delivered the opinion of this Court:
The appellee sued the appellant as a common carrier, upon a contract “ to take, carry and deliver a large quantity of oats, then in the city of Baltimore, to the city of Washington, at the foot of 6th street in said city, at and for the sum of $18 per car loadand that the plaintiff delivered to said defendant three thousand bushels, of the value of sixty cents per bushel, which were so negligently and carelessly carried, that they were lost to the plaintiff, to which the defendant pleaded “ that the oats mentioned in the nar., were delivered according to the obligation of the defendant in regard thereto,” *86upon which plea there was joinder in issue, and waiver of errors in pleading.
At the trial, after testimony of the delivery of the oats by the plaintiff to the defendant for transportation, to be delivered to Lt. Fergusson, forage agent of the IT. S. Government at Washington, it was proved by one Putnam, that he was clerk of Fergusson, and being informed of the consignment of the oats by Green, and not having received them, he went to the depot of the defendant and saw the four cars which were missing, on the track inside of the depot, which ears were marked Nos. 67, 895, 889 and 542, and marked “ to be delivered to Lt. Fergusson, 6th street wharf.” That said cars not arriving at 6th street wharf, the witness made inquiries for them but could only find one of them, that being the car numbered 542, which he found subsequently had been discharged in Alexandria. It was conceded that streetage was charged on the cars.
The defendant proved by a competent witness, that it was his duty to attend to the delivery of cars from the Washington station, upon Maryland avenue, 6th street siding, and 6th street wharf. That the three missing ears were hitched to a locomotive with other cars at the Washington station, in different trains, and hauled therefrom and left either on Maryland avenue or 6th street siding, or at 6th street wharf^ he did not remember which. The custom was to deliver all cars marked for Lt. Fergusson at the foot of 6th street. The defendant further proved by a certain George Koontz, that he was agent of the defendant and had been so since April, 1862; that the Washington Branch Rail Road terminated at the station house at N. Jersey avenue; that it had been the custom since he had been there to regard the station as the place of delivery of the cars when they are put on the Maryland avenue, it is with the distinct understanding; that the owner ■takes the risk, if any. The cars for the Washington station. *87as a general tiling', are marked Washington city, D. C., and generally with chalk, they are so marked when they come to Washington; the manifest tells where they are to go, and sometimes the name of the consignee. The defendant will not deliver cars outside of the station at its risk; the-witness says this is the custom since he has been there.
Objections were taken to the testimony of this, and others of the witnesses, which it is unnecessary io notice, as they form no part of the bill of exception.
The appellee offered a prayer which was granted, and the appellant offered a series of prayers numbered from 1 to 5 inclusive, all of which were rejected; besides which, in reply to an inquiry from tíre jury after they had retired, the Court gave a written instruction. To the granting of which prayer of the appellee and instruction of the Court to the jury, as well as to tho rejection of the appellants’ prayers, the appellant excepted and prayed an appeal. The legal proposition contained in the plaintiff’s prayer is, that if the defendant accepted the oats for transportation from Baltimore to Washington, and charged in addition to the usual freight for transportation between these points a further compensation for streetage to the foot of 6th street, and failed to deliver the oats to Fnrgusson or his agent, or at the foot of 6th street, then the plaintiff was entitled to recover, although the jury might find the terminus of the road is within the depot in the city of Wa&Mngton and said oats -wore delivered safely at that point.
The appellant’s first prayer is the converse of the appellees, with several additional qualifications of liability. This asserts as a legal proposition, that if the Washington branch of the defendant’s road, terminated at their station in Washington, and the road from such station to the Maryland avenue, 6th street, etc., was not the road of the defendant; and the oats were safely transported from Baltimore to the station in Washington, then said station was the proper place for the *88delivery of tlie oats, and tlie obligation of the defendant, as a common carrier, for their transportation and delivery, did not extend beyond; and if the jury believe, that at the instance of the appellee, or his agent, the defendant hauled the oats beyond the limits of the station, upon a road or roads belonging to other parties, and where the defendant had no station or agencies to receive them, then the oats, after leaving defendant’s station, were at tlie risk of the owners; and if the jury believe the oats were in fact hauled from the station of the defendant on the road spoken of by the witnesses, as belonging to the U. S., and were left in cars containing them on tlie Maryland avenue, or 6th street siding, or 6 th street wharf, then the plaintiff was not entitled to recover.
The second affirms, that if the jury shall find the facts stated hypothetically in the first prayer, and shall further find, that it was the cusiom of the defendant to refuse to transport goods on tracks outside of the station at Washington, except at the risk of the owner, then the plaintiff (the appellee) is not entitled to recover.
3rd. If the jury shall find from the evidence, that the oats were received without any bill of lading, and that the evidence of the obligation of the defendant to transport them is in the bill for the freight thereof offered in evidence, and that the cars containing them were marked accordingly in Baltimore, then the defendants became bound to transport the oats to the said city, and their obligation in this respect was discharged on the safe arrival of the oats at the station in Washington; and if the jury believe the witness, Putnam, was authorized by Fergusson to act for him, and that he saw the oats in the station at Washington, then Fergusson had notice of their arrival at their destination, and it was his duty, if ho desired them to be transported further, to provide therefor.
*89The 4tli prayer affirms, that if tlie jury find tlie facts stated hypothetically in the first, and that the cars containing the oats were transported beyond the defendant’s premises, at the instance of the plaintiff and his agents, then the plaintiff should have had an agent oil the spot to receive the same, and the defendants were not bomuLto give notice of the arrival of the ears.
5th. That there is no evidence in the cause of an undertaking on the part of the defendant, to transport the cars ■spoken of by the witnesses to the foot of 6th street.
The several propositions of the appellant and appellee, involve the liability of common carriers for transportation of articles accepted to be delivered beyond the terminus of their lines; the obligation arising-from compensation charged for transportation ^ ultra mam ^ and the operation of “course of dealing” upon the duty of the carrier to give actual notice to the consignee.
An undertaking to transport and deliver beyond the terminus of the carrier’s lines, is not within the common law liability of a “common carrier.” — Tlie definition of the term excludes that class of contracts.
A common carrier is one obliged by law to undertake the •charge of transportation, without special agreement, and responsible as insurer for any loss to the property, for which he could not provide, from whatever cause arising, the acts ■of Qod and the public enemy only excepted. Angelí on Carriers, 70.
The defendant or appellant in this case, is sued as a common carrier upon a contract to deliver goods at a particular destination beyond the terminus of its corporate road. The object of the plaintiff’s prayer is to declare its liability as such extends to the delivery of the articles transported at the point indicated by the agreement;. and the appellant’s first prayer proposes to limit their liability to the station in *90Washington, and not beyond. The appellant was not obliged by law to carry the freight beyond' its station at Washington. Its obligation (if any) results' from a promise^ express or implied, to take the freight further for additional compensation, which contract, like all others, must be construed by the circumstances under which it was made.
The tendency of the English authorities has been to hold railroad companies, who receive goods and’book them for a certain destination, as common carriers throughout the route* even if the place is beyond the limits of that to.which they are accustomed to carry and deliver. Muschamp vs. Law & Preston R. R. Co., 8 M. & Welsby R., 421. Weed vs. Schenec. & Syra. R, R. Co., 19 Wend., 534. Angel on Carriers, sec. 98. Redfield on Railways, 282. The last author remarks, “ but this rule has been very seriously questioned in this country. The general view of the American Courts upon this subject is, that in the absence of special-contract, the rule laid down in the earlier English cases, that the carrier is-only liable for the extent of his own route, and* for the safe storage and delivery to the next carrier* is the more just and reasonable one upon the' subject, and this isthe doctrine which the Courts in this-- country are more generally inclined to adhere to:” — “ In this country, the Courts have held that when goods are delivered to a carrier marked for a particular place, but unaccompanied by any other directions for their transportation and delivery, except-such as might be inferred from the marks themselves, the carrier is only bound to transport and deliver -them according t'o the established usage of the business in which he is engaged,, whether that usage is known to the party for whom they were received or not.” Vide. 6 Hill N. Y., 157. 18 Ver't Rep., 140. 23 Ib. 209, Redfield on Railways, 282, note 6, and authorities there cited.
Tim first- branch of the appellant’s first prayer is-strictly *91consonant with the more recent authorities above cited, ft Is predicated upon the hypothesis that the contract for transportation was from Baltimore to Washington, and the terminus of'the appellant’s road was at theirsiation in that city, aft which, their liability as common carrier ceased, no special contract Intervening. The succeeding proposition in the same prayer, on the supposition that the oats were hauled beyond the limits of the station upon a road belonging to other parties, etc., '“'they were at the risk of the appellee,” is too broad to be sustained, as it omits all consideration of a special contract between the consignor and the appellant. Taken as a whole, the prayer was properly Rejected.
The second prayer of the appellant, based upon the same hypothesis as the first, with the addition “If they shall find it Was the custom of the appellant to refuse to'transport goods on tracks outside the station, except at the risk ot the owner,” the plaintiff was not entitled to recover, is subject to the same objection as the first. Usage and custom never prevail where there 5s'a special or express contract, unless, in some particular, as to which the contract was s'ilent. The ¡prayer should have been qualified with the proviso, unless there was a contract to the contrary.
' The appellant’s third prayer, is directed to the character -and effect of the evidence of the contract to carry the oats. It affirms substantially, if the oats wore 'Received without bill of lading, 'and the evidence of the obligation of the defendant to transport them, is in the lull of freight offered in evidence, and the cars containing the oats wore marked accordingly in Baltimore, then the defendant was hound 4o convey the oats to Fergusson in said city, (Washington,) and its obligation in this respect was discharged on their •safe arrival at the station in Washington ; and if the jury believe Putnam was authorised to act for Fergnsson, and «saw the oats at-the station in Washington, then Fergussoa *92liad notice of the arrival of the oats at their place of destination, and it was his duty to provide for them.
The bills of freight offered in evidence were dated Balto. Eeb’y 1, 3 and 8, 1862. They are in the following form, ' viz:
. Baltimore, FeVy 8, 1862.
M. Lt. Fergusson 67.
T. A. Green, Dr.
To the Baltimore and Ohio Kail Koad Company, forjransportation on 1 load of oats, 250 bags, sent 6th of Feb. from Baltimore to Washington city, 19,200 lbs. $19.20
W. street, 2.00
Keecived payment for the Comply,
D. O.
The jury were not to determine what was evidence of the obligation of the defendant, whether it consisted solely in the bills of freight, or in those bills connected with the direction on the cars, or other facts and circumstances, — that was the province of the Court. The jury were to find whether the oats were delivered according to the contract upon such evidence as the Court should decide was competent and proper to go to the jury. This prayer was therefore vicious because it submitted to the jury a question of law; but it was objectionable, if understood as a direction to the jury of what was the evidence of the obligation of the defendant, as that did not consist only in the bills of freight.
There was evidence that the cars were marked “ to be delivered to Lt. Fergusson, 6th street wharf,” and it was admitted streetage was paid. Such an instruction could not have been given upon a partial statement of the facts,- — being objectionable for those reasons, it is unnecessary to notice other grounds of exception.
*93The appellant’s fourth prayer affirms, that under the circumstances referred to, it was the duty of the appellee to have an agent on the spot to which the cars were to be transported to receive the same, and flic appellant was not bound to give notice of the arrival of the cars. The facts before referred to, not excluding “ a special contract or course of business, or usage to the contrary,” did not warrant the conclusion of law sought to be established, therefore it was properly rejected. The jury, however, after retiring addressed an inquiry to the Court in these words “ do we understand the ruling or opinion of the Court is, that the Railroad Company is bound to give notice personally by some of its agents to make a delivery, notwithstanding the usage of the company is to put certain cars at the usual point of delivery ?” To' which the judge replied: “I instruct the jury that if they find the cars in question arrived in Washington, and for a charge of $2 per car were subsequently sent by the defendant to Maryland avenue, or elsewhere, it was the imperative duty of the company to notify the consignee or his agent of that arrival, unless the jury find from the evidence that the consignee or his agent was aware or had knowledge that the cars had arrived at such place of delivery. If the consignee or Ms agent had knowledge of the arrival of the cars at the place of delivery, such knowledge stood in the place of notice.” This instruction taken in connection with the inquiry of the jury, was equivalent to instructing them, that no usage or course of business between the company and the consignee, or the company and its customers generally, would, under the circumstances detailed, dispense with notice of the arrival of the cars by the company to the consignee ox Ms agent unless it appeared that he had notice or knowledge of that arrival. It will be seen that railroads, having established and well known places of delivry, and hours of arrival and departure are exempted from the usual obligation of common carriers, to make a personal *94delivery or give notice of arrival. “ The general result of lh& cases is said by Oh. J. Redfield to be, that the question when the duty of the carrier ends, is one of fact or contract to be determined by the jury with reference to the mode of transportation, the special contract, if any, the course of business at the plaee, and other attending circumstances. It finally often resolves itself into the inquiry whether the carrier did all in respect to the goods, which, under the peculiar duties of his office, the owner had a right to expect of him. Where the facts are not disjmted and the course of business of the carrier is uniform, the extent of the carrier’s liability will become a question of law merely, as all such matters are under the circumstances.” And we understand the cases t® 'have settled the question that the carrier by railway is neither bound to deliver to the consignee personally or to give notice of the arrival of the goods.” Redfield on Railways, 251, 252.
There was evidence of a course of dealing between the company and the consignee, (not to speak of the evidence of usage which was objected to.) According to the evidence of the clerk of the consignee, the consignee’s depot was the 6th street wharf, in the city of Washington, the consignee being the forage agent of the G overnment; and that it was his duty to report .every night all cars that arrived at the foot of 6th street, to Capt. Dealing; that as many as twenty cars a day were received at that depot for Government, whence oats were shipped to Alexandria. The custom was.to deliver all cars marked for Lt. Fergusson, at the foot of 6th street.— Whether such evidence established the fact of such course of a dealing was for the jury, but if they found such a course of a dealing existed, its effect upon the obligation of the appellant to give notice of the arrival of the cars, and the necessity of such notice to constitute a delivery, was for the Court. In the language of the Court, in 23 Ver't Rep't, 186, “ the inquiry must come to this before the jury: whether it was reason*95able for the plaintiff, under the circumstances, to expect the? defendant to do more than deliver the parcel to tire wharfinger? If not, then that was the contract, and that ended their responsibility, etc. But if the plaintiff can satisfy the jury that from the circumstances attending; the delivery or course of business, they were fairly justified in expecting the defendant to malee a personal delivery at the bank, they must recover; otherwise, it seems to ns, the case is with the defendant.” Farm's & Mech's Bank vs. Champ. Trans., Co., 23, Ver't Rep., 186, 209. Delivery to a common carrier may bee constructive and not actual,-so delivery by a carrier may be-without actual notice to the consignee if according to the' course of business. In other w ords, the Court should have left it to the jury to find, whether the course of dealing between the company and consignee was such as to make it unreasonable to expect personal notice of the arrival of the cars, and if such course of dealing, rendered such notice unnecessary, or dispensed with it, then the company was not imperatively required to give such notice to constitute delivery, notwithstanding the extra charge of stroctagc. Vide, also„ Angel on Carriers, see. 301.
(Decided June 8th, 1860.)The fifth prayer of the defendants that there was no evidence to show an undertaking on the part of the defendant to transport the cars to the foot of 6th street, was, uiider the circumstances, too strong a conclusion to be arrived at by the Court, and was properly rejected.
"We affirm the ruling of the Court in granting the appellee’s; first prayer and rejecting the appellant’s 1st, 2nd, 3rd, 4th and 5th prayers, but them appears to be error in the instruction granted by the Court in reply to the inquiry of the jury. "We reverse the judgment and order a procedendo.
Judgment reversed, and procedendo amarded.