Potter v. Sharp — 31 N.Y. Sup. Ct. 179

Majority

p. 179

GILBERT POTTER, Respondent, v. THOMAS R. SHARP, Receiver, etc., of The Long Island Railroad Company, Appellant.

Headnote

Negligence — when a bill of lading does not relieve the carrier from the consequences of

A hill of lading which provides that live stock will only he taken at the owner’s risk of injury during the loading thereof, unless specially agreed to the contrary, does not exempt the carrier from liability for injuries sustained hy a horse while being put upon the car, if the injury he occasioned hy the negligence of the carrier in furnishing unsafe and insufficient accommodations for receiving it.

Appeal by tbe defendant from a judgment entered upon a verdict, and from an order denying a motion for a new trial made upon the minutes of tbe justice before whom tbe action was tried.

Tbe action was brought to recover tbe value of plaintiffs borse, which was killed while plaintiff’s agent was endeavoring to lead tbe borse into one of defendant’s cars for shipment; tbe plaintiff claiming that tbe death of tbe borse was due to tbe defendant’s negligence in failing to provide proper accommodations for shipment of horses, and also to tbe negligence of tbe engineer in allowing steam to escape from tbe engine and thereby frightening tbe borse.

It appeared on the trial that plaintiffs agent, before undertaking to put tbe borse aboard, paid tbe freight and took from defendant’s station agent a receipt or bill of lading conditioned as follows: “Live stock * * * will only be taken at tbe owner’s risk of * * * injury during tbe course of transportation and tbe loading or unloading thereof, unless specially agreed to tbe contrary.”

Edward E. Sprague, for the appellant.

Charles JR. Street, for the respondent.

We think that tbe case was properly disposed of at tbe Circuit. Tbe borse was killed while being delivered on board tbe car and not in tbe course of transportation. Tbe rule of liability is not as stringent before tbe delivery is complete, as afterwards. Tbe duty

p. 180

of the carrier is to furnish accommodations for the delivery of freight, animate and inanimate, which are reasonably sufficient for that purpose if used in a reasonable way. (Loftus v. Union Ferry Co., 22 Hun, 33 .) The case was submitted to the jury in accordance with that principle. The evidence is not before us, but it is stated in the case that the plaintiff gave evidence to show that the accommodations for loading the horse were insufficient; that there was a lack of care and prudence on the part of defendant’s agents in respect thereto; that the accident happened without fault or negligence on the part of the plaintiff, and that the defendant gave contradictory evidence. It is needless to say that the verdict of the jury has settled those questions of fact.

The defendant, however, insists that the acceptance by the plaintiff’s agent, who attended to the delivery of the horse, without objection of a bill of lading with printed conditions on the back of it, one of which was that “ live stock will only be taken at the owner’s risk of injury during the loading thereof, unless specially agreed to the contrary,” exempted the defendant from liability, except for personal negligence. The answer to this argument is that the verdict of the jury establishes the fact that the loss happened in consequence of actual negligence on the part of the defendant, in providing accommodations for receiving the horse which were insufficient, because they were unsafe. Nothing short of an express agreement will release a common carrier from liability arising from negligence. Assuming that the receipt of the bill of lading created a contract between the parties (Hill v. S. B. and N. Y. R. Co., 73 N. Y., 351 ), yet the defendant gave no consideration for the exemption claimed, nor did the contract refer in express terms to a loss happening by reason of insufficient accommodations for loading the horse. A stipulation exempting the defendant from liability arising from such a cause will not be implied from the general language which is contained in the contract between the parties. (Mynard v. S. B. and N. Y. R. Co., 71 N. Y., 180 , and cases cited.) In this case and in the case of Cragin v. New York Central Railroad Company ( 51 N. Y., 61 ), the contract provided that the animals should be transported at a reduced fare, and it referred to the particular injury which caused their death. Such a contract is quite different in language and in legal effect from the one before us.

p. 181

These remarks 'render a discussion of particular exceptions unnecessary.

The judgment and order should be affirmed, with costs.

Dtkman, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.