Page:Federal Reporter, 1st Series, Volume 1.djvu/237

 HALL V. PENN. E. CO. 229 �freight trains on which plaintiff's goods were being carried, to perform their duty was a default on part of defendant. �3|-. That the strike and refusai to perform duty on the part of the men does not justify or excuse the interruption of the transit of plaintiff's goods; and that defendant's election not to pay the 10 per cent, additional wages demanded, and in lieu thereof to allow the goods to remain at' Pittsburgh, wholly or partly in the control of persons who prevented defendant from "operating its road" and performing its contract as com- mon carriers, makes defendant liable for ail the consequences, including the destruction and loss of said goods, during the period that the transit was thus interrupted, and the plain- tiff's property thus wrongfully controlled, without proof of any other negligence or misconduct on the part of defendant. �4. That allowing or suffering others than its own em- ployes to take from defendant the possession or control, whether in whole or in part, of plaintiff's goods, and to use that control, not for the purpose of furthering or continuing the transit, but for the purpose of suspending and preventing it, was a default on part of defendant. �6. That however proper it may have been for defendant to call on the public authorities for protection and assistance "in retaking and redelivering to defendant the entire posses- sion and control of said property," sueh act of propriety in no way justifies the previous default in suffering the possession and control thereof to pass out of its hands. �6. That the varions risks enumerated in said conditions, which are assumed by plaintiff in relief of defendant's gen- erai liability, and more especially the risk "of fire while in transit," are limited to losses occurring while the defendant is engaged in carrying the goods, in the proper discharge of its duties under the contract, and do not include loss by fire occurring while the transit is suspended, and the goods in question have been suffered by defendant to pass into the possession and control of persons acting adversely to the duties defendant assumed to discharge. �7. That it was gross default and negligence on the part of defendant to allow freight trains to come into Pittsburgh on ��� �