DAVID SHAPIRO vs. BOSTON AND MAINE RAILROAD.

LORING, J. This is an action for the loss of three hundred and six bushels from a car load of oats in transit between Kentland, Indiana, and Worcester, Massachusetts. The plaintiff as indorsee

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of the bill of lading sought to charge the defendant on the ground that it was the last carrier and so liable under the rule of Moore v. New York, New Haven, & Hartford Railroad, 173 Mass. 335, and Garvan v. New York Central & Hudson River Railroad, 210 Mass. 275, where the earlier cases are collected. The presiding judge [Note p71-1] directed a verdict for the defendant, and the case is here on an exception to that ruling.

In the words of the bill of lading, the oats were "Consigned to [the] order of McCray Morrison & Co Destination, Worcester State of Mass County of _____ Notify D. Shapiro At Worcester State of Mass County of _____ Route, Boston & Albany Delvy." Of the above words those in italics were written and the others were the printed words of the bill of lading blank. On the face of the bill of lading were stamped these words: "Charges at destination should be collected at 17 cents per 100 pounds."

The car in question was delivered by the Delaware and Hudson River Railroad Company to the defendant on its tracks in Mechanicsville in the State of New York, and was transported by the defendant over its tracks some one hundred and fifty miles to the city of Worcester. On its arrival there it was placed by the defendant on the "circle track." From a plan made part of the bill of exceptions it appears that this "circle track" connects the tracks of the defendant (which, coming from a northerly direction, end in the Union passenger station) with spur tracks of the Boston and Albany railroad which lie north of its main line tracks. The main line tracks of the Boston and Albany railroad, running east and west, pass through the Union Station. These spur tracks to the north of them diverge from the Boston and Albany main line tracks about half a mile east of the Union Station, and the freight yard tracks of the Boston and Albany railroad lying to the south of its main line tracks diverge from them at about the same place. From the "circle track" the car in question was taken by a Boston and Albany switch engine to the switch in the main line tracks about half a mile east of the station, then across the main line tracks and back on the south side of them to the Boston and Albany freight yard, opposite to and south of the Union Station. It must be taken on the bill of

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exceptions that the car here in question was unloaded by the plaintiff in the Boston and Albany freight yard. The loss of the three hundred and six bushels was discovered in the unloading. A crack was then found in the bottom of the car and there was evidence tending to show that the oats had dropped out through it.

Where, as in the case at bar, goods are transported to their destination by more than one carrier, the duty of an intermediate carrier is to transport the goods to the end of its line and there deliver them, with the accompanying way bill, to the next carrier. And it is the duty of the last carrier, on receiving the goods with a way bill showing (as in the case at bar) back charges to be due not to relinquish possession and so the lien to secure the back charges until they have been paid in full; and it is its duty, also, upon receiving payment of all charges, to deliver the goods to the consignee. The case at bar therefore resolves itself into these questions: (1) Were the jury bound as matter of law to find that the defendant railroad company acted as an intermediate carrier, that is to say, that it delivered the oats not lost in transit to the Boston and Albany railroad, to be delivered by it to the consignee on payment to it of all charges due for the transportation of them from Kentland, Indiana, to Worcester, Massachusetts, including a Boston and Albany delivery? Or on the other hand (2) were the jury warranted in finding that the defendant, after transporting the oats to the point of destination (the city of Worcester), delivered them itself to the consignee, in which case it used the Boston and Albany freight yard as its yard, and employed that company to haul the oats from the "circle track" to that yard as its (the defendant's) agent? It is stated in the bill of exceptions that "The plaintiff was notified that the car had arrived in Worcester and was in the Boston and Albany freight yard, whereupon he went to the office of the defendant company, with his bill of lading, and paid to the defendant company all the charges then due for the transportation of said car from Kentland to Worcester, including the shifting of said car from the circle track to the place in the Boston and Albany freight yard where it was unloaded. The amount of charge for such transfer of the car from said circle track to the Boston and Albany freight yard was adjusted between the defendant company and the Boston and Albany Railroad Company, and the plaintiff had nothing to do therewith."

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Although it is not stated in the bill of exceptions that this notice (that the car was in the Boston and Albany freight yard) was given by the defendant, it is a fair if not the only inference from what is stated there that it was given by it; for on receiving this notice the consignee went not to the office of the Boston and Albany Railroad Company, but to the office of the defendant. And, as the bill of exceptions does not disclose any visit of the plaintiff to or communication by him with the Boston and Albany Railroad Company, the inference could be made that he received the oats under an order from the defendant consequent on his paying to it the charges due on them.

If these facts were found by the jury, the defendant did not deliver the oats to the Boston and Albany Railroad Company, to be delivered by it as the last carrier to the consignee, but did itself, as the last carrier, deliver them to the consignee, employing the Boston and Albany Railroad Company as its agent to haul the car to the Boston and Albany freight yard, and hiring the use of that yard as its yard for the delivery of these oats. The same conclusion was reached in Western & Atlantic Railroad v. Exposition Cotton Mills, 81 Ga. 522, a case similar to the case at bar. See also in this connection Atlanta National Bank v. Southern Railway, 106 Fed. Rep. 623. In the case of Missouri Pacific Railway v. Wichita Wholesale Grocery Co. 55 Kans. 525, relied on by the defendant, it was known that the loss occurred while the goods were in the possession of a railroad company which stood in the position in which the Boston and Albany stood in the case at bar. For that reason the question whether such a carrier is the last carrier within the rule of Moore v. New York, New Haven, & Hartford Railroad, ubi supra, did not arise.

Exceptions sustained.

R. B. Dodge, (S. G. Friedman with him,) for the plaintiff.

C. M. Thayer, for the defendant.