recover for any reasonable expense to which he has been put by the delay.17 But where the carrier has been guilty of a negligent delay, he cannot be held responsible for damages occasioned by the delay of the shipper in unloading the goods at their destination, although such delay would not have occurred but for the carrier's former delay.18

So a mere delay in transportation, when no demand for the return of the goods has been made, will not constitute such a wrongful detention as will sustain an action of replevin. There would be lacking in such a case the element essential to replevin of either a taking or a wrongful detention upon demand.19

Sec. 652. (§ 329.) Same subject-What time reasonable.— What is a reasonable time must be determined by the length of the journey, the mode of conveyance, the weather, the state of the roads, the season of the year, the nature of the goods, the amount of business, if from any cause there should be an unusual temporary influx of freight, and any other circumstance which may properly be taken into consideration by a jury in finding whether the carrier has been guilty of unnecessary and improper delay; for the question must always be one of fact. What might have been considered extraordinary expedition in the carriage between two places at one time might, by a change in the mode of conveyance, be regarded at another time inexcusable delay. The same distance, by one mode of carriage, may, in one case, be traversed in an hour, which would require a day by another. The same route may be liable to hourly obstructions and delays at one season, which would not be encoun

Cincinnati R'y Co. v. Case, 122 Ind. 310. See, also, Philadelphia, etc. R. Co. v. Lehman, 56 Md. 209.

The first of two connecting carriers is liable for failure under a contract to deliver to the succeeding carrier within a given time or in time for a particular market. Fox v. Railroad Co., 148 Mass. 220; Pereira v. Railroad Co., 66 Cal. 92. 17. Black v. Baxendale, 1 Exch. 410; Hamlin v. Railroad Co., 1 H.

& N. 408; Bodley v. Reynolds, 8 Q. B. 779; Beckwith v. Frisbie, 32 Vt. 559; 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. Josey, 6 Tex. Ct. Rep. 472, 71 S. W. Rep. 606.

18. Chicago, etc. R. Co. v. Chestnut Bros., Ky. - 89 S. W. Rep. 298.

19. Railroad Co. v. House, 101 Ill. App. 397.

tered at another. And at sea, the vessel may be delayed by adverse winds and tempests, upon one voyage, which she might not meet with upon the next. Different carriers upon the same route and between the same places may, according to their professions and course of business, be required to carry at different rates of speed and in different times; and even the same carrier, upon the same route and for the same distances, may undertake, according to his different modes of conveyance, to transport the goods within different periods of time. Different classes of goods may reasonably require greater expedition, depending upon the questions whether they are perishable or liable to freeze or to be affected by changes in the weather. All such circumstances and accidents are to be taken into consideration in deciding upon the question whether the carrier has been guilty of an unreasonable delay, and each case must be determined by its own facts.20

Sec. 653. (§ 330.) ($ 330.) How far carrier responsible for unavoidable delay. But the reasons upon which the extraor

20. Mich. etc. R. R. Co. v. Day, 20 Ill. 375; Broadwell v. Butler, 6 McL. 296; Nudd v. Wells, 11 Wis. 407; Boner v. Steamboat Co., 1 Jones (N. C.), 211; Parsons v. Hardy, 14 Wend. 215; Bennett v. Byram, 38 Miss. 17; Vicksburg,

etc. R. R. v. Ragsdale, 46 id. 458; East Tenn. etc. R. R. v. Nelson, 1 Cold. 272; Hand v. Baynes, 4 Whart. 204; Wibert v. Railroad, 2 Ker. 245; Scovill v. Griffith, id. 509; Coffin v. Railroad, 64 Barb. 379; Gerhard v. Neese, 36 Tex. 635; Raphael v. Pickford, 5 Man. & G. 551; Hales v. The Railway, 4 Best & Smith, 66; Briddon v. The Railway, 28 L. J., Exch. 51, 32 L. T. 94; Hughes v. The Railway, 14 Com. B. 637; McGraw r. Railroad Co., 18 W. Va. 361; Railway v. Coolidge, Ark., 83 S. W. Rep. 333, 67 L. R. A. 555, citing Hutch.

dinary responsibility of the common carrier for the safety of the goods is founded do not require that the same responsibility should be extended to the time occupied in their transportation. The danger of loss by robbery or embezzlement or theft, by collusion and fraud on his part, has no application when the mere time of the carriage is concerned. "His first duty," it is said, "is to carry the goods safely, and the second, to deliver them; and it would be very hard to oblige a carrier, in case of any obstruction, to risk the safety of the goods in order to prevent delay. His duty is to deliver the goods within a reasonable time, which is a term implied by the law in the contract to deliver; as Tindal, C. J., puts it, when he says, 'the duty to deliver within a reasonable time being merely a term engrafted by legal implication upon the promise or duty to deliver generally.'"'21

has received the goods from a connecting carrier it will be liable if it detains them in the cars in which they were received until repairs ordered by its inspector are made, during which time the goods spoil. Cartwright v. Railroad, 85 Hun, 517, 33 N. Y. Supp.

147.

That goods shipped from New York on July 2nd had not been delivered down to July 10th in Denver does not show an unreasonable delay. Brooks v. Railroad Co., 88 N. Y. Supp. 961

A carrier must transport live stock with reasonable dispatch, in view of the character of the shipment and its liability to injury from detention. Sloop v. Railroad Co., Mo. App. 84 S. W. Rep. 111; Railway Co. v. Hunt (Tex. Civ. App.), 81 S. W. Rep. 322.

Unreasonable delay caused by sidetracking cattle under the pretext of allowing other trains to pass will render the carrier liable. Douglass v. Railroad Co., 53 Mo.

In

App. 473; Railroad Co. v. Hobbs, 14 Ky. L. Rep. 766.

A carrier receiving live stock from a connecting line is under no duty after receiving it to furnish immediate transportation. The law requires only reasonable diligence in its forwarding and transportation. Railway Co. v. Kapp (Tex. Civ. App.), 83 S. W. Rep.

233.

A mere showing by a plaintiff of a delay in the arrival of stock will not constitute negligence, since the delay inay have been unavoidable, and hence not negligent. The burden of proof to show that the delay was due to negligence is on the plaintiff. McCrary v Railroad Co., 109 Mo. App. 567, 83 S. W. Rep. 82.

For delay in the shipment of hogs, see Railroad Co. v. Lazarus, 13 Ky. L. Rep. 461.

For delay in the shipment of lambs, see Railroad Co. v. Smith, 14 Ky. L. Rep. 814.

21. Taylor v. Railway Co., L. R.

this respect, therefore, the common carrier stands upon the same ground with other bailees, and may excuse delay in the delivery of the goods by accident or misfortune, although not inevitable or produced by the act of God. All that can be required of him in such an emergency is, that he shall exercise due care and diligence to guard against the delay, and that if it occur without his fault or negligence, he shall omit no reasonable efforts to secure the safety of the goods.22

Sec. 654. (§ 331.) Same subject-What will excuse delay. -Accordingly, it has been held that when the carrier's canalboat was run into by a scow, which made it necessary for him to stop for repairs, the delay thereby occasioned was excusable;23 or when he was delayed by deep snow, which made the road temporarily impassable;24 or the washing away of a bridge over a

1 C. P. 385. Same point, see Philadelphia, etc. R. R. Co. v. Lehman, 56 Md. 209; Express Co. v. Bratton, 106 Ill. App. 563, citing Hutch. OL Carr.; Railway Co. v. Frankel Bros., 35 S. C. R. 115, 2 Canadian Ry. Cases, 155.

Unavoidable delay in the shipment of stock will not be negligence. Railway v. Stone & Haslett, Tenn. 79 S. W. Rep.

1031.

22. But a common carrier is bound to provide engines of sufficient weight and power to overcome the effects of a heavy dew, and, if an unreasonable delay in the transportation of persons or property ensues from such an event as the fall of a heavy dew, it cannot shield itself from liability by the plea that its default was attributable to an act of God. A carrier must exercise enough diligence to overcome the effects of a dew falling upon its track, no matter how heavy the precipitation may be. It is only one of those

ordinary manifestations of the power of nature against the effects of which human foresight may and should provide. Railway Co. v. Truskett, 104 Fed. 728, 44 C. C. A. 179; affirmed in 186 U. S. 480, 46 L. Ed. 1259.

So if a carrier accepts enemies' goods without the knowledge and consent of the other shippers, it is a breach of duty towards them, and such a course is in effect to court detention, even though the carrier has a well-founded hope of being able to give such explanations to the authorities as will avoid the condemnation of the ship. For delay caused by such an act on the part of the carrier, and the consequent loss to other shippers, the carrier will be liable in damages. Dunn v. Donald Currie & Co., (1902) 2 K. B. 614, 71 L. J. K. B. 963.

23. Parsons v. Hardy, 14 Wend. 215.

24. Ballentine v. Railroad Co., 40 Mo. 491; Briddon v. Railway

stream which it was necessary for the carrier to cross, by a freshet;25 or a low stage of water in a navigable river, which rendered it impossible for the carrier to proceed to the port of delivery;26 or the freezing of a canal or river upon which the carrier is to transport the goods;27 or a collision caused by the negligence of another railroad company.28 So a railroad company will be excusable for delay in the delivery of goods when, having running powers upon another road, it is obstructed by the negligence of the latter;29 or where, its road being in good. order, and well equipped, it ran as many trains as could be run with safety, and the delay was caused by an unusual quantity of freight being delivered to it, which was being forwarded without preference, in the order of its receipt;30 or where a part of a railroad company's track running into a city, which was the destination of the goods, had been destroyed by a fire, which also destroyed a large portion of the city itself, and caused an unprecedented press of business;31 or where atmospheric conditions rendered the telegraph wires by which the trains were directed in their movements unavailable, causing a

Co., 28 L. J. Exch. 51, 32 L. T. 94; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. Rep. 630.

the contract, and if he does not use that diligence which is requisite under the circumstances, he

25. Railroad Co. v. Ragsdale, 46 will be liable in damages. Spann Miss. 458.

26. Bennett v. Byram, 38 Miss. 17; Silver v. Hale, 2 Mo. App. 557. 27. Bowman v. Teall, 23 Wend. 306; Beckwith v. Frisbie, 32 Vt. 559; Railway Co. v. Peale, Peacock & Kerr, 135 Fed. 606,

But the carrier must justify his delay by proof of conditions which bring him within the protection of the rule invoked, and upon him rests the burden of establishing the sufficiency of his excuse. Thus a contract by the owner of a canal boat to carry goods shortly before the time that the canal may be expected to freeze requires him to make a special effort to perform

v. Transportation Co., 11 Misc. 680, 33 N. Y. Supp. 566.

28. Conger v. Railroad Co., 6 Duer, 375.

29. Livingston v. Railroad Co., 5 Hun, 562; Taylor v. Railroad Co., L. R. 1 C. P. 385.

30. Wibert v. Railroad Co., 2 Ker. 245. Where the delay arose from an unusual press of business which could not reasonably have been anticipated, it was held that the carrier was not liable. Mauldin v. Railway Co., S. Car. -, 52 S. E. Rep. 677.

31. Railroad Co. v. Burrows, 33 Mich. 6.