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York Company v. Central Railroad, 70 U.S. 3 Wall. 107 107 (1865)

York Company v. Central Railroad

70 U.S. (3 Wall.) 107


1. The common law liability of a common carrier for the safe carriage of goods may be limited and qualified by special contract with the owner, provided such special contract do not attempt to cover losses by negligence or misconduct.

Thus, where a contract for the transportation of cotton from Memphis to Boston was in the form of a bill of lading containing a clause exempting the carrier from liability for losses by fire, and the cotton was destroyed by fire, the exemption was held sufficient to protect the carrier, the fire not having been occasioned by any want of due care on his part.

2. Where a deposition is taken upon a commission, the general rule is that all objections to it of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination or upon motion to suppress the deposition. It is too late to raise such objections for the first time at the trial.

Thus, where a copy of a bill of lading was annexed to the answer of a witness examined on a commission and no objection to the copy was taken at the examination or by motion to suppress afterwards, it was held that the objection that the original was not produced or its loss shown came too late at the trial.

Trout & Son shipped at Memphis, on the Mississippi, a large quantity of cotton on board a steamer belonging to the Illinois Central Railroad Company, common carriers, which by the terms of the bill of lading was to be delivered at Boston, Massachusetts, the consignees paying $4.75 per bale, "fire and the unavoidable dangers of the river only excepted." The bill of lading which referred to the cotton as shipped by "Trout & Son" was signed in four, two copies being given to Trout & Son, of which they retained one, forwarding

Page 70 U. S. 108

the other to the York Company in New England, for whom the cotton was intended. In the course of the transit, the cotton was destroyed by fire.

The company now sued the carriers in the Circuit Court of Illinois for damages. Trout was examined on a commission, and having stated that his firm were but agents of the York Company and that the shipment was made on its account as owner, proved the fact and contract of shipment (which last he stated was in the form of a bill of lading) and the value of the cotton. But he did not produce on his examination in chief any original or copy of the bill itself.

The carriers, who wished to rest their case on the fire clause in the bill, inquired of him on cross-interrogatories whether one or more of the bills had not been delivered to him, and directed him, if one had, to annex "the same or a certified and proved copy to his deposition, and to let the same be properly identified by the commissioner in his return." The witness answering that one of the bills had been delivered to him, annexed "a true copy of it from his books." The fire clause appeared in it, though the witness stated that the cotton was shipped on the steamer before the bills were signed, that he had not examined the bills, that "his attention was not called to the fire clause," and that his firm had no authority to ship for their principals with that exemption.

On the trial, the plaintiff not having made objection during the execution of the commission nor by motion to suppress, objected to the reading of the answers to the cross-interrogatories which showed a copy of the bill, the ground of the objection being that the contract was shown to be in writing and that no foundation had been laid for secondary evidence either by notice to produce the original bill or by evidence of its loss. But the court overruled the objection.

The defendant had judgment. On error, four objections were made to it here.

1. Because it was doubtful whether as common carriers the defendants could exempt themselves from risks by fire.

Page 70 U. S. 109

2. Because if they could, still that Trout & Son, who were really but agents of the York Company, could not give their assent to such exemption.

3. Because if they had given such assent, no consideration had been paid by the company, in a reduced rate of fare or otherwise, for this restriction of the carrier's common law obligation.

4. Because the copy of the bill of lading, in the absence of notice to produce the original or of proof of its loss, was improperly allowed to be read.

Page 70 U. S. 111

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