Ox Petition eor a Rehearing.
Biddle, J.This case has been again argued ably by written briefs, and, on petition for a rehearing, orally and earnestly argued at length.
No new authority has been cited impairing the rules of law laid down in the original opinion, as we view them, but several cases have been cited which appear to us to support our original views.
Doubtless a common carrier may so hold himself out to the public as to make himself liable for not receiving and carrying goods beyond his own line ; or, by a special contract, he may make himself liable for not receiving and carrying goods bqyond his own line; or, if a person not a common carrier in fact, and -not holding himself out to the public as a common carrier, undertakes by contract to carry goods to a given point, he will *578be .held liable for a breach of his contract as a common carrier.
In this ease the action is not founded on a special contract, but on the public duty of a common carrier. The action arises ex delicto, and not ex contractu.
At the common law, before the enactment of our code of procedure, it would have been an action of trespass on the case, and not for the breach of a contract; and the difficult question before us is, whether it has been shown that the appellant was a common carrier, as alleged by the appellees, and had committed a breach of its public duty, to the injury of those who complain. We do not think the statutes of this State — the common law being in force — materially affect the case.
The greater number of authorities cited by the appellees arise upon a breach of contract, in not properly delivering goods received to be carried, instead of not receiving goods to Carry, and are, therefore, not directly applicable to the case we are considering.
The cases most relied upon by the appellees, and we believe the strongest in their favor, are, Crouch v. The London and N. W. R. W. Co., 25 Eng. L. & Eq. 287, and Wheeler v. San Francisco and Alameda R. R. Co., 31 Cal. 46.
In the former case, the termini of the defendant’s line were both within the realm of England, but it was in the habit of carrying parcels and packages to Glasgow, in Scotland, and so held itself out to the public. It received the package of the plaintiff', which he desired to be carried to Glasgow, with other packages for the same destination, belonging to other persons; but, instead of carrying the plaintiff’s package to Glasgow, it was delivered at the terminus of the defendant’^ line in England, while the other packages, belonging to other persons, were carried on to Glasgow. Eor this discrimination against the plaintiff', without any cause shown, the defendant was very properly held liable. But we do not clearly see how *579this ease supports the views of the' appellees, when the breach of duty complained of is in not receiving the goods to carry, instead Of not delivering them at their proper destination, after they had been received.
In the California case, the complaint, after averring that the defendant was a common carrier of passengers and freight over its railroad by cars,- and across the hay of San Francisco, to the city of San Francisco by steamboat, alleges, that the “plaintiff was a resident of” the “ county of Alameda, and doing business in said city of San Francisco, and theretofore in the habit and accustomed to make trips back and forth daily on said railroad and steamboat, and that on the day last nanled he entered defendant’s cars at a regular station on said route, known as the ‘Alameda Station,’ and while said ears were there On a regular trip for the purpose of receiving freight and passengers to San Francisco) and that he entered the ears in good faith as á passenger, for the purpose of being conveyed to said city of San Francisco, in the usual course of his businéss in said city* and- that he tendered the usual rates of fare and offered to pay the same, being the same sum charged for other passengers, to wit: the sum of twenty-five cents, ahd requested defendant to carry him to San Francisco as such passenger. Yet said defendant, not regarding its duty, but intending to injure this plaintiff in this behalf, refused to accept said fare, and that after plaintiff had proceeded on said cars to said steamer, * * * as such passenger, and while he.was still yet ready to pay his full faré, and while he had fully conformed to all the rules and regulations of defendant in the premises, and was still so conforming and conducting himself in a proper manner, and while there was ample room on board said steamer, and while other passengers were received as passengers on board thereof, said defendant, by its agents, employees and servants, did, wrongfully, unlawfully, and with force and arms, and against the will of this plaintiff) seize hold of and expel, *580eject and remove Mm from on board of said steamer to said wharf, and there held and detained him until said steamer left said wharf for San Erancisco, whither she proceeded with her freight and passengers; and defendant then and there refused to permit plaintiff to travel on said line,” etc.
This complaint was held good against a demurrer alleging the insufficiency of the facts stated to constitute a cause of action, and this is all the case decides. Surely this decision is correct; but wherein it supports the appellees in the case we are considering, we do not clearly perceive. The demurrer admitted that the defendant was a common carrier along its road by ears, and across the bay by steamboat; that it had been in the habit of carrying the plaintiff daily, as a passenger, along its road and across the bay for the usual fare; and that, upon this given day, it refused to receive his fare or carry him as usual, but forcibly ejected him from the boat. Such a case hears no analogy to the one we are considering. The case, on demurrer, was argued upon the ground that the defendant’s charter only authorized it to build and run their railroad, without any power to employ steamboats in connection with their line; and while much of the language of the court when pronouncing the opinion, applied generally, would seem to favor the views of the appellees in the case we are considering, when we look to the premises and conclusion of the ease — to which, ..and to no greater extent, it is an authority — they do not support the appellees in the case now before us. "We are, therefore, still satisfied with the law as laid down in the original opinion.
It is stated that we did not decide the questions of law made upon the instructions of the court to the jury. We examined such as were objected to and insisted upon in the briefs, and did not find any of the objections well taken. We looked no farther, but presumed that all *581those not objected to, or objected to and not discussed, in the briefs, were correct.
• It is claimed by the appellees, that, if they show some evidence in the record which fairly tends to support the verdict, they are entitled to an affirmance of the judgment. This is true, if there is some evidence fairly tending to support all the facts necessary to the verdict; but certain facts may be supported by sufficient evidence, while other facts necessary to the verdict are not supported by any evidence. In such cases, the appellees are not entitled to an affirmance of the judgment. In the present case, there is evidence strongly tending to show that the appellees were delayed in the shipment of their corn, and that they suffered damages thereby; but we can find no evidence in the case fairly tending to show that the appellant was a common carrier eastward beyond the city of Pittsburgh, in the State of Pennsylvania, except as cars were sent to it for the use of the appellees, from railroad companies east of Pittsburgh; and there is no evidence fairly tending to show that the appellant ever refused to furnish the cars so*"sent to them by the roads east of Pittsburgh for the benefit of the appellees. There is evidence strongly tendiug to show that the appellant was a common carrier, in its own cars, from the place of shipment to Pittsburgh, in the'State of Pennsylvania; but there is no evidence fairly tending to show that there was ever any demand made by the appellees on the appellant for cars to ship their grain to Pittsburgh, when the cars were not furnished according to the demand. Several of these points, barren of evidence, were necessary to be established by the appellees before they were entitled to recover.
The ease seems to have been tried, and the damages assessed, upon the ground that the appellant was a common carrier from the place of shipment to the city of New York, and other cities east of Pittsburgh, and is now attempted .to be sustained upon the ground that *582there existed a contract between the parties, when the complaint declares upon the general public duty of the appellant as a common carrier. Hence it was that we said in the original opinion, that it apeared to us by the record that the case was not tried on its true legal basis, and that there were several links in the chain of evidence wholly wanting; and that the new trial should have been granted, that the parties might place their rights on their true grounds, form their issues, and present their evidence accordingly; and we still think we were right in the statement.
Besides the views we have taken in the original opinion, it may be added that the evidence fairly tends to show that the appellees had been and were experienced in the business of buying and shipping grain ; that in the year 1870 they were well acquainted with the appellant as a common carrier, its line, means, mode and' capacity of carrying; with this knowledge they purchased grain for shipment, in the years 1871, 1872 and 1873, constantly demanding a class of cars for its shipment which the appellant as constantly informed them it could not furnish, only as they were sent to it from roads east of Pittsburgh, and laying their damages in their complaint, as running from the month of March, 1871, to the month of July, 1873, during all of which time the carrying capacity of the appellant was not diminished, nor its mode or means of carrying materially changed.
This evidence tends to show that the appellees purchased grain for shipment, which they had reason to know the appellant could not carry in the mode they desired and insisted upon. A common carrier is not bouud to depart from his ordinary and usual mode of business in receiving goods to carry. Edwards,Bailments, 442, sec. 586.
There remains yet to be decided a question arising upon a cross-assignment of error, which was not discussed in the original briefs and not noticed in the origi*583nal opinion. As it is a question which is likely to arise on a new trial, it is desired that we decide it now.
During the trial the appellees offered evidence to the jury to prove that the corn which they held for shipment, by reason of the delay of the appellant in furnishing means of transportation, underwent a process known as sweating or heating, whereby it was greatly damaged, in consequence of which the plaintiff sustained a loss to the amount of eight thousand dollars. The evidence was objected to by the appellant, the objection was sustained, and exception reserved.
The general common-law rule, that the carrier is responsible for all losses not occasioned by the act of Providence or the State’s enemies, does not include losses which arise from the ordinary wear and tear of goods in the course of transportation ; nor from their ordinary loss or deterioration in quantity or quality, in the course o.f the voyage; nor from their inherent or natural infirmity and tendency to damage, as for the loss or ordinary decay or deterioration of oranges or other fruits, from their inherent nature, or from the spontaneous combustion of goods, or their tendency to effervescence or acidity, or from suffering any other natural change during transportation. In such cases the carrier is not responsible on his implied obligation, unless the injury has been caused by his fault or delay in receiving or transporting the goods. Story Bailments, secs. 492, 492 a.
If, therefore, in this case, the appellees could show that their corn heated in consequence of the fault of the appellant in not receiving and transporting it, whereby they were injured, we think they should have been allowed to do so, notwithstanding the heating process was inherent in the nature of the corn. The case of The Illinois Central R. R. Co. v. McClellan, 54 Ill. 58, will support these views.
Upon the whole record it seems plain, that substantial j ustiee has not been done between the parties. An affirm-. *584anee of the judgment, we think, would approve a judicial wrong, while a reversal denies no right to either party, but simply requires a new trial according to the law of the case and the facts proved.
Original opinion filed at November term, 1877. Opinions on petition for a rehearing filed at May term, 1878.The petition is overruled; but, as the first error was committed against the appellees, the judgment must be reversed, at the costs of the appellant, and in this respect the original opinion is so far modified.