
    George P. McEntire et al., appellees, v. Chicago, Rock Island & Pacific Railway Company, appellant.
    
    Filed April 3, 1915.
    No. 18057.
    Carriers: Shipment: Loss by Fire: Liability. When a railroad company has transported a car of freight to the point designated by the shipper, has notified the consignee of the arrival of the ear, and given consignee permission to unload the same, and consignee has broken the seal thereon, and locked the door with its own lock, and retained the key, and later a fire occurs in the car and the goods therein are thereby destroyed, held that the railroad company is not liable, and it is error for the court to submit the question of liability, negligence being neither alleged nor shown, to the jury.
    Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.
    
      Reversed and dismissed.
    
    
      Paul E. Walker and Holmes & De Lacy, for appellant.
    
      Stewart, Williams & Brown, contra.
    
    
      
       On rehearing, judgment sustained. See opinion, p. 828, post.
      
    
   Morrissey, C. J.

The plaintiff's, McEntire Brothers, doing business at Topeka., Kansas, brought this action in the district court for Lancaster County, Nebraska, against the defendant, as the initial carrier, for the loss of a car of furniture shipped by plaintiff from. Topeka, Kansas, July 21, 1909, over defendant’s line of railroad, and destroyed by fire while still in the car standing on a sidetrack of defendant’s connecting line at Blackfoot, Idaho, July 30, 1909. Plaintiffs allege that the furniture was destroyed by fire while in the possession of the defendant as a common carrier, and attach to and make a part of their petition the shipping contract, which contains, among others, the following-provisions :

“Sec. 1. The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner, or for differences in the weights of grain, seed, or other commodities caused by natural shrinkage or discrepancies in elevator weights. For loss, damage, or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only. Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property or from riots or strikes. When in accordance with general custom, on account of the nature of the property, or when at the request of the shipper the property is transported in open cars, the carrier or party in possession (except in case of loss or damage by fire, in which case the liability shall be the same as though the property had been carried in closed cars) shall be liable only for negligence, and the burden to prove freedom from such negligence shall be on the carrier or party in possession.”
“Sec. 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman, only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. The carrier may malee a reasonable charge for the detention of any vessel or car, or for the nse of tracks after the car has been held forty-eight hours (exclusive of legal holidays), for loading or unloading, and may add such charge to all other charges hereunder and hold such property subject to a lien therefor. Nothing in this section shall be construed as lessening the time allowed by law or as setting aside any local rule affecting car service or storage.”

The answer admits the receipt and destruction of the car, but alleges that the car had been delivered to the consignee and accepted by it while in good condition and before any damage by fire had occurred. A number of other allegations are contained in the answer, but in the view we take of the case they are not material to its determination. There was a trial to a jury, and a verdict and judgment in favor of the plaintiffs for $2,019.53, and defendant appeals.

In making up the car lot, goods belonging to two other parties were included in the shipment,- but for the purpose of this case they may be treated as a single shipment made by tbe plaintiffs. Tbe goods were consigned to tbe Brown-Eldrege Furniture Company, a corporation, doing business at Blackfoot, Idaho. Tbe car arrived safely at its destination in tbe forenoon of July 30, 1909. In tbe same train also arrived a car of iron bedsteads shipped by a different bouse to tbe Brown-Eldrege Furniture Company. Before tbe arrival of tbe cars tbe consignee bad received a card from the agent of the railroad company giving notice that tbe cars were in transit and were about to arrive, and giving tbe numbers of tbe cars. Upon tbe arrival of tbe cars an agent of tbe railroad company called tbe furniture company on tbe telephone, and notified the secretary of the company that tbe cars bad arrived. Tbe secretary, however, testifies that be understood that only one car bad arrived. He asked and received permission to unload the goods and pay tbe freight later. The car arrived in good order and was spotted on tbe team siding where convenient for unloading. This was tbe usual practice' and method of delivering freight in car lots. About 1:30 that afternoon, Mr. Peck, a member of tbe BrownEldrege' Furniture Company, in company with a drayman, went to tbe cars, broke tbe seal and opened tbe door a foot or eighteen inches on the car containing the Kansas shipment, and left tbe door standing open tbe remainder of tbe afternoon. They then broke tbe seal and opened tbe other car and proceeded to unload it. About 6 o’clock that evening Mr. Wilson, secretary of tbe furniture company, called tbe railroad office on tbe telephone and inquired for tbe agent. Tbe agent being absent, he talked to tbe operator, and told him that they had broken tbe seal and opened tbe door by mistake, and asked him to seal it. Tbe operator replied that “be didn’t know anything about the seals.” Mr. Wilson says: “I asked him if it would be all right to lock it? He said: ‘Yes; go ahead and lock it up.” Tbe furniture company then purchased a padlock and sent one of its employees to close and lock tbe door. This employee closed and locked tbe door, and retained the key. Within an hour after tbe door was locked tbe car was discovered to be burning on tbe inside. No charge of negligence is made against the carrier, and. the origin of the fire is unknown. It is claimed that the consignee had not taken possession of the goods, and the trial court permitted a member of the firm to testify that they did not intend to accept the shipment until the president of the company, who was absent on the day of the arrival of the car, returned home. Under the court’s instructions the jury were told to determine the intention of the consignee. This testimony was incompetent, and the question of intent ought not to have been submitted to the jury. The parties are bound by what they did, and after the loss occurred they cannot be permitted to come in and say they meant to do something different. Had they taken the goods to their warehouse and there the fire broke out and destroyed them, they would not be permitted to say that they were taken by mistake, or that they were to have been left in the car until the president of the company returned home.

Plaintiff insists that, under the shipping contract set out, an absolute liability rests on the carrier for 48 hours after notice of the arrival of the car, or until the consignee has taken actual physical possession of the property by removing it from the car, and that after the 48-hour period the liability of .warehouseman exists. But we do not believe the contract susceptible of this construction. A more reasonable construction seems to be that property not removed by the consignee within 48 hours after notice of its arrival may be left in the car,' subject to a reasonable charge for storage, and that the liability of the carrier shall be that of warehouseman only. Had the consignee in this case not opened the car or taken possession thereof, but had left it upon the side-track in the condition in which it was received, the carrier would be liable as carrier for the first 48 hours after consignee had notice of its arrival, and for any time it so remained after the expiration of the 48-hour period the carrier would be liable as a warehouseman. Under these conditions and circumstances, the property would be in the possession and under the control of the carrier. But when the consignee broke the lock, put its own lock on the door, and kept the key, it thereby excluded the carrier from possession of the car, it took possession of the goods, and they were in its possession at- the time of the destruction by the fire. The property was so bulky that it did not reasonably admit of an actual, physical transfer, but the carrier, by giving permission to unload, surrendered its control and dominion, there was nothing further for it to do, and the consignee, by breaking the seal and locking the door with its own lock, and retaining the key, assumed control and dominion, and the transfer and delivery was complete. Rothchild Bros. v. Northern P. R. Co., 68 Wash. 527; Kenny Co. v. Atlantic & W. P. R. Co., 122 Ga. 365; Whitney Mfg. Co. v. Richmond & D. R. Co., 38 S. Car. 365, 37 Am. St. Rep. 767; Kingman St. Louis Implement Co. v. Southern R. Co., 133 Mo. App. 317; Vaughn v. New York, N. H. & H. R. Co., 27 R. I. 235. It was error for the trial court to refuse to direct a verdict for the defendant, and the cause is

Reversed and dismissed.

Barnes, Fawcett and Hamer, JJ., not sitting.  