to go even further, and make it essential that they should be put in store.34 Sec. 706. (§ 372.) Same subject. It is to be further observed that this qualification of the liability and duty of the carrier as to the delivery of the goods is confined to their delivery when they have been carried to their destination, and has no application when, as between successive carriers, it becomes necessary that a delivery should be made by the carrier in charge of the goods to the one next succeeding in order to complete the transportation. In such cases, as we have seen, there must be an actual delivery, unless usage or the course of dealing of the connecting carriers may vary the rule.35 Sec. 707. (§ 373.) Same subject. These cases which allow to railroad companies an exoneration from their liability as carriers without either a tender of the goods or a notice of their arrival, and especially those which hold that such liability is at an end as soon as the goods have been deposited in their depots or station-houses, certainly make a wide departure from the general rule of law governing the manner of delivery by other 345; Lemke v. The Railroad, 39 id. 449; Backhaus v. Railway Co., 92 Wis. 393, 66 N. W. Rep. 400. 34. Porter v. Railroad, 20 Ill. 407; Chicago, etc., R. R. v. Bensley, 69 id. 630; Ala. & Tenn. Rivers R. R. v. Kidd, 35 Ala. 209. Evidence that the derrick at the point of destination was so out of repair that the goods could not be unloaded from the cars is competent as tending to show that the defendant's relation as a common carrier had not ceased. Liverpool Ins. Co. v. McNeill, 89 Fed. 131, 32 C. C. A. 173, citing Hutchinson on Carr. A railroad's obligation as a common carrier continues until the delivery or offer of delivery is had at the depot or warehouse where such goods are customarily un loaded and delivered. Its obliga- The carrier must not only safely carry the property, but take it to the place provided for delivery of property of its kind and there place it in a position of accessibility. Russell Grain Co. v. Railroad Co., Mo. App. 89 S. W. Rep. 908. 35. Ante, § 131. See also, Railway Co. v. Reiss, 183 U. S. 621, 22 Sup. Ct. R. 253, affirming 99 Fed. 1006, 39 C. C. A. 679 and 98 Fed. 533, 39 C. C. A. 149. common carriers and for reasons which have not been universally considered satisfactory. These reasons, as we have seen, are mainly based upon the regularity of the arrivals of the trains of railway companies and the fact that they are provided with safe and commodious warehouses in which the goods can be stored as soon as they arrive at their destination. The first of these reasons assumes that the consignee will be always advised of the sending of the goods, and that he will know with reasonable certainty the time at which they will arrive and when he should call for them. This is certainly assuming a great deal for the sake of relieving the carrier from his liability. It may not be always true that the person to whom the goods are sent is advised of the fact; and common experience teaches that, however it may have been in the infancy of railways, and may yet be, where the transportation is for a short distance and over a single road, where the goods are to be transported a great distance over several roads or a line composed of a number of such roads, the frequent delays occasioned by excess of freight and various other circumstances make the time of the arrival of the goods consigned by railways oftentimes as uncertain perhaps as it would be by any other mode of transportation. Nor does the fact that such companies are generally provided with secure warehouses seem to be a better reason for the relaxation of the general rule of liability as to them. Even when the goods are deposited in such warehouses, they are still in the custody of the company or its servants. They have the same opportunities to embezzle them, or to combine with others to do so, as when in transit, with perhaps less chance of detection. The goods are still hid from the observation of their owner. He may not have had the opportunity to remove them and may have had no knowledge of their arrival. They may be stolen or destroyed, and he may never know their fate. The same reasons, therefore, upon which is based the severe accountability of the carrier for the safety of his charge, would seem to require that railroad companies should be held to be custodians of the goods in the same character in which they received them until they had either tendered them to the con signee or had, after informing him of their arrival, given him a reasonable time within which to take them away. This is, as we have seen, the well-settled law as to carriers by water, and no substantial reason can be urged why the rule should be further relaxed in favor of railroad companies.36 Sec. 708. Same subject-New York rule as to delivery by railroads. The courts of several of the states in which the question has been well considered have accordingly declined to adopt the reasoning of the preceding cases, and have refused to concede to railroad companies the right to dispense with notice to consignees of the arrival of the goods which they have undertaken to transport as common carriers, but hold them to the same duty in that regard as carriers by water. In New York, the law upon this subject is stated to be that if the consignee is present, upon the arrival of the goods, he must take them without unreasonable delay; if he is not present, but lives at or in the immediate vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he must have a reasonable time to remove them; if he is absent, unknown or cannot be found, the carrier may store them; and if, after notice of the arrival of the goods, the consignee has had a reasonable opportunity to remove them, and does not, he cannot hold the carrier longer as an insurer. This view of the subject has also been taken by 36. Railway Co. v. Nevill, 60 Ark. 375, 30 S. W. Rep. 425, 28 L. R. A. 80, 46 Am. St. Rep. 208, citing Hutch. on Carr. 1. Fenner v. Railroad, 44 N. Y. 505; Hedges v. Railroad, 49 id. 223; McDonald v. Railroad, 34 id. 497; Sprague v. Railroad, 52 id. 637; Pelton v. Railroad, 54 id. 214. In the case last cited the plaintiff, to whom the goods were consigned, had very recently become resident four miles distant from the town to which the goods were directed. When they arrived, no one was present to receive them or to whom notice could be given of their arrival, and her residence was unknown to the agents of the company. The goods were therefore removed from the car into the defendant's warehouse and kept there three days, when, without defendant's fault, they were consumed by fire. While the goods were thus stored, the agent having charge of the warehouse inquired, of persons likely to know, of the plaintiff's place of the courts of Michigan,2 Minnesota,3 Mississippi and Ohio.5 Practically the same result has been reached by statutes in Alabama, California, Tennessees and Texas. Such, also, is 2. Buckley v. Railroad Co., 18 Mich. 121; McMillan v. Railway, 16 Mich. 79; Walters v. Railway Co., Mich. 102 N. W. Rep. 745. residence, but gained no informa- Diamant v. Railroad Co., 62 N. Y. tion on the subject. This was Supp. 519, 30 Misc. 444; Becker v. held to be an abundant excuse for Railroad Co, 96 N. Y. Supp. 1, 109 not giving notice, and the case App. Div. 230. was said to come within the rule as stated in Fenner v. Railroad, supra. The defendant's character, it was said, had, before the fire, changed to that of warehouseman, and the goods having been destroyed without its fault, the plaintiff could not recover. "The consignee," it was said, "ought, before the arrival of the goods, to give such information as will enable the carrier to give the requisite notice; but whether, if such notice had been given in this case, it would have become their duty to notify the plaintiff, whose postoffice address was beyond the municipality of the depot, is not involved." 3. Pinney v. Railroad Co., 19 Minn. 251; Derosia v. Railroad Co., 18 id. 133. In Faulkner v. Hart, 82 N. Y. 413, the goods arrived and were demanded by the consignee the same day, but delivery that day was refused, to suit the carrier's convenience. The goods were unloaded the same day and placed in carrier's warehouse, where they were burned during the night. The carrier was held liable. To the same effect is McKinney v. Jewett, 90 N. Y. 267, though the contract provided for exemption while "awaiting delivery." They were not awaiting delivery until the carrier was ready to deliver them. 4. Railroad Co. v. Fuqua & Horton, 84 Miss. 490, 36 So. Rep. 449. 5. Railroad Co. v. Hatch, 52 Ohio St. 408, 39 N. E. Rep. 1042. See Hirsch v. The Quaker City, 2 Disney 144. 6. Personal notice or by mail is required in cities or villages of over 2000 inhabitants. Collins v. Railroad Co., 104 Ala. 390, 16 So. Rep. 140. 7. Wilson v. Railroad Co., 94 Cal. 166, 29 Pac. Rep. 861, 17 L. R. A. 685; Cavallaro v. Railway Co., 110 Cal. 348, 42 Pac. Rep. 918, 52 Am. St. Rep. 94, citing Hutch. on Carr. See also, Jackson v. Railroad Co., 23 Cal. 268. 8. Railroad Co. v. Naive, 112 Tenn. 239, 79 S. W. Rep. 124, 64 L. R. A. 443. See also, Butler v. Railroad Co., 8 Lea, 82; Central Trust Co. v. Railway Co., 70 Fed. 764; Railway Co. v. Kelly, 91 Tenn. 699, 20 S. W. Rep. 312, 30 Am. St. Rep. 902, 17 L. R. A. 691; s. c. 91 Tenn. 708, 20 S. W. Rep. 314. 9. Railroad Co. v. Haynes, 72 See also, Grieve v. Railroad Co., 49 N. Y. Supp. 949; Manhattan Rubber Shoe Co. v. Railroad Co., Tex. 175. 41 N. Y. Supp. 83, 9 App. Div. 172; the English law. No trace is there to be found of the distinction which has been made in this country in favor of railway companies as common carriers, which converts them into mere warehousemen without notice to the consignee. Notice, it is there held, is necessary to effect this change of character and liability; and after such notice, if the consignee fails to call for the goods within a reasonable time, the carrier becomes, as to them, a warehouseman merely.10 And it is to be gathered from the cases, that it is the universal course of business there, with this class of carriers, either to deliver personally, or to send to consignees what are there denominated advice notes, informing them of the arrival of the goods; and that until this is done, the company remains subject to the liability of a common carrier. In Delaware,11 Maryland,12 Nebraska,13 Oregon,14 and Washington,15 the courts have not made such a clear definite statement of their position on this question that they can be arbitrarily placed under any one of the three preceding rules. The majority of them, however, seem to lean toward the New York rule. In New Jersey the court seems to recognize no distinction between the rules as to railroad companies and express companies, and has evolved a doctrine which is a combination of the New Hampshire and New York rules.16 Sec. 709. Same subject-When question of notice becomes immaterial. The question of notice to the consignee of the 10. Mitchell v. The Railway Co., 10 L. R. Q. B. 256; Chapman v. Great Western R. W. Co., 5 Q. B. D. 278. See also, Richardson v. Canadian Pacific R. Co., (Can.) 19 Ont. R. 369, 45 Am. & Eng. R. Cas. 413. 11. McHenry v. Railroad Co., 4 Harr. 448. 12. Railroad Co. v. Green, 25 Md. 72. 14. Normile v. Railroad & Nav. Co., 41 Ore. 177, 69 Pac. Rep. 928. 15. Normile v. Railway Co., 36 Wash. 21, 77 Pac. Rep. 1087. 16. In the absence of special contract or custom the duty of a common carrier of goods does not end upon the arrival of goods at the place of destination, but the carrier must deliver them to the consignee, and when the contract 13. Railroad Co. v. Arms, 15 of carriage contemplates delivery Neb. 69. of the goods upon the carrier's |