O'Rourke v. C., B. & Q. R.

I. Evidence was introduced by the parties under the issues tending to establish the facts respectively pleaded by each. The following among other instructions were given to the jury:

“3rd. If you find that the box containing the goods was shipped from St. Joe, Mo., to Hopkins, a station on defendant’s road, and directed to John O’Rourke, Alvey, Iowa, via Hopkins and Crestón, and find there is no such place known as Alvey, Iowa, and that the defendant’s agent at Hopkins, after proper examination, ascertained that there was no such place as Alvey, Iowa, then it would be the duty of the defend*530ant to hold said goods in store until it could ascertain the true destination of the goods, unless from the similarity of the sound it would be evident'that it was but mis-spelling the name Albia; but if the variance was so material as to render it doubtful that Albia was the destination meant, and was advised that no such person resided there or had inquired for goods at that station, it would have the right to hold said goods in store for the owner, and while so doing would be liable only as warehouseman, until such time as it was advised of their true destination, when it would become defendant’s duty to forward them with reasonable dispatch; and from the time it was advised of their true destination it would become liable as a common carrier, and the fact that the goods were destroyed by fife would not prevent a recovery of the plaintiff, but while holding them as warehouseman it would not be liable for their destruction by an accident of fire not caused by defendant’s negligence.

“ 4th. If you find that Crestón was only used in the direction to designate the route over which the goods were to be carried, and that the same was evident from the direction, and not as a point of destination, then if the defendant’s agent at Hopkins knew of such fact, or with reasonable care could have known the same, this would not authorize the defendant to- forward them to Crestón and place them in store at that point, and to do so would not relieve it from its liability as a common carrier.

“ 5th. But if you find that the goods were so marked as to render it reasonably probable that Crestón might be a point of destination, then the defendant would have the same right to store them at that place as at Hopkins, and if so, would only be1 liable as warehouseman.

“ 8th. If you find the goods marked to Alvey, Iowa, then, prima facie, that would be the proper place to which they should be forwarded; but if you find that there was no such place, then the defendant would not be bound to forward them to some other point, unless advised with reasonable certainty that such point was their true destination, and under such circumstances it would be the duty of the defendant to store *531the same in a reasonably safe place, and while so held in store the defendant would be liable only as warehouseman.”

1.’ common portatibn of mis-direeted. The first of the above instructions (the third of the'series), was not' excepted to in the court below, and no objection is made to it in this court. It must be regarded as correct. The fourth, fifth and eighth, defendant’s counsel insist are erroneous. JLhey appear to us to be corollaries of the third. If it was defendant’s duty, upon ascertaining that the destination of the goods could not be ascertained, to store them, thus assuming the obligation of a warehouseman, it violated its duty by sending them forward. If it undertook the transportation of the goods it became liable as a common carrier, and that liability only ceased upon the delivery of the property. The assumption of the duty of a carrier was voluntary, with the knowledge of the want of proper directions, and that the goods were consigned to a point not on defendant’s road, or to a place that had no existence. Surely, the obligations of a carrier could not be thrown off at the will of defendant, and those of a warehouseman assumed, until the goods had reached the place of destination. But, it may be said that the goods were really without a place of destination; if that be so, it was defendant’s duty to keep them in its warehouse at Hopkins, or to refuse to receive them from the connecting road. If Crestón was not' the place of destination of the goods, defendant had no right to take them there and put them in a warehouse. There is nothing to show that by transporting them to Crestón, their place of destination could have been there better discovered. The-findings of the jury upon this branch of the case are well supported by the evidence.

2.-: con-tributary negligence; when •excuse negligence o£ carrier. II. The defendant requested the court to direct the jury' that, if they found the negligence of plaintiff or her agents contributed to the loss of the goods, she cannot mi • , , • , . . recover. Ine instructions were not given, and it is insisted that the refusal was error. Counsel claim that the doctrine of contributory negligence ap-‘ plies to causes of this character. Conceding, for the purpose of the argument, but without deciding the point, the position *532of counsel, tlie doctrine must be applied with all its modifications and exceptions. One of these is that if defendant, or its agent, had knowledge of the act which is held negligent— that plaintiff’s negligence was known to defendant — it is liable for the consequences of its act, notwithstanding plaintiff’s negligence. This exception is,as well established as the rule itself. The act of plaintiff which defendant relies upon as constituting negligence is the delivery of the box to the K. C., St. J. & C. B. R. Co., with an incorrect direction inscribed thereon, and permitting the goods to.be taken for transportation, knowing that the agent of that company had written upon the package and papers accompanying it the name Alvey instead of Albia.

But that this negligent act, if such it may be considered, was fully and certainly known to defendant’s agent at Hopkins when the goods were received and shipped is established by undisputed evidence. The agent himself testifies that he “ did not know any point on the C. B. & Q. R’y named Alvey; examined latest shipping guide and map of Iowa; could not find any such place.” It is true that he says, £‘I telegraphed shipping agents but did not receive any information, nor did I learn there had been any mistake in marking and shipping ” the box; but when he saw a package marked Alvey, Iowa, and ascertained from the examination of the shipping guide and map of the State that there was no such place, he knew that there had been a mistake, notwithstanding he received no information from the shipping agent. We conclude that it was established beyond dispute that defendant’s agent had knowledge of the negligence of plaintiff when the goods were shipped to Crestón from Hopkins on defendant’s road. In view of this fact, defendant was not relieved of liability on account of plaintiff’s negligence. If, therefore, the jury were not required to consider and pass upon plaintiff’s negligence, by the instructions, no prejudice was wrought defendant, for had they been properly instructed on that point their verdict would not have been different.

III. Defendant’s counsel insist that the special findings of the jury are in conflict with the evidence. Upon this point *533we may remark generally, all of the findings that involve facts upon which is based the legal conclusion that defendant was not authorized to transport the box from Hopkins to Crestón, but was required to keep the goods in its warehouse at the place first named, are well supported by the evidence. Such findings are the second, third, fourth, fifth, sixth, seventh, eighth^ eleventh and twelfth.

It is unimportant to inquire whether the other findings are or are not in conflict with the evidence. These relate to the negligence of plaintiff. If the jury had found differently the result would have been the same, for, as we have seen, defendant is liable notwithstanding plaintiff’s negligence.

The foregoing discussion disposes of all the questions presented in the case. In our opinion, the judgment of the District Court ought to be

Affirmed.