The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-04-22

this hoIding itself out to the world rs COM
mon carrier of merchandise, to provide rolling
stock for the road, equipments, convenience in
the language of the law, sufficient for all ordi-
nary purposes of transportation? 1t NAV not
be incumbent upon them to provide equip.
ments for extraordinary purposes, because
these cannot be foreseen. In case of goods
rendered and not received the statement is
this: the first duty is TO provide rolling stock
Tor the road sufficient to do all the business
Which ordinarily apd under usual circum-
stances would come upon that road. Common
carriers IKE this corporation sustain differ
.ent relation to the public from that of private
carrier. 1t is public corporation, claiming
special privileges, having special rights; Ihes
have the right of eminent domain to take iaiit
OF anybody any where. That is a puDnc rieI i
given by the public from the fact that tie pun l
lie have an interest in such corpoIil'ion'
cause they think it is undertaking 70 10
great carving business for the peneI' u .no
public generally. They have specia,i ool nis;i
lions resting upon them, and one OF these oDii-
%at;ops ~ 70 equip such road and keep it in
sncb renair that they can do all the ordinary
ond General business of the road, and do it, al
O. within a reasonable time. They are to
have rolling stock enough, equipments enough
70 do all ordinary business of the road within
n res sonable time. If an extraordinary rush
of freight something out of the usual course.
comes to them, they are not bound to receive it.
because they are not to prepare against emer-
gencies which no prudent man could prepare
against. But if they actually receive freight for
transportation, they are bound to transport it
and to furnish rolling rolling stock sufficient to
do it; but as we do not claim to recover any
damages fer this freight because they did not
receive it, that question is laid out of the case.
1t not being denied that they received our
freight on the middle Of January, 1866, we
claim that they are bound to have rolling stock
enough to transport that freight to its destina-
ton within a reasonable time. There has been
some discussion as to what is a reasonable
time. That is matter for the jury to deter
mine; that depends upon all the circumstances.
A reasonable time in summer may not tie a
reasonable time in winter. There may be ex-
traordinary emergencies arising out of storm
that would excuse much longer delay in one
case than in another. But still it is the duty
of the company to have sufficient rolling
stock to carry the freight in what under the
circumstances then existing, may be entitled a
reasonable time.
As our freight was received about the middle
of January, 1866, having received it, the COM
pany was bound to furnish a sufficient rolling
stock to transport it from the place where it
was received, at Detroit junction, to the city OF
Portland within a reasonable time. And we
claim upon the evidence in this case, that they
neglected either to furnish rolling stock enough,
or for some other reason, in part because they
did not furnish equipments enough for the pur-
pose; and in part that they used a portion OF
that which they had in a business which, as
against us, they had no right to do; that they
neglected to deliver our freight for long time
after it should DO delivered, and in cOnse-
quences of that neglect, we suffered damage
for which we are entitled to verdict at your
hands in this case. . .---i- --i 30 ',--''
1t is proper enough to take into consideration
the fact that in the winter of 1864, there was
block upon the Lake Shore road and upon
the Great Western which connects with the
New York Central. Though do not quite con-
coed that it could have the effect claimed, i
would not like to take issue very strongly upon
it.
If it were true as claimed by them, that at
the same time there was block upon the
Grand Trunk, there was also block upon the
Great Western and Lake Shore if there was
block upon all three at the same time, then the
block upon the one would not throw the freight
upon the others. But am lot going to ques-
ton the tact that there was a block upon the
Lake Shore and the Great Western earlier
than upon the Grand Trunk l4ll5l nI
1t is important that you should keep in mind
what these witnesses understand by block.
The counsel, as he presented the case to you,
argued as if when there was a block of freight
upon either of these roads, it operated to
stop all transportation of freight as long as it
existed; that if in January, IS, it was sufi-
Gent excuse for not transporting our freight,
that there was block at that time, it would be
equally as good an excuse for not transporting
there were no transportation of freight while
the block continued. 7stis -l H''- 4"si
Now that is not what any of these witnesses
understood by block. 1t was not lik a jam in
the river which stops all progress till some dar-
ing log driver removes the obstruction. SUI
pose there was block in January, and our
freight or any body's else freight, was tied up
at that time, it don't follow that the freight
should be there through January, February,
March and April, and come to us in May, be-
4l.Aan Ill
the freight was accommodating they were con-
stantly sending forward; that the freight COM
ing in was taking the place of that going out;
now if ours happened to be there ut the COM
mencement of the block it should not remain
there through the whole winter, but should 90
out in its turn. The block would not account
Tor the delay which we have shown. 1s.i
The learned counsel in his opening expatiat-
ed on the great length of line OF this road,
eleven hundred miles, and on the great variety
of climate in different parts OF it at the same
tn e, arguing storm at one extremity and sun
shine at the other, here drouth, there q fresh
ct, here a clear sky, there a tremendous
snow storm. This is very true and quite poeti-
cal; but when we come down to the case we
lind there is no pretence of any obstruction ex-
cept at one point, and that is at Sarnia.-
Our goods lay three months in those freight
sheds at Sarnia while they ought to have been
put through in ten days. MIR. Davis contin-
ued commenting upon the evidence, and treat
ed with ridicule the idea that the foot of snow
testified to by the western lumberman should
block up the ryad at Sarnia for any considera-
BILE time, even though it should drift in spots
to three times that depth. A Maine jury know
what snow storms are and how they are to be
overcome. He accounted for the delay by the
preference of other freight and principally by
the preference of the Liverpool freights which
was not of a perishable nature, and which,
had no right to preference; and
that the transportation employed not only the
occasional use of platform cars, but the gener-
al use of their flour cars as well. On the ques-
ton of damages he said it would be essen
tial for the jury to determine some period OF
time at which, at all events, the freight should
have been delivered here. In some cases it has
taken from ten to twenty days and in some
cases thirty days. They proved they had various
lois through about that time. He thought that
-four ought to have been delivered here by the
middle OF February OF that year, notwithstand
ing the more than usual storms Of the western
part os Canada; but that there should be no
doubt whatever, he would not object to the fix
ing of period so long to this delay that nc
body should be able to say that it was not suf-
fcient. He thought month would be amply
but was willing that the jury should
give them six or seven weeks up to the first OF
March as the limit to the time when the flour
should have been received here. The examin-
alton of the bills would show that it was not
delivered, any of it, until the last Of March the
of May. He claimed that the plaintiffs own es-
innate of the decline OF $500 per barrel is full
ly sustained by the testimony of other witness
es. He claimed, also, that they were entitled
to further sum equivalent to interest from
the time when the flour should have been re-
ceiyed up to the time when it was received.
L.n Judge Tnpiey's Charge. Eli IL.
You have perceived. gentlemen, by this investiga-
lion, what you have probably, observed before, that
kI,Asw
need the intervention third parties to determine
hem. Hence it is that courts of justice estab
ished to determine the rights between parties and
Jules of law are established by which these rights
IN the determination of those questions which arise
tain rules are to govern certain system is to be
adopted, and one which it is supposed will bring JUS
ice in all Among other rules which adopt
e Tor the determination OF such matters, Is the rule
ina. jurors to determine all questions of fact and
the Court is to determine all questions of law You
come from different parts OF the county where the
court is holden, where your observation and expe-
renee in life has prepared you to give to questions of
a:t practical consideration; and while bringing
your observation and experience bear you are sun
posed to be well fitted to determine questions of TACT
you not supposed to be well posted in the prin
iples of law which shall govern cases that it is
arded safe entrust jurors with the decision of
shese questions The Court is called upon to give
you the rules OF law in any issue that shall be prI
ented If the Court should err in the statement of
he law, the party aggreved is provided with RENEE
iy. The questions OF law may be reserved and car
led to the full Court before all the Judges when the
natter may be referred and if the rule has been laid
Town enormously it may be set right. The party in
uch case may have a new trial. '- ~ q 3
So you see the necessity of regarding these rules.
YOU should undertake to determine questions oflaw
here would be no remedy, and great inius ice might
70 DONE speak of these things because this is the
irst case which has been presented to you and you
nav be called upon to determine many others before
he completion of your term of service. 81
There is another general rule which will call your
attention to. When party plaintiff presents his