Railroad Company v. Reeves
IN error to the Circuit Court for the Western District of Tennessee, the case being this:
Reeves sued the Memphis and Charleston Railroad Company as a common carrier for damage to a quantity of tobacco received by it for carriage, the allegation being negligence and want of due care. The tobacco came by rail from Salisbury, North Carolina, to Chattanooga, Tennessee, reaching the latter place on the 5th of March, 1867. At Chattanooga it was received by the Memphis and Charleston Railroad Company on the 5th of March, and reloaded into two of its cars, about five o'clock in the afternoon.
The Memphis and Charleston Railroad track extends from Memphis to Stevenson, Alabama, a point west of Chattanooga, on the Nashville and Chattanooga Railroad. Between Chattanooga and Stevenson, by a contract between the two companies, the trains of the Memphis and Charleston road were drawn by engines belonging to the last-named road, an agent of the road being at Chattanooga and receiving freight and passengers there for Memphis.
One Price, who as agent of Reeves was attending and looking after the tobacco along the route, testified (though his testimony on this point was contradicted) that the agent of the company at Chattanooga promised that, if the bills were brought over in time, the tobacco should go forward at six o'clock that evening; and shortly before that time informed him that the bills had come over, and assured him that the tobacco would go off at that hour. It did not do so, though he, Price, the agent, supposing that it would, went on by a passenger train and so could no longer look after the tobacco. By the time-tables which governed at the time the forwarding of freight, goods received during one day were forwarded the next morning at 5.45 A.M., and at that time the train on which the tobacco in question was placed went off. This train, however, found the road obstructed by rocks that had fallen during the night and had to return, and in consequence of information of the washing away of a bridge on the road, had to remain at Chattanooga. Chattanooga is built on low ground, on the Tennessee River, which, a short distance west of it, runs along the base of Lookout Mountain. On the 5th of March there had been heavy rains for some weeks, and the river had been rising and was very high. Freshets of the years 1826 and 1847, the highest ever remembered previous to one now to be spoken of, or of which there was any tradition, had not risen by within three feet as high as the level of the railroad track in the station where the cars containing the tobacco were placed, on their coming back to Chattanooga, after their unsuccessful attempt to go forward.
The river rose gradually until the evening of the 7th (Thursday), at which time it reached the high water mark of 1847. That night it rose an average of four inches and hour from 7 P.M. to 6 1/2 A.M. of the 8th of March, and it continued to rise until about 2 P.M. of Sunday, the 10th of March. On Friday, at 1 P.M., the engines standing on the tracks were submerged so that their lower fire-boxes were covered. On Saturday, at 8 P.M., the engines and cars were submerged ten feet or more, and the freight in question was thus damaged. Had it gone off on the evening of the 5th it would not have been damaged. A freight train did leave Chattanooga going towards Memphis on that evening, but it carried freight of the Nashville and Chattanooga road only, and none for the road of the defendant. Four or five days elapsed from the time when the water began to come up into the town, before it was so high as to submerge the cars and injure the freight. No one expected the water would rise as it did, because it rose full fifteen feet higher than had ever before been known. The rise was at first gradual, and from the direction of Lookout Mountain, by backing; but afterwards it came suddenly from the direction of the Western and Atlantic road, opposite to its former direction, and then rose very rapidly. Although on the 6th the river was getting out of its banks, there was no apprehension, up to the night of the 7th, that the water would submerge the town. During the night of the 7th merchants removed their goods, and one Phillips, who that night removed his to the second story of a building standing on ground no higher than the depot, saved them. The water rose into his building on the morning of the 8th. The people finally fled to the hills, and there was a universal destruction of property as well of individuals as of railroads passing through the city. The waters indeed were so high and the flood finally so unexpected that the mayor broke open railroad cars and took provisions which were in process of transportation, to feed the famishing population. The cars in which the tobacco was were standing on the highest ground in the region of the station. There were roads in other directions, beside the road over which the rock had fallen, physically traversable by the cars which had the tobacco; but there were difficulties of various kinds in going on them, which the agents considered amounted to a bar to trying to use them.
On this case the defendant, having by a first and second request, asked the court to instruct the jury that there was no obligatory contract even if the jury believed the conversations deposed to by Price, asked further instructions.
'Third. That if the jury shall believe that the train was stopped on the morning of the 6th by the falling of rock on the track and the washing away of a bridge, and was obliged to put back to Chattanooga in order to send force and implements to put the road in repair, then such delay was inevitable, and would not subject the road for any consequential damages, the immediate cause of the damage being the flood.
'Fourth. That when the damage is shown to have resulted from an immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the case.
'Fifth. If the freight train carrying the tobacco left Chattanooga on the morning of the 6th of March, 1867, on its proper time under the contract, and was prevented from going forward by obstructions on the track or the washing away of a bridge, caused by an extraordinary fall of rain and freshet, and was detained at Chattanooga by these obstructions, or either of them, until the tobacco was injured by the subsequent freshet, which could not be avoided, then the delay at Chattanooga would not be negligence, and the defendant would not be liable for the injury caused by such subsequent freshet, if such freshet was such as is described in the former request for instructions as an act of God, provided the defendant used all proper diligence to rescue the property from injury at Chattanooga, or provided the freshet was so sudden and overwhelming as to prevent rescuing it.'But the court refused to give any of these instructions, and gave the jury, among others, the following ones:
'2d. If you shall be satisfied from the proof that the tobacco was injured while the cars upon which it was being shipped were standing at the depot in Chattanooga by a freshet which submerged the cars containing the tobacco, and that no human care, skill, and prudence could have avoided the injury, then such injury would be occasioned by the 'act of God,' and the defendant would not be liable. But, if you believe that the cars containing the tobacco were brought within the influence of the freshet by the act of the defendant, or its agents, and that if the defendant or agents had not so acted the tobacco would not have been damaged, then the injury would not be occasioned by the 'act of God,' and the defendant would be liable for the damage sustained.
'3d. If you shall believe that the tobacco was received at Chattanooga by the defendant on the evening of the 5th of March, 1867, and that the agent of the defendant having the charge of the freights at, and superintending their shipment from, that point to Memphis, made a contract with Price, the agent of the plaintiff, by which the tobacco was to be sent forward for Memphis on the same evening, and that the agent of the defendant did not comply with the said contract or engagement so made with the agent of the plaintiff, but held the tobacco over until the next morning's train, and, as a consequence of such delay, the tobacco was injured by a freshet in the rivers and creeks contiguous to Chattanooga, and which freshet would not otherwise than by said delay have caused the said injury, then the defendant can claim no exemption from its liability as carriers on account of any injury or damage occasioned by the said freshet, and you will find a verdict in favor of the plaintiff.
'4th. If you shall believe that the tobacco in controversy was not sent forward from Chattanooga, en route for Memphis, until the morning of the 6th of March (and this in the absence of any such contract as stated in the preceding instruction), and that the train upon which said tobacco was being transported was delayed and hindered in its progress by an obstruction upon the track of the road some two and a half or three miles from Chattanooga, which obstruction was occasioned by a slide or tumbling of a rock from the mountain side along which the track of the road is located, and in consequence of said obstruction the said train returned to the depot at Chattanooga, when, by a diligent effort on the part of the defendant's agents the obstruction might have been removed and the train gone through to some other point on the road where no injury would have resulted; and if you believe that while the train was so at the depot at Chattanooga the tobacco aforesaid was damaged as alleged, then the returning of the train to Chattanooga was the immediate cause of the injury, and not the freshet; and the injury would not be caused by 'the act of God,' man's agency having intervened, and the defendant would not be relieved from liability, and the plaintiff will be entitled to a verdict in his favor.
'5th. That the loss or damage to the goods in question, if produced by a rise, or freshet, in the river or creeks in the vicinity of the depot where the train was standing, such rise, or freshet, to constitute it 'the act of God,' in a legal sense, must have been so sudden, immediate, and unforeseen as to leave the carrier no sufficient time or means of escape from its consequences. But if it be not shown by the evidence that such was the fact, then it was the duty of the defendant or its agents to save the property of the plaintiff from the impending danger, if it were possible to do so, by extraordinary exertion. If the damage could have been prevented by any means within the power of the defendant or its agents, and such means were not resorted to, then the liability of the defendant would not be relieved, and the jury must find for the plaintiff.'
The trial and verdict, which went for the plaintiff, was had March 26th, 1868. On the 15th of April following a motion was made by the defendant for a new trial, and overruled. The record went on, under date of the 18th of April, 1868, to say, after giving the title of the case, that,
On this day came the defendant by attorney and tendered its bill of exceptions herein, and asked that the same might be signed and sealed by the court and made part of the record in this cause, which was accordingly done.
The 'bill of exceptions, filed April 18, 1868,' then followed. It commenced, after the title of the case, by saying that, 'on the trial of this cause, the following proceedings were had.' Then came the testimony introduced, the prayer of the plaintiff in error for five distinct instructions, the refusal of the court to grant them, and the instructions which the court did give (all as already mentioned), and the statement that the defendant excepted to the action of the court in refusing the instructions aforesaid, and also in giving the charge aforesaid, and also in overruling his motion for a new trial.
The exceptions to the charge of the judge at the trial, and to his refusal to charge as requested by defendant below, presented the only grounds on which error was alleged.
Mr. P. Phillips, for the plaintiff in error:
Although the case shows, from the published schedule and the oral proof, that it is impossible that any such conversation as Price states took place between himself and the agent could have occurred, we admit its truth for the purpose of the argument.
But this admitted, there is nothing in the evidence to authorize the court to submit to the jury the finding of a contract to forward this freight on the night of the 5th. There was no new consideration. But a consideration is of the essence of every contract; of every obligatory promise; and so indispensable is it that it must be always shown, and cannot be presumed.  The loose language of Story, J., in his book on Bailments, as to what constitutes consideration, has no foundation in the common law. 
^1 Hughes v. Hughes, Admr. 7, Term 350.
^2 See American Jurist, vol. xvi, p. 254; American note (tit. Unpaid Agents) to Coggs v. Bernard, 1 Smith's Leading Cases, 419, 6th American edition.