Road refused to receive the goods was revoked six days after the goods arrived in St. Louis; that the defendant knew of such revocation; that after such revocation the Iron Mountain Road would have received the plaintiff's goods and carried them to their destination, had they been tendered; and that the defendant did not offer to deliver said goods to the Iron Mountain Road at any time after said rule was revoked. All of which evidence was excluded by the court against the plaintiff's objection. Thereupon the court instructed the jury that if they found that the defendant tendered the goods to the Iron Mountain Road when they arrived in St. Louis, they should find for the defendant; whereupon the plaintiff took a non-suit with leave, and in due time moved to set aside the non-suit, and for a new trial, which motions were overruled. The case is here by appeal.

It seems to us that this is one of those cases where it is only necessary to state the facts in order to decide the case. By accepting the plaintiff's goods, directed to a point beyond the termination of its own line, and consigned to the care of a carrier whose line connected with its line, the defendant assumed the duty of delivering them to such connecting carrier. Rawson v. Holland, 59 N. Y. 611. Delivery to the connecting carrier in this case being impossible by reason of the fact that such carrier refused to receive the goods, did the defendant incur liability to the plaintiff for failing to give notice of that fact?

It is familiar law that the liability of a carrier does not cease till he has delivered the goods to the consignee, or made a reasonable attempt to deliver them.

Where his own route extends to the place of ultimate destination of the goods, and the consignee refuses to receive the goods, he ordinarily discharges himself from liability by storing the goods safely without giving notice to the consignor, although there are some cases which hold that such notice must be given. The reason why such notice is not ordinarily required seems to be that the consignee is presumptively the owner of the goods, the consignor the agent of the owner for the purpose of shipment, and the carrier, in like manner, the agent of the owner. Hutch. on Car., sect. 108; Briggs v. Railroad Co., 6 Allen, 246. It is, therefore, a case where an agent tenders performance of his contract to his principal and the latter refuses, in which case there seems to be no good reason why the agent should be held bound to notify a third person of that fact. But the reason of this rule does not apply to the case where the carrier undertakes to transport goods over his own line and deliver them to a connecting carrier to complete the transit. Here, the goods having passed wholly out of sight of

both the consignor and consignee, if, from any circumstance, delivery to the succeeding carrier becomes impossible, the former carrier is under an obvious duty to notify either the consignor or the consignee, unless it is impracticable to do so. Where notice may be readily sent by letter or by telegram, he is, on principle, guilty of a clear breach of duty if he neglects to send it, and there are cases which so hold. Convoy's Wheat, 3 Wall. 225; Railroad Co. v. Campbell, 7 Heisk. 253, 261.

In all of these cases the carrier is bound to do what, under the circumstances, is reasonable. Hudson v. Baxendale, 2 Hurl. & N. 575. Where, as in this case, the goods have passed out of the hands and out of the sight both of the consignor and the consignee, and are interrupted in their transit by a circumstance unknown to either, but known to the carrier, it cannot for a moment be argued that the carrier does what is reasonable by housing the goods, giving notices to no one, and losing all knowledge of them himself. No more convincing argument against such a conclusion could be suggested than the circumstances of this case. Here were goods of the value of several hundred dollars, interrupted in their transit at a point remote from both consignor and consignee. A postal card, costing a cent, and a few scratches of a pen by a clerk, would have notified either of this fact. For nearly three months a knowledge of their whereabouts was completely lost to the consignor, the consignee, and the defendant. In the meantime the season during which they were salable had passed, and they were, for this reason, greatly depreciated in value. This seems to make out a clear case for the recovery of damages. But if, in addition to this, the circumstance which obstructed the goods in their transit existed for six days only after they arrived at the end of its line, and the defendant knew of the fact of the obstruction being removed, then the failure of duty on its part is still more clear...

We, therefore, hold that the court erred in refusing to permit the plaintiff to prove that when the Iron Mountain Railroad declined to receive the goods no notice of that fact was sent by the defendant, or anyone else, either to the consignor or the consignee. We also hold that the court erred in refusing to permit the plaintiff to prove that the rule under which the Iron Mountain Railroad refused to receive the goods was revoked six days after the goods arrived in St. Louis; that the defendant knew of such revocation; that after such revocation the Iron Mountain Railroad would have received the goods and carried them to their destination if they had been again tendered, and that the defendant did not again offer to deliver them to the Iron Mountain Railroad at any

time after the rule was revoked. We also hold that the court erred in instructing the jury that if they should find that the defendant tendered the goods to the Iron Mountain Railroad when they arrived in St. Louis, they should find for the defendant. On the other hand, the plaintiff should have been permitted to introduce the evidence which the court excluded, as just stated; and upon this evidence, if introduced, the jury should have been directed, as matter of law, that the defendant was bound to notify either the consignor or the consignee of the refusal of the Iron Mountain Railroad to receive the goods. They should also be directed to say whether the defendant acted reasonably under the circumstances, in failing again to tender the goods to the Iron Mountain Railroad as soon as it had knowledge that the rule under which that road had refused to receive the goods had been revoked; and that if, in this particular, they should find that it acted unreasonably or negligently, the plaintiff would be entitled to damages.2

The judgment is reversed and the cause remanded, JUDGE BAKEWELL concurring; JUDGE LEWIS not sitting.

MOORE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

173 Mass. 335. 1899.1

HOLMES, J. This is an action by a passenger to recover for damage to her luggage, suffered somewhere in the course of a passage from Charleston, Tenn., to Boston. The passage was over six connecting railroads. It does not appear where the damage was done, and the plaintiff seeks to recover upon a presumption that the accident happened upon the last road.

The so-called presumption was started and justified as a true presumption of fact that goods shown to have been delivered in good condition remain so until they are shown to be in bad condition, which happens only on their delivery. But it was much fortified by the argument that it was a rule of convenience, if not of necessity, like the rule requiring a party who relies upon a license to show it. 1 Greenl. Ev. § 79; Pub. St. c. 214, § 12. As we, in common with many other American courts, hold the first

2 See Railroad Co. v. Odil (1895), 96 Tenn. 61; Buston v. Railroad Co. (1903), 119 Fed. 808. Cf. Regan v. Grand Tr. Ry. (1881), 61 N. H. 579. 1 The statement of facts is omitted, as the facts sufficiently appear from the opinion.- ED.

carrier not answerable for the whole transit, and not subject to an adverse presumption (Farmington Mercantile Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154), it is almost necessary to call on the last carrier to explain the loss if the owner of the goods is to have any remedy at all. To do so is not unjust, since whatever means of information there may be are much more at the carrier's command than at that of a private person. These considerations have led most of the American courts that have had to deal with the question to hold that the presumption exists. Smith v. New York Central Railroad Co., 43 Barb. 225, 228, 229, affirmed in 41 N. Y. 620; Laughlin v. Chicago & Northwestern Railway, 28 Wis. 204; Memphis & Charleston Railroad v. Holloway, 9 Baxt. 188, 191; Dixon v. Richmond & Danville Railroad, 74 N. C. 538; Leo v. St. Paul, Minneapolis & Manitoba Railway Co., 30 Minn. 438; Montgomery & Eufaula Railway v. Culver, 75 Ala. 587, 593; Beard v. Illinois Central Railway, 79 Iowa, 518; Savannah, Florida & Western Railway v. Harris, 26 Fla. 148; Faison v. Alabama & Vicksburg Railway, 69 Miss. 569; Forrester v. Georgia Railroad & Banking Co., 92 Ga. 699. In the opinion of the court the weight of argument and authority is on that side. Mr. Justice Lathrop and I have not been able to free our minds from doubt, because we are not fully satisfied that the court has not committed itself to a different doctrine. Still it has not dealt with it in terms. In Darling v. Boston & Worcester Railroad, 11 Allen, 295, the only question discussed was a question of contract. In Swetland v. Boston & Albany Railroad, 102 Mass. 276, the question was as to frozen apples. It appeared that the weather had been very cold before delivery to the defendant. The presumption was not mentioned. These are the two nearest cases. Judgment for the plaintiff.

ATLANTIC COAST LINE RAILROAD COMPANY v. RIVERSIDE MILLS.

219 U. S. 186. 1911.1

MR. JUSTICE LURTON delivered the opinion of the court. The goods of the defendants in error were lost by a connecting carrier to whom they had been safely delivered. Though received for a point beyond its own line, and for a point on the line of a succeeding carrier, there was no agreement for their safe car

1 The statement of the case, argument of counsel and parts of the opinion are omitted.-ED.

riage beyond the line of the plaintiff in error, but, upon the contrary, an express agreement that the initial carrier should not be liable for "a loss or damage not occurring on its own portion of the route." Such a provision is not a contract for exemption from a carrier's liability as such, but a provision making plain that it did not assume the obligation of a carrier beyond its own line, and that each succeeding carrier in the route was but the agent of the shipper for a continuance of the transportation. It is therefore obvious that at the common law an initial carrier under such a state of facts would not be liable for a loss through the fault of a connecting carrier to whom it had, in due course, safely delivered the goods for further transportation. Railroad v. Pratt, 22 Wall. 123; Myrick v. Railroad, 107 U. S. 102; Southern P. R. Co. v. Interstate Commerce Commission, 200 U. S. 536, 554. Liability is confessedly dependent upon the provision of the act of Congress regulating commerce between the states, known as the Carmack Amendment of June 29, 1906, 34 Stat. at L. 584, 595, c. 3591. The twentieth section of the act of February 4, 1887, 24 Stat. at L. 379, c. 104, as changed by the Carmack Amendment, reads as follows:

"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed. Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.

"That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof."

The power of Congress to enact this legislation has been denied, first, because it is said to deprive the carrier and the shipper of their common-law power to make a just and reasonable contract in respect to goods to be carried to points beyond the line of the