KARSH V. UNION PACIFIC BY. CO.
1)73
the locomotive. The testimony of the engineer, supported by the physical facts referred to, show that the engine was nearly at a stand· still when the collision took place. The engineer could have done nothing more than he did. A careful. consideration of the testimonJ satisfies me that the petitioner did not exercise the caution demanded of him, and that this cause, and his own alarm and reckless attempt to pass in front of· the engine, with the frigh t and action of the horse, caused the collision, without fault upon the part of the defendant· OJ of his employes. Wherefore, under the rules stated, compensatioJ'. be refused.
MABSH r7. UNION PAOIFIO
By. Co.
(OireuU Oourt, D. OolQf'ado.
January 11,1882.)
L
OoJOlOK CARRIERS-LIENS l!'OR F'REIGHT-TROVll:R.
When goods are sent, not acco:ding to the contract with the owner, but bI BOme other route, there is no lien for freight money; and if the goods are with held under a claim of lien, an action of trover will lie for their value.
S.
TROVll:R-MJuSURE OJ!' DUlAGEB-WrrNEllSEs.
Where household goods, more or less used, were transported by railroad to , distant place and there converted, held, that the owner was a competent wit· neBS to the point of their value, as such goods have no established market price, and the rule that the market value at the place of conversion is the true measure of damages is, therefore, inapplicable.
On Motion for a New Trial·
.T. UT. J{orner, for plaintlli. UTiUard TeUer, for defendant. D. J. The lien of a carrier for freight money on goods transported by him depends on the contract with the owner. Not that it is necessary that the lien should be mentioned in the contract, but there must be a contract for carriage on which it may rest. In the ordinary course of business, goods delivered for carriage are subject to the condition implied by law that the carrier may retain possession of them until his reasonable charges shall be paid. In delivering them to be carried, the owners assent to that condition, although nothing may be said on the subject, and thus it becomes a part of the contract-just as, in the absence of agreement as to price, the law will imply that it shall be reasonable. On this principle it is settled that a wrong-doer cannot confer on the carrier the right to assert a lien against the true owner. And when goods are sent, not according to the contract with the owner, but by some other HALLETT,
874
FEDEnAL nEBORTER.
route, there is no lien for freight money ;;-Fitch v. Newberry, 1 Doug. (Mich.) 1; Robinsonv. Ba,ker, 5 Cush. 137; Stevens v. BostOil cf; Worcester R. R. 8 Gray, 262 i-because the owner cannot be divested of his property without his consent, and to allow a lien on the goods ill a matter to which he has not assented, would divest him of his property to the extent; of the nen. To apply the rule to the present case, it is only necessary to say that, in the contract with the Pittsburgh company, plaintiff did not in any way consent to have hisgooda charged with. a lien for carrying them to Denver. It was not an agreement to pay, and thl1t his goods should be held until he should pay, but he did in fact' pay the price of carr,ring the goods, and as to him the contract was fully executed before the goods left Zanesville. Plaintiff paid the price demanded of him; and all that was demanded for carrying the goods, and it would be absl,lrd to say that,he assented to a lien on his goods forthe same thing-the money whichhe had already paid., , ' But it is said that the Pittsburgh company had no authority froni defendant to fix the price of carrying the goods in the way that it was done ein the schedule publIshed by the Wabash and Missouri Pacific Companies. Andso the court ruled at the trial, without reo. ferring to defendant's rule that for carrying household goods payment must be made in advance, under which it might be claimed with reason that the company first receiving the goods was defendant's agent to fix the rate and receive the money. This point was not stat.ed to the jury, however, and they were advised that the Pittsburgh company was without authority from defendant to make the contract The jury was also instrc.cted to find whether the goods were received by defendant at Kansas City with knowledge that a through contract had. been made by the Pittsburgh company, and the price paid for carrying them. Of that there was ample evidence in the rule of defendant requiring prepayment on household goods, and the fact that $85 was paid to defendant by th.e Wabash company on account of freight money. Some of defendant's witnesses say that the payment by the Wabash company is of no weight, as freight money is often advanced by shippers when a through contract has not been made, and it would be impossible to determine whether the money was paid on a through contract or as an instalment of freight money. This means that money is paid in both ways, and leaves the payment by the Wabash company to stand as affording some evidence of a through contract. Taken inconnectiDn with the rule ;requiring payment in advance on household goods, it,was sufficient to warrant the finding that
MARSH
v.
UNION PACIFIO BY. CO.
875
defendant received the goods with knowledge that a through contract had been made for carrying them to their·destination., And if defeqdant was advised of the terms of. the contract before it performed the part assigned to it, there would be force in the suggestion that by such performance the coqtract was accepted. It is not necessary, however, to go so far,. for the fact that a through and payment were made, and that defendant had knowledge of it, is enough to defeat the lien. Independently of that circumstance there may be room for debate whether one who has paid the price of carriage can be further charged in respect to the same matter; whether all companies who have a part in the and perform that part shall not be regarded as accepting the contract; whether any of the companies in the line of transportation after the first shall be taken to be the agent of the shipper to make anew contract for him, when, by acting for .himself he has practically denil'ld the. authority of another to for him.: But these are points with which we not .now concerned. Th.e jury have found, upon sufficient evidence, that defepdant received the goods with knowledge of the· fact that a through. contract for carrying them had been made, and that plaintiff had paid for the service, and that, of itself, displaces the lien on wJ;J.ich defendant relies. This is epough to show that the action may be maintained, for trover lies for the value of goods illegally withheld under a claim of lien for freight money. Adams v. Clark, 9 Cush. 215. . Objection is made to the plaintiff as a witness to prove the value of the goods, on the ground that he had no knowledge of the market for such goods in Denver. Many cases are cited to the point that the market price in the place of conversion must control; proposi. tion which cannot be controverted. Whenever it appears that there is anything like an' established price in the for which the articles iIi controversy can be replaced, that price will measure the damages for converting such articles. .But for household goods, more or less worn, there·is no established price, unless it be that at which of the same kind are sold. And although people who discontinue housekeeping may be compelled to accept that price, no one will contend that it is the ful,lvalue of the goods. The fact that goods in use, if soJd at all must be sold at a sacrifice, is too plain for argument, and therefore the price of such goods in market will not be adeqnate compensation to one who is deprived of his goods by a wrong-doer. Perhaps the best way to arrive at the value of Imch goods would be to show the price in market of new goods of the samo
a
876
FEDERAL REPORTER.
kind, then show, as nearly as possible, the extent of depreciation from use. But this course was not open to plaintiff, for goods were in defendant's possession, probably not in a condition to be examined, and plaintiff was not bound to inquire whether he would be allowed to send witnesses to inspect them. If it is suggested that a dealer, hearing a description of the articles, would be able to fix their value, the answer may be that few persons would be able to give a description which can be understood. The average man would find himself very much embarrassed in any effort to describe furniture and other articles of household use definitely, so as to enable one who never saw them to judge of their value. No one in Colorado knew anything of these goods, and among plaintiff's acquaintances in Zanesville he could not expect to find anyone more com'petent than himself to testify as to their value. On the whole, it would seem that if plaintiff's testimony as 'to value cannot be accepted, he will be defeated of his right, and that will not be allowed. In the matter t;>f values, as in other matters, the law will give relief, according to the injury, on the best testimony that can be obtained. Stickney v. Allen, 10 Gray, 352; Sta.rkey v. Kelley, 50 N. Y. 676. On the other hand, defendant, being in possession of the goods, was in a position to prove their value in a manner which would dispel all doubts. It attempted to do this, but the evidence is not very satisfactory. The goods were not in a condition to be examined with care, and defendant's witnesses did not give the attention necessary to correctly estimate their value. Evidence of the value in market of new goods of the same kind, which would have enlightened the jury, was not offered by either party, and if the verdict is wrong the fault is not wholly with the jury. There is, however, some reason to believe that the amount returned is large, and the plaintiff will be required to remit $500, or submit to a new trial. The evidence of value offered by defendant was probably entitled to greater weight than was allowed to it, although it cannot be said that it should control. If the plaintiff will remit from the damages the sum of $500. the verdict may stand, otherwise a new trial will be allowed. Plaintiff remitted the $500, and judgment was entered for $1,500.
NEW YORK CENT.
&;
HUDSON RIVEa R. 00.
877
ROBINSON V. NEW YORK CENT.
&
HUDSON RIVER
R.
CO.
(Circuit Court, N. D. N8'lO York. January, 1882.) 1. RAILROADS-NEGLIGENCE.
Railroad companies, as carriers of passengers, must apply to the boiler of a locomotive used by them in hauling passenger trains every test recognized as necessary by experts; but they are not liable for defects which cannot be discovered by such tests: 2. PRESUMPTIONS-How OVERCOME-MoTION FOR A NEW TRIAL.
The testimony of unimpeached witnesses who testify positively to facts which are uncontradicted overcomes a mere presumption; but a verdict will not be set aside on this ground, unless the court is satisfied that the jury were controlled by their prejudices rather than by their impartial judgment.
On Motion for aNew Trial. E. Countryman, for plaintiff. M. Hale, for defendant. WALLACE, D. J. The plaintiff, while upon one of the defendant's cars as a passenger, in June, 1878, was injured by the explosion of the boiler of the defendant'slocomotive, which was being used to push the train out of the yard, and brought this action on the ground of negligence to recover for his injuries. Upon the issue of negligence the plaintiff rested his case by proving the explosion. The defendant produced its employes, who testified to the exercise of due care in the management of the boiler at the time of the explosion, and who also testified that the boiler had been recently overhauled, repaired, and tested, aI\d found safe, and that the explosion resulted from a hidden flaw in the iron of the boiler which could not be seen. The jury were instructed that they.might infer negligence upon the theory that the explosion would not have taken place unless the boiler had been in a defective condition, or unless there had been some omission or mismanagement on the part of those in charge of it' at the time. They were also instructed that it was incumbent upon the defendant as a passenger carrier to see to it, by every test recognized as necessary by experts, that the boiler was in a safe condition; but that it was not lil;tble for a defect which could not be discovered by such tests. The first instruction is not criticised. It is elementary that in action for negligence if the plaintiff proves he has been injured by an act of the defendant, of such a nature that in similar cases, where no injury is known to ensue, he raises a due care has been presumption against the defendant which the latter must rebut.