
    [No. 7,054.
    In Bank. ]
    L. HIRSHFIELD v. THE CENTRAL PACIFIC RAILROAD COMPANY.
    WABEHOUSEMAN—COMMON CaEBIEE—BAILMENT— ACCIDENT.—Tile goods of plaintiff were transported by the defendant on its railroad to their place of destination, unloaded, and placed in defendant’s warehouse—the plaintiff having notice of their arrival. On the same night the goods were accidentally destroyed by fire, without fault or negligence of the defendant. Held, that under § 2120 of the Civil Code—as amended in 1874—the responsibility of the defendant was that of a warehouseman, and not that of a common carrier; and that it was not liable for the loss.
    Appeal from a judgment for the defendant, in the Sixteenth District Court, County of Kern. Reed, J.
    
      Stetson & Houghton, for Appellant.
    
      Robert Robinson, A. W. Blair, and Glassell & Smith, for Respondent.
   Ross, J.:

This action was brought to recover the value of certain goods sent by the plaintiff from San Francisco to Sumner, in Kern County. The findings show, that the cars of the defendant containing the goods arrived at the town of Sumner, the place of destination, about 10 o’clock A. M. of the 6th day of May, 1875; that about an hour afterwards, the agent of plaintiff was at Sumner, and was informed and knew that the goods had arrived there, paid the freight thereon and receipted for the goods, and was told that they would be unloaded from the cars and ready for delivery sometime during the afternoon of that day; that about 2 o’clock p. M. of said day, the teamster of plaintiff called for the goods, but they were not then unloaded. He was informed by the agent of the defendant that the goods would be unloaded and ready for delivery as soon as they could be reached in the regular process of unloading the cars, and thereupon, and before the goods were unloaded, the teamster left Sumner—he not remaining there more than twenty minutes altogether. The cars were unloaded with all reasonable dispatch, and the plaintiff’s goods were unloaded and ready for delivery at or before half-past 2 o’clock p. M. of the same day. After the goods were unloaded they were safely placed by the defendant in its warehouse, subject to delivery to the plaintiff at any time when called for, On the night of said 6th day of May, the warehouse, with all its contents, including the plaintiff’s goods, was accidentally, and without any fault or negligence on the part of defendant, destroyed by fire. The question, therefore, on which the case turns is, whether the responsibility of defendant, when the goods were destroyed, was that of a common carrier or warehouseman. If the former, it is liable for the loss sustained by the plaintiff; if the lattgr, it is not liable.

The question is answered by § 2120 of the Civil Code, as amended in 1874. That section declares : “If, for any reason, a carrier does not deliver freight to the consignee or his agent personally, he must give notice to the consignee of its arrival, and keep the same in safety, upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it. If the place of residence or business of the consignee be unknown to the carrier, he may give the notice by letter dropped in the nearest post-office.”

According to the section as originally enacted, the defendant’s responsibility would be that of a common carrier, and therefore Hablé for the plaintiff’s loss; but in 1874, the Legislature saw' fit to change the rule, and reduce the responsibility, under the circumstances stated in the section, to that of a warehouseman. In this case, the agent of the plaintiff had notice of the arrival of the goods at the place of destination, paid the freight, and receipted for them. The defendant used proper diligence in unloading them, and when unloaded safely, placed them in its warehouse, subject to delivery to the plaintiff at any time when called for. For the subsequent loss under the circumstances stated, the defendant was not responsible. (§§ 2120, 2119, and 1852, Civ. Code.)

Judgment and order affirmed.

McKinstry, J., and McKee, J., concurred.  