Ferry Co. v. Chicago, etc., R. Co., 128 Mo. 224, 27 SW 568, 30 SW 430; Sonn v. Smith, 57 App. Div. 372, 68 NYS 217.

90. Finn v. Western R. Corp., 102 Mass. 283; Texas, etc., R. Co. v. Davis-Fowler Co., (Tex. Civ. A.) 133 SW 309; Treleven v. Northern Pac. R. Co.. 89 Wis. 598, 62 NW 536.

[a] Negligence of shipper in improperly designating the destination of the goods will relieve the carrier from liability for loss resulting from such improper address. Finn V. Western R. Corp., 102 Mass. 283.

[b] Forwarding without additional charge. If by reason of the mistake of the shipper in addressing the goods they have been carried to the wrong destination, and the carrier afterward undertakes to forward them without additional charge to the proper destination, he is, in carrying out such undertaking, merely a gratuitous bailee. Treleven v. Northern Pac. R. Co., 89 Wis. 598, 62 NW 536.

91. U. S. Strong v. Certain Quantity of Wheat. 23 F. Cas. No. 13.541. Ark.-Lee Line Steamers v. Tucker,

112 Ark. 301, 165 SW 961 (recognizing

rule).

Ga.-Georgia R. Co. v. Cole, 68 Ga.

623.

Minn. Brown, etc.. Co. v. Pennsylvania Co.. 63 Minn. 546, 65 NW 961.

Mo.-Marshall, etc., Grain Co. V. Kansas City, etc., R. Co.. 176 Mo. 480, 75 SW 638, 98 AmSR 508; Wiggins Werry Co. v. Chicago, etc., R. Co., 123 Mo. 224, 27 SW 568, 30 SW 430; Lood. etc., Co. v. Texas, etc., R. Co.. 155 Mo. A. 175, 134 SW 111; Ginnochio-Jones Fruit Co. v. Missouri, etc.. R. Co., 153 Mo. A. 598. 134 SW 1028.

N. Y.-Hinckly v. New York Cent., etc., R. Co., 56 N. Y. 429; Goodrich v. Thompson, 27 N. Y. Super. 75 [aff 44 N. Y. 3241; Uptegrove v. New Jersey Cent. R. Co., 16 Misc. 11, 37 NYS 659: Johnson v. New York Cent. R. Co., 39 How Pr 127: Ingalls v. Brooks, 1 Edm. Sel. Cas. 104. Tenn.-See dictum in Atlantic Coast Line R. Co. v. Richardson, 121 Tenn. 448, 117 SW 496.

Tex.-Thompson v. Missouri, etc., R. Co., 103 Tex. 372, 126 SW 257, 128 SW 109 [rev 55 Tex. Civ. A. 12, 118 SW 618]; St. Louis, etc., R. Co. v. True, (Civ. A.) 140 SW 837: Houston, etc., R. Co. v. Kemendo, (Civ. A.) 131 SW 634; Inman v. St. Louis, etc., R. Co., 14 Tex. Civ. A. 39, 37 SW 37.

Wis.-Congar v. Galena, etc., R. Co., 17 Wis. 477. And see Uber v. Chicago R. Co., 151 Wis. 431, 138 NW 57 (where it was said that the shipper has a right to select the route, if shipment by the route selected could be made in the exercise of ordinary care without damage to the goods).

"The carrier, in undertaking to forward goods beyond the terminus of its own route, is bound to obey all reasonable instructions of the shipper, or consignor, not in conflict with the terms of the contract of shipment; and if he disregard such instructions, and the goods be lost by reason of this act of negligence, he will be liable for their value, although the loss may occur in the possession of another carrier, or person. Alabama Great Southern R. Co. v. Thomas, 89 Ala. 294, 301, 7 S 762, 1 AmSR 119 [quot with appr Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 AmD 416].

"The right of the shipper to have his goods delivered to the connecting line is involved in the right to consign them as he chooses. He cannot compel the first carrier, at common law, to assume any obligation beyond his own line, but, in our opinion, he has as clear a right to compel such carrier to carry to the end of his line and deliver, according to the usual course, to a connecting carrier with which there is an established method of doing such business, as he has to

have delivery made to any consignee whom he may select." Inman v. St. Louis, etc., R. Co., 14 Tex. Civ. A. 39, 49, 37 SW 37.

"The shipper of goods has the undoubted right to designate over what connecting lines his goods shall be shipped, and the first carrier is bound to obey the directions of the shipper in this respect, and, if he disobeys them, he is liable as for a conversion." Wiggins Ferry Co. v. Chicago, etc., R. Co., 128 Mo. 224, 248, 27 SW 568, 30 SW 430.

95

92

refuses to route as demanded by the shipper, there is a failure to perform a duty to the shipper imposed by law and a completed legal wrong is then done.9 This duty, it is said, arises at the time when the goods are offered and is imposed on the railroad company independently of any contract;93 but until a proper tender of the goods has been made the duty does not arise. And in any event, where the shipping contract specifies a definite route, the carrier is not bound to forward by a different route, where transportation by the designated route becomes impracticable. It has been held, however, that, if the exercise of the shipper's right to route his goods over particular connecting lines would probably cause delays detrimental to the shipper and carrier, it is the carrier's duty to notify the shipper of this fact, and to allow him to choose whether he will take the attendant risk; and if such condition arises after the carrier has received the goods, its duty is again to notify the shipper, and to await his instructions.96 And when the goods are tendered for shipment to a point beyond the carrier's line, and there are two or more routes equally safe, prompt, and reliable, the carrier cannot be compelled to accept the goods to be carried over one route in preference to another, at the option of the shipper, unless some reason appears

therefor; and especially is this so when the carrier shows that, in the conduct of its business, the use of one route may be advantageous to it without injury or sacrifice to the interests of the shipper." So it has been held that, where a shipper of live stock was informed before the stock was loaded that there could be no through billing to the point of destination other than by a particular route, he could not select a different route and exact a through billing, when the carrier was not prepared to give it, and the shipper had been informed of that fact.98 Where a shipper makes a binding contract for a through shipment over a designated route, he is not entitled to recover damages by reason of that route being longer than another route which he had demanded, in the absence of fraud or misrepresentation.99

[§ 85] b. In Absence of Shipping Directions— (1) Statement of Rule. The general rule is that, when no special instructions are given and assented to as to routes, the initial carrier may select the route or use that commonly employed by it to the point of destination named, and the absence of special instructions given and acceded to amounts to an assent that the carrier's usual course of business may be followed, and that it may designate the route as its convenience may suggest.1

[c] For what damages liable.-(1) Notwithstanding the failure of the carrier to obey the shipper's instructions as to routing, it will only be liable for such damages as might reasonably be supposed to have been in the contemplation of the parties at the time the contract of shipment was made, and it is not liable for damages sustained by the consignor by refusal of the consignee to accept the shipment, because the contract between the consignor and the consignee authorizes the consignee to refuse to accept the shipment unless routed over a certain railroad, where the carrier was without notice of such contract. St. Louis Southwestern R. Co. v. Louisiana, etc.. Lumber Co., 50 Tex. Civ. A. 179, 109 SW 1143. (2) Although goods are misrouted the carrier will not be liable for conversion, if notwithstanding the misrouting the goods were carried to their destination safely and in good order, and were held for the consignee. Lee Line Steamers v. Tucker, 112 Ark. 301, 165 SW 961.

[d] What constitutes a sufficient written instruction.-A shipper's written directions as to the route are sufficient to bind the carrier where they were written on the carrier's receipt, although the conductor erased this part of the writing after the carrier had obtained complete possession of the shipment and the transportation had begun. Lamb v. Moor, 17 Ga. A. 519, 87 SE 837.

[e] A written designation of the route by the shipper is not essential. under the Hepburn Act § 4, to the liability of the carrier for moving the shipment by a route different from the one selected by the shipper and contrary to his oral instructions.

such circumstances, he must show some legitimate advantage or some detriment to himself in the selection of one route over another, and, in the absence of such showing, he is not entitled to dictate the route against the wishes of the carrier, and especially is this the case when the carrier shows that such designation will operate to its prejudice and injury." Applying these principles it was held that an initial carrier cannot be compelled to make a through shipment to a point beyond its line over a particular route, merely to enable the shipper or consignee to get a rebate under a secret agreement with a certain line). 98. Houston, etc., R. Co. V. Buchanan, 42 Tex. Civ. A. 620, 94 SW 199.

99. Houston, etc., R. Co. v. Buchanan, 42 Tex. Civ. A. 620, 94 SW 199.

[a] Effect of agent's misrepresentation.-But, where the shipper is led to enter into the contract by means of false representations by the agent as to inability to route as demanded by the shipper, he will be entitled to recover damages by reason of the route given being longer than the one which he had demanded. Houston, etc., R. Co. v. Buchanan, 42 Tex. Civ. A. 620, 94 SW 199.

1. U. S.-Patten v. Union Pac. R. Co., 29 Fed. 590.

Ga. Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410, 77 SE 647, 45 LRANS 18: McElveen V. Southern R. Co., 109 Ga. 249, 34 SE 281, 77 AmSR 371; Stewart v. Comer, 100 Ga. 754, 28 SE 44, 62 AmSR 353. Ill-Shafton Co. v. St. Louis, etc., R. Co., 174 Ill. A, 121.

Ind. Chicago, etc., R. Co. v. Woodward, 164 Ind. 360, 72 NE 558, 73 NE 810; Snow v. Indiana, etc., R. Co., 109 Ind. 422, 9 NE 702.

Kan.-Southern Kansas R. Co. v. Duncan, 40 Kan. 503, 20 P 195.

Me.-Edwards v. American Express Co., 109 Me. 444, 81 A 987, 42 LRANS 705.

Minn. Steidl v. Minneapolis, etc., R. Co., 94 Minn. 233. 102 NW 701. Miss. Frank v. Memphis, etc., R. Co.. 52 Miss. 570.

Mo. -Council v. St. Louis, etc., R. Co., 123 Mo. A. 432, 100 SW 57.

N. Y.-Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 AmD 416; Le Sage v. Great Western R. Co., 1 Daly 306; Van Santvoord v. St. John, 6 Hill 157; Brown v. Denison, 2 Wend. 593.

S. C.-Chartrand v. Southern R. Co., 85 S. C. 479, 67 SE 741.

Tenn.-Post V. Southern R. Co., 103 Tenn. 184, 52 SW 301, 55 LRA 481.

Tex.-Bessling v. Houston, etc., R. Co., 35 Tex. Civ. A. 470, 80 SW 639; Gulf, etc., R. Co. v. Irvine, (Civ. A.) 73 SW 540; Southern Pac. Co. V. Booth. (Civ. A.) 39 SW 585; Wells v. Fuller, 4 Tex. Civ. A. 213, 23 SW 412.

Eng.-Mallet v. Great Eastern R. Co., [1899] 1 Q. B. 309.

[a] Applications of rule.-An express company which carried horses under a bill of lading which specified no particular route is not liable to the consignee for depriving him of the right to accept delivery at a point at which he requested that his horses be watered, fed, and unloaded, by not sending them by way of such point. Edwards v. American Express Co., 109 Me. 444, 84 A 987, 42 LRA NS 705.

[b] Part of the transportation may be made by water if the route is not otherwise fixed by the contract. Levenson Wrecking Co. v. New York, etc., R. Co., 93 Misc. 75, 156 NYS 656.

no

[c] Not liable for injury from excepted cause.-Where there was contract by the carrier for all rail transportation and the bill of lading was silent as to the route, the selection of a route partly by water, whereon the goods were lost by an act of God, did not make the carrier liable. Bessling v. Houston, etc., R. Co., 35 Tex. Civ. A. 470, 80 SW 639.

[d] Evidence of shipper's acquiescence in routing.-On the issue whether a shipper acquiesced in a carrier's selection of connecting carriers, evidence that the shipper, on making previous shipments, had consented to the carrier's selection of connecting carriers. and knew that shipments could not be made over a route desired by him, was admissible. Pecos River R. Co. v. Harrington, 48 Tex. Civ. A. 346, 99 SW 1050.

2.

Shafton Co. v. St. Louis, etc., R. Co.. 174 111. A. 121.

3. Steidl v. Minneapolis, etc., R. Co., 94 Minn. 233, 102 NW 701.

[a] Evidence showing waiver.Evidence held to show that a bill of lading for goods to be transported over several connecting lines were modified by parol agreement between the parties as to the lines over which the shipment was to be made. Steidl v. Minneapolis. etc., R. Co., 94 Minn. 233, 102 NW 701.

4. U. S.-U. S. Express Co. V. Kountze. 8 Wall. 342, 19 L. ed. 457.

Cal-Pierce v. Southern Pac. Co.. 120 Cal. 156, 47 P 874, 52 P 302, 40 LRA 350.

Ga. Alabama Great Southern R. Co. v. McKenzie, 139 Ga. 410, 77 SE 647. 45 LRANS 18; Stewart v. Comer, 100 Ga. 754. 78 SE 461, 62 AmSR 353. Ill. Merchants' Despatch Transp. Co. v. Kahn. 76 Ill. 520.

Mich.-Blitz V. Union Steamboat Co. 51 Mich. 558. 17 NW 55.

Pa.-Hoffman v. Delaware, etc., R. Co.. 39 Pa. Super. 47.

S. C.-Chartrand *. Southern R. Co., 85 S. C. 479, 69 SE 741: Davis v. Blue Ridge R. Co., 81 S. C. 466, 62 SE 856.

Southern R. Co..

481.

Tex.-Texas, etc., R. Co. v. Eastin, 100 Tex. 556, 92 SW 105; Gulf, etc., R. Co. v. Irvine, (Civ. A.) 73 SW 540; Houston, etc., R. Co. v. Houx, 15 Tex. Civ. A. 502, 40 SW 327; Wells v. Fuller, 4 Tex. Civ. A. 213, 23 SW 412. See also infra § 288.

[a] More dangerous route.-(1) If it is known to a carrier that a shipment will be more liable to loss or injury on one route than on another, he must select the safer route or be liable for the consequences, and this of course is true especially where instructions to that effect are given. U. S. Express Co. v. Kountze, 8 Wall. (U. S.) 342, 19 L. ed. 457; Chartrand v. Southern R. Co., 85 S. C. 479, 67 SE 741. (2) When from the point of shipment to destination there are two customary routes, one through a cold country and through a warm one, and the latter route becomes obstructed, the carrier is negligent in sending over the cold route without notice to shipper or consignee goods which it is bound to know are destructible by frost. Pierce v. Southern Pac. Co., 120 Cal. 156, 47 P 874, 52 P 302, 40 LRA 350.

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[b] Obstructed route. Although by the bill of lading the carrier was entitled to choose the route, it could not select a route so obstructed that delivery could not be made over it. where another practicable route was open. Houston, etc., R. Co. v. Houx, 15 Tex. Civ. A. 502, 40 SW 327.

[c] If the carrier selects a longer and less expeditious route (1) than the one desired by the shipper, it will be held responsible for all damages resulting from its action. Merchants' Despatch Transp. Co. v. Kahn, 76 Ill. 520; Hoffman v. Delaware, etc., R. Co., 39 Pa. Super. 47; Houston, etc., R. Co. v. Buchanan, 42 Tex. Civ. A. 620, 94 SW 199; Gulf, etc., R. Co. v. Irvine, (Tex. Civ. A.) 73 SW 540; Wells v. Fuller, 4 Tex. Civ. A. 213, 23 SW 412. (2) If the carrier knows that sending the shipment over a certain route will cause unusual delay in its arrival at its destination, when there are more direct or quicker routes, the carrier must inform the shipper that he may select a better route or be responsible for the delay. Chartrand V. Southern R. Co., 85 S. C. 479, 67 SE 741.

[d] Higher freight rate. If the carrier adopts a mode of transportation which involves the payment of a higher rate of freight rather than a lower, it may show that it asked for and obtained direction from the shipper or consignee to employ the more expensive mode, or that because of its inability to procure the means of shipment by the cheaper method it was reasonably necessary in view of the exigencies of the particular case. Stewart v. Comer, 100 Ga. 754, 28 SE 461. 62 AmSR 353.

[e] Selection of insolvent company-An initial carrier is liable to the shipper for loss from its selection of an insolvent company as the connecting line in a through shipment to a point beyond its line. Post v. Southern R. Co.. 103 Tenn. 184, 52 SW 301. 55 LRA 481.

5. U. S.-The Martha. 35 Fed. 313. Il-Michigan Southern, etc., R. Co v. Day, 20 111. 375. 71 AmD 278. Kan.-Atchison, etc.. R. Co. V.

Minn.-Ryan v. Great Northern R. Co., 90 Minn. 12, 95 NW 758.

Mo.-Lord, etc., Co. v. Texas, etc., R. Co., 155 Mo. A. 175, 134 SW 111. Nebr.-Wente v. Chicago, etc., R. Co., 79 Nebr. 179, 115 NW 859, 15 LRANS 756 and note.

Tex.-Ft. Worth, etc., R. Co. V. Caruthers, (Civ. A.) 157 SW 238.

Utah.-Sharp v. Clark, 13 Utah 510, 45 P 566.

Eng. London, etc., R. Co. v. Bartlett, 7 H. & N. 400, 158 Reprint 529, 23 ERC 434; Cork Distilleries Co. v. Great Southern R. Co., L. R. 7 H. L. 269, Ir. Rep. 8 C. L. 334 [aff 5 Ir. C. L. 177].

[a] Reason for rule.-"A carrier is employed as bailee of a person's goods for the purpose of obeying his directions respecting them, and the owner is entitled to receive them back at any period of the journey when they can be got at. To say that a carrier is only bound to deliver goods according to the owner's first directions, is a proposition wholly unsupported either by law or common sense. I can well understand the case of goods being placed in such a position that they cannot easily be got at, though it is usually otherwise." Scothorn v. South Staffordshire R. Co., 8 Exch. 341, 346, 155 Reprint 1378. To same effect Michigan Southern, etc., R. Co. v. Day, 20 11. 375, 71 AmD 278.

[b] When goods have been delayed at an intermediate point. The rule of the text is particularly true where the goods without fault on their owner's part have been delayed at an intermediate point and the owner desires to receive them there. Thus in The Martha, 35 Fed. 313, defendant steamer was delayed at an intermediate point for some months undergoing repairs. On learning of the delay the consignee of some glycerine on board demanded a delivery of it at the intermediate point, offering to pay the entire freight and all incidental expenses and to sign a general average bond. The master refused to deliver there, and on arrival at the port of destination the glycerine was found to be damaged. The court held that the carrier was liable for such damage and for the delay.

[c] A purchasing agent who consigns cattle brought to his principal cannot afterward while they are in transit change their destination, nor confer a right to make such a change on another. Lake Shore, etc., R. Co. v. National Live-Stock Bank, 178 Ill. 506, 53 NE 326.

[d] Excuse for failure to obey owner's directions.—(1) The fact that a person to be notified of the arrival of goods consigned to shipper's order takes them from the carrier's possession without its knowledge and detains them in its own warehouse is no justification for the carrier's failure to comply with the order from the shipper directing a diversion of the consignment. Atchison, etc.. R. Co. v. Schriver, 72 Kan. 550, 84 P 119, 4 LRANS 1056 and note. (2) So the fact that a third person claims goods shipped to the shipper's order and represents to the carrier that he expects to be able to arrive at an understanding with the shipper within a few days will not