Steiger v. Erie Railway Co.

Headnote

Qom/mon ca/rriw — contract limiting liability — when cornier not liable.

Motion for a new trial upon exceptions ordered beard at tlie General Term in the first instance. There were two causes of action in the plaintiff’s complaint. Hpon one a verdict of $40.33 was ordered for the plaintiff. The court held that the plaintiff was not entitled to recover for the second cause of action. The plaintiff moved for a new trial on the ground that this last decision was erroneous.

The cause of action, disallowed by the court, was for damages alleged to have been done to a car load of cattle shipped by plaintiff from Buffalo to Elmira on defendant’s road. At the shipment, in consideration of low freight, plaintiff signed a contract by which he assumed all risk of loss, damage or injury to the animals, in consequence of injury to each other, or from heat, suffocation or crowding, or from delay of transportation or delivery, and released the defendant therefrom. The plaintiff also agreed to load and unload such stock at his own risk, the defendant furnishing laborers to assist. Defendant also gave plaintiff a stock-drover’s pass, in which it was stated that he was in charge of the stock, and conductors of that stock train were directed to pass him on defendant’s road, between Buffalo and Elmira. There were two routes from Attica to Corning, one by way of Avon, and the other by way of Hor-nellsville. The latter was usually the route taken by stock trains. Plaintiff, on inquiry whether he could go to Hornellsville by an express train, and there take the train on which his stock was, and go with it to Elmira, was told he could. The train in which was plaintiff’s stock, was started by way of Hornellsville. By reason of a strike among defendant’s men at Hornellsville, the train was recalled and sent by way of Avon, reaching Elmira some five hours later than it would, if on time, by way of Hornellsville. Plaintiff went to Hornellsville by express train and waited for the stock train until he learned it had gone by way of Avon, when he went to Attica and endeavored, but in vain, to overtake it, getting

to Elmira about three p. m. of the day on which the stock arrived at eight a. m. The stock remained upon the train for some time after it reached Elmira, and, by reason of heat, crowding, etc., one animal was so injured as to die soon after removal.from the car. ■Plaintiff claims such loss was due to defendant’s wrongful act in sending the train via Avon, instead of the usual route via Hornells-ville, and to other wrongful and negligent acts of defendant in not giving notice of the arrival of the cattle at Elmira, and in not removing them from the cars, and in the delay.

The court at General Term held, that “by the law of this State it is settled, that a common carrier may by contract limit his or its liability in respect to the property carried. (Oragin v. N. Y. C. R. R. Go., 51 N. Y., 61 ; Penn v. Buff, and Erie B. P. Co., 49 id., 204 ; Dorr v. N. J. Steam. Nm. Co., 11 id., 485.) That the circumstances which had arisen, made it necessary to change the direction of the train, or the defendant would have been responsible for the consequences of the gross neglect of sending this property into great danger. (Johnson v. N. Y. G. R. R. Go., 33 N. Y., 61Q.) That the defendant’s. duty was ended when the cattle were transported to Elmira. The plaintiff was bound to take notice of their delivery there, and to take care of and unload them.

The plaintiff’s motion for a new trial was therefore denied, with costs against the plaintiff, and judgment ordered upon the verdict.