
    The American Express Company v. Smith.
    1. Admitting that an express company is responsible for the fault or negligence of a railroad, over which it carries, the fact that a bridge of the railroad was carried away by a freshet of unusual violence, is not such default or negligence in the railroad company as will make the express company responsible for the loss of perishable property occasioned by a delay thus made inevitable.
    2. A common carrier is not responsible for a loss of perishable property when that loss arises from the nature of the property itself.
    3. A common cai-rier is not an insurer as to time, but is bound to transfer freight to its destination within a reasonable time. If delay is occasioned by an inevitable accident the loss ensuing is not chargeable to the carrier.
    4. A carrier is transporting property of a perishable nature, and a delay is occasioned by unavoidable accident; he makes all reasonable efforts to forward the property, but fails to do so in $me to have it reach its destination before becoming totally lost. Under such circumstances he is justified in selling it for the best price which can be obtained, exercising; a sound discretion.
    5. In case of accidental delay, a carrier is bound to exercise his best judgment, and to use due diligence in forwarding perishable property, so as to save it from total loss. If the nature and condition of the property is such that this can not be done, he may sell the same, if he can thereby convert what would inevitably be a total- loss into one that is partial merely.
    6. A carrier, who undertakes to carry goods over his own route, is not responsible for unavoidable delays, such as might be occasioned by the-destruction of a railroad bridge by a flood, and if such delays occur-while the goods are in transit, it is thereupon the duty of the carrier to exercise sound discretion and reasonable diligence in forwarding the-goods to their destination. He is not bound to divert the goods from his own to another route over which he has no control, unless in the exercise of such discretion and diligence it appears that the change of' route would have prevented the loss attendant upon delay.
    Error reserved, in the District Court of Clark county.
    This action was brought to recover the value of a lot of peaches shipped, by defendants in error, from Eort Ancient,. Ohio, to New York city. The first lot, of eight bushels, were shipped Friday, September 11,1868. Saturday morning, September 12th, twelve bushels or boxes were shipped, and forty-four in the evening of the same day. At nine o’clock, p. m., of that day, a bridge, over East Canada creek, twenty-eight miles east of Utica, on the New York Central Railroad (the express route), was washed away by reason of heavy rains. Travel was thus interrupted for several days. "When the peaches reached" the break it was-found impossible to get them around it, and, as they showed signs of decay, they were sold by the express company.
    In the court of common pleas judgment was recovered,, against the express company, for the sura of $400. The-cause, having been taken to the district court, was there-reserved for decision in the Supreme Court.
    
      Bowman, Pringle ^ Scott, for plaintiff in error:
    The plaintiff in erijor is not responsible for the delay occasioned by the washing away of the bridge.
    
      A common carrier is not an insurer as to time. Redfield on Carriers, § 305, p. 224; Peel v. Railway Co., 20 Wis. 595; Parsons v. Hardy, 14 Wend. 215; Transfer Co. v. Wallace, 68 Penn. 302; Pierie on Railways, 411; Wharton on Neg., § 567.
    The accident was without the fault of either the railroad or express company, and neither is liable. Redfield on Carriers, § 28, p. 22; Read v. Spalding, 30 N. Y. 630; Balentine v. Railroad Co., 40 Mo. 491; Railroad. Co. v. Reeves, 10 Wallace, 166; Lipford v. Railroad Co., 7 Rich.. (S. C.), 409; Wallace v. Clayton, 42 Ga. 443.
    
      Heifer § White, and John F. Oglevee, for defendant in-error :
    Common carriers are only exempt from liability for loss or injury from the act of God, limited to inevitable accident or the public enemy. The “ act of God ” must be the direct and immediate cause of the loss ; it is no excuse that the loss was caused by the' act of God concurring with other agencies. Redfield on Car., § 24, and note 2; Merrit v. Earle, 29 N. Y. 115; Michael v. N. Y. C. Ry. Co., 30 N. Y. 571: Read v. Spaulding, 30 N. Y. 630; Sullivan v. P. R. R., 30 Penn. St. 234; Condict v. G. T. Ry. Co., 54 N. Y. 500; McArthur v. Sears, 21 Wend. 190; 5 Bos. 395; Turner v. Black Warrior, 1 McCall. (Cal.) 181.
    When the negligence of the carrier exposes him to what he might otherwise have escaped, he is responsible for losses thus occurring through the combined agency of his own negligence and inevitable accident, or the public enemy. Redfield on Car., § 28; Michael v. N. Y. C. Ry. Co., 30 N. Y. (564), 573-5; Bostwick v. Baltimore Ohio Ry. Co., 45 N. Y. 717; Lamb v. Cam. & Amboy Ry. Co., 46 N. Y. 272; 3 Lansing, 365.
    By the act of God is meant something which operates without the aid or interference of man. The act of God or public enemy will only exempt a carrier from liability when-he is entirely free from fault. Merrit v. Earle, 29 N. Y.. 115, 118, 119 ; Read v. Spaulding, 30 N. Y. (630), 639, 642; McArthur v. Sears, 21 Wend. (190), 195-8; Michaels v. N. Y. G. Ry. Co., 30 N. Y. (564), 571-5; Curtis v. R. § S. Ry. Co., 18 N. Y. 534.
    A carrier is bound to deliver goods within a reasonable time. Kent v. Hudson Ry. Co., 22 Barb. 27; Redfield on Car., § 302, note 1; Wilbert v. N. Y. & Erie Ry. Co., 12 N. Y. 245; Condict v. Grand Trunk Ry. Co., 54 N. Y. 500.
    A carrier is responsible in damages for the detention of passengers or freight. Quinby v. Vanderbilt, 17 N. Y. 306; Williams v. Vanderbilt, 28 N. Y. 217; Van Buskirk v. Roberts, 31 N. Y. 661.
    A carrier who undertakes the transportation of fruit is liable for loss by natural decay, if the transit be prolonged beyond the usual time. Place v. Union Ex. Co., 2 Hilt. 19.
    A railroad company has been held liable for delay in forwarding grain accepted for shipment, although the road was under military control — the probabilities for delay on account of blockades on the side tracks and other hinderances, being known to the company at the time of accepting the grain. Ills. Cen. Ry. Co. v. McClellan, 54 Ills. 58; 5 Am. 83 ; Rls. Cen. Ry. Co. v. Cobb, 68 Ills. 128.
    A carrier is responsible for damages resulting from a delay to transport freight in the usual time, caused by its ser-' vants suddenly and wrongfully refusing to work. Redfield on Car., § 25, note; Blackstock v. N. Y. & Erie Ry. Co., 20 N. Y. 48.
    There seems to be no doubt but that an express company is responsible as a common carrier for the negligence, defaults, or willful conduct of the railroad company or other agency by which it undertakes to transport goods.
    It is held that an express company undertakes to carry goods for hire, and adopts its own agencies to enable it to do so — and it must be held to the same responsibility that would attach, if it were the owner of its own route or lines of transportation. Redfield on Carriers, § 54, and note 27; N. Y. Steam Nav. Co. v. Mer. Bank, 6 How. 344, 378; 16 Curtis, 722.
    
      It is the duty of carriers by express to know the condition of the route over which they ship. Place v. Union Ex. Co., 2 Hilt. 19 ; Redfield on Car., 54, 55, note 16, par. 6.
    It is quite clear that but for the failure of the railroad company to have a good and permanent bridge at the creek named, Smith’s peaches would have gone through in safety. The American Express Company having received the goods as common carriers, and not having delivered them safely, to the consignee, in due time, takes the burden on itself to show there was no negligence in the loss, and that the loss occurred from one of the excepted causes. Davidson v. Graham, 2 Ohio St. 181; Graham, v. Davis, 4 Ohio St. 862 ; Walsh v. P. Ft. W. & C. Ry. Co., 10 Ohio St. (65), 69 ; 2 Green. Ev., § 219; Clark v. Barnwell, 12 How. 272 ; Rich v. Lambert, 12 How. 347.
    The carrier must show clearly that the damages occurred entirely without its fault. 18 How. 233.
    The common carrier’s contract ivas to carry the goods to New York city; within a reasonable time; and not to carry them by any particular route. The defendant must show affirmatively that he could not deliver the goods by some other route. Harmony v. Bingham, 2 Neman, 99, 115 ; The Brig Collenberg, 1 Black. 170.
    When an unexpected emergency arises, the carrier is bound to take such precautionary measures as prudent and skillful men in the same business and under like circumstances might be expected to take. Davidson v. Graham, 2 Ohio St. 139; Nash. & Chat. R. R. Co. v. Davis, 6 Heisk. (Tenn.) 261; 19 Am. 594; Holliday v. Kennard, 12 Wall. 254; 42 Ga. 443.
    The true rule is that a non-performance of a contract to carry goods is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance impossible. Williams v. Vanderbilt, 28 N. Y. 217, *223; 2 Par. on Con. (3d ed.) 185 ; White v. Mann, 26 Maine, 361.
    Whether a company has discharged its duty, to use due care and diligence, is determined from the circumstances of the case. Holliday v. Kennard, 12 Wall. 254; Shoemaker v. Kingsbury, Id. 369.
    When a party makes a duty to charge upon himself, he is bound to'make it good, notwithstanding any accident or delay by inevitable necessity; because he might have provided, against it by contract. Harmony v. Bingham, 2 Kernan, 107, 115 ; Beebe v. Johnston, 19 Wend. 500 ; Hadley v. Clarke, 8 T. R. 259; The Brecknock Co. v. Pritchard, 6 T. R. 571; 48 N. H. 455 ; Swan’s Treatise (10th ed.) 523.
    It is the duty of the carrier to make all reasonable exertion to save incipient damage to goods — although he may not be in fault. Redfield on Car., § 237; Chanteaux v. Luce, 18 (Penn. St. 224; Ang. on Car., §§ 160, 210.
    Under a contract for carriage of goods at sea, when vessels become disabled, by inevitable accident, it is the duty of the carrier to forward them by another ship, if practicable. His duty is not ended until the property is delivered at the port of destination, or returned to the owner, or stowed away for his use. The Maggie Hammond, 9 Wall. 435, 458; The Niagara v. Cordes, 21 How. 24, 26; The Brig Collenberg, 1 Black. 170; Abb. on Shipping, p. 3, ch. 3, § 8, c. p. 242.
    The carrier master must forward goods by another vessel, and he is entitled to charge the goods with the increased freight arising from the hire of the vessel so procured. The Maggie Hammond, 9 Wall. 459; Propeller Niagara v. Cordes, 21 How. 7, 25, 26 ; McArthur v. Sears, 21 Wend. 190 ; Elliott v. Rossell, 10 John. 1, 7.
    The obligation in case of accidental detention, is more imperative to forward goods than passengers. 2 Par. on Con. 223.
    A deviation from the usual route is only culpable when unnecessary. Powers v. Davenport, 7 Blackford, 497, 499; 21 How. 24.
    If the ordinary line of transportation fails, another conveyance should be provided. Van Buskirk v. Roberts, 31 N. Y. (661) 670; Williams v. Vanderbilt, 28 N. Y. (217) 223-4 ; The Maggie Hammond, 9 Wall. (435) 458; The Ni
      
      agara v. Cordes, 21 How. 24-26; Collier v. Swinney, 16 Mo. 484; Abb. on Shipping, p. 3, ch. 3, § 8, c. p. 242.
    Carriers are not justified in adopting a particular mode of forwarding the goods, and thereby delaying the delivery, merely because that is the usual mode adopted. Redfield on Carriers, § 302, n. 1; Hales v. London and Northwestern Ry Co., 8 L. T. (N. S.) 421; Collier v. Swinney, 16 Mo. 484.
    The loss or damage to perishable articles in consequence of the weather, will not excuse the carrier, if it could have been prevented by due care and diligence. The carrier must show not only that it did all that was usual, but all that was neeessary to be done under the circumstances. Red. on Car. 22 n.; Wing v. N. Y. & Erie Ry. Co., 1 Hilt. 235 ; Philleo v. Sandford, 27 Texas, 227.
   Wright, J.

The first lot of peaches, shipped on the 11th of September, Friday, reached Buffalo so as to leave that point Saturday night, the 12th, arriving at Htica three o’clock Sunday morning. Here the car was stopped by the railroad company, as no means could be found to get around the break, which was twenty-eight miles further on. Dpon the evidence we do not think the express company can be charged with a want of diligence in failing to get their freight past the obstruction. They seem to have used every exertion in their power to discharge their duty in this behalf. In order to get the goods over the break, it was necessary to wagon them about a mile and a quarter. As soon as the agents of the express company heard of the accident they repaired to the spot, and endeavored to forward their merchandise. They attempted to hire wagons, but the railroad company had anticipated them, and engaged all the teams and vehicles that could be found in the country, for the purpose of transporting passengers and their baggage. It was, therefore, not until Tuesday, the 15th, that any facilities of the kind could be had, and then the company began the movement of express stuff, but this was too late, as far as the peaches were concerned. Nor was the express company in fault in the matter of the falling of the bridge, as is claimed. And for the purposes of this case it may' be conceded that the express company is responsible for the default or negligence of the railroad company, if any there be.

The railroad company were about removing an old bridge at East Canada creek, for the purpose of building a new one of iron. As a temporary matter, a number of bents were put under the old bridge, to strengthen it. There then came a heavy rain; the testimony shows it to have been of unusual violeuce. The water rose rapidly, broke away dams, and carrying down logs and drift against the bridge, swept it off.

The evidence leaves it beyond a doubt that the storm and the freshet were altogether beyond any thing of an ordinary character, and responsibility for this can not be charged upon the railroad company. Nor can we find any fault in the railroad company in not repairing the damage sooner than was done, as would have been the case under ordinary circumstances. It is shown to be well provided against disasters of this kind. ■ Duplicate bridges are kept on hand all the time, and as a general thing a bridge can be replaced in from six to twelve hoars. TJpon this occasion, however, it was long before the water in the stream resumed its natural level, and this delayed the operations of the bridge builder’s.

But it is said that the express company, as soon as they heard of the break, should have diverted the peaches by some other route, so as to have gotten them to New York more speedily. It seems there was a route from Buffalo to New York, over the New York and Erie Railroad, upon which the United States Express Company ran ; and it is also said that the peaches might have been brought from Utica back to Syracuse, and then delivered to the United States Express Company and shipped to New York by way of Binghampton; and again, that the peaches might have been delivered at Columbus, Ohio, and so have gone to New York by the Pennsylvania Central.

As to this last suggestion, the last lot of peaches left Fort Ancient at 6:20 Saturday night, and probably reached Columbus not far from the time the bridge was swept away, and there is nothing to show that the disaster was known at Columbus before the peaches reached there, so as to make the diversion a profitable thing.

As to bringing them back to Syracuse, this would have required a cartage at that point of about three-quarters of a mile, forty-eight hours to reach New York, and cartage again at Jersey City and ferriage across the river, all of which would almost certainly have involved a total destruction of the fruit, from the condition they were in, as will be hereafter seen.

As to diverting them at Buffalo. The first lot of eight bushels passed that point, leaving there at 6 p. m., three hours before the break. There can, therefore, be no possible reason for saying they should have been diverted there, as suggested. The other two lots left Buffalo during Monday. The United States Express Company, which ran from that point to New York, was a rival route, and there is no certainty it would have taken the property, which was perishable in its nature and already perishing in its condition. A re-shipment would have involved delay, and such delay, as seems to us, would have been destructive.

Under ordinary circumstances this bridge might, and probably would, have been repaired in six hours, and travel resumed; it was fair for the express company to assume that this would be done, as doubtless would have been, had the water gone down at any usual rate, and they can not be said to have béen in fault in not anticipating what perhaps nobody thought was a probable or possible event.

There is an ex post facto wisdom, which, after every thing has been done, without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best lights affoided.

Had the plan suggested been in fact pursued, and the peaches transhipped either by way of Syracuse or Buffalo, the delay which would have ensued, together with the rough jolting attendant upon the necessary cartage, would, as it seems to us, have ensured their entire destruction. Thereupon the shippers might, with much force of argument, have said, we shipped by your route, and you had no right to make a deviation ; by so doing you subjected our property to unusual delays and risks not contemplated, and loss having ensued, you are responsible. You should have gotten it around the break with all speed, or if that were impossible, you should have sold it to the best advantage, instead of taking a course which must have necessarily led to its entire loss.

But in our view of the facts, this loss was occasioned by the condition of the property at least as much as from any other cause. These peaches were picked and shipped on Friday and Saturday, the 11th and 12th of September. The overwhelming testimony is that the weather of that week was most destructive upon this kind of fruit. It was damp, rainy, warm, and murky up to Thursday night, Friday being bright, warm, and sunny. The effect of this temperature is described by the man who shipped the peaches as having a peculiar effect upon them. They rotted rapidly. An apparently sound peach would rot in twenty-four hours. A speck on a peach would, in a few hours, develop into rot. He says the week ending September 12th was the most disastrous he ever saw. There is no controversy at all about the condition of the weather, and of its being exactly that kind that would destroy peaches in a very short time.

The first lot, shipped Friday, was to have reached New York for Monday’s market, and could not have reached there earlier. They were stopped at the break, and the express agent at once concluded they ought to be sold. They were sold. This was on Sunday, before, it will be observed, they could by any possibility have reached New York, had they gone straight on without any break. "What was their condition then ? If spoiled and worthless, or nearly so, in Utica, could they have been any better in New York ten or twenty hours later in point of time? The express agent went to a fruit dealer in Utica to get him to buy the articles. The dealer went to see the peaches Sunday, and told the agent he would take them, if they were unloaded that night so as to get air, otherwise he would not take them on any condition. This dealer, who is a witness, describes Friday and Saturday as having been hot, sultry, rainy days — the worst kind of weather for fruit. He was on the car in which the peaches were, and says it was so close and sultry that it was very unpleasant to remain in it; that the condition of the weather was such that had they gone straight through, they would have been worthless upon reaching New York. He examined them Monday, after they had been unloaded and given air, and none of them were sound. There is much testimony of this kind, all tending to show the unfavorable condition of the weather, that the car had been close and hot, that it was wet with moisture and vapor arising from the fruit, which had become heated and in such condition as to be past saving before it could have reached New York in the ordinary time. It therefore seems to us that the best thing to do under the circumstances was that which was done — namely, to sell the stuff at once. The express company did get one lot to Albany, but were compelled to sell them there.

These remarks as to the condition of the fruit apply to all the various lots. When they reached Utica, the testimony is without contradiction that they were in such plight that they could not have been got to New York in any way, or by any route, so as that they would at all have been marketable.

"We have not gone into the evidence in extenso, but these conclusions are abundantly supported by it. We therefore feel bound to say that the loss of the peacnes was occasioued, not by any fault or negligence of the express company, but by the perishable nature of the article, in connection with the condition of the weather; and the delay which occurred at the break was something for which the express company was not responsible.

The jury, however, proceeded to render a verdict, an analysis of which shows that it was predicated upon the idea of the peaches reaching New York in a perfectly sound condition, as it is based upon the highest market price; it being at the same time perfectly apparent that had there been no break, the peaches could not have reached New York in a sound condition.

Among other things the court charged the jury:

“ Rut if the defendant was prevented from sending them by that route in consequence of the washing away of a bridge, which did not happen through the negligence of the railroad company or the defendant, then it was the duty of the defendant, after first ascertaining that it could not send forward the peaches by that route, so as to get them to New York city in time to preserve them, to use ordinary care and diligence to employ some other safe and reliable route or agency, or express company, if such was then known and available to the defendant, by which the peaches could be carried through to New York city in time to save them.”

This was misleading, in that it drops out of view’ the actual condition of the peaches at the time when they ought to have been sent forward upon this supposititious other route. Clearly, if they were rotten and entirely worthless upon reaching the point where this transhipment could have been made, there would have been no sense in sending them on. The jury should have been told to take into view the circumstances as they actually were — the condition of the weather and of the fruit — and under proper instructions should have determined whether the company were bound to seek some other route for transportation.

In the view, however, that we take of the evidence, plaintiffs made no case for recovery, and the judgment should be reversed.

Judgment reversed,.  