Dissenting opinion by
Beaver, J.,January 18, 1897:
Established precedent founded in reason and upon authority which I regard as binding compels me to dissent from the conclusion reached by the majority of the court in this case. Recovery was had in the court below upon one or both of two distinct grounds: First. That the defendant, a common carrier by rail, unloaded from its cars upon its platform the merchandise of the plaintiff, carried by it, in such a negligent way as to destroy its value for the purposes for which it was intended, the negligence consisting as to one consignment in the breakage of a part of the merchandise and in another consignment in the unloading of doors and other material intended for the inside work of a house, in the midst of a rain storm, in consequence of which the material was rendered practically worthless. As to this point there was contradictory testimony, it being contended, on the one hand, so far as the last and principal consignment is concerned, that the storm had not begun, when the goods were unloaded, and on the other hand, that it was raging at the time the train arrived at the station and the goods were unloaded. The question involved in this part of the case was we think fairly submitted to the jury, and, in view of the contradictory character of the testimony, the answers of the trial judge to the defendant’s fourth and fifth points, as contained in the 7th and 8th assignments of error, I agree must be sustained and these assignments overruled. Whether, however, the verdict was based upon the finding of the jury as to this particular fact or as to another question which arose in the case, it is impossible to determine, and I am, therefore, compelled to consider at length a second question which legitimately grows out of the facts in the case and concerning which the trial judge in the court below made a distinct and positive ruling which has been assigned as error. It is a question concerning which there has been great contrariety of opinion and decision in the courts of last resort of the several states, and upon which our text writers upon the subject are almost equally divided. The question, as it is raised *350in this case, is capable of subdivision into three distinct propositions, and first, the general proposition: Is a common carrier by-rail bound to notify a consignee of the arrival of goods at the carrier’s station? Second: If there be such a duty on the part of the carrier, can it be modified or avoided by a stipulation in its bill of lading ? And Third: Can the carrier set up a general custom or a particular custom as to a special class of stations, at which there was no warehouse and no freight or station agents, which will relieve him of the duty of giving notice of the arrival of goods to the consignee ? These three questions practically coyer all the remaining alleged errors, as contained in the appellant’s first, second, third, fourth, fifth and sixth assignments. They will be considered in th e order above named:
First, as to the general proposition. As already intimated, theré is a very wide divergence of view on the part of our courts of last resort, both in England and in tins country, but with this divergence, so far as the consideration of the case under review is concerned, it is not necessary to occupy space in discussion, except to say that, so far as Pennsylvania is concerned, no case has arisen which required a distinct ruling on the subject. The different views as to the question, however, are presented in dicta of Mr. Justice Sharswood in Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109 (1869), and Mr. Justice Read in Tanner v. Oil Creek R. R., 53 Pa. 411 (1866).
Admitting, however, that the law is not clearly settled in Pennsylvania, can a shipper by express stipulation waive the right to notice and discharge the common carrier from liability as such, when the goods are delivered upon the platform of the carrier at a station where there is no warehouse and where he cannot in the nature of things undertake the duties of warehouseman ? If, for the convenience of a consignee, a common carrier by rail agrees to deliver at a road crossing upon a private turnout or a private platform any goods which may be forwarded at any time to the said consignee, in consideration of a release at and after the time of such delivery of all liability as a common carrier, it can hardly be doubted that such an agreement would be held to be binding. This would be equally true, if a dozen neighbors in the vicinity of the crossing united in asking that their goods should be so delivered. "Why is it not equally true, if the common carrier, for the benefit of a *351small community where the business does not justify the erection of a warehouse and the employment of a station agent, erects for the convenience of people in the neighborhood a platform, with the general understanding as to all who will have freight addressed to that station that the duties of the carrier cease as such, when the goods are delivered upon the platform? And, if this proposition be true, why may not a consignor, with the knowledge that a station is what is called a “prepaid” station, ship goods to that point, stipulating that the duties of the common carrier shall cease as such, when delivery is made upon the platform of such a station ? If this proposition be tenable, we cannot see why the 5th condition in the bill of lading of the Central Railroad Co. of New Jersey, of October 7, 1893, and the 13th condition of the bill of lading of the Easton & Amboy Railroad Company of February 22, 1894, shall not be binding upon the consignor. They constitute the contract between shipper and carrier. Such a contract does not contravene established law. It is not contrary to public policy. It is the subject of agreement. It does not release the carrier from negligence or from any liability as a common carrier. It is simply an agreement to terminate the relation existing between the consignor and the carrier upon the delivery of the goods carried, upon the platform of the carrier at the place of final destination. It is perhaps fair to say that there is no express waiver of notice to consignee either in the 5th paragraph of the bill of lading of the Central Railroad Company óf New Jersey, or in that of the Easton & Amboy Railroad Company of February 22,1894. In the latter, under which the main consignment for which recovery was had was shipped, there occurs this clause : “ Except that, when merchandise is destined to or from the several way stations and platforms where station buildings have not been established by the carrier, or Avhere there are no regularly appointed freight agents, it shall be at the risk of the owner, until loaded into the cars and when unloaded therefrom.” The court below having correctly charged the jury that the defendant was entitled to the benefit of the contract made by the consignor with the connecting railroads, upon which the goods had been shipped, this stipulation must, of course, be held as inuring to the benefit of the defendant. I am of opinion, therefore, that the court below should have affirmed the defendant’s first point in toto, *352so far at least as the consignment last above referred to was concerned.
As to the third proposition, assuming that there is no general rule of law which forbids, why was it not competent for the defendant in the court below to show a general custom known and understood in the community and known by the consignee of the goods carried, that the consignees of goods delivered at Strafford station were expected to remove the same upon their arrival without notice? And, if shown, why should the jury not have been instructed that, if they found that as a fact, the plaintiff could not recover on the ground of lack of notice ? As I understand McMasters v. Penna. R. R., 69 Pa. 374, this question was therein expressly decided. Chief Justice Thompson, after describing the station at Turtle Creek and the particular circumstances attending the shipanent and delivery of the barrel of sugar which was involved in the case, says : “ The .defendants had no warehouse at that place and gave no notice to the consignee that the sugar had been delivered at that place, but insisted that it was the custom for consignees to be present themselves, or by somebody for them, to receive goods shipped for them by rail to that place. This custom was testified to by the plaintiff himself and also by the conductor of the local freight train and the proof was not at all controverted. Was this uneontroverted custom sufficient excuse for the want of warehousing and of notice to the consignee by defendants? The learned judge thought it was, and so instructed the jury, and there was a verdict for the defendants. In other words he held a delivery on the platform a good delivery, under the custom. That a custom or usage will control the general law of liability of carriers is shown by many cases. I will quote briefly from a few of the decisions to that effect, as also from some of our most reliable text writers.” Then follow quotations from Redfield on Railways, Angelí on Carriers and numerous cases decided in the courts of other states, closing with this language by'Chief Justice Thompson : “This is a clear recognition of the power of custom to regulate the liability of common carriers, and I need not further multiply cases to prove a matter so consonant to reason as this. The cases cited by the plaintiff in error are good law but relate to adjudications on the law of carriers without any reference to the question here,
*353namely, how far it is within the usage and course of business to modify the duties and liabilities of common carriers ? But in all cases where this is relied upon by the carrier the custom or usage must be clearly proved, and that the employer knew it or is presumed to know it by reason of its generality in the neighborhood where it is claimed to exist.” In view of the general character of this decision and the reasoning upon which it is founded, I am led to the irresistible conclusion that the trial judge in the court below was in error, both in the general charge and in the answer to defendant’s second and third points, when he laid down the general proposition that a common carrier is bound under all circumstances, to give notice to the consignee of the arrival of goods, and particularly in the answer to the defendant’s third point, which point and the answer thereto are as follows : “‘It appears from the evidence that Strafford was at the time a prepaid station at which there was no freight station, and that it was the custom of the company not to give notice to the consignee of the arrival of goods.’ If that was-the custom, it was a very had custom indeed and one which was contrary to law and the sooner it is abolished the better, because it is the plain duty of every carrier, when goods reach their final destination, to give notice to the consignee of their arrival. Whether they were in the habit of doing so at once made no difference as regards the rights of the party whose property has been injured by their negligence.” Mr. Angelí, in ins treatise on the law of carriers, lays down the general proposition, in section 315, as cited by the appellee, that “ The carrier is, of course, bound to continue his care of the goods, until a knowledge of the notice is brought home to the owner or consignee; ” but in the next section (316), he says, “ But the carrier may be permitted to prove that the uniform usage and course of business in which he is engaged is to leave the goods at his usual stopping place in the town to which they are directed, without notice; and if such usage has been of so long continuance as to justify a jury to find that it was known to the employer, the carrier will be' discharged.”
As to the general proposition herein referred to, I do not think it necessary in this case to decide whether or not a common carrier by rail is bound under the law, ás it is held in Pennsylvania, to notify a consignee of the arrival of goods at the carrier’s sta*354tion, but I would hold that, even if there be such a duty generally, it can be modified or avoided by an express stipulation in the bill of lading, the acceptance of which will be a practical waiver by the consignor, and that the carrier can set up a general custom.or a particular custom as to a special class of stations at which there was no warehouse and no freight or station agent which will, if the evidence justify such a finding by a jury, relieve him of the duty of giving notice of the arrival of goods to the consignee, and I would base this decision expressly upon the case of McMasters v. The Pennsylvania Railroad, supra, from which I am unable to distinguish the present case, so far as the effect of an established custom in relieving the carrier from the necessity of notice of the arrival of goods to the consignee is concerned.
In this dissent Rice, P. J., and Willard, J., unite.