Chicago. One George W. Mitchell was in August, 1903, the soliciting freight agent of appellant and the Lehigh Valley Railroad Company at Philadelphia.

The chocolate arrived at Chicago on one of appellant's boats August 21, 1903. It was immediately taken by appellant's drayman to the freight depot of the Rock Island Company, where it was unloaded. The Rock Island Company refused to receive it for carriage without the prepayment of the freight from Chicago to Peoria Heights. The receiving clerk at the freight depot of the Rock Island Company so notified appellant's drayman when the goods were unloaded at that depot, and appellant was soon thereafter again notified by telephone to the same effect. Appellant requested the Chicago agent of the Rock Island Company to take the matter up with the Peoria agent and see if he could not collect the freight from appellee. Appellee was not notified of any of these negotiations.

On August 26, 1903, a fire occurred at the Chicago freight depot of the Rock Island Company, and the chocolate was damaged by the water used in extinguishing the fire. On or about September 4, 1903, Hiller, a freight agent of the Rock Island Company at Chicago, telephoned appellant's agent that the Peoria agent of the Rock Island Company would collect the freight on the shipment of chocolate from appellee. Before this conversation was completed, or immediately thereafter, another freight agent of the Rock Island Company telephoned appellant's agent that there had been a fire at the freight depot of the Rock Island Company, and that the chocolate had been damaged, that Hiller was not aware of this fact when he telephoned that the Peoria agent would collect the freight, and that the Rock Island Company, under the circumstances, could not forward the chocolate. Appellee, during negotiations which followed, expressed a willingness to accept the chocolate in its damaged condition for what it was then worth, which the evidence shows was about 10 per cent. less than before the fire. The chocolate, however, was not forwarded to appellee, but was entirely lost, so far as appellee was concerned. What disposition was finally made of it does not appear from this record, except it is clear that the appellee never received it. Both appellant and the Rock Island Company refused to pay appellee for the loss of the chocolate. Each denied any liability on its part, and each asserted that the liability rested upon the other. Appellee thereupon brought an action of case against both to the September term, 1904, of the circuit court of Peoria county...

The defendants filed separate pleas of not guilty, upon which issue was joined. Trial was by jury. At the close of the plain

tiff's case in chief, the Rock Island Company moved the court to direct a verdict in its favor. This motion was allowed, and the jury, as to that defendant, under the instruction of the court, then returned a verdict of not guilty. Thereupon appellant filed its motion for leave to withdraw its pleas in bar and to file a plea to the jurisdiction of the court. This motion was denied. Appellant then moved the court to direct a verdict in its favor, which motion was overruled. This motion was renewed at the close of all the evidence, and was again denied. The jury returned a verdict against appellant for $1,195.94. Appellant moved for a new trial as to it. Appellee filed a motion for a new trial as to the Rock Island Company. Both motions were overruled, and judgment was thereupon rendered upon the verdicts in favor of the Rock Island Company and against appellant. Appellant appealed to the Appellate Court for the Second District. That court required a remittitur of $119.59 from the judgment, holding that under one of the provisions on the back of the bill of lading appellant was not liable for the loss occasioned by the damage to the chocolate from the water used in extinguishing the fire at the Rock Island freight depot, which loss the Appellate Court found was 10 per cent. of the value of the chocolate, as testified to by the witnesses upon the trial. Appellee remitted $119.59 of the judgment rendered by the circuit court, and the Appellate Court then affirmed the judgment. Appellant prosecutes a further appeal to this court. MR. JUSTICE SCOTT delivered the opinion of the court. . . . One of the conditions on the back of the bill of lading was: "No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or consignee." It was shown, by evidence, that Wilbur & Sons had actual knowledge. of the provisions on the back of the bill of lading, and that the law of the state of Pennsylvania permits a common carrier to limit its common-law liability by provisions inserted in the bill of lading with the knowledge of the shipper, except as to loss occurring from the willfulness or negligence of the carrier.

Appellant contends that the loss or damage to the chocolate occurred after said property was ready for delivery to the Rock Island Company, the next carrier, and that under the provisions of the contract of carriage it is therefore not liable. The clause above quoted must be read in connection with the other provisions of the contract. Appellant, by a provision on the face of the bill of lading, agreed to carry the chocolate to Peoria Heights, if on its road, "otherwise to deliver to another carrier on its route to said destination." When the provision that appellant shall not be

liable for loss or damage occurring after the property is ready for delivery to the next carrier is read in connection with appellant's promise to deliver the property to such other carrier, it becomes evident that under this bill of lading the property would not be ready for delivery" until appellant had performed all acts and made all arrangements necessary for transferring possession of the chocolate from itself to the connecting carrier. There would be but an instant between the time when the property was "ready for delivery" and the time when the property was delivered. For all practical purposes the property would be delivered when it was "ready for delivery." Appellant has not at any time had this property ready for delivery, within the meaning of the provisions of the bill of lading. It failed to make the necessary arrangements with the Rock Island Company for the acceptance of the chocolate for carriage by that company. It failed and refused to prepay the freight demanded by the Rock Island Company, and therefore did not have the property ready for delivery to the latter company. The condition on the back of the bill of lading does not relieve the appellant of liability, because it did not bring itself within the terms of that condition.

Appellant contends, however, that it was not required to pay the freight demanded by the Rock Island Company, because appellee had not advanced to appellant any money with which to satisfy that demand. We regard this position as untenable. The uncontradicted evidence in this record is to the effect that, when the rule of the connecting carrier requires the payment of freight in advance (as was the rule of the Rock Island Company when goods were billed to prepay stations), the custom is for the delivering carrier to pay it. Moreover, the appellant had contracted to transport the chocolate from Philadelphia to Peoria Heights for 58 cents per 100 pounds. Appellee's obligation was to pay appellant that amount-not to pay to each connecting carrier its respective charges for carrying the goods. Appellant had the right to demand the prepayment of all the freight due under the bill of lading. It did not see fit to exercise that right, but undertook to transport the chocolate from Philadelphia to Peoria Heights without demanding the prepayment of the freight contracted for. Its duty, however, in regard to making delivery to the connecting carrier, and of paying the freight demanded by the connecting carrier, was the same as though the 58 cents per 100 pounds had been paid to appellant before the chocolate left Philadelphia. Indianapolis & St. Louis Railroad Co. v. Herndon, 81 Ill. 143. . . . Judgment affirmed.2

2 In Texas & P. Ry. Co. v. Bigger (1915), 239 U. S. 330, it appeared

LESINSKY v. GREAT WESTERN DISPATCH.

10 Mo. App. 134. 1881.1

THOMPSON, J., delivered the opinion of the court.

This is an action against the defendant, an unincorporated association of railroad companies, operating connecting lines between New York and St. Louis, for damages resulting to the plaintiff by reason of the failure of the defendant to deliver to the next carrier for shipment beyond the defendant's route, merchandise belonging to the plaintiff.

The petition alleges that "the defendant was, at all the times mentioned, a common carrier; that on February 28, 1877, for value received, it agreed to carry from the city of New York to the city of St. Louis one case of merchandise, and at said city of St. Louis to deliver the same to the St. Louis, Iron Mountain, and Southern Railroad Company, and that the ultimate destination of said case was Pine Bluff, Arkansas, of which fact the defendant had full knowledge; that the defendant did transport said case to St. Louis, but that it failed to deliver it to the St. Louis, Iron Mountain, and Southern Railroad Company, as it had agreed to do; and failed to notify the plaintiff of its said failure to deliver said merchandise to said last-named road; and failed to inform the plaintiff of the whereabouts of said merchandise; and the plaintiff claims damages in the sum of $650, by reason of the negligence of the defendant in failing to deliver and to notify," &c. To this a general denial was filed.

The evidence tends to show that on February 28, 1877, Seidenbach, Schwab & Co. delivered to the defendant at New York City, a case of clothing for spring wear, of the value of $994, belonging

that plaintiff had a ticket for carriage over two connecting railroads, and was suing for injury caused by exposure at the point of intersection, occasioned by the negligence of the servants of the initial carrier. The court said in part (p. 338): "But the court instructed the jury, at the request of the plaintiffs, that the railway company owed its passengers the duty to exercise that high degree of care that would be exercised by every prudent person under the same or similar circumstances and a failure to exercise such degree of care would be negligence.' This instruction is attacked as error only because it imposed a high degree of care on the company after Bigger had left the train and was therefore in a position to use care in taking care of himself.' The ground of the objection seems to be that the duty of the company ceased upon the arrival of its train at Longview. To this, as we have already said, we cannot assent. The same care was necessary to be observed for Bigger's protection at that place, under the circumstances presented by the record, as was necessary to be observed in his transportation, and the charge of the court correctly expressed it."

1 Argument of counsel and one paragraph of the opinion are omitted. - ED.

to the plaintiff, marked “M. Lesinsky, Pine Bluff, Ark., care of St. L., I. M. R. R." for which the defendant gave a bill of lading reciting the marks on the goods, and stating that they were to be forwarded to St. Louis at a rate named; that the goods arrived at St. Louis on March 13, 1877, and were tendered by the St. Louis Transfer Company, one of the connecting companies of the defendant's line, to the St. Louis and Iron Mountain Railroad, which road refused to receive them, because at that season of the year the Arkansas River, the route by which freight is carried between Little Rock and Pine Bluff, was low, and freight could not readily be forwarded from Little Rock to Pine Bluff; and, therefore, a rule had been adopted by the Iron Mountain Road which required that merchandise destined for Pine Bluff should be marked in care of some forwarding company at Little Rock, as the Iron Mountain Road only extended to Little Rock, and not to Pine Bluff; that upon the refusal of the Iron Mountain Road to receive the goods, they were stored by the said St. Louis Transfer Company, one of the defendant's connecting lines, in its warehouse at St. Louis, where they remained until January, 1880, almost three years, when, on an order from the agent of the defendant, they were, at the plaintiff's request, delivered at St. Louis to a firm for his benefit. The goods were appraised and found damaged in the sum of $429.50. The general agent of the defendant, Mr. Wheelock, testified that about six weeks after the goods had been shipped, consignors informed him that the goods had not yet reached their destination, and he promised to send out tracers for them; that he did not, however, inform the consignors of the whereabouts of the goods until May 16, 1877, which was nearly three months after the goods had been shipped, and six weeks after their non-arrival had been reported to him. The consignee refused to receive the goods then, because the season for their sale had passed, and they had greatly declined in value. The testimony of the plaintiff is, that, had the goods been delivered to him in season they would have been worth forty per cent. more to him than the invoice price; that at one time he was informed that the goods were somewhere in Texas.

The plaintiff undertook to show that neither he nor the consignors had any knowledge of the existence of the rule under which the Iron Mountain Road declined to receive the goods; that the defendant, its officers and agents, when it received the goods, knew of the existence of this rule, and contracted with respect to it; that no notice was given the plaintiff or the consignors, by the defendant or anyone else, of the refusal of the Iron Mountain Road to receive the goods; that the rule under which the Iron Mountain