
    The Little Miami Railroad Company v. H. H. Washburn.
    1. A common carrier who undertakes to transport goods over the whole or any part of his own route, and then to forward them to a designated destination beyond, is bound to transmit, with their delivery to the carrier next en route, all special instructions received by him from the consignor; and in default thereof, in any material or substantive particular, to stand responsible for, and make good, the loss to which such negligence shall have contributed.
    2. Marks or labels on the packages delivered will not supply the omission of such instructions from the accompanying shipping bills, where they are shown not to have come to the actual knowledge of the next succeeding carrier, or his agent, charged with the duty of receiving and forwarding such bills.
    3. Exceptions to the conduct of the court in delivering manuscript instructions to the jury, instead of reading them in their hearing, if available at all, must be taken at the time.
    Error to Superior Court of Ciaeinnati.
    The plaintiff below filed his original petition against the present plaintiff's in error, and the Cincinnati Transfer Company, and the Ohio and Mississippi Railroad Company jointly.
    To this,, the defendants severally demurred, on the ground of misjoinder of parties defendant, and misjoinder of causes of action.
    
      The demurrer of the plaintiff in error was overruled, to which it excepted. That of each of the other defendants was sustained. Leave was given to the plaintiff’ to file separate petitions against the two defendants, whose demurrers had been sustained.
    Afterward, the plaintiff, reciting that the demurrers had been sustained on the ground of a misjoinder of several causes of action, and that the court had allowed him to file separate petitions, filed a new and separate petition against the present plaintiffs in error.
    In that he alleged, as his cause of action, that the defendants, being corporations and common carriers, on April 16,1867, he had shipped and consigned to himself, for Martin shurg, on the line of the North Missouri Railroad, in the State of Missouri, from Cleveland, in Ohio, through and by the Cleveland, Columbus and Cincinnati Railroad Company, a common carrier, and over its road, eight boxes of trees, by way of Cincinnati and St. Louis, and which said railroad company agreed to carry and deliver, at its station in Columbus, Ohio, upon payment of charges; and also, that it would forward said property for him to its place of destination, in the way and manner above stated, bat not to be liable on account thereof, after delivery at Columbus; and also agreed to guarantee the through rate of freight to the other common carriers who constituted the through line; that said railroad company did carry said property to Columbas, and there delivered the same to the defendants, whose roads composed a part of the through line, directed and consigned to the plaintiff, over the North Missouri Railroad, which directions were contained in the bill of lading or freight bill received by the defendants, but were not, as to said North Missouri Railroad, marked upon the boxes, to be carried according to said contract, except that the defendants did not limit their responsibility to any point intermediate to Martinsburg; whereby defendants agreed with the plaintiff to carry said goods as common carriers and to be bound as such to the full extent of the liabilities of common carriers, in cases of goods received and marked for delivery at a particular place, the Cleveland company having guarantied to defendants the through rate of freight; that defendants carried the property to Cincinnati, and, on April 18, 1867, delivered it over to the Cincinnati Transfer Company, part of said through route, guaranteeing charges, etc., but by carelessness and negli~ gence, the defendants neglected to mark on the bill of lading, or freight bill, delivered to said transfer company, that said property was to be carried on, and by the said North Missouri Railroad, to the place of delivery, as should have been done, no such directions being on said boxes; that, thereupon, the transfer company, in consequence of the omission of the direction,by way of said North Missouri Railroad,” from said bill of lading delivered to it by defendants, delivered said property to the Ohio and Mississippi Railroad Company, which did not constitute part of said through line for carriage, it guaranteeing to it charges for freight, etc., and did consign said property to one C. A. Scott, a commission merchant or warehouseman at St. Louis, Missouri, who, when the same was brought to him by the Ohio and Mississippi Railroad Company, refused to pay or guarantee charges, and receive said goods, he being a stranger to the plaintiff and not at all connected with said through line, of which the Cleveland company was part; that the property was suffered to lie at the transfer yard of the Ohio and Mississippi Railroad Company, at St. Louis, for thirty-five days, by W'hich it was destroyed.
    The auswer of the defendants admits the receipt of the property at Columbus, in the usual way, as goods to be transported over the road from Columbus to Cincinnati, and there delivered to the next earner for transportation, by way of St. Louis, to their destination; denies any special contract with the plaintiff, or with the Cleveland company, and all knowledge of any between the latter and the plaintiff, and the authority of the Cleveland company to make any on its behalf, and that it formed part of any through line of transportation; alleges that the goods were transported by them over their road in good order, and delivered by them, at Cincinnati, to the transfer company, to be transported across the city of Cincinnati to the Ohio and Mississippi Railroad Company, the most direct line to St. Louis, the transfer company being the next carriers, usually employed for that purpose, and a responsible company; deny that they agreed to guarantee any rate of freight to be charged by the carriers, after the defendants parted with them; deny that it was their duty to deliver a way-bill or manifest of said goods to the transfer company, or to place any particular marks on any such, to show that the goods were to be shipped by way of the North Missouri Railroad; and deny all negligence charged against them.
    On this issue, the case was tried to a jury, who returned a verdict in favor of the plaintiff. A motion for a new trial was made, which was overruled, and judgment rendered upon the verdict. A bill of exceptions was taken, setting forth all the testimony. To reverse this judgment, the present petition in error is prosecuted.
    The testimony tends to establish the following state of facts:
    The plaintiff below, on April 16, 1867, delivered to the Cleveland, Columbus and Cincinnati Railroad Company, the property mentioned, and received from it a receipt in writing of that date, in which it is stated as follows: “Shipped by C. Weigel, etc., the following property, etc., marked and consigned as in the margin, which they agree to deliver with as reasonable dispatch as their general business will permit, subject to the conditions mentioned below, etc., at Columbus station, upon the payment of charges. The company further agrees to forward the property to the place of destination, as per margin, but are not to be held liable on account thereof, after the same shall be delivered as above. The company, however, guarantee the through rate of freight, as designated below.”
    Among the conditions is the following:
    “ It is a part of this agreement that all other carriers transporting the property herein receipted for, as a part of tbe through line, shall be entitled to the benefit of all the exceptions and conditions above mentioned, etc.”
    In the margin is the following: “ 8 boxes of trees. II. II. Washburn, Martinsburg, Mo. N. M. R. R., via Cincinnati and St. Louis.”
    This shipping bill or receipt was delivered by the Cleveland company to the shipper.
    The way-freight bill, which accompanied the shipment, and was delivered to the defendants below, at Columbus, with the goods, is found in the record. ■
    In that the shipment is noted as follows : “ Consignors, C. Weigel; consignees, H. H. Washburn, Martinsburg, Mo., N. M. R. R.” The initials in the printed record are, “ St. L. R. R.,” but N. M. R. R. was intended.
    On arrival at Cincinnati, the goods were delivered to the Cincinnati Transfer Company, and the fact noted on the way-freight bill, by the initials C. T. Co., placed there by the clerk of the defendants making the delivery.
    On the day of such delivery, April 17, 1867, a bill of freight and charges was made out by the clerk of defendants below, against the transfer company, in which the goods are noted as follows: “H. II. Washburn, Martins-burg, Mo., 8 boxes of trees.” The charges for transportatation from Cleveland to Cincinnati were paid by the transfer company, and the word “guarantied” written on the receipt.
    The initials N. M. R. R., indicating the North Missouri Railroad, are omitted from this bill. This omission, by the defendants below, is the negligence charged against them, and for which the recovery was had. .
    The transfer company forwarded the goods, consigned to the care of O. A. Scott $ Go., St. Louis, commission and forwarding merchants, over the Ohio and Mississippi Railroad. This was done without instructions from the defendants below, who had guarantied their charges to the transfer company, which, in turn, guarantied them to the Ohio and Mississippi Railroad Company. Mr. Healey, the agent for the transfer company, testifies that “ if the waybill which I received from the Little Miami Railroad Company had been marked with the initials ‘ N. M. R. R.,’ 1 would not have consigned them to the care of C. A. Scott & Co., and they would have been shipped to the North Missouri Railroad.” He also testified, that Scott & Co., at St. Louis, were forwarding merchants, axxd consignment to their care did not delay freight; and that Scott & Co. and the Cincinnati Transfer Company were mutually consignees of each other as to all freight not otherwise consigned. That if these trees had not been so consigned, they would have been delivered in St. Louis, by the railroad company, to a St. Louis transfer company, who would have delivered them to the North Missouri Railroad.
    On the 21st of April, 1867, notice of the arrival of the goods in St. Louis was given, by the- Ohio and Mississippi Railroad Company, to Scott & Co , who refused to receive them and pay the charges, because the Ohio and Mississippi Railroad Company refused to guarantee the charges to Scott & Co. Charles A. Scott, of that firm, testified that if the railroad company had guarantied the charges to his firm, they would have received the goods, and promptly forwarded them. He also testified that the initials “ N. M. R. R.” were marked on the boxes, and that the omission of these initials on the way-bill had no influence on his not receiving the goods, and if he had received them, could not have misled him as to their destination, or prevented their promptly going forward.
    It is also testified by Mr. Clark, the freight agent of the defendants below, that the initials forming part of the entry of these goods oix the way-freight bill, received from the Cleveland Railroad Company, were written so that he could not tell what the letters wex-e. He said: “ I think rxow that they are CN. L. R. R./ but can not be positive what the first two are. I would not understand what these letters meant. I never saw anythixxg of the kind before. I did not understand them in the first place, axxd do not know that I uxxdei’stand them xxow.”
    In consequence of the refusal of the Ohio and Mississippi Railroad Company to guarantee the. charges to Scott & Co., and of the latter to receive them without the guaranty, the trees were allowed to remain in the yard of the railroad company for five or six weeks, where they perished.
    
      Matthews, Ramsey $ Matthews, for plaintiff in error,
    cited Northern R. R. Co. v. Fitchburg R. R. Co., 6 Allen, 258; Briggs v. Boston and Lowell R. R. Co., Id. 249; Hudson v. Baxendale, 2 Hurl. & Nor. 575; Robinson v. Baker, 5 Cush. 137; Fitch v. Newberry, 1 Doug. (Mich.) 1; Hempstead v. N. Y. C. R. R. Co., 28 Barb. 501; Parker v. G. W. R. R. Co., 7 Man. & Grang. 253.
    
      Alfred Yaple and Jordan, Jordan Williams, for defendant in error,
    cited Root v. G. W. R. R. Co., 2 Lansing (N. Y.), 199; Redfield Car., sec. 253; Merrick v. Webster, 3 Mich. 268; Bazin v. Richardson, U. S. C. C. Phil. Law Rep. 129 (July, 1867).
   West, J.

A common carrier who receives goods under an agreement to transport them over the whole or any part of his own route, and then to forward them to a destination beyond, acts in the two-fold capacity of carrier and forwarder. In the latter capacity, alleged negligence in which is the single ground of controversy presented by this record, he acts as agent of the consignor, and as such, is bound to transmit with reasonable exactness, to the next succeeding carrier, the instructions of his principal. If these instructions be without restriction as to the subsequent route, intermediate consignment, or mode of transit of the goods, but are in general terms to forward them to a designated destination, he will have discharged his duty as forwarding agent, by accompanying their delivery in good order to the carrier of the next usual route of transit, with the like general instructions, in terms sufficiently explicit and unambiguous to inform him of their ultimate destination. Briggs v. Boston and Lowell R. R. Co., 6 Allen, 249. But if the instructions of the consignee be special and restrictive) the carrier will not have performed his duty as forwarding agent, if he shall have neglected or omitted to transmit, with the delivery of the goods to the next carrier, any material or substantive part of such special instructions. Whence it follows, as a necessary consequence, that he shall stand responsible for and make good any loss to which such negligence or omission shall have contributed. Redñeld on Carriers, see. 186.

The jury, on the trial below, must have found — and we can not hold the finding not warranted — that the consignor of the goods, the loss of which is disclosed, gave special instructions in regard to their transmission; that these instructions were written in the freight way-bill, which came into the possession of the plaintiff' in error, and are in these terms : “ II. II. Washburn, Martinsburg, Mo., N. M. R. R.” via Cincinnati and St. Louis f that the plaintiff in error, when it delivered the goods to the Cincinnati Transfer Company, which was the next succeeding carrier, failed to transmit the whole of said instructions, but omitted therefrom the letters “ N. M. R. R.that these letters are well known to all competent western carriers to be the initials of the North Missouri Railroad, having its eastern terminus at the city of St. Louis; that the presence of these initials in the shipping-bills indicated that the North Missouri Railroad Company was an intermediate consignee of the goods at St. Louis; and that their omission left them without consignee at that place.

The instructions, thus transmitted by the plaintiff in error to the Cincinnati Transfer Company, showing no consignee of the goods at St. Louis, the agent of the latter volunteered to constitute a consignee thereof at that city, which he would not have done if the instructions had contained the omitted initials. On this point, the testimony of Healey, agent of the Transfer Company, is explicit. He says, “ If the way-bill, which I received from the Little Miami Railroad Company, had been marked with the initials “ N. M. R. R.,” I would not have consigned the goods to the caro of C. A. Scott & Co., and they would have been shipped to the North Missouri Railroad. . . . The St. Louis Transfer Company would have carried them from the Ohio and Mississippi Railroad, in St. Louis, to the depot of the North Missouri Railroad.”

Thus it is apparent that the act of the Cincinnati Transfer Company, which resulted in the loss of the goods, was, in point of fact, induced or influenced by the omission of the plaintiff in error to transmitió the next carrier en route the consignor’s special instructions.

It is asserted for the plaintiff' in error, however, that the interpolation of an intermediate consignee, into the instructions transmitted by it to the Cincinnati Transfer Company, without providing against the contingency of a failure, or refusal, to receive the goods by him, made the Transfer Company liable; that otherwise the Ohio and Mississippi Railroad Company would not have been limited in its discretion to the delivery of the goods t® a particular carrier at St. Louis, but would have had the option to make the transit of the city effectual by the employment of any carrier willing to accept the service.

It is also insisted that the Ohio and Mississippi Company, to whom freight was guarantied, made itself liable by refusing to guarantee freight to Scott & Co., in consequence of which the goods were suffered to perish.

In the view we have taken of the questions presented, it is not necessary to consider or controvert either of these positions. Both are probably tenable, and the plaintiff in error may sustain to the Cincinnati Transfer Company the relation of consignor, whose instructions have been departed from; in consequence of which, a right of recovery over has accrued to the former. But whatever may be the liability of others, either among themselves, or to the defendant in error, the fact that the negligence of the plaintiff in error contributed to a loss for which others may be severally liable may, notwithstanding, give a right to a several recovery against it also.

2. This conclusion is not varied by the fact that the packages bore labels containing the omitted initials, it not appearing that these inscriptions came to the knowledge of the transfer company’s agent, charged with the duty of receiving and transmitting shipping-bills. Packages are often sent forward in close coaches, without reshipment, or inspection. The accompanying papers are presumptively correct, and the carrier receiving them may well rely on the accuracy of the instructions therein written without resorting to the inscriptions on the packages.

At the trial below, counsel for the plaintiff in error asked the court to give certain instructions, which were submitted in writing. The court having examined and approved them, instead of reading them to the jury, directed the manuscript to be banded to them, the counsel at the time not objecting. It was too late, after verdict, to except to this mode of instructing the jury. If it is ground of exception at all, the exception should have been noted at the time.

In the light of the whole record, then, we can not say, as matter of law, that the omission, by the plaintiff in errror, of a material part of the consignor’s special instructions from the transmitted way-bill, which the jury found contributed, in point of fact, to the alleged loss, created no liability. The judgment of the Superior Court will be affirmed, with costs.  