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plank than 12 feet, but before putting them down it will be necessary to look into this particular case, and see if any real necessity exists for planking the track with 16 foot plank instead of 12. I do not understand from Mr. Burns' letter that he wants the plank crossing 16 feet wide.

Yours truly,

H. G. BURT, Superintendent.

E. T. PRICE, WINFIELD, IOWA,

VS.

Fencing.

BURLINGTON & WESTERN RAILWAY COMPANY,

Filed March 18, 1895.

On the 18th of March, 1885, the above named complainant asked for relief req ag the respondent to put in a cattle-guard and build a fence for the protection of complainant's crop. The evidence established the following facts : Prior to the location of the railroad, Mr. Price and others owned the land in question. The tract just north of the Price land was owned by one Ilooper; a division fence was maintained between the Price and Hooper lands. Mr. Ilooper granted the right of way wholly over his land to the railroad company, reserving the fence, being his part of the division fence between his own and the Price land. After the completion of the road Mr. Hooper withdrew or removed his portion of the division fence. The following diagram will show the relative situation of the two pieces of land and the right of way:

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The withdrawal of the partition fence by Hooper left a portion of the north line unfenced, and exposed to stock entering upon the exposed right of way. Complainant wished a cattle-guard and fence across the right of way on looper's land for his protection.

TIeld: that whatever may have been the relative rights and duties of the partition fence builders, the Commissioners had no power to order the cattle-guard, the law only requiring cattle-guards when one owns land on both sides of the railway, and also providing (Section 1289, Code) “ That no law of this State, nor any local or police regulations of any county, township, city or town, regulating the restraint of domestic animals, or in relation to fences of farmers or land owners shall be applicable to railway tracks, unless 80 specifically stated in the law or regulation,” and a railroad company is not compelled when assuming the ownership of lands on section lines for right of way purposes to fulfill the obligations of law imposed upon an indi vidual owner.

TIS. CHANTLAND, BADGER, IOWA,

V8.

Damages.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY. )

Filed March 20, 1884.

DECISION OF THE COMMISSIONERS.

Thomas Chantland complained on the 19th of March, 1885, that he shipped three cars of hogs to Chicago from Badger, Iowa, going from West Liberty, Iowa, on respondents' line, the time of starting from Badger being December 16, 1884. The stock reached Peru, Illinois, at one o'clock A. M., December 18th. Up to this point no complaint is made. At Morris, Illinois, the train was laid off for one hour. A train behind which had orders to pass everything it could overtake was disabled by blowing out a cylinder head, and this train containing the cars of hogs belonging to complainant was overloaded by being required to carry one-half the cars of the disabled train, and moving very slowly, the now overloaded train reached Joliet at 5 A. M., December 18th. They laid at Joliet from 5 to 7 A. DI., several freight trains passing them on the way to Chicago. It was bitter cold and very windy. At Joliet none of the stock was dead. At Joliet they were put on the track of the out-bound trains from Chicago, which materially slowed the movements of the train, and being due at Chicago at 7 A. DI., they did not reach that point till 10 A. M., too late for that days market. Damages are claimed for

86.70

Five hogs lost between Joliet and the time of unloading..
Market lower on 19th than 18th....
Corn and bedding on the night of the 18th...

69.21

11.00

Total.....

$

166.91

Respondent answering raises a question as to the right of the Board to inquire concerning the operation of its trains on that portion of its line in the State of Illinois, admits a delay of two hours and thirty-five minutes occasioned by the accident at Morris and the severity of the weather; denies that the stock could not have been sold on the 18th, as the market does not close before 1 P. M., and the record shows the arrival of the stock at the yards at 9:35 A. M.; that the stock was not shipped on guaranteed time, and was brought in on schedule time as near as possible.

Evidence offered by the parties shows a conflict in the following particulars : The railroad evidence is that the train left Joliet at 5:40 A. M.; complainant fixes the time of leaving Joliet at 7 A. M. The railroad evidence is that the train reached the stock-yards at 9:35 A. M., complainant's evidence fixes that time at 11 A. M. Complainant's evidence is to the effect that the market broke about the middle of the forenoon of the 18th, and opened on the 19th at the reduced price.

The Commissioners do not choose to discuss the queston of their right to

1

investigate the movement of trains on respondents line in Illinois, the shipment having been made from a point in Iowa. It is not necessary to reach a conclusion of the case. It is nowhere claimed that the stock was shipped on guaranteed time. “The carrier is bound in all cases to make a proper delivery with reasonable expedition, if no particular time be fixed upon; for the duty to deliver within a reasonable time is a term ingrafted by legal implication upon a promise or duty to carry generally."-Angell on Carriers, section 283.

" Unless the carrier contracts to deliver the goods in a particular time, he is not liable for a delay not caused by his own fault.”—Conger v. Hudson River Railroad, 6 Duer, 375.

If the above rule be correct, and we have not found any authority which disputes it, if respondent is liable, it must be on account of its fault which resulted in delay. When the cylinder head blew out of the engine hauling the train just behind the one upon which complainant and his stock were traveling, it would seem to have been right to attach the cars containing live-stock to some other train, and thus expedite their transportation to market. To determine to what train they should be attached required the exercise of reasonable discretion. We cannot say that the choice of the train upon which complainant and his stock were traveling was an unwise choice. We cannot reason otherwise with reference to the choice of a track upon which to run the train. It seems some delay was unavoidable, and in our view of the case we do not think complainant has furnished satisfactory evidence that respondent should pay the damages. While fully satisfied that the proper forum for determing the rights of the parties in this case is a court of justice, the Commissioners have not shrunk from endeavoring at the request of complainant to ascertain the right of the matter, and have reached the conclusion herein set forth. The complainant seems to think it hard that the train upon which he was traveling with his stock was selected to haul the cars of the disabled train, but upon reflection he must see that if some train should have been selected for that purpose, it is probablo that his train was selected not out of any wish to injure him, but probably because it was the immediately preceding train.

DES MOINES, IOWA, September 23, 1885.

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SIR-I have a case that is plain and uncomplicated, and I hope you gentlemen of the Commission will give it proper attention, and let me hear your decision in the case. It is certainly a little outrage, but if much money was involved in it, would be a big one. A safe had been sold to a party in Ogden from the company at Cincinnati, Ohio, but it was not dellvered, and was afterward sold to me. The Cincinnati folks ordered the Chicago & Northwestern Railway Company to send it to me, supposing that as they (the Cincinnati folks) are not in the railroad business, the C. & N. W. would send it by the inost direct route. Instead of sending it via the Minneapolis & St. Louis Railway, which would be some sixteen mlles, they send it up their road to Grand Junction, twelve miles, and charge me $2.93 ; and then it must be transferred, just as it would have been at Ogden, and they (the Fort Dodge road) bring it to me and charge but $1.37 for fifteen miles. This is what makes the people so gonerally angry at these corporations. I enclose the letter from Cincinnati, and also & diagram of the situation.

Yours truly,

W. D. F. LUMMI8.

P. S. I hope you will look into the fact of the N. W. charge of $2.93 for twelve mlles, while the D. M. & Ft. D. charges but $1.37 for fifteen miles. I make two charges against the O. & N. W.: first, fraud, by mis-sending the goods; and, second, overcharge. Fiod diagram ouclosed. I also send duplicate bill from D. M. & Ft. D. R. R.

[Copy.]

PERRY, IOWA, January 31, 1888.

W. D. F, LUMMIS, to Des Moines & Ft. Dodge Railroad Co., Dr. :

1.87

For freight charges from Grand Junction on one iron safe, 1050...
Back charges

2.93

$ 4.80

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DEAR SIR-Yours of the 2d inst. at land and contents noted. In reply will say that the Chicago & Northwestern Railway Company sent a bunch of papers here asking what to do with the safe at Ogden. We sent them check to pay their freight and charges on it, and instructed them to forward it to you at Perry. We supposed, of course, they would send it to you over the Minneapolis & St. Louis Railway, instead of sending it the round-about-way Ahey did. We are holding your letter until their soliciting agent comes in, and will then lay the matter before him.

Very respoctfully,

MOBLER, BAHMANN & 00

Des MOINES, IOWA, March 20, 1885.

MARVIN HUGHITT, ESQ., Vice President C. & N.-W. R’y Co., Chicago, Ill.:

DEAR SIR–Please find with this complaint of W. D. F. Lummis. By diagram attached it is alleged that the distance is only thirteen miles by the shorter route, and twenty-seven by the one over which the safe was sent. If proper to send ny the longer way, is there not an overcharge on your road? By order of the Board.

E. G. MORGAN, Secretary.

CHICAGO, April 4, 1885.

E. G. MORGAN, E8Q., Secretary Railroad Commissioners, Des Moines, lowa;

DEAR SIR-Referring to your favor of March 20, 1885, to Mr. Hughitt, General Manager of this company, in regard to an asserted overcharge for transporting one iron safe from Ogden to Grand Junction, consigned to W. D. F. Lummis, of Perry, I would say: We have investigated the matter, and find that the safe was transported by us from Chicago to Ogden, consigned to E. Billings, and that for some reason unknown to us the safe was not taken by the consignee, whereupon the consignors, Mosler & Bahmann, of Cincinnati, O., wrote to our agent and asked him to forward the safe to Mr. Lummis, at Perry. While the distance from. Ogden to Perry via the Minneapolis & St. Louis Railway is less than the distance from Ogden via Grand Junction, yet, owing to the fact that it would cost $1.50 to transfer the safe from. our depot to the depot of the M. & St. L. at Ogden, and nearly, if not quite, as much from the depot of the M. & St. L. R’y at Angus to the depot of the Des Moines & Fort Dodge at that. point; our agent, acting as the agent of Mosler & Bahmann, and desiring to get the safe to Perry as cheaply as possible, sent it via Grand Junction, as by that route he supposed there. would be no transfer charges. The Chicago & Northwestern Railway Company received only one dollar and twenty-six cents for carrying the safe from Ogden to Grand Junction; the balance of the charge paid by Mr. Lummis did not accrue to this company. I believe you will find that our charges ($1.26) were not unreasonable or extortionate. Full investigation shows that we paid $1.15 advanced charges at Ogden, and that they consisted of twenty-five cents paid for exchange and ninety cents paid for loading and unloading, paid to. J. W. McCullum. I also find that the D. M. & Ft. D. R’y charged fifty-two cents as advanced charges for transfer at Grand Junction, so that Mr. Lummis' $2.93 charges were made up as follows:

$ 1.26

O. & N. W. charges, Ogden to Grand Junction,
Advanced charges paid J. W. McCullum..
Transfer at Grand Junction....

1.15

Total ..

$ 2.93

As there is a question in my mind as to the equity in the $1.15 advanced charges paid by our agent to J. W. McCullum, I have instructed him to send that amount to Mr. Lummis. I trust this explanation will be satisfactory to you and also to Mr. Lummis. Respectfully yours,

W. H. STENNETT.

On April 24th, 1885, the Commissioners wrote Mr. Lummis, asking him if had received the voucher from the Chicago & Northwestern Railway Company, as stated by Mr. Stennett, for the amount claimed as an overcharge, and if the settlement was satisfactory. Mr. Lummis never replied to this letter, and his case was regarded as closed.

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