I concur fully in the result of the opinion, filed by the Chief Justice, in these cases. I think he has conclusively demonstrated that there was error in the charge of the Circuit judge in both points embraced by the exceptions. But I am not prepared to assent to the proposition contained in the-opinion, “that the liability of a carrier by rail, considered as an ordinary common carrier, ceases the moment the.goods have arrived at their place of destination, and are placed in a properly-constructed and guarded warehouse subject to the demand of the consignee.” And on the contrary, as at present advised, I am inclined to the opinion that while the carrier by rail is not bound to give notice to the consignee of the arrival of his goods, yet that his liability as carrier continues until the consignee has had a reasonable time after the arrival of the goods to remove them. The error, therefore, of the Circuit judge, according to my view,, consisted in fixing the period when such reasonable time would begin to run, at the time when notice was given instead of at the time of the arrival of the goods. The rule as to a carrier’s liability has been too long and too well settled to admit now of any dispute, even though we might, upon abstract principles, be disposed to regard it as a harsh and unjust rule. That rule is based largely upon considerations of public policy. As Best, *186C. J., says in Riley v. Horne, 5 Bing. 217: “ "Where goods are delivered to a carrier they are, usually, no longer under the eye of the owner; he seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier’s servants, and they, knowing that they could not be contradicted, would excuse their master and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer.” This language implies that the reason of the rigid rule as to the liability of carriers rests, mainly, upon the fact that the evidence of the cause of the loss or injury to goods, while in the hands of the carrier, must be sought for from those who are supposed to be under the influence or control of the carrier.
Now while it is very true, as abundantly shown in the opinion of the Chief Justice, that the introduction of this new mode of carriage, by rail, differing so essentially, in many respects, from any mode of carrying known at the time the rule was established, demands some modifications of the rules regulating the contract for carriage by land, yet the same reason as that above indicated, applies with equal, if not greater, force to a carrier by rail as to a carrier by wagon or other primitive mode of transportation.
The rule was established not merely, as seems to be assumed, for the purpose of protecting the shipper while his goods were in the course of transportation, or as it is expressed, while exposed to the risks of transportation, but also while they were in the possession and under the control of the carrier for the purpose of being transported and until they were delivered. It is ■obvious that if the goods of the shipper are destroyed after being placed in the depot of a railroad company, it would be quite as necessary for him to resort to the servants and employees of the company for evidence showing the cause of the loss, as if they were destroyed in the cars before they were taken out and placed *187in the depot. It will not do to say that the carrier’s liability, as such, exists only while the goods are exposed to the risks of transportation, which must mean only while the goods are in the course of transportation, for goods in a depot, awaiting shipment, are certainly not in the hands of the railroad company as a warehouseman, but as a carrier. ” Suppose cotton is hauled to the depot of a railroad, and deposited either on the platform or placed in the depot in the evening tó be shipped the next day, and the railroad agent gives a receipt to the shipper for the cotton : if, during the night, it is destroyed by an accidental fire, would not the company be liable? If so, why? Because the caz’rier has received the cotton under a contract to carry it to a certain point, and although it is destroyed before the transportation commenced, and therefore before it was exposed to any of the risks of transportation, having so received it the liability of cai’rier immediately arose. This is adverted to merely for the purpose of showing what is conceived to the defect in the argument in support of the view taken by the Chief Justice, viz., that the carrier is only liable, as such, while the goods aré exposed to the risks of transportation. It is said, however, that the obligation of a railroad company to provide safe and suitable warehouses or depots is one-sided and without any corresponding advantage, unless it is allowed to use these depots for the purpose of relieving itself from liability as a carrier. To this it may well be answered that these depots are erected for the convenience and security of the company, and are required by the exigencies of its business demanding that its vehicles of transportation should make only short stops at the various stations, which forbid delivery directly from such vehicles to the consignee • and that, as it is exempted from the obligation of making actual delivery of the goods entrusted to it, at the place of business of the consignee, as in the case of .carriers by wagon, and from the obligation of giving notice, as in the case of carriers by water, such exemptions afford it ample compensation for the additional obligation imposed upon it." It seems to me that there is an obvious inconsistency in the proposition laid down in the case of Norway Plains Co. v. Boston and Maine R. R. Co., 1 Gray 263, which may be regarded as the leading case in support *188of the view presented by the Chief Justice. In that case the proposition is laid down, that placing the goods, at the place of destination, in a proper warehouse for the use of the consignee^ without additional charge, provided he shall demand them in a reasonable time, is a complete performance by the carrier by rail of his duty as a common carrier, and his subsequent liabilities are those of a warehouseman. This proposition involves the idea that the freight money is a sufficient compensation not only for the actual transportation of the goods, but for the subsequent care of them between the time of their deposit in the warehouse and the expiration of a reasonable time thereafter, within which the consignee may take them away without paying anything for storage during that time. It follows, therefore, that during such reasonable time within which the consignee is allowed to remove them, that the railroad company could not charge for storage as a warehouseman. If this be so, how can it be said that during that time the railroad company holds the goods as warehouseman ? If it did, then clearly it ought to have the right, which is denied by the terms of the proposition under review, 'of charging for storage as a warehouseman.
The theory upon which the case rests, as is said in the subsequent case of Rice v. Hart, 118 Mass. 201; 19 Am. Rep. 433, is “ that delivery from themselves [the railroad company] as common carriers to themselves, as keepers for hire, discharges their responsibility as common carriers.” If so, then the company must be considered as though it were two separate aud distinct persons — a carrier and a warehouseman — and by what authority one can be regarded as under an obligation to perform the duties incident to his calling as a warehouseman, among Avliich is that of securely keeping the goods entrusted tó his care, for a single day or a single hour, without any compensation whatever, simply because he may have received compensation for performing duties incident to another and altogether different calling, I am unable to understand. If, at the moment that the goods are delivered by the railroad company, as a common carrier to itself as a warehouseman, its liabilities as a carrier cease, and its liabilities as a warehouseman begin, it would seem necessarily to follow that at the moment when its liabilities as a warehouseman begin, its *189rights, as such, among which is the right to charge for storage, would also begin; for it would be a strange anomaly to.subject one to the liabilities incident to a calling or position without, at the same time, conferring upon him the rights incident to such •calling or position. And yet both of these Massachusetts cases necessarily involve this result. During the period between the deposit of the goods in the warehouse and the expiration of the reasonable time within which the consignee is permitted to remove fhem without charge, the goods are in the possession of the company, in the one capacity or the other, either as carrier or warehouseman. If the former, then the liability is that of a common •carrier. If the latter, then the right is that of a warehouseman, to charge for storage. The only possible way of avoiding this inconsistency would be to push the doctrine to its legitimate ■result, by holding that the consignee must not only pay the freight for the transportation of his goods, but also storage from the moment they are placed in the depot until he is able to take them away. To this result, so glaringly unjust, the courts of Massachusetts do not seem willing to go, and hence the inconsistency which has been pointed out. *' If it is conceded that this question has never been decided in this state, and that the decisions elsewhere are conflicting, I do not propose, now, to enter upon a review or analysis of the cases, my only object being to indicate some of the reasons why I am unable to assent to the proposition above stated.
HasjKELl, A. J.I cannot concur that there was error in the first proposition charged, but believing that there was error in the second, I concur in the result.
New trial granted.