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Vol. I.)

WILSON 0. BANK or St. Paul

(No. 1.

existence of a desire to prefer one creditor, or of acts done with a view to secure such preference, might be sufficient to invalidate the whole transaction. Such evidence might be sufficient to leave the matter to a jury, or to support a decree, because the known existence of a motive to prefer or to defraud the bankrupt act would color acts or decisions otherwise of no significance. These cases must rest on their own circumstances. But the case before us is destitute of any evidence of the existence of such a motive, unless it is to be inputed as a conclusion of law from facts which we do not think raise such an implication.

These latter considerations serve to distinguish the present case from that of Buchanan v. Smith, 16 Wall., decided at last term, and which may seem to conflict, in some of the expressions used in that opinion, with those found in this. That was a bill in chancery, involving several distinct issues of fact, on which much and conflicting testimony was given, and the contention was mainly as to what was established by the evidence. There was satisfactory proof that the creditor, before pursuing his remedy in the state court, had urgently sought to secure a preference by obtaining from the debtor a transfer of certain policies of insurance on which a loss was due. The case was also complicated by an assignment made by the debtor, under which the assignee took possession before the creditor procured his judgment in the state court. That case was well decided on the evidence before the court. But in the case now before us, the questions we have discussed are presented nakedly and without confusion, by facts found by the court and undisputed, and we have been compelled, on careful consideration of the bankrupt act, to the following conclusions :

1. That something more than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained, when the debt is due and he is without just defence to the action, is necessary to show a preference of a creditor, or a purpose to defeat or delay the operation of the bankrupt act.

2. That the fact that the debtor, under such circumstances, does not file a petition in bankruptcy, is not sufficient evidence of such preference or of intent to defeat the operation of the act.

3. That, though the judgment creditor in such case may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law.

4. That a lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy against the debtor, though within four months of the filing of the petition.

These propositions require the questions certified to us to be answered as follows: The first and second in the negative, and the third in the affirmative.

(No. 1.

Vol. I.)

GORDON v. MANCHESTER AND LAWRENCE RAILROAD.

SUPREME COURT OF NEW HAMPSHIRE.

[52 N. H. 596.]

RAILROAD. — PUNCTUALITY IN ARRIVAL AND DEPARTURE OF TRAINS.

— NEGLIGENCE. — FAILURE TO STOP AT PARTICULAR STATION.

GORDON v. MANCHESTER AND LAWRENCE RAILROAD.

The publication of a time-table, in common form, imposes upon a railroad company

the obligation to use due care and skill to have the trains arrive and depart at the precise moments indicated in the table ; but it does not import an absolute and unconditional engagement for such arrival and departure, and does not make the company liable for want of punctuality which is not attributable to their negli

gence. G. purchased of the M. & L. R. R. a season ticket from S., an intermediate station,

to M. The railroad company published a time table, in common form, upon which a train was advertised as leaving L. at 8.27 A. M., learing S. at 8.45, and arriving at M. at 9.35 A. M. G. was at S. depot in season to take this train, but the train ran by S. without stopping. In an action of assumpsit, brought by G. against the railroad company to recover damages for their failure to transport him seasonably to M., the railroad. company offered to prove that the road was suitably equipped for transporting the usual travel, and for accommodating the excess ordinarily to be anticipated from extraordinary occasions ; that, on the morning in question, an extraordinary, unusual, and unexpected number of persons appeared at L. to take passage, and there, and at other stations before reaching S., so completely filled and overloaded the cars that it would have been dangerous to have admitted more passengers on the train ; that at S. there were, besides the plaintiff, a large number of persons waiting for transportation, whom it would have been impossible to have taken into the already overloaded cars ; that the railroad company could not have discriminated as to whom they would take or decline to take, even if they had had the means to transport any of them ; that the train consisted of eighteen passenger cars and one baggage car, and that, if the train had stopped at that station, being on an up grade, it would have been impossible to have started it ; that the railroad company had no reason to expect that such an unusual number of persons would apply for transportation on that morning ; and that, on the arrival of the train at M., and as soon as the same could be done with safety to the travelling public, they sent back the train to S. to bring the plain

tiff, and all other persons desiring transportation, to M. Held, that the railroad company were not liable, if they had done all that due care

and skill could do to transport the plaintiff punctually; and that the proposed evidence was admissible, as tending to show that the failure to transport the plaintiff was not attributable to negligence on the part of the railroad company.

ASSUMPSIT, by George C. Gordon against the Manchester & Lawrence Railroad. The declaration alleged in substance that the defendants, in consideration of a payment of twenty dollars, promised the plaintiff to transport him between Salem, N. H., and Manchester, N. H., by the regular trains between said Salem and Manchester, for the space of three months, ending September 30, 1870; that on September 8, 1870, the plaintiff was at Salem station, ready and anxious to be transported in the regular morning train to Manchester, but that the defendants neglected

Vol. I.)

GORDON v. MANCHESTER AND LAWRENCE RAILROAD.

(No. 1.

and refused to stop at Salem station the train due there, and which arrived there at 8.52 A. M. that day, and neglected and refused to transport the plaintiff to Manchester by the train aforesaid, or in any other manner, during the forenoon of that day.

Plea, the general issue, with a brief statement.

The plaintiff testified that he purchased a ticket of the defendants, on or about July 1, 1870, of which the following is a copy :

* Manchester & Lawrence Railroad, Season ticket. Pass George C. Gordon for three months, ending September 30, 1870, between Salein and Manchester.

CHAS. E. TWOMBLY, G. T. A.” The plaintiff testified that he was at Salem station on the morning of September 8, ready to take the morning train, but that said train did not stop at Salem, and that he did not arrive at Manchester until two o'clock . in the afternoon.

The plaintiff having rested, the defendants moved for a nonsuit. The motion was denied, and the defendants excepted.

The defendants then offered to prove the facts stated in the brief statement, as follows : “ That said defendants have at all times before, and on the said September 8, 1870, and since, supplied said railroad with a good and sufficient number of suitable cars and locomotives for transporting the usual and regular travel on said road, and for accommodating the excess ordinarily to be anticipated from extraordinary occasions. That on said September 8, when the plaintiff alleges that he was not taken by the morning train, an extraordinary, unusual, and unexpected number of persons appeared at Lawrence to take passage on the train, and there, and at Methuen and Messer's, so completely filled the passenger and baggage cars as to occupy all the seats, fill the aisles and platforms, and otherwise overload the cars, so that it would have been dangerous to have admitted more passengers on the train ; that at said station of Salem there was, besides the plaintiff, a large number of persons — to wit, one hundred — waiting for transportation, whom it would have been impossible to have taken into the already overloaded cars, and it would have been dangerous to the safe transportation of the passengers already on the train to have permitted any of the persons at the said station of Salem to get on board, and that the defendants could not have discriminated as to whom they would take or decline to take, even if they had had the means to transport any of them ; that the defendants were common carriers, and were and are bound to receive and carry all persons asking transportation, so far as their means would allow, and had no right to refuse transportatior because they anticipated that at some other station there might be other · persons also claiming transportation ; and that the defendants had no rea

son to expect that such an unusual number of persons would apply for transportation on the morning of the said September 8; and that the defendants, on the arrival of the train in Manchester, and as soon as the same could be done with safety to the travelling public, sent back the train to said Salem to bring the plaintiff, and all other persons desiring transportation, to Manchester, which was all that said defendants were bound to do in law.”

The defendants also offered to prove that the train consisted of eighteen passenger cars and one baggage car, and that, if the train had Vol. I.)

GORDON v. MANCHESTER AND LAWRENCE RAILROAD.

(No. 1.

stopped at that station, being on an up grade, it would have been impossible to have started it.

The evidence offered was all excluded ; and the defendants excepted.

The court charged the jury that the defendants were liable for not carrying the plaintiff, and that it made no difference by what means they were prevented from fulfilling their contract.

The jury returned a verdict for the plaintiff. The defendants moved to set aside the verdict; and the questions thus arising were reserved for the law term.

At the law term the defendants conceded that during the entire year 1870 they published a time-table, in the usual form, upon which a train was advertised as leaving Lawrence at 8.27 A. M., leaving Salem at 8.45, and due at Manchester at 9.35 A. M.

Murston, for the plaintiff.
S. C. Eastman of G. C. Bartlett, for the defendants.

SMITH, J. In order to decide whether the evidence offered by the defendants was rightly rejected, it is indispensable to determine what the contract was. If the defendants entered into an absolute and unconditional engagement to transport the plaintiff to Manchester at the precise hour and minute named in the time-table, the ruling of the court was correct. If, on the other hand, the defendants only engaged to do all that due care and skill could do to insure punctuality, a different result may follow.

A common carrier of passengers is a person upon whom the law imposes particular obligations ; " and all persons are supposed to deal with the carrier on the terms which the law predetermines, unless they specially provide otherwise.” “A particular arrangement is determined by a provision of the law, subject to be altered by a special convention between the parties.” Where the contract is in general terms, or is not expressed in words at all, and there are no external circumstances indicating the intention of the parties that the carrier should assume more or less than his ordinary liability, the contracting parties are regarded as tacitly adopting and incorporating into their contract the common law provisions relative to the obligations and liabilities of common carriers of passengers. It would be an idle ceremony for the parties to go through the form of uttering words which “ express no more than the law by intendment would have supplied.”

By the common law, common carriers of passengers are bound to use due care and skill to transport passengers, safely and promptly ; but they are not insurers of results ; they are not held liable as absolute warrantors of safety or speed. The burden of proof rests on the party asserting that the carriers entered into an engagement more onerous than that which the common law imposes on them. We have now to inquire what circumstances there are, in the present case, to indicate that the defendants assumed so much more than their common law liability as to become absolute warrantors of punctuality.

The plaintiff paid his fare in advance.

This is nothing more than what the great majority of passengers do, without any idea that the carriers are thereby made to incur any unusual responsibility. Nor does it appear that the plaintiff understood that his Vol. I.]

GORDON v. MANCHESTER AND LAWRENCE RAILROAD.

[No. 1.

ly Tun at regulahours, or with ticket doetisket entitled pact, it might has

payment in advance for the season gave him any especial preference over passengers who had paid in advance for a single passage. It is not sug. gested that season passengers were charged an extra price. In all probability, each trip cost the plaintiff a much smaller average sum than if he had paid single fares.

The plaintiff had a ticket.

It has been said by this court that " ordinarily the ticket is not and does not contain the contract." Johnson v. Concord R. R. 46 N. H. 213, p. 219. And it has been asserted that a ticket is rather in the nature of a receipt for the passage money, — " a mere token or voucher adopted for convenience, to show that the passenger has paid his fare from one place to another.” Denio, J., in Quimby v. Vanderbilt, 17 N. Y. 306, p. 313; Earl, Com., in Rawson v. Penn. R. R. Co. 48 N. Y. 212, p. 217. Certainly, the ticket now in question does not purport to express, and does not express, all the terms of the contract. If this were held otherwise, the plaintiff might find it difficult to make out even a prima facie case. Looking only at the literal language of the ticket, and considering it as the sole and conclusive evidence of the terms of the contract, it might be said that the plaintiff has had all that the ticket entitled him to, namely, a passage to Manchester. The ticket does not specify that trains shall run at reasonable hours, or with reasonable dispatch, much less that they shall run at regular and fixed hours. It is obvious that neither party can fairly be asked to regard the ticket as expressing all the terms of the contract. There is nothing in this ticket to indicate that the contract was an unusual one, or made upon any other basis than the common law obligations of carriers. It was unnecessary that the ticket should express in words what the law tacitly implies.“ Expressio eorum quo tacite insunt nihil operatur." (For instances of contracts in general terms, which are construed as containing implied conditions exonerating a party who is without fault, see Dexter v. Norton, 47 N. Y. 62; note to Hall v. Wright, 96 Eng. Com. Law, p. 795; Robinson v. Davison, L. R. 6 Exch. 269; Taylor v. Caldwell, 3 Best & Smith, 826; also, L. R. 4.C. P. 1 Ibid. 744.)

The defendants had published a time-table, upon which a train was advertised as leaving Lawrence at 8.27 A. M., leaving Salem at 8.45 A. M., and due at Manchester at 9.35 A. M.

Undoubtedly, “ the representations made by railway companies in their time-tables cannot be treated as mere waste paper.” Lord Campbell, C. J., in Denton v. Great Northern Railway Co. 5 El. & Bl. 860, p. 865. It must be conceded that such a public advertisement at least imposes on the defendants the obligation of using due care and skill to have their trains arrive and depart at the times thus indicated. For any want of punctuality which they could have avoided by the use of due care and skill, they are unquestionably liable. Nor can they excuse a non-conformity to the time-table for any cause, the existence of which was known or ought to have been known to them at the time of publishing the table. “They make the time advertised a criterion of ordinary reasonable time.” The publication of the time-table cannot amount to less than this, viz., a representation that it is ordinarily practicable for the company, by the use of due care and skill, to run according to the table, and an engagement on

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