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their part that they will do all that can be done by the use of due care and skill to accomplish that result. Does it go beyond this ? Does it amount to an absolute, an unconditional engagement, that the trains shall arrive and depart at the precise moments indicated in the table? Does it make the company warrantors or insurers of punctuality, and liable for delays which are due, not to their fault, but to pure accident ?

If these questions are answered in the affirmative, a very singular result will follow. Railroad companies will be under a much more onerous obligation to run punctually than to run safely. They may, then, on the same state of facts, be held liable for the loss of an hour's time, and not liable for the loss of a year's time or for the loss of a limb. As to safety, they are bound only to use due care and skill to attain it. They are not liable for mishaps which are not attributable to their negligence. Readhead v. Midland R. Co. L. R. 4 Q. B. 379, p. 381. Suppose the morning train had reached Salem “on time,” taken the plaintiff on board, and proceeded towards Manchester ; that midway between Salem and Manchester the train had been thrown from the track in consequence of the breaking of a wheel; that such breakage was caused by a latent defect which could not have been previously detected ; that the plaintiff by this accident lost a limb, and was permanently incapacitated for labor; and that, after some delay, the plaintiff and the other passengers were carried on by another train, so that they reached Manchester three hours late on the same day: in such a case, it is clear that the defendants are not liable to the plaintiff for the bodily injury, nor for his loss of time after reaching Manchester. Does it not seem extraordinary that they should be liable for the loss of the three hours' time, when they are not liable for the loss of the three years' time since elapsed, or for the loss of the limb? Is it natural to suppose that the parties understood the obligation to carry speedily, to be more rigid than the obligation to carry safely? A large proportion of passengers might consider the latter obligation the more important of the two, and might prefer delay to death. It is not now suggested that the defendants could not impose upon themselves a liability in respect to punctuality, far in excess of their obligations in other respects. But in considering whether they have done so, the incongruous nature of such action on their part may be entitled to some weight. We should naturally expect the party alleging such action to offer very explicit evidence of it. The case is unlike that of a charter-party. There, the parties enter into a written agreement which, presumably, expresses all the terms of the contract. If, in such an agreement, it is stipulated that the ship shall sail on or before a particular day, there may be no good reason for giving this express stipulation any other than a strictly literal construction, or for implying conditions or limitations not named in the writing. See Glaholm v. Hays, 2 Man. & Gr. 257 ; Croockewit v. Fletcher, 1 Hurl. & Norm. 893. In the present case, there is no formal contract, either written or oral.

The great inquiry is, What was the contract? The nature of the contract is to be gathered from various documents and circumstances. The time-table is only one among several pieces of evidence, from all of which, taken all together, the contract is to be inferred.

The importance of punctuality is undeniable, but so is the importance



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of safety. The serious results of a failure in either respect may be weighed in determining whether the carriers have used due care and skill ; but the importance of success does not furnish conclusive evidence that the company have absolutely guaranteed against failure. Moreover, the known difficulty of attaining absolute punctuality throughout a whole year may be taken into account as a sort of offset to the argument founded on the importance of punctuality. This difficulty may diminish the probability that the company would assume such a rigorous obligation. In Howard v. Cobb, 19 Monthly Law Reporter, 377, the contract related only to a single trip of a steamer. But here, there is no ground for asserting that the defendants made any different agreement relative to their morning train on September 8, so far as punctuality is concerned, from that entered into respecting all their other regular trains throughout the whole year. Practically, the question is, whether they have undertaken to guarantee exact punctuality in the arrival and departure of all their trains throughout a whole year. We are not reduced to the dilemma of considering the time-table as evidence of such a guaranty, or else giving it “no meaning and effect at all.” As has already been intimated, much effect can be given to it, as increasing the obligations of the defendants, without construing it as an absolute warranty of punctuality.

Upon the whole, we think that there is no evidence that the defendants entered into an absolute and unconditional engagement that the trains should depart and arrive at the precise moments indicated in the time table. The defendants were not liable for the failure to carry the plain tiff in the morning, unless that failure was attributable to their negligence, to their neglecting to do all that due care could do to run in conformity to the time-table. The rejected evidence tended to show that the failure was not attributable to their negligence. It should, therefore, have been received, and submitted to the consideration of the jury.

An examination of reported decisions does not disclose any strong preponderance against the views now expressed. In most cases, the negligence of the carrier has been proved or admitted.

Hawcroft v. Great Northern R. Co., as sometimes cited, might seem strongly against the defendants ; but, as reported, its bearing in that direction is not so obvious. It is a case decided by Patteson, J., and Wightman, J., in the queen’s bench, in 1852, and is reported in 16 Jurist, 196, 8 Eng. Law & Eq. 362, and more fully in Law Journal, vol. 30 N. S., vol. 21 Qu. B. 178. The plaintiff purchased an excursion ticket from Barnsley to London and return. Upon the back of the ticket were the words, “To return by the trains advertised for that purpose on any day not beyond fourteen days after date hereof." The defendants advertised certain trains for excursion ticket holders, including one train leaving London at 6.45 A. M. on Saturday, and another at 9.15 P. M. Upon all the facts, the court seem to have concluded, and we think correctly, that the plaintiff had a right to understand that both trains were advertised as carrying through to Barnsley. The plaintiff went to the London station as early as 6 A. M. on Saturday ; but the pressure of persons wishing to be passengers by that train was so great that he was unable to obtain a seat in it, although it consisted of thirty carriages drawn by two engines. The company caused an extra train of twenty-three carriages to be sent

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about noon, but this train was also filled without the plaintiff's being able to procure a place. The company made every exertion to procure and send off another extra train during the day, but were unable to do so for want of sufficient engines, carriages, and servants at the London station to meet the extraordinary influx of returning excursion passengers on that morning, although they were sufficiently supplied for the ordinary excursion traffic of the company. The defendants contended that it would have been unsafe to have dispatched the 6.45 A. m. train with more than two engines, or with a greater number of carriages; but it was conceded that a sufficient number of trains to convey all excursion ticket-holders might have been dispatched with safety long before noon, if the company had been provided with a sufficient number of engines, cars, and servants for the purpose at the London station. It was claimed that the transportation provided would have been sufficient to accommodate all applicants on any other Saturday morning for two months, and that the number of applicants on the Saturday morning in question was greater than on any other Saturday. The plaintiff took passage in the 9.15 P. M. train, which carried him only as far as Doncaster. No arrangement had been made for carrying him thence to Barnsley, and no train ran thither until Monday. The county judge, at the trial, ruled that there was a special contract binding the defendants to carry the plaintiff by the 6.45 A. M. train, or by some other train within a reasonable time after that hour ; that carrying by the 9.15 P. M. train was not a sufficient compliance with the contract, but, if so, there was a breach in carrying no further than Doncaster; that the extraordinary influx of passengers was no defence, but the company were bound to provide sufficient accommodations at or within a reasonable time after the hour advertised for all excursion ticket holders. In arguing to set aside the verdict for the plaintiff, rendered under these rulings, the counsel for the defendants said : “ Could the company be sued if they had refused to carry a passenger when there was no room for bim ? They were common carriers, and bound to carry safely." Thereupon, Patteson, J., remarked : “ They should have made it a condition of their contract that they would not carry unless there was room.” The court refused to grant a new trial. Patteson, J., said : “ The defendants, in refusing to take the plaintiff by the morning train, were right, because the train was too full to allow him to be carried with safety. But if they put him off and kept him until the evening, they should have made some special provision for carrying him on to Barnsley at once. I do not think that they had any right to keep him in London until the 9.15 evening train. They should bave sent another train. The case finds that they might have done so without danger.” Wightman, J., said: " : ....I think that by going by the evening train he has waived any right to complain of having been kept until the evening. But if he was content to wait and go by the evening train, he ought to have been carried on as far as Barnsley, unless they had told him what the state of the case was with respect to the stopping at Doncaster, or had made some special terms with him."

In that case it is clear that the company were liable, at all events, for failing to make any attempt to carry the plaintiff through to Barnsley by the evening train. Wightman, J., rests his decision entirely on this, and


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it is questionable whether the case can be regarded as an authority for anything beyond this. The county judge at the trial seems to have ruled that the defendants complied with their contract if they carried the plaintiff within a reasonable time after the hour advertised. This is all that the defendants can ask in the case at bar. It means “ reasonable under all the circumstances of the case ; and such a ruling is inconsistent with the theory of an absolute guaranty of punctuality. The dictum, and the decision of Patteson, J., may be susceptible of the construction that the company had failed to use due foresight to anticipate and provide for the emergency, and that they were liable on that ground. We think that the case cannot be regarded as an authority entitled to controlling weight in the present instance (see 2 Redf. on Railways, 5th ed. p. 281); and we have stated it thus fully, not so much by reason of its intrinsic importance, as on account of the frequency with which it has been cited elsewhere.

Other cases will be noticed more briefly. In Sears v. Eastern R. R. Co. 14 Allen, 433, the company were liable for not using due care to give notice of the change in the starting time of the train. In Lafayette R. R. Co. v. Sims, 27 Ind. 59, the company did not attempt to show that they had used due care to provide accommodations. They demurred to the replication, instead of rejoining that there was an unexpected rush of passengers which they could not reasonably have anticipated. Dunlop v. Edin. g Glasg. R. Co. 16 Jurist, part 2, 407, 408, was a case where the company were clearly in fault. In Denton v. Great Northern R. Co. 5 El. & Bl. 860, the defendants were liable for falsely representing that a train would start when they knew it would not. There was no attempt on their part to comply with the advertisement. Weed v. Panama R. R. Co. 17 N. Y. 362, is a case where the delay was held chargeable to the fault of the defendants, on the principle that the act of their servant was their act; see, also, Blackstock v. N. Y. f. Erie R. R. 20 N. Y. 48. In Deming v. Grand Trunk R. R. Co. 48 N. H. 455, it appeared that, on February 21, the plaintiffs told the defendants that they had wool to send to Boston, which had been contracted for and which they were very anxious to have go forward immediately, and that, unless it could be sent forward from Northumberland the next day, it must go by another railroad route. The defendants thereupon received the wool, and agreed to forward it from Northumberland on February 22, but did not forward it until March 16. The defendants offered to show that, owing to the approaching termination of the reciprocity treaty, there was at this time a great and unusual rush of freight, and that this occasioned the delay. They did not offer to prove that the rush commenced after the making of their contract with the plaintiffs, or that the plaintiffs had knowledge of it. The evidence was rejected. (See the ruling on p. 461.) That case differs from the present in at least two vital particulars : First, the special stress laid on punctuality in the negotiation tended to show an absolute contract to carry within a prescribed time, and the jury found such a contract. See Harmony v. Bingham, 12 N. Y. 99; 'Wilson v. York, Newcastle f Berwick R. Co. 18 Eng. Law & Eq. 557, in note ; Mullin, J., in Van Buskirk v. Roberts, 31 N. Y. 661, pp. 674, 675. Second, the exist

. ence of the alleged cause of delay was, for aught that appeared, fully

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within the knowledge of the defendants at the time they contracted with the plaintiffs. They were in fault for knowingly undertaking more than they could perform. See 17 Mo. 290. In New Orleans, fc. R. Co. v. Hurst, 36 Miss. 660, the company offered no excuse whatever for running past the station; and in Heirn v. M Caughan, 32 Miss. 17, there was evidence tending to show want of due effort to stop. In Strohn v. Detroit f Mil. R. R. Co. 23 Wis. 126, it seems to have been held that a mere statement by the carrier's agent that the ordinary time for transportation of freight is a certain number of days, is not sufficient to show a contract to carry within that time. In Angell on Carriers, 4th ed. sec. 527 a, it is said that the time-tables are " in the nature of a special contract, so that any deviation from them renders the


liable; " but we think no authority there cited, unless it be Hawcroft v. G. W. R. Co., directly sustains this position.

It would seem that the English railway companies are now in the habit of inserting notices in their time-tables that they do not warrant that the trains will arrive and depart at the precise time indicated. See Bovill, C. J., in Lord v. Midland R. Co., L. R. 2 C. P. 339, p. 345; Hurst v. Great Western R. Co. 19 C. B. (N. S.) 310; Prevost v. Great Eastern R. 13 Law Times, N. S. 20; Buckmaster v. G. E. R. Co. 23 Law Times, N. S. 471. But this practice may have been adopted from abundant caution, and does not seem to us to furnish decisive evidence of the understanding of the legal profession that the time-table, without the notice, would import a warranty. In this country nearly all the railroads publish time-tables, and delays, not attributable to negligence, are not uncommon; yet suits to recover damages for detention in such cases are almost, if not quite, unknown. That such actions are almost unprece dented, “ shows very strongly what has been understood to be the law upon the subject.”

The motion for a nonsuit was properly denied; for the jury might have found negligence from the (then) unexplained evidence that the train ran by Salem. The new trial is granted, because of the rejection of the evidence which the defendants offered to explain this circumstance.

Verdict set aside.


OCTOBER, 1873.





To render the directors of a bank liable for a special deposit wrongfully converted

and used by the bank, it is only necessary to show that, but for their gross inattention, a knowledge of the conversion must have been brought to the notice of the di

rectors. Actual knowledge is not necessary. A special deposit is neither more nor less than a naked bailment.

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