Delaware State journal and statesman., 1869-06-18

railroad company for transportation, unuer
the arrangement of the 27th OF July 1854, a
contract arose between the parties, mol now
ever a special contract, in the sense in which
these terms are understood in the law, but
contract arising out OF, or created by lorce
of the general law, applicable 70 the delen-
dant as q common carrier for hire
II seems to us, that, to show that the
nlantif's theory of ga special contract In
regard to time, 10 an assumption unsanc-
toned by law, and consequently, that IL IS a
fallacy, il is only necessary to carry II out TO
its logical results. Take for instance, tue
case OF a passenger. Suppose the railroad
company to have advertised in newspapers
and by hand bills, special passenger lrain,
10 leave the station at Dover at 0 O'Clock in |
the morning, and TO arrive at Philadelphia
at one O'Clock in the afternoon, and that 1t
would so run during the season. And sup
pose person having business at the latier
place, and desiring TO be there by O'Clock,
should take passage on board the lraln on
| the faith of the advertisement as to the time
of departure and arrival Now, according
to the theory OF the plaintiff, as we under
stand it, a special contract would exist be-
| tween the passenger and the Company,
blneing the latter at all events to deliver the
passenger in Philadelphia by one o'clock, ,un-
less prevented by the act of God or the pub
lie enemy-and that In case OF failure TO
deliver him there by that time, the passen-
ger would have right of action against the
Company on the ground OF special con-
tract This we understand TO be the plain
iiff's theory; but we do not consider 1t sound
In point OF law. And If it is unsound as to
passengers,lt seems 10 us to be unsustainAble
in regard TO goods.
Such doctrine would establish a special
contract in respect to every package Of goods
transported over the road in cars professedly
run according to published time tables.
theory so extraordinary, and tending so mani
festly to disastrous consequences, cannot be
recognized by this Court as sound in principle.
And yet, Notwithstanding this, we are bound
! to say to you, it is not only proper, but impor-
tant, that you should take into consideration
! these arrangements, especially the arrange
ment of the 9th of July, 1854. as showing
/ the understanding of the parties in respect to
, the time and mode Of transportation, and the
! end or object which both parties sought to
attain by that arrangement, always bearing N
J mind that the freight to be carried was OF
perishable nature.
) Now, what was the prime end sought to be
attained by the parties1 1t was to have the
i peaches, which should be shipped from the
several stations on the Delaware Railroad
placed in Jersey City or New York with the
least possible delay And considering the
perishable nature of the freight to be carried
| anu aware Ol tI6 lmpOTtduCe VI speouy
4 the defendant on the 9th of July, 1854, made
!. known to the peach. growers and Dealers and
n to the public generally, by public notice II
- hand-bill form, that during the peach season
~ ~ commencing on the first day of August thei
y next, a special train Of cars would run daily
Z except Saturdays and Sundays, between tn
N several stations on the Delaware railroad ant
~ the city of Philadelphia for the transportation
! of perishdble freight to leave the severs
o. | aka 4baraiu qnpcifpd
=, designed to reach Philadelphia with peaches
IL &C.. about o'clock and 80 minutes in tn
- evening, in season for cars fully loaded 10
New York to go through to Jersey City, in tim
of for the next mornings market.
al oi These were the proposals Of the defendan
az and it was on the faith of these proposals tni
81 81 peaches were shipped by the special TRAN
'is called by some Of the witnesses the "peac
'is train" and by others the Irregular train.
Now, time seems to have been deemed by Dol
W. W. parties an important element to be considere
- on account Of the perishable nature OF Il
i,o freight and its liability to speedy decay. IL
u true, the defendant was not bound, at
"1 events, as an insurer, to start at the precl
=, time named, nor to arrive and deliver at Z
;,l time named in the advertisement; becau
~ ~ this strictness or exactness can only be requ
~ ~ ed in the case Of special contract, when
Aso our Judgment does not exist here. Nevertl
M ps less, considering the perishabe nature of I
ie ien freight and its liability to early decay, !
ion time Of deDdrtuTe of the trains from the
IN tions or Smyrna, Brentford and Mooretor
on the points at which the plaintiff shipped
,ne .n peaches-and the time occupied in making
ny transit from these stations to the city OF Phi
~ delphia, are certainly matters of special
"se portance to be considered by you, in at le
|, ot of one aspect of this case, in determining
~ "a question of negligence or want OF due d
d., gence.
Dul Now as to the points at which the defend
Fuc, was 10 deliver the peaches. If you are
: l opinion from the evidence, that it was, first
Ito deliver them TO the Camden and Amboy Ct
m, ms pany at Washington Street Wharf, and I
, the the defendant delivered them at that p'
OF from the fourth to the twenty-fourth da,
ues August inclusive; and secondly, II you
cry also of opinion, that from and after the twei
lake fourth day of August up to the close OF
opt, peach season, the siding at the Arsenal u
anu tion was according to arrangement the poir
ase. delivery, then we say to you, that the mon
on the cars arrived at these points and the emf
, ae- was detached or cut loose, the delivery
lor complete and the defendants duty ended;
tne Immediately upon such delivery the duty
will rasnonsibiiitv ef the CONNECTING company c
nee, mence, and that of the Camden and An
nenl continued until they had delivered at
I'M proper point of delivery in Jersey City.
sheu we also say to you that the defendant ia il
'e or respect whatever liable or responsible for
sort loss or damage which the plaintiff may
the sustained by reason of the misconduct, n
must gence or default of the Camden and Am
how PPennsvlvania Central or New Jersey Rail
S for connsnies or of their respective agents.
the Then, as to the measure Of damages.
to rule of law on this point is quite we'll sci
lects and it is this .-"Damages are given as
llues pensaton, recompense, or satisfaction, to
plaintiff for an injury actually receive
MS him from the defendant They should bs
se at ciselv commensurate with the injury susti
been M the hands of the defendant neither
7 MS nor less" Such is the rule. NOW 10
next applications
cry TO i. If any of the plaintiffs peaches des
them either for Philadelphia or New York, wer
mere or damaged by collision Of cars occurring
ir the delivery at the proper point OF deliye
taken philadelphia then the defendant is respol
~, De for such loss or damage.
i the q If the defendant from any cause, SAY
ID left not Of God or the public enemy, failed (
ol the ~ dsliver the rlaiptifs peaches, or an,
would ton of them, at the proper point OF de
Iccep- in Philadelphia, then the defendant is re
rflers sble to the plaintiff for such failure to d'
gence. to the extent Of the loss which lie has su
hat is ed namely. to the extent of the full va
the peaches lost or not delivered.
held at 3. If you shall be satisfied from the evi
time of considering the unusual press Of busin
q or at accumulation Of freight, that the defe
lie, is Il having at hand sufficient Accommodate
pracii- means for transporting the plaintiffs pc
Iner OF unreasonably refused to receive aud
them, then the defendant is responsible
nay be plaintiff for such refusal to the extent
to use injury which he has sustained by REF
yer the such refusal But in estimating the {
1t what Of damages on account of such refusal,
IN, and sequence Of which, as is alleged, peach'
sonable left over. and so delayed in reaching
on the point of destination as to become nearly
ar case. entirely worthless, you must be car
be nut oscartoin xvhether under all the circums