Philadelphia, Wilmington & Baltimore Railroad v. Lehman

Alvey, J., delivered the opinion of the Court. The first question that presents itself on this record is that raised by demurrer to the plaintiffs’ declaration. The declaration alleges that the defendant is a common carrier for hire ; that on the 28th of July, 1878, about the hour of 4 o’clock p. m. the defendant received from the Baltimore & Ohio Railroad Company thirteen cars loaded with cattle, belonging to the plaintiffs, to be transported by the defendant, for a reward for that purpose paid or to be paid by the plaintiffs to the defendant, with reasonable despatch over the road of the defendant; but the defendant did not, nor would, transport the same with reasonable despatch, but detained the same upon its road, in the City of Baltimore, from the time of the delivery to the defendant until about half past 12 o’clock a. m. of the morning of Monday, July 29th, 1878. By reason whereof the said cars, so laden with cattle, failed to reach Jersey City stock-yards, their point of destination, until the hour of 3 o’clock p. m. of the day last mentioned, and too late for the market of that day ; and the plaintiffs were compelled to retain the cattle until the market of Wednesday following, whereby a large shrinkage took place in the weight of the cattle, and deterioration of their condition, and the plaintiffs were put to great expense, in feeding the cattle during the period of delay, and loss of time thereby, and suffered loss by reason of the decline in the market value of the cattle, &c. ²²⁶ The Court below overruled the demurrer, aud required the defendant to plead, and the question is, whether that ruling was correct.

As the defendant is charged with failure of duty, in the exercise of its calling as a common carrier for hire, the question raised by the demurrer is, whether on a Sunday there was, in the absence of a special contract, a common law duty imposed upon it, unrestricted and unaffected by statute, to carry or forward the cattle of the plaintiffs on that day, under the facts alleged in'the declaration. The declaration does not allege in terms that the cattle were delivered to the defendant for transportation on Sunday, but it alleges that the defendant received of the Baltimore & Ohio Railroad Company, a connecting road, the cattle on the 28th of July, 1878, to be transported with reasonable despatch over its road. It is the duty of the Court to notice the days of the week on which particular days of the month fall; and hence we know, without other averment, that the 28th of July, 1878, was Sunday. Hoyle vs. Cornwallis, 1 Strange, 387; Kilgour vs. Miles, 6 G. & J., 268 .

And in the regular division of time, Sunday embraces all of the twenty-four hours next ensuing the midnight of Saturday. Supposing the defendant to have professed and held itself out as a common carrier of live stock on Sunday as on other days of the week, whether it would have been bound to accept for carriage from the plaintiffs, or from a connecting road, stock offered on a Sunday, is a question not necessary to be decided. It is alleged that the plaintiffs’ stock was offered on Sunday and actually received by the defendant to be transported over its road, with reasonable despatch. The action is founded upon the common lav? duty and liability of the defendant as a common carrier of live stock, and not upon any special contract either as between the plaintiffs and defendant, or as between the defendant and other connecting roads.

It is ²²⁷ alleged that the defendant detained the stock on its road at Baltimore for a period of about seven or eight hours, after receiving it to be transported, whereby loss and injury accrued to the plaintiffs ; and the question is, whether the defendant was justified in the detention by the fact that the stock was received upon the road on Sunday, about 4 o’clock p. m. Most, if not all, of the States of the Union have what are familiarly known as Sunday laws; and while they may differ in their phraseology and the penalties imposed, they are substantially the same in their general scope and provision ; — all looking to keeping the day sacred, and as one of rest from secular employments. Of these laws there has been great diversity of interpretation. Some Courts holding to them with great strictness, while others have construed them with considerable liberality, — and especially in cases where, by strict construction, impediments and embarrassments would be raised to the great carrying business ef the country.

In this Court we have had no case analogous to the present; but, looking to what has been decided elsewhere, we have no doubt in • concluding that our Sunday law, as found in the Code, Art. 30, sec. 178, has no application to this case whatever. That statute forbids all persons to “ work or to do any bodily labor on the Lord’s day, commonly called Sundayand it provides that no person shall command or willingly suffer any of his servants to do any manner of work or labor on that day — works of necessity and charity always excepted ;— and a small penalty is prescribed for a breach of the statute. According to the principles of the common law, applicable to common carriers, the defendant having accepted the stock to be transported over its road, in the usual course of transit, it at once became its duty to forward the same without unnecessary delay or detention. Its obligation was to carry according to its public profession, ²²⁸ and the conveniences at its command.

Johnson vs. Midland R. Co., 4 Exch., 367. And if injury he sustained, hy reason of any neglect of this duty, or other wrongful act, in the carrying and delivery of the cattle, the fact of their having heen received to he carried, or having been carried, on Sunday, can afford ho excuse to the defendant, or exoneration from liability. The carrying forward of’ the cattle hy the defendant on Sunday was not illegal; it was fairly and justly a work of necessity, and therefore excepted from the operation of the statute.. And that being the case, there is no ground for the excuse relied on hy the defendant.

Powhatan Steamboat Co. vs. Railroad Co., 24 How., 247, 253 ; Carroll vs. Staten Island R. Co., 58 N. Y, 126; Flagg vs. Millbury, 4 Cush., 243 . And even upon the supposition that the plaintiffs were violating the law in having their cattle transported on a Sunday, it is well settled that the defendant could not avail, itself of such infraction of the law hy the plaintiffs, as a. defence to an action for the consequences of a wrong or negligence of its own. Phil. Wilm,. & Balto.

R. Co. vs. Steam Towboat Co. 23 How., 209 ; Mohoney vs. Cook, 26 Penn. St., 342; Sutton vs. Town of Wauwatosa, 29 Wis., 21 ; Carroll vs. Staten Island R. Co. 58 N. Y., 126 . The Court below was clearly right, therefore, in overruling the demurrer of the defendant to the declaration of the-plaintiffs. And having disposed of the question raised upon the-demurrer to the declaration, we come now to consider the questions raised upon the facts of the case as proved upon the trial, under the plea of the general issue, not guilty.

The defendant owned and operated a line of railroad between Baltimore and Philadelphia, connecting at Canton, a mile and a quarter out of Baltimore, by ferry, with the Baltimore and Ohio Railroad, at Locust Point, and at Gray’s Ferry, near Philadelphia, with the Pennsylvania Railroad. Its principal offices, and the ²²⁹ home of its rolling-stock, were and are still in Philadelphia, and the men for running its trains come from that point; and all orders for running trains issue from the same place. The defendant ran no regular freight trains on Sunday during the summer of 1878, and none were on the schedules or otherwise advertised for that day of the week. But special trains were run on Sunday for the ■accommodation of the cattle trade, hy an arrangement with the Baltimore & Ohio Eailroad Company, which had been in existence for some time previous.

And, according to the testimony of witnesses, the usual and regular course of dealing, as between the two companies, was for the Baltimore & Ohio Eailroad Company to give notice by telegraph, on Saturday, and again on Sunday morning, of what cattle there would be for transportation over the defendant’s road, during the day of Sunday. Such notice was given, as stated by the witness, to the defendant’s agents at Canton, that they might be ready to receive the cattle, and also to the defendant’s agents at the President street depot, in the city, that they might hold over the necessary crews, and bave them and the engines in readiness to take forward the trains: That, upon the arrival of the cattle trains at Canton from Locust Point, the defendant’s agent at the President street depot, upon notice, would send down the crews and engines to take on the ■trains. With this arrangement existing, the plaintiffs, on Saturday, the -27th of July, 1878, started from the Ohio river, at Parkersburg, West Virginia, thirteen car loads of cattle, over the Baltimore and Ohio Eailroad, destined for Jersey City, The train was regularly due in Baltimore at 12 o’clock, m. of Sunday, the 28th of July. It did not, however, arrive on time.

It reached Mount Clare, Baltimore, a little before 5 o’clock of that afternoon; and it left that station for Locust Point about 5.85 p. m.; •and all the cars did not reach the tracks of the defend ²³⁰ ant’s road at Canton before 7 o’clock p. m. The distance from Baltimore:to Gray’s Perry, by the defendant’s road, is niney-six miles ; and from the latter point to Jersey City, by the Pennsylvania Railroad, the distance is eighty-nine miles; and the time usually taken for the running of cattle trains from Baltimore to Jersey City is from ten to twelve hours. It is shown in proof by the testimony of witnesses, and the production of telegrams, that on Saturday, July 27th, at 12.45 p. m. the agents of the Baltimore & Ohio Railroad Company, at Mount Clare, notified, by telegraph, the agents of the defendant, at the -home office in Philadelphia, at the President Street Depot, in Baltimore, and at Canton Station, that there would be, on the following day, from twenty to thirty cars of stock to go through to Philadelphia and New York; and that they would leave Mount Clare Station, at about 3J o’clock p. m. On Sunday, the 28th, several despatches were sent from the office of the Baltimore & Ohio Railroad Co. to the agents of the defendant, announcing stock to be forwarded to Philadelphia and Jersey City, and all of which despatches, were duly received by the agents of the defendant.

The first of these appears to have been sent at 3.40 p. m., giving notice of fifteen cars, by numbers and consignments. The next to the defendant’s agent at Canton, at 3.45 p. m., and to the agent at the President Street Depot, at 5.10 p. m. Another was sent at 4.55 p. m., to the agents at Philadelphia,