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oppose the methods of the Board in reference to this matter, we are in possession of the results of tracing done by respondent, as also by the Wabash, St. Louis & Pacific Railway.
These papers are quite voluminous, and it is perhaps only necessary to say that it is now clear that the tobacco reached Maxwell, its destination. The respondent's station agent at Maxwell however, claims that he delivered the goods including the caddy, to a drayman who was authorized by Mr. McNall to receive them. It will now be necessary to refer to the evidence before us in regard to this matter. Under date of January 7, 1884, F. A. Jackson, station agent at Maxwell, says: “My warehouseman says the caddy of tobacco checked out all right, and was delivered to the drayman who hauled Mr. McNall's goods. I did not give it my personal attention, and was not notified af this caddy being short for some thirty days or more after this consignment of goods.”
Being asked by his superior officer if he could produce the drayman's receipt for the goods, or checkman's affidavit of delivery,'he replies, May 28, 1884, that“ the drayman was authorized to receipt for Mr. McNall's goods, and I have his receipt for the caddy of tobacco in question.” He also promises to get the affidavit of the checkman. In the tracing done by the Wabash, St. Louis & Pacific Railway Company, Mr. Jackson says, under date of March 6, 1884: “The full consignment in question here delivered to A. H. McNall's drayman, and receipted for May 30, 1883.”
Being called upon by his superior officers to furnish exact copy of the drayman's receipt, under date of March 20, 1884, he says:
“ I cannot attach copy of the drayman's receipt; the order from the drayman has been filed away and I am unable to find it.” April 23, 1884, being ordered to make thorough search for the receipt, he says, under date of May 1, 1884: “After a thorough search, I am unable to find the drayman's receipt.
The drayman having removed to Perry, the agent at that point was asked to procure the drayman's statement. On May 15, 1884, the drayman, C. H. Kelly, said: “I was draying in Maxwell, May 30, 1883. I think I hauled a load for Mr. McNall, but do not know what it was.
Our Secretary having frequently called on Mr. Jackson for the receipt or a sworn copy, on June 14, 1884, he writes: “I am unable to furnish you the original order in this case, but I attach statement from Mr. McNall, showing that C. E. Kelly was authorized to do his draying." The attached is as follows:
“MAXWELL, IOWA, June 16, 1884.
“This is to certify that C. E. Kelly did my draying at the time my goods were lost, in May, 1883. (Signed,j
A. H. MCNALL."
We are driven to the conclusion that Mr. Jackson either never had a receipt for the goods, or if he had, is now unable to furnish any proof of its contents. It seems that all the other articles billed at the same time were
delivered to Mr. McNall, and in the absence of proof that the caddy of tobacco was delivered to Mr. Kelly, the drayman, we cannot avoid Lolding the respondent liable for the value thereof. It is therefore recommended by the Board of Railroad Commissioners that the respondent, the Chicago, Milwaukee & St. Paul. Railway Company, pay to A. H. McNall, the complainant, the value of the caddy of tobacco in question, namely, the sum of eight dollars and forty cents.
Des Moines, Iowa, June 21, 1884.
Isaac ROSENBERG, TRAER, IOWA,
BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY CO. )
Filed December 28, 1883.
The complainant, a merchant doing business at Traer, Iowa, states that he received from Albany, N. Y., a case of dry goods, forwarded by the Merchants' Despatch Line to Chicago, thence forwarded and delivered to the Burlington, Cedar Rapids & Northern Railway Company, and by them carried to Traer, its destination. The advanced charges paid by the B., C. R. & N. R’y on 235 pounds, were $1.76, or about sixty-nine cents per hundred for a distance of 800 miles; the charges from Chicago, via the latter road, were $3.76, or $1.60 per hundred for a distance of 270 miles; which complainant thought exorbitant, and asked to have the overcharge refunded. The matter was referred to C. J. Ives, Superintendent B., C. R. & N. R’y, who in reply, inclosed acommunication from J. E. Utt, General Freight Agent, saying that if anovercharge had been made it was doubtless caused by a mistake in rating the goods according to classification, merchandise being double first-class when not otherwise specified. Mr. Íves further stated that if complainant would return his expense bills to that office, with statement of the contents of the package shipped, if the same was entitled to first-class rates, the overcharge would be promptly refunded. February 7th, complainant notified the Commissioners that his claim had been satisfactorily adjusted by the company.
The Commissioners have carefully considered the loss of a bull calf belonging to coraplainant at Agency City, while on board a car awaiting shipment. It might be said that complainant was not duly careful in leaving the shipment of the bull to strangers, but if so, we are not prepared to say that his carelessness contributed to the injury or loss. On the other hand it may be said that the agent of the company was not duly careful, in that he did not send the bull by the first or evening train, yet we are not prepared to say that this in any way contributed to the injury or loss. There is an utter dearth of evidence as to the cause of the bull's death. We believe the railroad company is held to the liability of a common carrier in transporting live stock, and where the cause of the injury for which recompense is sought is unconnected with the conduct, character, or propensity of the animals undertaken to be carried, the liability would attach. It is also true that the law holds the carrier responsible as to animals for any injury which can be prevented by foresight, vigilance, and care, although arising from the conduct of the animals. Lawson on Contracts of Carriers, Sec. 13. Now we are unable to say that any foresight, vigilance and care could have prevented this death. If the bull died from natural causes, the question might arise whether the delay, if there was any, in not forwarding in the evening instead of the morning train, would affect the liability. Lawson, in his work on Contracts of Carriers, section 10, quotes Mr. Browne as saying: “So, if he, the carrier, delays an unreasonably long time on the journey and it is proved that but for such unreasonable waste of time he would have been able to deposit his goods in safety, it will not be a good defense to any action for the amount of injury done to the goods of an owner who entrusted them to him to be carried, to say that the injury was caused by a flood which was the act of God.” This doctrine Mr. Lawson says is followed in New York. But it is held by the Supreme Court of the United States and in l'ennsylvania, Massachusetts and Nebraska, that in such case the negligence of the carrier is not the proximate cause of the loss, and he is not answerable for it. The delay from evening till morning does not seem to us to have been wreasonable. It does not appear that but for the delay tho bull would have reached his destination before his death. It does not appear what was the cause of his death. We do not believe the company is legally liable, so we do not feel justified in ordering the company to pay for the loss. It seems to us to be a case eminently fit for amicable and equitable, not legal, adjustment between the parties.
Des Moines, Iowa, May 23, 188).
This complaint was made January 9th, 1894. Complainant shipped a lot of household goods from Palmer, Mass., to Floyd, Iowa, claiming prepayment on the same. It appeared that in fact he only paid from Palmer, Mass., to Chicago, Illinois. Respondent's agent at Floyd compelled complainant to pay a sum for transportation from Chicago to Floyd. Upon investigation it was found that on account of an overweight there was an overcharge of $4.40. March 18, 1884, Mr. Smith was informed that the respondent would issue a voucher in his favor for that amount. It appearing that the remainder of complainant's claim had reference to the alleged wrong done him by the Boston & Albany Railroad in Massachusetts, the complainant was referred to that State for relief, and his case closed.
M. F. BIGELOW, ALDEN, Iowa,
Failure to keep repot open at night.
ILLINOIS CENTRAL RAILROAD COMPANY,
Filed January 15, 1884.
M. F. Bigelow, of Alden, made complaint to the Commissioners under date of January 8, 1881, that the Illinois Central Railroad depot at that place was not kept open for the accommodation of passengers wlio desire to take the night trains on that road. Train No. 1 from the west passes Alden station at 11:02 P. DI., and No. 2 from the east at 1:40 A. M., both trains carrying mail and passengers. The depot is nearly one mile from the village, and the company's agent, F. L. Ghoslin, closed and locked the depot before 9 P. DI., and it remained closed till morning. Passengers were unable to procure tickets, and were obliged to wait on the platforin in all kinds op weather for trains to arrive, and then pay extra on account of not purchasing tickets. Complainant asks the Commissioners to order the company to open its depot for the accommodation of passengers arriving and departing on the night trains.
Having taken the matter under advisement the Board recommended “that the depot at Alden be kept open, warmed and lighted every night on which passenger trains run either way, until after the departure of the last train, and that such accommodations be provided therein as shall give security and convenience to the traveling public.”
The officers of the company promised to make every effort to remedy the evils complained of, and to furnish better accommodations for the convenience and comfort of their patrons. The Commissioners were subsequently notified that an agent had been employed at the Alden station to attend to night trains.
DES MOINES, IOWA, January 17, 1884. Hon. L. S. COFFIN, Railway Commissioner, Des Moines, Iowa:
DEAR SIR-Will the Honorable Board of Railway Commissioners prepare a bill looking to the reduction of rates on freight in car lots, where the railway company only furnish the car and transportation on short hauls? I have been informed by many farmers who have wood to sell that they cannot improve their land because the railroad company charge so much for freight that there is nothing left for their wood or work. Mr. Brown, of Lathrop, Iowa, on the Winterset branch of the Chicago, Rock Island & Pacific Railway, sent me one car of dry oak cord wood, on which the freight was $18.04, the distance being about twenty miles, I believe. There were eight and one-half cords of wood in the car, making the freight $2.1274 per cord, and I think from this that the people of this city have good cause for complaining. Can not you modify tliis rate? It is too high by one-half, as the company has no handling to do. Enclosed please find a slip cut from the Register, which will show you what they are trying to do in Nebraska.
H. P. HARRIS.
DES MOINES, IOWA, January 18, 1884. H. P. HARRIS, Esq., Des Moines, Iowa:
DEAR SIR-Your favor of the 17th inst., relative to the preparation of a bill regulating the rates of freight on railroads, and especially on short hauls, is received.
It is thought hardly proper for the Railroad Commission to formulate laws for the General Assembly to pass. The Commission will do its best to carry into effect any law the Legislature may see fit to enact. In the last annual report of the Commissioners there will be found suggestions as to needed legislation. There are some very important points raised in your communication, which have been engaging the thoughts of the Commission for some time past. One of the great underlying principles in the matter of transportation by railroads is that all the people of the State should as nearly as