Dunham v. Boston & Albany Railroad — 11 N.Y. St. Rep. 472

Majority

p. 472

James H. Dunham et al., Pl’ffs, v. The Boston and Albany Railroad Company, Def’t.

(Supreme Court, General Term, First Department,

Filed October 27, 1887.)

Headnote

1. Common cabbiebs—-Liability of—Dubation of.

The liability of a common carrier continues after the arrival of goods at their destination and notice of such fact to the consignee, for a period, sufficient for the consignee using reasonable diligence to remore them.

2. Same—Liability of—Fob loss by fibb.

Held, that where the consignee of goods used reasonable diligence in the removal c f goods and after a portion were taken away, the remainder were destroyed by fire, the common carrier was liable for such loss.

Motion by defendant for a new trial on exceptions ordered to be first heard at the general term.

Miller & Macfarlane, for def’t; Kopper & Jenks, for pl'ffs.

—The verdict was directed for the value of eleven cases of cotton flannels carried by the defendant over its railroad to Bondsville, there to be delivered to the Bondsville Dye Works. These cases with others were shipped by the Worcester and Nashua Railroad Company in the state of New Hampshire, to be delivered at Bonds-ville in the state of Massachusetts. They were transported

p. 473

by the Worcester and Nashua Railroad Company to Worcester and there delivered to the defendant to complete their transportation. Upon their arrival at Bondsville the cars containing the cases were placed upon a side track, near the defendant’s freight house,, and notice of their arrival was given to the consignee.

The person having charge of the tracks and teams, used in handling the goods of the consignees to and from the depot, was present at the arrival of the train. And within about half an hour after that time, and after notice of the arrival of the cars had been given, he gave directions to the truckman at the depot to take a load of the goods immediately from the car to the dye works, which he did. That, it was stated, was before eleven o’clock in the day. He then reported, at the dye works, the arrival of the goods and instructed all the truckmen to remove them from the cars to the dye works as fast as they could, and he went himself to superintend the work. They used, on that day, as many trucks as they had in their employment, consisting of one double and two single tracks, and removed from fifteen to twenty loads of the goods, when the usual time for knocking off work arrived, and then the truckmen discontinued the removal of the goods, leaving about a carload and a half which they had not then been able to remove. On the morning of the following day, between the hours of one and two o’clock, a fire occurred which destroyed the defendant’s freight house, as well as one of the cars standing on the side track containing the eleven cases of goods which were destroyed by the fire. Three of the cars were removed out of danger, but the fourth, the persons engaged in their removal were unable to remove, and they then endeavored to save its contents. They removed about one-half of the cases in the car when they were driven out of it by the heat and were unable to remove the residue. The court, under these circumstances, held the defendant to be liable for the loss of the goods, and directed a verdict in favor of the plaintiffs for their value, and to that holding and direction the counsel for the defendant excepted. Whether this exception was well taken is the only point which needs to be considered in the disposition of the appeal.

The cases of Norway Plains Co. v. Boston, etc., R. R. Co. ( 1 Gray, 263 ), Rice v. Hart ( 118 Mass., 201 ) and Peed v. Richardson (98 id., 216 ), have a decided tendency to sustain tins exception. But these cases have been considered to be exceptional in their construction and application of the law regulating the liability of a common carrier. For ordinarily and generally it has been held that the carrier is

p. 474

not only liable while the property may be in the course of its transit or carriage, but that it continues to be so for such a reasonable period of time as will enable the consignee, after notice of the arrival of the goods, with reasonable diligence to effect their removal. This is the principle on which the courts in other states have acted in determining the extent of the liability of the carrier. And under this principle, as the consignees observed proper diligence in their endeavors to remove the goods after their arrival, and were unable to do so by the observance of that diligence before the destruction of this residue by the fire, the defendant was properly held liable for the value of the goods. This legal principle has been held to be, and followed as, the law in the state of New Hampshire, where these goods were delivered to the first carrier and from which they were received by the defendant. Moses v. Boston and Maine R. R. Co., 32 N. H., 523 .

The contract of the carrier was there entered into, and it was under that contract the goods were transported from the place where they were first delivered to the place of business of the consignee. And the force and effect given to such a contract of shipment and carriage by this decision is to support the rule which has already been mentioned. And it has been followed in Wood v. Crocker ( 18 Wis., 345 ), Wood v. Milwaukee, etc., R. R. Co. (27 id., 541), Parker v. Milwaukee, etc. (30 id., 689), and also in the state of Kansas in the case of L. L. and G. R. R. Co. v. Maris, 16 Kansas 333. And so firmly settled has this rule been considered to be, that in Faulkner v. Hart ( 82 N. Y., 413 ), it was held to control the case of a shipment in which the goods were to be and were, delivered in the state of Massachusetts, the court, as the case depended on the principles of commercial law, declining to follow the rule indicated by the decisions in that state. These authorities seem to. be controlling over this controversy, and they require the motion of the defendant for a new trial to be denied, and judgment directed on the verdict in favor of the plaintiff.

Van Brunt, Ch. J., and Brady, J., concur.