
    No. 496
    DAVIES v. ROSE & JOHNSON CO.
    Ohio Appeals, 7th Dist., Mahoning County
    March 28, 1924
    209. CARRIERS — Railroad Co. held liable as common carrier even after consignee had unloaded part of goods and had placed, a lock on the car.
    Attorneys — Harrington, DeFord, Huxley & Smith, for Railroad Co.; McKain & OhI, for Rose & Johnson Co.; all of Youngstown.
   POLLOCK, J.

Epitomized Opinion

Published Only In Ohio Law Abstract •

Original action in the Municipal Court, wherein the Rose & Johnson Co. was plaintiff and the Pennsylvania Railroad Co. and James C. Davis were defendants. The.case was appealed to the Common . Pleas, where a ■ jury was waived and on submission to the court of an agreed statement of facts judgment was rendered for the Rose & Johnson Co.

A car load of sugar consigned to the Rose & Johnson Co. was placed upon a side track of the Railroad Co. on the morning of Feb. 23. The Rose and Johnson Co. was notified of its arrival and on that day began unloading the sugar, but being unable to -complete the unloading that night, placed a padlock of its own on the door. During’ the night the car was broken into and the sugar stolen, for the value of which this judgment was rendered in favor of the Rose & Johnson Co. The railroad prosecuted error. Held:

The question is whether there was a delivery of the sugar to the Rose & Johnson Co. that relieved the Railroad Co. from the liability of a common carrier. The bill of lading provided that property not removed within forty-eight hours after notice given of its arrival should remain in the Railroad’s possession subject to charge for storage and to carrier’s responsibility as warehouseman only.

This clause of the bill of lading was constructed by the U. S. Supreme Court in 256 US. 427, to the effect that the placing of a car upon, a siding to be unloaded does not constitute a delivery, notwithstanding the consignee opens the door and commences to unload within the 48 hours period. This court holds that the placing of a lock on the door of the car by the Rose & Johnson Co; does not distinguish this case. It might have' been an act of negligence to have omitted that precaution. The liability of the Railroad Co. as a common carried continued for the 48 hour period. Judgment of the Common Pleas affirmed.  