CENTRAL TRUST CO. OF NEW YORK V. WABASH, ST. L. &: P. RY. CO.
tiffs for storage all the grain it carried to and by the article quoted the defendant guarantied that the plaintiffs should annually receive into the two elevators for storage at least 5,000,000 bushels, and if, during any year of the lease, the plaintiffs should. receive less than that amount, whether tendered or not by the defendant, it would pay the plaintiffs one cent per bushel on the difference between the amount actually received and 5,000,000 bushels. Under ordinary conditions the plaintiffs could and would have received from the defendant, and stored in the two elevators, more than the guarantied amount of grain. One of the plaintiffs testified that in a single year he had received and stored in an elevator of less than 1,000,000 bushels capacity, 10,000,000 bushels of grain. The defendant knew that grain stored in the elevators would remain there until ordered out by the consignees, and that the ability of the plaintiffs to annually receive 5,000,000 bushels in elevators containing storage capacity of only one-fifth that amount would depend upon the action of the consignees. It happened that during the years 1886 and 1887 the grain received into the elevators from the defendant's cars remained in store so long that the plaintiffs were unable to receive the full amount they were entitled to handle under the contract. The parties contemplated that this might occur, and in their agreement provided for such contingency. In consideration of the promises of the plaintiffs, and the facilities to be furnished by them to the defendant for the storage of grain carried by the latter to Chicilgo, the defendant agreed and bound itself to do certain things specified in the contract, one of which was, that if, with a storage capacity of 1,000,000 bushels, the plaintiffs should not be able to receive and handle 5,000,000 bushels annually, and earn commissions on that basis, the defendant would pay to the plaintiffs one cent per bushel on the deficiency. If this is not what the parties intended, why was the word "receive" used as it appears in the eighth article? The meaning of the contract is plain enough when it is interpreted in view of the situation of the parties and the known methods of receiving, storing, and handling grain in elevators in Chicago. Plaintiffs are entitled to judgment for the amount sued for.
CENTRAL TRUST Co. OF
NEW YORK V. WABASH, ST. L. & P. Ry. et al., (PERRY et al., Intervenors.)
July 23, 1889.)
(Circuit Court, N; D. Illinois.
COMMON CARRIERS-BAGGAGE-LIABILITY FOR Loss.
A common carrier which, by its agent, receives and checks as personal baggage a trunk containing jewelry. the agent knowing or having reason to believe that the trunk contains jewelry, and not wearing apparel, is liable for loss of the property to the same extent as if the trunk contained nothing but wearing apparel.
In Equity. Intervening petition of Perry Bros. v.39F.no.8-27
. R. S. 'ruth.ilL and F. 0.. Yale, for B. 13.u:mett, for receivers.
GRESHAM, J. The interven()rs, l3ros., are jobbers of jewelry and watches at Chicago. One of th El Arthur J. Perry. was at Springfield, ItL, with a trunk containing a stock of jewelry and watches, and, desiring to go toPetershurgh in the same state, bought a ticket for passage over one of the lines of the Wabash Railway, then in possession of Humphreys and Tutt, a's receivers. The station agent, who had served as s,uch at the same place for more ,han 11 years, checked the trunk, whkh weighed 250 pounds, to Petersb1;lrgh as ordinary personal baggage, charging 25 cents for overweight, 150 pounds being the amount allowed to a .. The nature and contents of the' trunk were not expressly disclosed to the agent, .and he made no inquiries upon that subject. The trunk was three feet by two and a half, iron-bound, weighed 250 pounds, and was, known in the trade and to baggage-men as a jeweler's or commercialtraveler'strunk. The evidence shows that the intervenors and other merchan'tsof the same class, then and prior thereto sold their goods, in the main, directly from trunks transported from place to place over railroads, and that this road had, previously and frequently, checked and carried such trunks for the intervenors and others as, personal baggage, but that the receivers no longer permitted such carriage. The train was wrecked before it reached Petersburgh, and the trunk and its contents were destroyed by fire. The accident was caused by a defectiYl:lroad-bed and rotten ties. The master to whom the case was referred reported that the trunk and its contents-watches and jewelry-were worth $8,227.42, for which amount he recommended an less $612, the value of the goods rescued from the wreck. If the sfa,tion agent did not know that the trunk contained jewelry, he had reason to believe it did. He received it knowing that Perry was not entitled to have it carried as personal baggage. The agent did not believe the trunk contained wearing apparel only. It is plain from the evidence that he recognized it as a jeweler's trunk, and that he understood it contained a stock of jewelry. He was not, therefore, deceived and the receivers were not defrauded. Having checked the trunk by their agent as personal baggage, knowing, or having reason to believe, that it containe,d jewelry, the receivers became bound to safely transport it to its destination, which they did not do, and they are liable for the damages that resulted from a breach of the contract. They sustained to the trunk and its contents therelatio,n of a carrier, \and they are liable for the property destroyed by their negligence, just as if the trunk had contained nothing but wearing apparel, or as if they had undertaken to <;arry it as freight. The exceptions to the master's verbose report are >overruled, and a decree will be entered in favor of the intervenors for the amount found due them.
TWITCBEbL tI. GRAND TRUNK RY" CO.
(Oircuit Oourt, D. New lIampshire.
MASTER AND SERVANT-INJURY TO EMPJ,OYE.
In a suit against a railroad cOmpany to damages for the death of an employe hy a car drifting from it side track, it I.s error to submit to the constructed., and with jury the question whether the side track .. . ordinary
At Law. Motion for new Aldrich & Remick, Ladd & Pletcher, .andMr. Prink, forpljlintiff. Ossinn Ray, Mr. Strout, and Drew & Jordan, for defemlant.
COLT, J. This is a motion for a new trial. The action was brought against the defendant railway company for negligence, which resulted in the death of the plaintili"s intestate, Henry F Kayes, who was at. the time a freight eonductorinthe employment of the company. 'l.'pe accident was caused by a ,collision of a freight train in charge of NOJfls with a freight-car which had drifted from a side track. For several years No);es had been in charge of the freight train which ran from Gorham, N. H., to Island Pond, Vt., a distance of about 48 miles, and the accident happened at a place called" Stratford Hollow." The question of negligence. on the part of the defendant company turned largely on two points, namely, the defective construction of the side track at Stratford Hollo\v, and the failure of the company to employ stop-blocks or proper means for blocking the cars when upon the side track. The presiding judge, against the objection of the defendant, permitted the evidence to go to the jury on both these points. The presiding judge also, in his charge to the jury, said: "Next, gentlemen, you will take Up the qupslion of whether the railroad cohlpany was negligent or not in the construction of the SIding at Stratford. Hollow, and in the instruments of protection which were employed. there. * * * You must say (in View, of course, that this happened in lSl:!3) whether the siding was constructed in accordance with scienlitlc railroad construction, and whether in its construction, with respect to stop-blocks, or to spcurities against a car being blown out onto the main track, the company exercised ordinary care." At the time of the trial the recent case of Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. Rep. 1166, was not brought to the attention of the court. That was a suit brought by an employe against the railroad company for negligence in the construction of a curve in the track in the yard of the company. The court, speaking through Mr. JustIce BRADLEY, says: "",Ve have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a yeary sharp one at the place where the accident happened, yet we do not think that puLJlic policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards., where the safety of passengers and the public is not involved; much less that it f>hould be left to