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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 568 We are of opinion that the learned trial judge fell into error as to rules of law of vital and controlling importance in the disposition of this case.
A railroad carrier stands upon the same footing as other carriers, and may excuse delay in the delivery of goods by accident or misfortune not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay and to forward the goods to their destination; and so it has been uniformly decided. (Wibert v. N.Y. Erie Railroad Co.,12 N.Y. 245; Blackstock v. N.Y. Erie Railroad Co., 20 id. 48.)
In the absence of special contract there is no absolute duty resting upon a railroad carrier to deliver the goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the tracks or disable the rolling stock or interpose irresistible force or overpowering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus interposed, and to forward the goods to their destination.
While the court below conceded this to be the general rule, it did not give the defendant the benefit of it because it held that the men engaged in the violent and riotous resistance to the defendant were its employes for whose conduct it was responsible, and in that holding was the fundamental error committed by it. It is true that these men had been in the employment of the defendant. But they left and abandoned that employment. They ceased to be in its service or in any sense its agents, for whose conduct it was responsible. They not only refused to obey its orders or to render it any service, but *Page 571 they willfully arrayed themselves in positive hostility against it, and intimidated and defeated the efforts of employes who were willing to serve it. They became a mob of vicious lawbreakers to be dealt with by the government, whose duty it was, by the use of adequate force, to restore order, enforce proper respect for private property and private rights and obedience to law. If they had burned down bridges, torn up tracks, or gone into passenger cars and assaulted passengers, upon what principle could it be held that as to such acts they were the employes of the defendant for whom it was responsible? If they had sued the defendant for wages for the eleven days when they were thus engaged in blocking its business, no one will claim that they could have recovered.
It matters not, if it be true, that the strike was conceived and organized while the strikers were in the employment of the defendant. In doing that they were not in its service or seeking to promote its interests or to discharge any duty they owed it; but they were engaged in a matter entirely outside of their employment and seeking their own ends and not the interests of the defendant. The mischief did not come from the strike — from the refusal of the employes to work, but from their violent and unlawful conduct after they had abandoned the service of the defendant.
Here upon the facts, which we must assume to be true, there was no default on the part of the defendant. It had employes who were ready and willing to manage its train and carry forward the stock, and thus perform its contract and discharge its duty; but they were prevented by mob violence which the defendant could not by reasonable efforts overcome. That under such circumstances the delay was excused has been held in several cases quite analogous to this which are entitled to much respect as authorities. (Pittsburg C.R.R. Co. v. Hogen, 84 Ill. 36; Pittsburgh,C.W.L.R. Co. v. Hallowell, 65 Ind. 188; Bennett v. L.S. M.S.R.R. Co., 6 Am. Eng. R. Cas. 391; I. W.L.R.R. Co. v.Juntzen, 10 Bardwell, 295.)
The cases of Weed v. Panama R.R. Co. (17 N.Y. 362), *Page 572 and Blackstock v. N.Y. Erie R.R. Co. (1 Bosw. 77; affirmed,20 N.Y. 48), do not sustain the plaintiff's contention here. If in this case the employes of the defendant had simply refused to discharge their duties, or to work, or had suddenly abandoned its service, offering no violence, and causing no forcible obstruction to its business, those authorities could have been cited for the maintenance of an action upon principles stated in the opinions in those cases.
We are, therefore, of opinion that this judgment should be reversed and a new trial granted, costs to abide event.
All concur.
Judgment reversed.