
    The Erie Railway Company v. I. J. Lockwood & Son.
    Where goods are shipped under a contract with a common carrier, to be carried over several independent hut connecting lines to their destination, at an agreed through rate, each carrier to receive and carry to the end of his route, and there forward by the next connecting line, and they are lost at the terminus of the route of an intermediate carrier, while in his possession and before delivery to the next carrier — Held:
    1. Such intermediate carrier undertakes not only to carry but to forward, and, as a common carrier, he is liable for loss at the end of his route before the goods are delivered to the next carrier, unless he is exempted from such loss by the terms of his contract.
    2. Although the contract of affreightment contains a clause relieving the carrier from loss by fire, he is not thereby exempted from the use of proper care for the safety of the goods while in his possession to be forwarded. It is his duty to keep them while in his hands awaiting reshipment, in a safe and proper place, and the burden of proof is on him to show that he has done so, although the fire originated without his fault, in adjacent property over which he had no control, and although he made all reasonable efforts after it originated to prevent it from extending to the goods destroyed.
    3. Where the carrier is liable for such loss, the owner is entitled to full compensation for the breach of the contract to carry and forward, and it is noterror in the court to refuse to lay down a rule of damages, which may not give him such compensation, nor unless it appears from the record that the failure to so charge was prejudicial to him.
    Error to tbe District Court of Trumbull county.
    The plaintiffs below, defendants here, brought their action against plaintiff’ in error, a railroad company and a common carrier, on an undertaking to carry fifty barrels of oil from Salamanca, N. Y., to New York city, and there deliver the same to another carriér, to be transported to the consignee in Boston, for a reasonable reward to be paid.
    The breach alleged is, that the carrier, by reason of its negligence and improper conduct, did not safely carry and deliver the oil to the next carrier, and that the same was lost and destroyed while in its hands.
    The answer states that the oil was shipped by plaintiffs at Warren, Ohio, August 14, 1866, under a bill of lading, issued by the Atlantic and Great Western Railroad Company, of which the following is a copy:
    “ Warren, Ohio, August 14,1866.
    “ Shipped by I. J. Lockwood & Son, on the Atlantic and Great Western Railway, the following property in apparent good order (except as noted), 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, in like order, the dangers incident to railroad transportation, loss or damage by fire while at depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted, at Salamanca station, upon the payment of charges. The compafiy further agree 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.
    
    “ Conditions. — Petroleum or its products taken only at owner’s risk of fire and leakage.
    
    “The company do not agree to carry the property by any particular train nor in time for any particular market.
    “ Oils and all other liquids at owner’s risk of leakage.
    “Liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking-glasses, marble, stove, stove-plates, or light castings, earthen or queens-ware, at owner’s risk of breakage.
    “ Agricultural implements, cabinet ware and furniture not boxed, carriages, at owner’s risk of breakage or damage by chafing.
    “ Oysters, poultry, dressed hogs, fresh meats and provisions of all kinds, trees, shrubbery, fruit and all perishable property, at owner’s risk of frost and decay.
    “ It is & part of this agreement that all other carriers transporting the property herein receipted for, as a part of the through line, shall be entitled to the benefit of all the exceptions and conditions above mentioned ; and if a carrier by water, he is to be entitled to the further benefit of exception from loss or damage arising from collision and all other dangers incident to lake and river navigation.”
    J. Harris, Jr. 50 bbls. Refined Carbon Oil.
    (Owner’s risk). 18,000
    No. 16 Central st., Warren to Salamanca 17c.
    Boston, Mass. Sala. “ Boston 58c.
    (Signed,) Thro’ 75c.
    I. J. Lockwood & Son. L. Town, Agt.
    [Car 6,245.]
    The answer admits the receipt of the oil at Salamanca from the A. & G-. W. Railway, and its carriage under said bill of lading to Jersey City, the terminus of its route, where it arrived on the morning of August 19, 1866, and was run into an oil-yard, which wms a suitable and proper place for transhipment to its destination by the usual route, and -while in said yard awaiting the first opportunity for reshipment, and without any fault on defendant’s part, it was destroyed by fire, which originated in a vessel lying in the dock near by, but over which it had no control.
    The reply denies that the bill of lading was the contract, or that the oil was received or carried under it, but was received and carried under the contract stated in the petition.
    The reply, also denies each of the allegations as to care and diligence in the premises.
    On the trial to a jury, the plaintiff offered evidence tending to prove the averments of the petition, and the value of oil at Boston about the 21st of August, 1866.
    The defendant gave evidence to show that the oil was carried under the bill of lading, which was signed by the plaintiff; also tending to show that the oil was received from the A. & Q-. W. Railway Co. at Salamanca and carried on the same day to Jersey City, the terminus of its route, where it arrived August 18,18.66, at 3J p. m.,. and -was run into an oil-yard in good order, to be reshipped to Boston, where it was, on the next morning, destroyed by fire, caused by the explosion of a vessel lying in the dock, over which vessel or dock the defendant had no control, and that reasonable efforts were made to save the oil from being destroyed after the fire originated.
    The plaintiffs gave evidence in rebuttal and tending to sustain the issue on their part.
    The evidence being closed by both parties the defendant then asked the court to instruct and charge the jury:
    
      First. That if thpy should find that the defendant, on receiving said oil at Salamanca, transferred the same in the regular course of business to its Jersey City station, such station being the proper place for the delivery of the said oil to the nearest carrier on said thi’ough line from "Warren to Boston, and that it was there stored by the defendant, or ran into the yard of said defendant at said station, used by it as the place where property of the like kind in process of shipment over its and succeeding lines of transportation was accustomed to be held, that such yard was a convenient place from which to deliver said property to the next succeeding line of transportation in this ease, that the grounds were ample not only for the storage of the oil in question, but of that and other property which were already there, then the defendant, under provisions of the contract claimed by the defendant to have been made in this case, is not liable for the destruction of said oil on next' morning after its arrival at said station by a fire caused by an explosion occurring in a vessel in the adjacent river, partly loaded with oil, by means of which large quantities of burning oil were thrown from said vessel into the yard in which the plaintiffs’ as well as other large quantities of oil were stored, all possible means being by the defendant used after such explosion to prevent the spread of the fire and the destruction of the plaintiffs’ oil, such vessel not being owned by the defendant, or in any respect under its control.
    
      Second. That if the defendant is liable at all, it is .liable under its contract in this case for the value of the oil at the terminus of its line, where it was to be delivered by it to the next carrier, and not for its value at the point of its ultimate destination.
    Which instruction and charge the court refused to give to the jury, to which refusal the defendant excepted, and asked that this his bill of exceptions be allowed, which is accordingly done.
    After verdict for plaintiffs a motion for a new trial was made by defendant and overruled, a bill of exceptions taken by the plaintiff in error, and j udgment rendered on the verdict.
    The district court affirmed this judgment. To reverse this judgment this action is prosecuted.
    
      S. Burke, for plaintiff in error:
    Two questions are presented in this case for the consideration of the court: The first, admitting that the contract was made and entered into for the transportation of oil from Warren to Boston, as alleged by the defendant, and that the oil was burned in the defendant’s yard at Jersey City, while in process of delivery to the next connecting carrier, without fault upon the part of the plaintiff in error, as a common carrier, would the plaintiff in error be liable for the loss sustained ? Or, in other words, whether, if the oil was shipped under the contract in writing claimed by the defendant, and was burned at the eastern end of its line, at Jersey City, under the circumstances assumed in the fh’st request made to the court to charge the jury, the plaintiff in error is liable for its value.
    2. What is the measure of damages in such a case ? Is it the value of the oil at the place of its ultimate destination, or the value of the oil at the end of the line of the plaintiff in error? We maintain that the court erred,first, in refusing to charge upon the facts assumed, that the plaintiff in error would not be liable for the destruction of the oil; and, secondly, that the court refused to give the jury the only proper and appropriate rule of damages in such cases; the rule of damages in such cases being, as we maintain, the value of the property at the point to which the carrier upon tohose line the loss occurred was bound to make delivery.
    
    
      First. In regard to the first point the law is too well settled now to be shaken, that a carrier may limit his liability by special contract in regard to all matters in which he is simply an insurer. This well-settled rule of law will probably not be denied; if denied, it is clearly established by the following cases to which we refer the court: Kimball v. R. R. Co., 26 Vermont, 247; Wallace v. Matthews, 30 Ga. 617; 22 Ind. 26; 54 Ill. 88; 1 West Va. 87; 4 Keys, 108; 3 West Va. 556; 12 Wall. 262; 38 Ill. 354; 8 Kansas, 244; 1 Disney, 480; 55 Penn. St. 53; 3 Wall. 107; 6 Mich. 243; 42 Mo. 188; 67 Penn. St. 211; 43 N. Y. 123; 4 Ohio St. 362; 2 Ib. 131; 10 Ohio, 145.
    This general rule of exemption from liability by special contract is applicable to all classes of merchandise. There are, however, classes of merchandise • or property transported by common carriers that we maintain the carrier is not bound to accept and .transport except upon such terms as may be agreed upon between the shipper and the carrier.
    
      In regard to highly inflammable and dangerous substances, like petroleum, powder, nitro-glycerine, etc., and live stock, none of which were subjects of transportation at the time that the stringent rules governing carriers by common law were adopted, there would seem to be the highest possible reason for entering into special contracts touching the obligations of the parties.
    There is nothing in the contract under which it was claimed by the plaintiff' in error that this oil was transported, exempting the company from its own negligence. It was not claimed upon the trial in the common pleas, so far as the record discloses, that the contract -would thus exempt the company. The contract provides, substantially; that the shipper or owner takes upon himself the “ dangers incident to railroad transportation, loss or damage by fire while at depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents.” And the shipper further stipulates in regard to petroleum, that “ petroleum or its products are taken only at owner’s risk of fire and leakage.”
    These stipulations certainly do not transcend the limit which the courts have held and regarded as proper subjects for the exemption of the carrier by contract, and upon such a contract as this, it has often been decided, and may be regarded as settled law, that the carrier is liable only for such injuries as come to property while in his possession in consequence of his own negligence or misconduct. That the effect of such a contract is to give a common carrier the same rights, and to put him in the same position as an occasional carrier, and a person who does not hold himself ■out to the world as a carrier, and in such a case it is well settled -that “ an occasional carrier and a common carrier under a contract of the kind under consideration, will be held responsible in case of loss or injury to the property, only in cases where he fails to use ordinary care and diligence ; or, to state it differently, to excuse himself from liability he need only show that he has used ordinary care and diligence. See Samms v. Stewart, 20 Ohio, 69; 4 Ohio 234; 5 Ohio, 88; Wright, 410; 16 Ohio, 431; 13 Ohio, 523. Ancl in such cases the burden of proving negligence is upon the shipper. The fact that there was a loss does not in such a case raise such a presumption of negligence as to authorize a recovery. See 2 Ohio St. 131; 4 Ohio St. 362; 10 Wall. 176.
    
      Second. We maintain that the court also erred in refusing to charge the jury as requested, that “if the defendant is liable at all, it is liable under its contract in this case for the value of the oil at the terminus of its line, where it was to be delivered by the defendant to the next carrier, and not for its value at the point of its ultimate destination.”
    We have considered this point very carefully, and while it may not be possible to reconcile all the authorities upon this vexed question of the measure of damages, we think that the decided weight of authority is in favor of the rule claimed by the plaintiff. Harris v. Panama R. R. Co., 3 Bosw. 7; Lokeman v. Grinnell, 5 Bosw. 625, 632; Wheelright v. Beers, 2 Hall, 391; 3 Caines, 219 ; 1 Wash. C. C. 13; 3 Story, 349.
    
      F. E. Hutchins, for defendants in error:
    I. As to the first request to charge :
    One of the principal questions upon the trial below was as to the negligence of the railway company, by reason of which the oil in question was destroyed. The first proposition requested to be given in charge assumes, as a matter of law, that if the facts therein stated are found, then no liability exists, no matter what other facts are in the case, or may be legitimately found. Such a request or charge might bo proper, provided it embraced all the facts which might be legitimately found, tending to create such liability. It would be manifestly improper if it did not. In this case, the negligence of the carrier was one of the principal facts claimed as creating this liability, and such a request to charge should contain such facts as negative the existence of negligence.
    This request to charge does not do this. On the contrary, all of the facts there stated may be found, consistently with the carrier’s negligence, thus:
    
      
      (a.) The request does not assume that the oil was carried to Jersey City with dispatch, or in due time; nor
    (6.) That it ought not to have been delivered to the next carrier before the fire; nor
    
      (c.) That its place of storage was either a safe or proper place; nor
    (■d.) That any precautions were taken before the fire, nor means for getting it out or protecting it in case of fire; nor (e.) That there were any watchmen to guard the property, or men, in time to suppress the fire or assist in removing the property; nor
    (/.) How much of a similar or other equally inflammable material was in the yard when they put this oil there; nor (g.) Whether the fire was in fact caused by the agents or servants of the carrier.
    Even if all the facts were found as stated, there was ample room to find other facts constituting negligence, or from which the jury might infer negligence ; and if so, the charge should not have been given.
    Even if the contract were as stated in the answer, still the carrier was an insurer, as at common law, for—
    While a carrier may, by express contract, limit his liability as to matters occurring without the default of himself, his servants or agents, yet he can not do this by a contract which, by its terms, undertakes to exempt him from liability for losses, whether arising from his or their negligence or not. The liability of a carrier for the result of his own negligence is imposed upon grounds of public policy, and any agreement to absolve him from it is against public policy, illegal, and void. By stipulating for that which is illegal, he has made no legal agreement for any exemption. II. As to second request to charge :
    1. Even if this request were correct, as matter of law, it does not affirmatively appear that its refusal was prejudicial to plaintiff in error.
    
      First. Eor anything that appears, the jury in fact took the value of the oil in Jersey City, in determining the amount of damage.
    
      it will be presumed that they did so, if that was what by law they should have done.
    
      Second. It does not appear that the value of the oil was any greater at Boston than at Jersey City. It may have been less.”
    And until it be shown that there was a difference in value in favor of Boston, it does not. appear that the refusal to charge was prejudicial to the party.
    2. The general rule is that the measure of damages is the value of the goods at the place of destination. Sedg. on Dam. 400, 401, and authorities there cited.
    There is no reason why the same rule does not apply where this place of destination is to be reached by the aid of successive carriers.
    “ It is the value of the article at the place of delivery, that the plaintiff, relying on the carrier, has lost; it.is that value which he would have received if the contract had been performed.” Sedg. on Dam. 400, 401.
    This is equally so whether one or several carriers are to thus transport and deliver.
    Within certain limits as to proximateness, that which a party has lost is the measure of his recompense. See Sedgwick, 26.
   Johnson, J.

The bill of, exceptions does not purport to set out all the evidence, but only the tendency of so much as was supposed was necessary to show that the requests to charge were pertinent. Neither does it give, the charge which was given to the jury on the points covered by.the requests to charge.

1. The. first request was based on the event that the jury should find that the contract set up in the answer was the true contract of affreightment. It was an attempt to state the law governing the liability of the carrier under this contract for a loss by fire at the end of the transit, while the oil was standing in an oil-yard, awaiting transhipment.

If this bill of lading was the contract, then the liability of the carrier was modified; and if he was in no default, he was entitled to a verdict, but if it was not the contract, or if the loss was the result of his negligence, then he was liable the same as a common carrier generally.

The record does not advise us how the jury found on this point. For aught that appears they may have found it was not the contract governing the case. Assuming, however, as shown by the bill of exceptions, that evidence was offered from which a jury might find, or that they in fact did find, that the bill of lading was the contract, then the defendant had a right to have proper instructions given as to its liability arising thereon.

It becomes necessary, therefore, to inquire whether this first request was a correct statement of the measure of the defendant’s responsibility under such a contract.

We think it was not. It is defective in this, that it does not require any care or prudence of the carrier in storing and caring for the oil before the fire originated. There is nothing in the bill of exceptions to show that the yard where the oil was stored was a suitable and proper place, nor is there anything in this request implying that it was the duty of the carrier to use care in keeping the oil, before the fire originated.

The language of the request was, in substance, that, if defendant carried the oil to the proper place for delivery to the next carrier, and there stored the same in a yard which was “ ample’’ and “ a convenient ” place for reshipment, and the one used by defendants for property of that kind, then, under the terms of the bill of lading, it was not liable for a loss by the explosion of a vessel lying in the dock near by, over which the defendant had no control, where all possible means were used after the explosion, to prevent the loss.

Notwithstanding the exemption contained in this bill against loss by fire, it was the duty of the carrier to use due and proper care after the oil arrived, and while in his possession, in keeping it safely. Gaines v. Transportation Co. [Decided at present term, not yet reported.] 28 O. S. R. p,

Although this place where the oil was kept may have been ample and convenient for reshipping, and the one in. common use by defendant, yet it may not have been a safe or proper place, such as a careful and prudent -man would select. The defendant alleged that this yard was a suitable-place. This allegation was put in issue. The bill of exceptions does not show that evidence was offered on the point,, and the request omits to make it a prerequisite to a complete defense. Inasmuch as this request failed to recognize-this duty of properly caring for the oil after its arrival at Jersey City, and while awaiting reshipment before the fire,, it was not error to refuse to give it to the jury.

It is evident the bill of exceptions fails to present thereat question intended by counsel.

2. The second request related to the rule of damages in-case the jury found for the plaintiff'.

As the ease stands upon the record, it was a request to* lay down as the rule of damages in this case the value of the oil at Jersey City, and not the value at Boston, its ultimate destination. The error assigned is, that the court' refused to so charge. What the court did charge as the-rule, or what rule was applied by the jury, does not appear. Neither does it appear that any evidence was offered as to-the value of oil at Jersey City, nor that the value at Boston was greater than at Jersey City.

In fact, the only evidence before the jury to aid it in assessing damages so far as the record discloses, was that offered by plaintiff as to value at Boston, and the through rate agreed on and guaranteed by the first carrier — that is, seventy-five cents per barrel — to be apportioned among the carriers. The general rule of damages against carriers, when goods are lost in their hands, is the value of the goods at their destination, with interest. McGregor v. Kilgore, 6 Ohio, 358; Sturgess v. Bissell, 46 N. Y. 462; Spring v. Allen, 4 Allen, 112; Laurent v. Vaughan, 30 Vt. 90; O'Hanlan v. G. W. R. R. Co., 6 B. & S.; Rice v. Baxendale, 7 N. & H. 96.

When the freight has not been paid, this value, less freight to he paid, is said to be the rule.

It is the value of the article at the place of delivery that the plaintiff has lost; it is the value which he would have received, if the contract had been performed.

To ascertain this, the freight, when not paid, must be deducted. Sedgwick on Damages, 425.

If the value to the plaintiff of the goods lost — that is, what he would have received if the contract had been performed— is the rule, then it follows that the value at the point where the contract of the carrier bound him to transport the goods, less unpaid freights and charges, would measure the loss for the non-performance.

In this case the undertaking of the carrier was to carry to New York and forward to Boston these fifty barrels of oil. It was this contract that was broken. The actual loss for a breach of this contract, the natural and proximate consequences of the act, excluding speculative profits, and remote or indirect losses, is the proper rule of damages. That sum which will make the party whole is the proper measure. Generally, but not always, the market value furnishes this measure.

The request which was refused is objectionable on several grounds.

First. If the value at Jersey City was to guide the jury, still the plaintiff was justly entitled to interest on that value to the time the verdict was rendered. As this request, if given, would have excluded the right of the j ury to allow interest on the value to the time of trial,, it was not error to refuse it.

Second. This was a contract to carry and forward this lot of oil on a through rate to its destination, and the measure of damages to the plaintiff for its breach may have been affected by the favorable terms as to through rates as compared with the local rate from Jersey City to Boston.

It is not necessary to determine whether the value at Boston was the proper measure, in a contract like the present where there are several independent carriers, as the record does not show that the jury were governed by such a rule. It was so held, under a contract somewhat similar, in Perkins v. P. S. & P. R. R. Co., 47 Maine, 573.

If the court did not err in refusing to tell the jury that the value of the oil at Jersey City was -the rule, we are not required, in this case, in the absence of anything to show what the evidence was or what the court charged, to determine the true rule under such a contract, but will presume the court charged the law correctly.

"We think it was not correct, as it ignores the difference that may have existed between oil generally at Jersey City and this oil, under the contract to forward under a through rate.

It is fair to presume that this rate was more favorable to the owner than the local rate would have been from Jersey City to Boston on like articles in the market at that point.

It is assumed in argument that the court adopted the value at Boston. This does not appear from the record, and can not be assumed.

Third. As the record does not show that any evidence was offered, showing the value at Jersey City to be less than at Boston, nor what rule the court did lay down for the guidance of the jury, it does not affirmatively appear that the plaintiff has been prejudiced.

Judgment affirmed and cause remanded.  