§ 151. 1. CARRIERS of goods for hire indifferently for all persons at common law were denominated common carriers, and for a very long time have been held liable for all damage and loss to goods during the carriage, from whatever cause, unless from the act of God, which is limited to inevitable accident, or from the public enemy. The exception of the act of God, or inevitable accident, has by the decisions of the courts been restricted to such narrow limits, as scarcely to amount to any relief to carriers. It is in reality limited to accidents which come from a force superior to all human agency, either in their production or resistance. Hence many learned judges have contended that the terms inevitable accident, which were first suggested by Sir William Jones as a more reverent mode of expressing the act of God, do not, in fact, have the same import.1

1 Forward v. Pittard, 1 Term. 27. The language of Lord Mansfield is here so pertinent as to bear repetition: "It appears from all the cases for one hundred years back, that there are events for which the carrier is liable, independent of his contract." "A carrier is in the nature of an insurer." In defining the act of God, he says: "I consider it to mean something in opposition to the act of man." “The law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightnings, and tempests." Richards v Gilbert, 5 Day, 415; McArthur v. Sears, 21 Wend. 190, 192; Proprietors of the Trent & Mersey Nav. Co. v. Wood,

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* 2. To excuse the carrier, the loss must happen from a strictly superior force, and not a mere human force (unless it be the public enemy), the vis major of the civil law, and the casuists. And it would seem that it should not only be a superior force, in the emergency, but one which no human foresight or sagacity could have guarded against.2 In one case, where the subject was very carefully examined, it was held that the carrier could not excuse himself for delay in transporting goods by showing that the engineers and other persons in the employ of the company by combination left their employ and rendered it impracticable to complete their undertaking. Such a result is not to be regarded as the act of God or inevitable accident.

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3. Hence carriers are held as insurers against fire, unless caused by lightning. There are many cases in the books which take such a latitudinarian or speculative view of the extent of injuries by the act of God, as to give the exception a much

3 Esp. Cases, 127, 131; 4 Doug. 287 (26 Eng. C. L. R. 358). Lord Mansfield here says: "The act of God is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident." See Sherman v. Wells, 28 Barb. 403; Fergusson v. Brent, 12 Md. R. 9. Le Grand Ch. J.: "The act of God" must be the direct and immediate cause of the loss, to excuse the common carrier, and it is no excuse that it was caused by inevitable accident, or produced by the act of God concurring with other agencies. But see Hill v. Sturgeon, 28 Mo. R. 323. In a somewhat recent case, Read v. Spalding, 5 Bosw. 395; s. c. 30 N. Y. R. 630, where goods were damaged by a flood rising higher than ever before, and which it was no negligence not to have anticipated, and from which the goods could not be delivered after the extent of the rise was seen, it was held to have occurred by the act of God, unless the carrier was in fault in not having sooner sent the goods to their destination, and if so in fault, then he was responsible. S. P. Michaels v. N. Y. Centr. Railw., 30 N. Y. R. 564. See also Merritt v. Earle, 29 N. Y. R. 115.

2 Colt v. McMechen, 6 Johns. 160, opinion of Kent, Ch. J.; 1 Smith's L. Cases, 219, ed. 1847, 268, ed. 1852, and the able note of the Am. editor; McArthur v. Sears, 21 Wend. 190; McCall v. Brock, 5 Strob. 119; Dale v. Hall, 1 Wilson, 281; N. B. Steamboat Co. v. Tiers, 4 Zab. 697.

3 Black Stock v. New York & Erie Railw., 1 Bosw. 77. But see also Cox v.

Peterson, 30 Alab. R. 608; Hibler v. McCartney, 31 Alab. R. 501.

* Mershon v. Hobensack, 2 Zab. 372, 379; Forward v. Pittard, 1 Term R. 27; Hyde v. Trent & Mersey Nav. Co., 5 T. R. 389; Gatliffe v. Bourne, 4 Bing. N. C. 314. And in Ins. Co. v. Ind. & Cin. Railw., 9 Am. Railw. Times, Aug. 13, 1857, it is held, that in losses by fire the carrier is primâ facie liable. (Sup. Ct. Ohio.) See also Porter v. Chicago, &c. Railw., 20 Ill. R. 407.

broader range, as where the foundering of a ship upon a rock in the ocean, not generally known to navigators, and not known to the master, was held a loss from the act of God.5 But if a vessel strike on a rock not hitherto known, it will excuse even common carriers, it has been said, but not if it be laid down in any chart.6

4. Or the loss of a vessel by running upon a snag in a river, brought there by a recent freshet. But these cases have not been generally followed. A hurricane or tempest, lightning, and the unexpected obstruction of navigation by frost, have been held to come within the exception to the liability of carriers.8

* 5. And ordinarily, where 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. But if his own neglect was not the proximate cause of the peril being incurred, or, if the neglect was not one which ordinary foresight or sagacity could have apprehended was exposing the goods to extraordinary peril, he is still excused. As, if ' Williams v. Grant, 1 Conn. R. 487.

• Pennewill v. Cullen, 5 Horr. 238.

T Smyrl v. Niolon, 2 Bailey, 421; Faulkner v. Wright, 1 Rice, 108.

• Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 Id. 215; Harris v. Rand, 4 N. H. R. 259; Crosby v. Fitch, 12 Conn. R. 410. It has been held, that although a general bill of lading, given by a carrier, containing a general undertaking to carry, is subject to the ordinary exception to the liability of the carrier, of the act of God and the public enemy, it may nevertheless be shown, by oral testimony, that the undertaking was not even subject to that exception. Morrison v. Davis, infra. But, query, whether this legal intendment of the bill of lading is any more subject to explanation and contradiction than are the express provisions of the instrument itself.

Loss by pirates is regarded as a loss by the public enemy. Magellan Pirates, 25 Eng. L. & Eq. 595. See Bland v. Adams Ex. Co., 1 Duvall, 232. The freezing of perishable articles by reason of an unusual intensity of cold is not such an intervention of the vis major as excuses the carrier, if the accident might have been prevented by the exercise of due diligence and care upon his part. The fact that the carrier has done what is usual, is not sufficient to exempt him from a charge of negligence. He must show that he has done what was necessary to be done under all the circumstances. Wing v. The New York & Erie Railroad Company, 1 Hilton, 235. So, where goods are thrown overboard in a tempest, by order of the master. Gillett v. Ellis, 11 Ill. R. 579. The master of a steamboat is not liable, for not drying wheat wet by inevitable accident. Steamboat Lynx v. King, 12 Mo. R. 272.

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by having a lame horse he is longer upon his route, and is thus overtaken by a desolating flood upon the canal.9

6. But where a delay in the transportation is caused by the act of God, a railway is liable for injury to the goods, by bad handling, in endeavors to expedite the passage. But they are not liable, of course, for a decline in the price of goods during a delay which was inevitable.10 But where the decline in price happened during a delay in transportation for which there was no legal excuse, the carrier would, no doubt, be liable. And in an action for not delivering goods in a reasonable time, the party is entitled to recover the value of the goods at the time and place where they should have been delivered, and necessary loss and expenses incurred otherwise, if any.11

7. The rule of damages, as laid down by the Court of Exchequer in a late case 12 is, that where the carrier fails to deliver in time it is the duty of the owner to sell instantly at the market

175.

• Morrison v. Davis, 20 Penn. St. 171, Galena & Chicago Railw. v. Rae, 18 10 Lipford v. Railw. Co., 7 Rich. 409. And when the Ill. R. 488; Denny v. N. Y. Central Railw., 13 Gray, 481. cause of delay, as ice, or low water, is removed, the duty to transport revives. Lowe v. Moss, 12 Ill. 477; post, §§ 173, 175.

" Nettles v. Railw. Co., 7 Rich. 190; Black v. Baxendale, 1 Exch. 410; post, §§ 173, 175.

Where cotton is lost by a common carrier, interest upon its value may be assessed by the jury as a part of the damages, in an action against the carrier for the loss. Kyle v. Laurens Railw., 10 Rich. (S. C.) 382.

In estimating the damages in an action against the carrier for the loss of the cotton which he undertook to deliver to plaintiff's factors in Charleston, the amount of factor's commissions upon the value should not be allowed the defendant in abatement. Id.

The carrier is bound to carry, in a reasonable time, but this is a question of fact, under all the circumstances, and to be submitted to the jury. Conger v. Hudson River Railw., 6 Duer, 275. But it is said here, that the carrier is not responsible for delay caused by the fault of a third party, as a collision with the train of another railway through their neglect. Nor is the company liable for damages occasioned by the loss of a market through delay not excused, this being too speculative and contingent. But most of the cases hold otherwise. See Falway v. Northern Transportation Co., 15 Wis. R. 129, where it was held that a delay in the transportation of goods to Buffalo, from which place they were to be shipped by steamers on the lake, occurring in November, was, in view of the increased dangers of lake navigation as winter approached, primâ facie proof of negligence.

12 Simmons v. Southeastern Railw. Co., 7 Jur. N. S. 849.

COMMON CARRIERS.

§ 151. prices and realize his loss; and the difference between the price which he obtains and that which he would have obtained if the goods had been delivered in time, is the only measure of damages. This was a case where hops were sent by common carrier, and the consignee refused to accept them on account of not being delivered in time; and the court held the plaintiff could recover no damage on account of the loss of the bargain between the plaintiff and the consignee.

8. And in another case where goods were not received by the consignee until after the season of their sale had passed, it was held the plaintiff could only recover the difference between the market value of the goods at the time they were received and when they should have been received, and that the profits which the plaintiff would have derived from making up these goods into articles of sale and disposing of them could not be taken into account.13

9. But in an action for not delivering machinery in proper time, the measure of damages was held to be the value of the use of the machinery during the period of its improper detention,14 but that under proper averments and notice and proper proof special damages even beyond this might be recovered.14 The difference between the last case and some of the preceding, in regard to the rule of damages, seems to be one of policy between the views of the English and American courts, in the one case to enable the owner to realize speculative damages, and in the other to deny all but what is the most obvious actual damage.

10. And where the cars of a railway company are thrown off the track, by reason of running over one who fell from the train in consequence of having no proper place to stand, it is no excuse for any injury caused to freight.15 A special contract lessening general responsibility will not excuse negligence.15

18 Wilson v. Lan. & Yorksh. R. Co., 7 Jur. N. S. 862.

"Priestley v. Northern Ind. & Chicago Railw. Co., 26 Ill. R. 205. Post, §§ 173, 175.

15 Goldey v. Penn. Railw., 30 Penn. St. 242.