p. 395they remained there until they spoiled. Upon examination it was found that the head of the barrel had nothing within and around the rims of it, to strengthen and support the heads of it, as it should have had with such a weight in it for safe transportation of it over a railroad.
Watson, (Bidgely with him,) for the plaintiffs,
contended that the contract and undertaking of the defendants as common carriers, was to carry the goods safely from the place where they' received them to the place where they were to deliver them, and there to deliver them in as good order and condition as when they received them, and if any damage or loss occurred to them in the meanwhile, unless by the act of Q-od, or the public enemy, they were responsible to the plaintiffs for it; and that their liability for such loss or injury did not terminate with the arrival and discharge of the goods from the cars at the depot at Dover, but their contract to take, carry, and deliver them continued until they could, with due notice and reasonable diligence on the part of the plaintiffs, be received and taken by them; and until that could be done, the defendants were equally bound for the safety and delivery of them in good order and condition. But if it were necessary in such a case for the plaintiffs to prove actual negligence on the part of the company, or its agents and representatives at the depot here, it was sufficiently shown in-the evidence and manifested in the manner in which both the soap and tobacco were left exposed on their open pavements and platforms, the one for several hours, and the other for nearly two days and nights, after they had reached there. As to the barrel of eggs, the proof was that they had been put up in as good and safe a manner as was usual, and were in a good and sound condition when started for, and when left at the depot, and when they were received by the agent of the company for transportation by the r?ilroad to their destination, without any objection to the strength or sufficiency of the barrel in which they were packed; and, as the loss upon it occurred after it had
p. 396passed entirely into their custody and possession, the defendants, even without proof of negligence or of want ,of care or skill on the part of their servants in the handling of the barrel, were answerable for it. 32 N. H. Rep. 523 . 16 Ill. Rep. 503 . McHenry v. P. W. & B. R. R. Co., 4 Harr. 448 . Hostrand v. Brown et al. 15 Johns. 39 . Thomas v. B. & P. R. R. Co. 10 Metc. Rep. 472 .Comegys, for the defendant.
On the deposit of the box of tobacco in the warehouse of the company, and notice thereof to the plaintiffs through their clerk, the defendant ceased to be liable, as a common carrier, for the safety of it, and after that became a gratuitous bailee or depositary merely of it, as there was no proof, nor was it the case in point of fact, that the company ever made any charge whatever for the deposit or storage of goods in its warehouses. In regard to bailments it is well known there are three kinds or degrees of diligence required by law, denominated extraordinary, ordinary and slight diligence, which vary according to circumstances and depend respectively upon the comparative hazard, danger and insecurity to which the goods, according to time and place, are incident or subject; and that a bailee or depositary without compensation, is bound only for slight diligence, is equally well known. Story on Bailms. secs. 2, 61; and is only liable for gross negligence in case of their injury or loss. In case of goods transported by railroad companies which must have of necessity particular places or stations immediately on the sides of their roads for the delivery of goods transported over them, as common carriers by steam power over their roads, the owner or consignee of them is bound to remove them within a reasonable time after he has received notice of their arrival at the proper and destined station; and what will be a reasonable time in such a case, must depend on the time of their arrival and the distance of the owner or consignee from the station, particularly under ordinary or usual circumstances, and that after such reasonable time has elapsed, they are to be held, if not as in ef
p. 397feet delivered to him, or as entirely subject to his risks, they must, then, at least, be considered, when no charge is made for the care or keeping of them, as in the custody of such a common carrier as a gratuitous bailee, or depositary merely. Under ordinary circumstances a few hours, at furthest, would afford the plaintiffs ample time after receiving notice of the arrival of such goods at the depot here, to remove them to their store in the town. If the damage to the eggs was owing to a defect in the barrel, as appeared from the evidence, whether known or unknown to the plaintiffs, the fault was theirs for not packing them in a better one, and the company is not liable for it, as it was no duty of theirs to have a cooper at their station either to ascertain, or to remedy any such defect in it.The plaintiffs in the action seek to recover damages from the defendants for the non-delivery of certain tobacco and soap, which had been forwarded to the former, from Philadelphia and Wilmington, and also for the loss of a barrel of eggs, x which had been placed in the custody of the agent of the defendants at their depot at Dover for transportation to Philadelphia. They are sought to be charged, first, as common carriers; secondly, as warehousemen, or as depositaries.
As railroad companies are, as well by -their charters, as under the general law as common carriers, clothed with more than ordinary powers and privileges, and are designed to furnish special facilities of accommodation to the public, it is but proper that they should be held to corresponding duties and responsibilities.
The first rule in regard to these responsibilities applicable to this case, is, that, as common carriers, they were bound to safely keep, safely carry, and safely deliver the goods confided to them for transportation, and that they are responsible in damages for any injury or loss which
p. 398the owner may have sustained by reason of their default or negligence. They are, in other words, insurers for the preservation and safe delivery of the goods at their place of destination, and are bound for all loss or damage, unless the same was caused by the act of God, or the public enemy.
This rule, however, must be considered as subject to certain limitations or qualifications. And in adverting to the several grounds of defence urged on behalf of the defendants as applicable to the several kinds and parcels of goods, for the loss or injury of which damages are sought to be recovered, we shall have occasion to consider some of these limitations. And first, as to the tobacco. The question as to this article is whether the defendants are responsible, as common carriers, or as mere gratuitous depositories, and whether it was not, either constructively or actually delivered to the plaintiffs. According to the general usage and rule of the railroad company, they were bound to deliver the goods at their place of destination, which in this case was at their depot or station, outside of the town of Dover. The delivery may be either actual or constructive. They were bound to discharge the goods from the cars, and to deliver them to the plaintiffs or their agent, or to deposit them in some suitable place of reasonable safety where they could be had and taken away. The warehouse of the company is considered such suitable place, of deposit. "When the goods were discharged and so deposited, and knowledge ot the fact brought home to the owner, or his proper agent, Air. Warner, who went out to the depot to look after them, the responsibility of the railroad company as common carriers, ceased and determined; for as no further duty, as carriers, remained to be done, their responsibility as such ended; and the plaintiffs after such deposit and notice, were bound to use reasonable diligence in taking charge of, and carrying them away. Under such circumstances the railroad company would become mere depositories; and if such for hire, they would be bound to take ordinary care of the goods,
p. 399such care as a person of common prudence usually takes of his own property. But as they were gratuitous depositaries, or in other words, depositories without reward, they were only bound for slight care, and were only responsible for gross negligence. Again, when goods have arrived and been deposited, and the fact has been made known to the owner or his proper agent, he is bound to take them away within a reasonable time. The tobacco in question, with other parcels arrived about ten o’clock on Saturday morning, and were deposited either inside the warehouse, or in the doorway of the warehouse, partly within the doorway and partly on. the platform. Mr. Warner, the clerk of the plaintiffs, who went out to the depot between ten and eleven o’clock in the morning to look after them, was shown them by Mr. Smith, an agent of the company, and went and took several of the parcels away with him, but left the box of tobacco behind, alleging that the dear-born in which he purposed to carry them was not strong enough to take the box of tobacco and the other articles then in it.. It remained at the warehouse and was not sent for during all of Saturday, but when it was sent for on Monday following, it was not found. How, under these circumstances, it is for the jury to consider whether during Saturday was not a reasonable time within which the plaintiffs should have sent for and taken the box of tobacco away, and whether thus waiting until Monday before they sent for it, was not an unreasonable delay.
Again, there is another view of the case, as respects the tobacco, which it is proper the jury should consider. According to the testimony of Warner, he went to look after the goods and Smith informed him of their arrival, and pointed them out to him. He, Warner, went to where they were deposited intending to take the whole of them away, but finding, as he alleges, that the dearborn was not strong enough, he took away a part, the smaller parcels, leaving the box of tobacco behind in the place where it had been deposited by the agent. These facts are not disputed. The question, therefore, arises whether there
p. 400was not an actual delivery by the defendants of the whole lot. If the agent of the company actually relinquished his charge of the goods and Warner took the custody and control of them, but merely left the box of tobacco there to suit his own convenience, or because it was inconvenient at the moment to take it away, without making any new arrangement with the agent for its custody, it would seem that the liability of the defendants, even as depositories, had ended. But if Warner left the tobacco in the care and subject to the control of the agent with the consent of the latter, then the liability of the defendants, as gratuitous depositories, would continue, and they would be answerable for gross negligence.
As to the eggs. The defence urged is that the loss ensued from the want of care and skill on the part of the plaintiffs in packing the eggs and coopering the barrel. If the eggs were well packed and the barrel well coopered when delivered to the agent of the railroad company for transportation, and the loss or damage resulted from the negligent or careless handling of the barrel by such agent, then the defendants are responsible as common carriers to the extent of such loss or damage. But if the loss was owing to the want of care or skill of the plaintiffs in packing the eggs or in coopering the barrel, or if there was an inherent defect in the barrel, at the time when it was delivered to the agent, of the railroad company, and the head fell out by reason of such defect whilst he was with due care and caution moving it into the car for transportation, the defendants are not liable for the loss.
As to the boxes of soap. As I have already stated, the defendants were bound, as common carriers, to deposit the goods in some suitable place of reasonable security for delivery to the owner. If their warehouse, in consequence of the glut of busines was full, they were still bound to put the boxes of soap in some other place of reasonable safety and give notice to the owner or his agent, of their arrival, and upon such notice the plaintiffs were bound to take them away within a reasonable time. If the boxes of
p. 401soap were not put in a place of reasonable safety, or if they were placed on the railroad track, or if they were placed on the curbstone and pavement, or on the platform so near the railroad track as to be liable to be struck, or knocked off by the passing of the cars, and loss or injury ensued in consequence thereof, then we say to you the defendants were guilty of negligence and are answerable to the plaintiffs to the extent of the loss or damage which they may have sustained by reason of such negligence.
Damages are given as a compensation, recompense or satisfaction to the plaintiff for an injury actually received by him from the defendant. They should be commensurate with the injury, neither more nor less.