
    Joseph Lewis vs. The Western Rail Road Corporation.
    If A., for whom goods are transported by a rail road company, authorizes B. to receive the delivery thereof, and to do all acts incident to the delivery and transportation thereof to A., and B., instead of receiving the goods at the usual place of delivery, requests the agent of the company to permit the car, which contains the goods, to be hauled to a near depot of another rail road company, and such agent assents thereto, and assists B. in hauling the car to such depot, and B. there requests and obtains leave of that company to use its machinery to remove the goods from the car; then the company that transported the goods is not answerable for the want of care or skill in the persons employed in so removing the goods from the car, nor for the want of strength in the machinery used for the removal of them, and cannot be charged with any loss that may happen in the course of such delivery to A.
    This was an action to recover damages alleged to have been caused by the defendants’ negligence in the delivery of a block of marble.
    At the trial in the court of common pleas, before Merrick, J. it appeared that a block of marble, weighing about four tons, was brought from Pittsfield to Worcester, on the 28th of February 1844, in one of the defendants’ freight cars, and that the plaintiff paid the freight: That before the block arrived, one Lamb, a truckman, usually employed by the plaintiff to do his trucking, and who had been by him particularly requested to obtain and bring the block to him, had applied to the superintendent of the depot of the Boston and W ircester Rail Road Corporation, at Worcester, for leave to use the derrick and machinery of that corporation in unlading the block from the car and placing it upon a truck, as there were no such derrick and machinery at the defendants’ depot in Worcester: That upon the arrival of the block at the defendants’ depot, Lamb went .to the depot of the Boston and Worcester Rail Road Corporation, with his truck, to receive and transport the block to the plaintiff; and that one M’Coy, (who was employed by the defendants, and whose business it was to deliver and receive freight,) assisted by said Lamb and his truck horse, drew the car, on which the block had been transported by the defendants, from the defendants’ depot to the junction of the two rail roads, and shifted the switch, and drew the block to the depot of the Boston and Worcester Rail Road Corporation, and proceeded to remove the block from the car to the truck, by the aid of the aforesaid derrick and machinery; and that, while attempting to do this, the hook, which fastened the chain of the derrick around the block, gave way, and the block fell and was broken.
    It further appeared that the defendants had never before brought any stone, of this size and description, over their road, to Worcester, and that neither they nor a.ny of their agents had ever before undertaken to deliver articles of any kind at the depot of the Boston and Worcester Rail Road Corporation, nor at any other place than their own depot, nor with any other machinery than their own; that M’Coy had never been mthorized nor permitted to undertake to deliver articles at any other place; that his duties were to receive the articles which were to be sent from Worcester, and give written receipts therefor, and to deliver to owners or consignees articles brought to Worcester, according to the way-bills; and that, in these duties, he was subordinate to the station agent.
    The plaintiff introduced evidence tending to show that the defendants had not the means or conveniences for delivering a stone of this size and description, at their depot. But the defendants also introduced evidence tending to show that this stone might have been safely and conveniently delivered on the platform of their depot.
    
      The defendants contended that they were not liable in this action. But the judge ruled, that if M’Coy did not complete the delivery of the stone at the defendants’ depot, and undertook to deliver it at the depot and with the machinery of the Boston and Worcester Rail Road Corporation, and if, in the course of the delivery, the injury happened through his negligence in the mode of delivery, or through a defect in the machinery, which a proper vigilance would guard against, then the defendants were liable.
    The jury returned a verdict for the plaintiff, and the defendants alleged exceptions to the judge’s ruling.
    
      Ashmun, for the defendants.
    M’Coy’s authority was special and limited. He was not, in any sense, a general agent of the defendants, with discretionary powers. And as he did not act within the scope of his authority, in attempting to deliver the block at the depot of another corporation, the defendants are not responsible in this action. Story on Agency, §§ 79, 80, 81, 94, 126, 131, 458, 459, 460. 2 Rol. Ab. 553. Lamb v. Palk, 9 Car. & P. 629. Thayer v. City of Boston, 19 Pick. 511. Williams v. Mitchell, and Foster v. Essex Bank, 17 Mass. 98, 479. Olive v. Eames, 2 Stark. R. 181. Besides ; M’Coy’s undertaking to deliver at another depot was at the request, or suggestion, or with the consent, of Lamb, the plaintiff’s agent. If this agent had not been instrumental in the removal of the block to another depot, or if M’Coy had taken it there upon his own suggestion alone, perhaps the plaintiff might have maintained an action for non-delivery by the defendants; but he could not, even on such a state of facts, maintain this action for carelessness in the delivery.
    No question of fact, as to the extent of M’Coy’s authority, was submitted to the jury. The evidence on that point was clear and uncontradicted. If the plaintiff had contended that this authority was larger than appears in the bill of exceptions, he should have put that question to th< jury. Witte v. Hague, 2 Dowl. & Ryl. 33. Dyer v. Pearson, 3 Barn. & Cres. 38. Brady v. Giles, 1 M. & Rob. 494. But the judge, at the trial, ruled that if M Coy undertook to deliver the block at the depot of the Boston and Worcester Rail Road Corporation, and if the injury happened through his negligence in the mode of delivery, then the defendants were responsible. No such legal inference can be drawn from these facts.
    The duty of common carriers is to make a right delivery of goods, at the proper- place of destination, according to the usage of trade, or the course of business. Story on Bailm. § 509, and cases there cited. A compliance with this duty would have been the unloading of the block at the defendants’ depot, upon the ground, in a safe and convenient place. It was no part of their duty to place it upon the plaintiff’s truck. The plaintiff, for his convenience, chose another mode and another place of delivery; and he took the responsibility of the measure. The defendants knew nothing about the sufficiency or fitness of the machinery provided by another rail road corporation, and ought not to be held as insurers for it, in any respect; especially as it was the plaintiff who sought and obtained the leave to use it.
    The defendants were not common carriers of the block when it was injured. They were carriers between their depot in Pittsfield and their depot in Worcester, and not from their own depot to that of another corporation; and their responsibility terminated at their own depot. Ackley v. Kellogg, 8 Cow. 333.
    However universal the custom may be for carriers to deliver goods to the owner, at the place of destination, still the parties may, by their contract, waive it; and if they do, the carrier is discharged. In the case at bar, the leave, asked and obtained by the plaintiff, to use the machinery of another corporation, and his drawing of the block to the depot of that corporation, were, in law, a waiver of the right to have the block delivered at the defendants’ depot, and a discharge of their liability as carriers. Strong v. Natally, 1 New Rep. 16. Matter of Webb, 8 Taunt. 443. Story on Bailm. § 541.
    
      Barton & F. H. Dewey, for the plaintiff.
    The defendants are to be held.responsible for the safe delivery of the block to the plaintiff, unless prevented by inevitable accident, by public enemies, or by his act. 1 U. S. Digest, Bailment, 157, 158. Story on Bailm. §§ 507-510. Dusar v. Murgatroyd, 1 Wash. C. C. 13. Eagle v. White, 6 Whart. 505. And the burden is on the defendants to exonerate themselves, by proof of one of these three grounds of excuse. Hastings v. Pepper, 11 Pick. 44. Craig v. Childress, Peck, 271. Story on Bailm. § 529.
    The defendants’ responsibility did not cease upon the safe arrival of the block at Worcester. They were bound to deliver it safely to the plaintiff. Story on Bailm. § 538. The plaintiff might have waived his claim on the defendants for the safety of the block, after its arrival. But in order to constitute such waiver, he must have taken exclusive possession of it, or have terminated the custody of the defendants by an act or direction which did not flow from their duty. It is not till the transit is ended, and the delivery is either completed or waived, that a carrier’s responsibility ceases. Story on Bailm. §§ 541, 542. In the case at bar, the plaintiff did not take exclusive possession of the block at the defendants’ depot. It does not appear that he knew of its arrival until after it was broken. Nor did Lamb take exclusive possession of it for the plaintiff. He merely assisted M’Coy to remove it to another depot. Besides; Lamb had no authority to waive any of the plaintiff’s rights. He was merely a special agent to transport the block to the plaintiff. His being accustomed to do the plaintiff’s trucking did not make him a general agent. 2 Kent Com. (3d ed.) 620, 621. Story on Bailm. §§ 126, 127, 459.
    The defendants had not delivered the block to the plaintiff before it was broken, according to the usual course of business. Dudley v. Smith, 1 Campb. 167. Story on Bailm. §§ 538, 542. The only question then is, whether the acts of the plaintiff, or of Lamb, were such as to discharge the defendants from their usual liability. The defendants are responsible for the acts of their agents done within the scope of the agents’ authority. M’Coy was their agent to receive freight, and to deliver to owners or consignees articles brought to the defendants’ depot. From the nature of his duties, and from the necessity of the case, he must have had some discretionary power. Different articles must be delivered at different places and in different ways. A block of marble weighing four tons could not be properly unloaded upon the platform of the depot. A delivery there would not be a discharge of the defendants’ duty. Story on Bailm. § 509. It appears that no stone of this size had ever before been brought to the depot. It was a new case ; and it is a matter of great uncertainty, at least, whether the stone could have been properly delivered at the defendants’ depot. M’Coy must be considered as acting within the scope of his employment, when he drew the car, which contained the stone, to the other depot, for the purpose of delivering it there. The defendants, in order to avoid their liability for the acts of their general agent, should have given notice that his authority was limited in the par ticular case. See Story on Bailm. (3d ed.) §§ 507, 507 a Hern v. Nichols, 1 Salk. 289. Gibson v. Colt, 7 Johns. 390, Munn v. Commission Co. 15 Johns. 54. Matthews v. West London Water Works Co. 3 Campb. 403. Howard v. Baillie, 2 H. B. 618. Dawson v. Lawley, 4 Esp. R. 65. Ellis v. Turner, 8 T. R. 531. Owings v. Hull, 9 Pet. 607. Damon v. Inhabitants of Granby, 2 Pick. 345. Jeffrey v. Bigelow, 13 Wend. 518. De Mott v. Laraway, 14 Wend. 225. Guerreiro v. Peile, 3 Barn. & Ald. 616. 3 Chit. Law of Com. & Man. 198-202. Story on Agency, §§ 127, 131, 133.
   Dewey, J.

The general principles of law, regulating the duty of common carriers in safely conveying and delivering property committed to their charge, required a delivery of this block of marble to the plaintiff; and if there had been no peculiar circumstances in the present case, affecting the mode and place of delivery; if the servant of the defendants had, of his own suggestion, undertaken to make such delivery at another place than their depot, and in the execution of such purpose had damaged the block; it may be that, for such misconduct of their servant, they would have been responsible, though he acted without particular orders, and in an 'Unusual manner, in the discharge of the duties appertaining to his office.

The counsel on both sides have argued the case very much upon the point of the liability of the defendants for the acts of M’Coy, under the assumption that he was the director :n moving the block from the depot of the defendants, and that it was carried for delivery to the other depot, for his convenience. But the leading error, as it seems to us, in presenting the case to the jury, was in disregarding the facts tending to show that the defendants were excused from all liability of safe transportation and delivery, after the block left their depot.

The duty of the defendants was to transport the article, and deliver it at their depot. But this duty may be modified as to the manner of its performance. The omission of the defendants to remove goods from the cars, and place them in the warehouse, or upon the platform, would not. in all cases, subject them to an action for non-delivery, or for negligence in the delivery. Suppose a bale of goods was transported by them, and, on its arrival at the depot, the owner should step into the car and ask for a delivery there, and thereupon the goods should be passed over to him, in the car. The delivery would be perfect; and if any casualty should subsequently occur, in taking out the bale, the loss would be his The place and manner of delivery may always be varied with the assent of the owner of the property ,• and if he interferes to control or direct in the matter, he assumes the responsibility.

The real question in this case is this : Were the defendants discharged from further liability for the" safe transportation and delivery of the block, after it left their depot ? It seems to us that there was evidence tending to show this. Had the plaintiff been personally present at the depot, and done the same acts that Lamb did, we suppose no one would doubt that the defendants would have been discharged from all further liability, after the block left their depot. The whole then turns upon the extent of Lamb’s agency, and the effect to be given to his acts, in reference to the delivery. As to this point, we think there was an omission, or want of precise direction, in the charge of the presiding judge.

The court are of opinion that the jury ought to have been instructed as to the effect of the acts of Lamb, as follows: 1st. That if Lamb was authorized and employed by the plaintiff to take and receive the delivery of the block, which, being of unusual size and weight, required peculiar care and attention to deliver; and if he was the authorized agent of the plaintiff to do all acts incident to the delivery and transportation of the block; and if Lamb, instead of receiving the block at the depot of the defendants, requested their agent for de'ivery to permit the car containing the block to be hauled to the Boston and Worcester Rail Road derrick, and if Lamb requested the use of that derrick for the purpose of removing the block from the car to his truck; then these acts, being incident to the delivery of the block, were acts within the authority conferred on Lamb by the plaintiff, and bind him m the same manner as if done by himself. 2d. That if Lamb requested M’Coy to deliver the block, or consent to the delivery thereof, in this mode, instead of delivering the same at the defendants’ depot, and with the means there provided, then, from the time the car left the defendants’ depot and premises, and went to the derrick of the Boston and Worcester Rail Road, the defendants ceased to be liable, either for the care and skill of the persons employed, or for the strength and sufficiency of the machinery employed for the purpose; and that the persons employed must be regarded as .the agents of the plaintiff. 3d. That the general duty of the defendants, as common carriers, was to make a true delivery of goods at the usual place, which, in this case, was their own depot at Worcester; but that it was competent for the plaintiff to assent to a delivery elsewhere; that if the plaintiff desired such a special del ivery, to which the agent of the defendants assented, then, from and after the time that the block had gone from the regular place of delivery, with respect to such special delivery the block might be regarded as constructively delivered, so that the defendants were exempted from the duty of making any other or different delivery.

New trial granted.  