conveyed upon the river in a barge, towed by a steamboat, and. the carrier was overtaken by a storm, which caused the waves to break over the barge and wet the wheat, whereby it became damaged, one of the grounds upon which it was claimed that the carrier was liable was, that, after the wheat had become wet, he did not stop his boat and unload and dry it. But it was held that, however the rule in such a case might be in regard to vessels at sea, and where the whole cargo might belong to the same owner, it could not be tolerated in the navigation of our rivers by steamboats carrying the goods of many owners in every cargo, that the carrier should be required to suspend the voyage whenever a portion of the goods being carried had met with an accident which could not be repaired, or the effects of which could not be prevented without such delay. And as the wheat in this case could not have been dried without unloading the barge, which would have required considerable delay, the carrier was excused.8

Sec. 648. (§ 326.) Same subject. The same rule has been applied to sea-going vessels. It was held that, if goods needed drying or exposure to the air while the ship was lying in port, or if such attention as they might need would have required only a short delay in the departure of the ship, from which no serious injury could have resulted, it was the duty of the master to incur the delay; but that, if an accident happened to the ship whilst upon her voyage, it was not the duty of the master to seek a port or to suspend his voyage in order to give such attention to the goods. But the carrier was held liable, because, being in port and awaiting repairs, he failed to dry the goods, although it might have required their being unloaded from the ship.9

Sec. 649. (§ 327.) Preference may be given to perishable goods already received. As between different shippers, the carrier, as we have seen, cannot give preferences or show favors

8. Steamboat Lynx v. King, 12 Q. B. 346; s. c. (Exch. Ch.) L. R. Mo. 272. 7, Q. B. 225.

9. Notara v. Henderson, L. R. 5

in the order in which the goods accepted by him shall be carried. But it has been held that, if he has accepted more freight than he can immediately forward with the means of transportation at his command, and that therefore a portion of it must be delayed, and that it consists of two kinds, one perishable and the other not, he should give the preference to that which is perishable. Such goods are said to require more care and attention than those which are not perishable, and if either must be delayed, it should be those of the latter description. The carrier has therefore been held excusable for making the discrimination,10 and not liable for the consequent damages, when the safety of the goods of a perishable nature required it.11 And in The Michigan Central Railroad v. Burrows,12 it was held that the giving the preference to goods for the relief of the sufferers by the great Chicago fire was not such a discrimination against the shippers of other freight as to make the carrier liable for negligence in not forwarding freight in the order in which it was received. All general rules, it was said, must yield to a great public necessity.

Sec. 650. (§ 327a.) So preference may be given to preservation of life. So it is clear that considerations of the safety of human life must, in an emergency, prevail over those demanding the protection of property. An interesting illustration of this is found in a case in Pennsylvania.13 There it appeared that three car-loads of household goods had been transported over the railroad until they reached a small station where they were to be transferred to a branch line for the point of destination. The cars reached this station at half-past eleven in the morning, but as the train on the branch line did not leave till afternoon, the cars were run onto a siding in the usual way

10.

Peet v. Railroad, 20 Wis. 594; Great Western R. R. v. Burns, 60 Ill. 284.

11. Tierney v. Railroad, 10 Hun, 569, affirmed, 76 N. Y. 305; Marshall v. Railroad, 45 Barb. 502, affirmed, 43 N. Y. 660; Michigan

Cent. R. R. v. Burrows, 33 Mich. 6; McAndrew v. Whitlock, 52 N. Y. 40.

12. Supra.

13. Pennsylvania R. R. Co. v. Fries, 87 Pa. St. 234.

715

to await the departure of the latter train. For several days previous forest fires had been raging in the woods in this vicinity, but had been so far subdued that no special anxiety was felt for the safety of the town. Between twelve and one o'clock, however, the wind sprang up, which rapidly increased into a gale, defying all attempts to check it, and destroying the town and most of the property of its citizens in about two hours. The railroad company lost nearly all its property, its depot and a large number of cars. The cars in question were burned on the siding, though an attempt was made to get them out which was prevented by the heat and smoke. An action was brought to charge the company with the value of the household goods. "The only point seriously pressed," said the court, "was that the company were guilty of negligence in not getting the cars off after the fire commenced. Upon this point there was at most but a scintilla of proof. Negligence is the absence of care according to the circumstances. The circumstances here, as has already been said, are unusual. The company was not bound to have an extraordinary force on hand, for they had no reason to anticipate such a disaster. It is too much to expect every man to act with coolness and judgment in the midst of such an appalling scene. It is clear, however, that the employees of the company did all that could be reasonably expected of them to save life and property. A portion of their time was employed in aiding women and children to escape. A large number were taken in the cars to a place of safety. Had they turned their entire attention to plaintiff's property, neglected all other duties, and left helpless women and children to their fate, it is just possible they might have succeeded in getting the three cars off the siding. They were not obliged, however, to sacrifice every feeling of humanity to the preservation of plaintiff's property, and had they done so the evidence does not show that it would have been successful. Had the company preserved its own property at the expense of plaintiff's, there would have been more reason to charge them with negligence."

Sec. 651. (§ 328.) Time within which the goods must be carried. As to the time within which the carrier is bound

to complete the transportation of the goods when no time is expressly agreed upon, the rule cannot be more satisfactorily laid down than that it must be done with all convenient dispatch, with such suitable and sufficient means as he is required to provide for his business, which is commonly defined as a reasonable time.14 This duty to deliver within a reasonable time is one engrafted by the law upon the principal contract, which is to carry safely.15 But as to this implied contract or duty, his responsibility is only that of an ordinary bailee for hire, and if he fail in the performance of it, he becomes liable for only such damages as the bailor may have suffered by his negligence. Although he may have delayed the carriage for an unreasonable 14. Cincinnati R'y Co. v. Case, his burial, has such an interest in 122 Ind. 310; Hewett v. R'y Co., the dead body as entitles him to 63 Iowa, 611; McGraw v. Railroad damages for an injury to it by the Co., 18 W. Va. 361; Vicksburg, etc. negligent delay of the carrier R. Co. v. Ragsdale, 46 Miss. 458; while transporting it for hire, and Denny v. Railroad Co., 13 Gray, he may recoup such damages when 481; Philadelphia, etc., R. Co. v. sued by the company to recover Lehman, 56 Md. 209; Mina v. for such transportation. Beam v. Steamship Co., 23 Fed. Rep. 915; Railway Co., 97 Ill. App. 24. The Prussia, 100 Fed. 484; Railroad Co. v. Berry, 116 Ga. 19, 42 S. E. Rep. 371, citing Hutch. on Carr.; Denman v. Railroad Co., 52 Neb. 140, 71 N. W. Rep. 967; Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. Rep. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579; Railway Co. v. Porter, 25 Tex. Civ. App. 491, 61 S. W. Rep. 343; Railway Co. v. Josey, 6 Tex. Ct. Rep. 472, 71 S. W. Rep. 606; Railroad Co. v. Young, 6 Tex. Ct. Rep. 508, 72 S. W. Rep. 68; Railway Co. v. Beattie (Tex. Civ. App.), 88 S. W. Rep. 367; Ryand & Rankin v. Railway Co., 55 W. Va. 181, 46 S. E. Rep. 923, citing Hutch. on Carr.

The brother of a deceased person, who undertakes to pay for the transportation of his body from the place of his death to that of

Mere rush of business is no excuse for a failure to transport cattle with reasonable dispatch. Texas, etc., R'y Co. v. Felker, Tex. Civ. App. 90 S. W. Rep. 530.

15. Fact that goods are received on Sunday does not relieve carrier from duty to transport with reasonable dispatch. Philadelphia, etc. R. v. Lehman, 56 Md. 209.

Notwithstanding mere delay is not evidence of negligence in transportation (Stanard Milling Co. v. Transit Co., 122 Mo. 275, 276, 26 S. W. 704), yet, where the fact of delay is supplemented by evidence of the cause, it may show that it was negligence. Wright v. Railway Co., Mo. App. -, 94 S. W. Rep. 555.

length of time, the bailor is still bound to receive the goods, when tendered, where the delivery is required to be made, and cannot refuse them and hold the carrier liable for their value. And though the carrier may delay ever so long, the owner cannot charge him with a conversion, or for value of the goods, if they are safely kept, unless they have been demanded of the carrier and their delivery refused. But if by the unreasonable delay they have deteriorated or their market value has fallen, or they arrived too late for the market, he may hold him liable for the damages.16 And in an action to recover such damages, he may

16. Scovill v. Griffith, 2 Ker. 509; Davis v. Garett, 6 Bing. 716; Ellis v. Turner, 8 T. R. 531; Story on Bail. § 509; Hackett v. Railroad, 35 N. H. 390; Hawkins v. Hoffman, 6 Hill, 586; Railway Co. v. Bryan (Tex. Civ. App.), 28 S. W. Rep. 98; Railway Co. v. Tyler (Tex. Civ. App.), 81 S. W. Rep. 826.

Mere failure to deliver, or to return on demand, because of loss, does not constitute a conversion. Goldbowitz บ. Metropolitan Express Co., 91 N. Y. Supp. 318.

"Unless there is an absolute denial by the defendant of plaintiff's right to a return of the goods, or the excuses for non-delivery are unreasonable, inconsistent, or made in bad faith, there can be no conversion by a common carrier, even upon clear proof of demand and failure to deliver." Rubin v. Wells Fargo Express Co., 85 N. Y. Supp. 1108.

circumstances, may elect to waive all title to the property and sue for the conversion, and after he has done do, a subsequent tender by the carrier will not be available to it as a defense; the title to the property then being in the carrier, it is not subject to an attachment at the suit of a creditor of the consignee. Hamilton v. Railway Co., 103 Iowa, 325, 72 N. W. Rep. 536.

A carrier of summer goods delivered to it on July 10 and not delivered by it in New York until August 8, when the season for the sale of them is over, is liable for the full value of the goods if they have become worthless from negligent exposure to moisture. Bauman v. Railroad Co., 71 N. Y. S. 632, 35 Misc. 223.

A delay in the shipment of stock from Thursday to Wednesday of the following week, due to the failure of the carrier to take the loaded car forward in time for Friday's market, is unreasonable. Railroad Co. v. Simmons, 49 Ill. App. 443.

Where property in the hands of a common carrier is not delivered within a reasonable time after it has reached its destination, the carrier, in the absence of any legal exemption and after demand has been made and delivery refused, is liable for a conversion of the property. The consignee, under such day's market, is unreasonable.

A delay from Friday at 6 P. M. to Saturday at 4 A. M., by which goods arrived too late for Satur