
    The Pittsburgh, Cincinnati & St. Louis Railway Co. v. Barrett & Walton.
    1. Where goods are delivered to a common carrier for shipment, and received by him to be forwarded in the usual course of business, the liability of a common carrier immediately attaches ; and if they are lost by an accidental Are while in the carrier’s -warehouse awaiting transportation, he is liable, unless his common law liability has been limited by an-agreement with the shipper.
    2. But if the delivery is accompanied with instructions not to forward until further orders, or if anything remains to be done to the goods by the shipper, before they arc to be forwarded, such liability as a common carrier does not attach.
    3. The assent of the shipper to conditions in a bill of lading, or other contract for the carriage of goods, limiting the carrier’s liability, is binding upon him, when the loss happens without fault ór negligence of the carrier; but such assent will not be •implied or presumed from facts and circumstances which do not clearly show an assent to such conditions in the contract on which the action is founded.
    4 In the absence of satisfactory proof, showing that the shipper has, by assent and acquiescence, or otherwise, agreed to limit the liability of the carrier, the presumption is that he intended to insist on his common law rights.
    5. Neither usage nor custom, though known to the shipper, which he has not clearly assented to as a condition of the contract of shipment, can be set up to absolve a carrier from his common law liability.
    Error to tbe District Court of Greene County.
    This was an action below, by Barrett and Walton, to recover tbe value of lard and meat, wliicb wTas destroyed by fire, while in tbe custody of plaintiff in error.
    Only so much of tbe facts as relate to tbe lard need now be stated, as tbe action for tbe meat is not before the court.
    On February 22, and March 5, 1873, Barrett and Walton delivered to plaintiff in error, a common carrier by rail, one hundred and forty tierces of lard, to be shipped to Colgate & Co., New York, to whom it bad been sold, deliverable on tbe cars at Spring Yalley station, on tbe lino of defendant’s road. On tbe night of March 14, while tbe lard was stored in defendant’s warehouse, awaiting shipment, it was destroyed by an accidental fire, which originated in a drug store adjoining tbe warehouse, and which, without fault or negligence of plaintiff in error, communicated to and destroyed the warehouse and all its contents.
    The lard was delivered with instructions for immediate shipment. Nothing remained to be done to it by the shippers before being loaded into the cars and sent forward. This was to be done by the railroad company, without any further orders or directions from the plaintiffs.
    The claim is, that by this delivery to the carrier at the station, the liability of a common carrier attached, and covered this loss by accidental fire, while the lard was stored in the warehouse awaiting shipment.
    There is no complaint that the defendant was guilty of any neglect or default in not forwarding the goods before the fire occurred. It appears that this delay was occasioned by inability of the company, owing to a press of business at that season of the year, to furnish the necessary cars.
    ' The answer of the company admits its character as a public •carrier of goods, and the receipt, storage and destruction of the lard; but avers that, ever since its road was opened and oper-ated, some twenty-five to thirty years, to the present time, it had been its constant usage and custom, known to plaintiffs, to receive goods for carriage at this and all its other stations, upon the condition alone, that it would not be held to have received the goods until they were actually put on board the cars, and that it would not be liable for loss by fire, not the result of its own or its servants’ or agents’ neglect or default.
    It is averred that, with knowledge of all these things, the lard was delivered and stored in said warehouse “ upon the agreement and understanding that defendant should be liable ■only on said conditions,” and that when the goods were loaded upon the cars, a bill of lading was to be issued therefor, in ac■cordance with said custom, and containing said provisions.
    Those conditions material to the case are as follows:
    2. “ Freight carried by this company must be removed from "the station during business hours on the day of its arrival, or it will be stored at the owner’s risk and expense; and in the •event of its destruction, or damage from any cause, while in the depot of the company, it is agreed that said company shall not be liable to pay any damage therefor.”
    3. u It is agreed and is part of the consideration of this contract that the company will not be responsible for .... loss or damage to goods occasioned by providential causes or by fire, from any canse whatever, while in transit or at stations.”
    7. “ The company will not be responsible for accidents or delays from unavoidable causes. The responsibility of this company as a common carrier, under this bill of lading, to commence on the removal of the goods from the depot in the cars of the company, and to terminate when unloaded from the cars at the place of delivery.”
    The reply denies such a usage or custom, or knowledge thereof, or that there was an agreement or understanding as alleged.
    Upon a trial, there was a verdict for plaintiff, a motion for a new trial, which was overruled, a bill of exceptions taken by defendant, and a judgment which, on error, was affirmed by the district court. It is now sought to reverse these judgments, on the ground that they are contrary to the law and the evidence.
    
      J. J. Wincms, for plaintiff in error:
    A contract, restricting the liability of a common carrier, may be inferred from usage, and notice to the owner of the goods. 21 Geo. 526 ; 2 Redfield on Railways (4 ed. 1869), 136, note; Id. 97, § 4 and note ; 2 Starkie, 461; 3 B. & C. 601; 21 Vt. 140; 5 East, 507; Angell on Carriers (4 ed. 1868), 222, § 247; Id. 241, § 269; Id. 245, § 276; Story on Bailment (8 ed.), 530, § 557; Id. 542, § 571; 2 Shelford on Railways (Bennet’s ed.) 714; 31 Me. 228 ; 67 Pa. St. 211; Lacey’s Dig. 75, §§ 82, 83, 84, 85.
    
      Ojiarles Do/rlingion, with whom was Wm. J. Alexander, for defendant in error:
    1. As to liability of a common carrier, see 2 Redfield, 55, 56, 59; Swan’s Treatise (10 ed.), 454; 13 N. Y. 572; Angell on Carriers, 131, § 75.
    2. As to how a common carrier can restrict its common law liability. 2 Ohio St. 137; 4 Ohio St. 362; 28 Ohio St. 418 ; 38 Ill. 354; 2 Am. R’way, 340.
   Johnson, J.

That this lard was received by the defendant as a common carrier for immediate shipment to Colgate & Co.; that nothing further remained to be done by the shipper, or any further orders, directions or instructions were to be given before such shipment; that it was destroyed by an accidental fire while stored in the defendant’s warehouse awaiting shipment, which had been delayed by the defendant’s inability to obtain the -necessary cars, owing to a press of business at that season of the year, are facts conceded or clearly established by the testimony.

It also clearly appears that there was such general usage or custom as alleged, known to the plaintiffs, and that at the time of the delivery of these goods they did not receive or expect to receive a bill of lading therefor until the lard was loaded in the cars, and when one was issued, it would contain the conditions as to loss by fire, shown and set out in the answer.

The principles of law, applicable to the facts of this case, may be summarily stated as follows:

1. Upon a delivery and acceptance of goods, under .the circumstances stated, the common law liability of a common carrier immediately attaches, and if they are lost by fire, while awaiting shipment, the carrier is liable to the same extent as if the goods were in transit, unless his liability has been modified, limited or restricted with the consent of the shipper or owner of the goods. Miriam v. Hartford & New Haven R. R. Co., 20 Conn. 354; Trowbridge v. Ghapin, 23 Conn. 595; 2 Redfield on Railways, 63, § 174; Ford v. Mitchell, 21 Ind. 54; Gleason v. Transportation Co., 32 Wisc. 85 ; O'Bannon v. Southern Express Co., 51 Ala. 481; Grosvenor v. New York Central R. R. Co., 39 N. Y. 34; Illinois Central R. R. Co., v. Smyser, 38 Ill. 354 ; Burrell v. North, 2 Car. & Kir. 680 ; Schouler on Bailments, 381, ch. 4.

2. But if anything remained to be done to the goods by the shipper before they are ready for transportation, or if any orders,* directions or instructions were to be given before they were to be forwarded, such liability does not attach. Judson v. Western R. R. Co., 4 Allen, 520; Moses v. Boston & Maine R. R. 4 Foster (32 N. H.) 71; Blossom v. Griffin, 3 Kernan, 573; Michigan Southern R. R. v. Schurtz, 7 Mich. 515 ; St. Louis, &c. R. R. v. Montgomery, 39 Ill. 335 ; Lawrence v. W. & St. R. Railway, 15 Minn. 390; Watts v. Boston & Lowell R. R., 106 Mass. 466 ; Bannon v. Eldridge, 100 Mass. 457.

3. The carrier may limit his common law liability for losses happening without his fault or negligence, by a contract, either verbal or in writing. In an action against him as srich carrier, when he has received and undertaken to carry goods, the burden is upon him to establish such modified or limited liability, and to show, that the loss falls within the terms of the agreement. Graham v. Davis, 4 Ohio St. 362; Gaines v. Union Transportation Co., 28 Ohio St. 418.

4. The assent of the shipper or owner of goods, to conditions limiting common law liability, is not to be implied or presumed, but in each case of an action for a loss the assent must be shown by competent evidence, as in other cases of contracts. As the carrier is bound to receive and transport all goods offered for a reasonable compensation, subject to all the responsibility incident to the employment, the presumption is, in the absence of proof sufficient to remove it and to fix a different liability, that the shipper intended to insist on his common law right. New Jersey v. Merchant Bank, 6 How. U. S. 344; Graham v. Davis, 4 Ohio St. 376; Adams Express v. Noch, 2 Duval, 563; Railroad v. Man. Co., 16 Wall. 329.

5. In each case the question is, what are the terms of the contract of shipment ? Are they such as the law prescribes, or such as the parties agreed to ? This being a question of fact, usage or custom cannot be set up to absolve the carrier from his ordinary duties, which public policy, his general undertaking, or his special promise may have bound him to do. Cox v. Hiesley, 19 Penn. St. 243; McMasters v. Penn. R. R. Co., 69 Penn. St. 374; The Sultana v. Chapman, 5 Wis. 454; Cox v. Peterson, 30 Ala. 608 ; Schouler on Bail. 442.

Upon a careful review of the testimony, which consists mainly of the evidence by the plaintiffs themselves, one of whom had for many years been, and was at the time this lard was received, also the agent for the carrier, who received and stored the same, and was diligent as such, agent in trying to procure cars for shipping it, we think the allegation in the answer, to the effect that said goods put in said warehouse upon the agreement and understanding that the defendant should not be liable for a loss by accidental fire, was clearly made out. Such being the case, the common law liability is limited by this special agreement.

Where such is the case, there is no rule of law, nor principle of public policy, that forbids the enforcement of the restricted liability.

Judgment of the common fleas <md district court reversed, and cause remanded.  