Fenner v. Buffalo & State Line Railroad

Headnote

doods destibed for S., a placé beyond Dunkirk, b'iit directed to F. at Dunkirk, were transported by the defendant, upon its railroad, from Buffalo to Dunkirk. On the day of their arrival at the latter place, the goods were called for by the carrier who was to carry them from Dunkirk to S. The defendant, owing to other engagements of its agent, was not ready to make the delivery When called for; ánd it was mutually agreed, for the contrdhience of both parties, that the gti.tids should remain in the defendant’s warfehouse, where they were, until the next morning.' During the night, the warehouse took fire, by accident, and the goods were consumed. íléld that the liability of the defendant as a common carrier continued, until the property shótild be actually delivered to the next carrier.

APPEAL from a judgment entered upon the report of a referee. The action was brought against the defendant as a common carrier, to recover the value of goods which it had undertaken to transport from Buffalo upon its railroad, and deliver at Dunkirk, and which goods, as the plaintiff claimed, were, by the negligence and carelessness of the defendant, destroyed by fire, while in the defendant’s care and custody, at Dunkirk.

Upon the trial it was proved that on the 15th day of May, 1861, at the city of New York, the plaintiff delivered certain household furniture, bedding and clothing, of the value of five hundred and forty-seven dollars and eighty-three cents, to a common carrier at the city of New York, marked as follows; “E. P. Fenner, Dunkirk, N. Y.” That said

goods were, delivered by such carrier, at the city of Buffalo) to the defendant, marked as aforesaid, and were by said deferidant carried on its railroad from Buffalo to Dunkirk. That said goods were in fact in course of transportation to Sinclairville, Chautauqua county, New York, but that the defendant had no notice thereof, until they Were called for by the carrier Austin, as hereinafter set forth. That they arrived at Dunkirk during the afternoon of the 24th of May, and were unloaded by the defendant from the cars, and properly, stored within its freight house at that place, ready for delivery» The freight house was a substantial wooden building, as secure as wooden freight houses usually are» That during the latter part of the same afternoon one Alfred Austin, who was a teamster engaged in the business of carrying goods by team between Dunkirk aforesaid and Sinclairville, Chautauqua county, and who was authorized by the plaintiff to obtain said goods, called at the office of the defendant, at Dunkirk, with his team, and asked for said goods, and having ascertained that they had arrived, paid the freight thereon, being the sum of thirteen dollars and fifty-one cents, and signed a receipt therefor. That he then went to Richard Hays, the employee of the defendant, whose business it was to attend to the delivery of such goods, and found him engaged in the delivery of goods to other parties. That it was then nearly six o’clock, the hour at which said freight house was ordinarily closed; and the said Austin having occasion to be in Dunkirk .the next morning for other goods, it was then and there arranged between him and Hays that Austin should not wait for the plaintiff’s goods that night, but should call therefor in the morning. That thereupon said Austin went away. That during the ensuing night the freight house, in which said goods were stored, was accidentally destroyed by fire,' which caught from an adjacent building, and said goods wholly consumed. That in the preservation of said goods, from the time the same were stored as aforesaid, the defendant used ordinary care and diligence.' Upon motion of the

plaintiff's counsel, the-complaint was amended, inserting after “Dunkirk aforesaid” the words “ to be further conveyed from there to Sinclairville, their ultimate destination.” And thereupon, the' proofs being closed, the counsel for the defendant asked the referee to decide that the plaintiff was not entitled to recover in this action. The referee refused so to decide, and the defendant’s counsel excepted. The referee found the above facts, substantially, and, as a conclusion of law, he found and decided that the defendant was liable as a common carrier, for- the damages sustained by her in the loss of said goods; and that the plaintiff was entitled to judgment for $561.34, the value of said goods, including said freight moneys, together with interest and costs, and ordered judgment for the plaintiff, for that amount, from which judgmet the defendant appealed.