Read v. Spaulding — 18 N.Y. Super. Ct. 395

Majority

p. 395

Traverse H. Read et al., Plaintiffs and Respondents, v. Morrell B. Spaulding, Defendant and Appellant.

Headnote

1. A party doing business under the name and style of “ Spaulding’s Express Freight Line,” and in that name receiving goods at New York “ to be forwarded by Spaulding’s Express to ” Louisville, without liability for damage, “if delivered at Louisville depot in good order,” without liability “for wrong delivery of goods marked by initials, or, “ for wrong carriage of goods that are imperfectly marked,” and in case of loss or damage for which Spaulding’s Express may be liable, stipulating that the latter shall have the benefit of any insurance affected by the owner, is a carrier of goods and not a forwarder merely, notwithstanding he employs the conveyances of third parties only, (Railroad Companies, &c.,) in the performance of his contract.

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2. Where goods in a railroad depot near a river were injured by an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence not to anticipate, and from which, when the rise of the water became apparent, the goods could not be delivered, if- the carrier in the due discharge of his duty had the goods in the regular and usual course of transportation so that their being in the depot at the time was proper, the injury is by the act of God in such sense that the carrier is excused.

3. But it is the duty of the carrier to carry and deliver within a reasonable time, and if, when the goods were in the depot and the flood came, he had violated his duty and was under the actual pressure of fault and neglect, without which the goods would have been safe, he is not excused.

4. A carrier is liable for injury to goods caused by inevitable accident, or what is termed- the act of God, if by his culpable negligence or unexcused and unreasonable delay in the transportation, he unnecessarily exposes the goods to the peril.

(Before Woodruff, Pierrepont and Moncrief, J. J.)

Heard, February 18tli •

decided, November 26th, 1859.

This action was tried before Boswobth, Gh. J., and a jury, on the 21st day of October, 1858, and was brought to argument pursuant to an order then made that the exceptions taken on the trial be heard in the first instance at the General Term.

The action is brought against the defendant as the proprietor of, or person doing business under the name and style of “Spaulding’s Express Freight Line” to recover for the injury and damage to certain goods of the plaintiff while in course of transportation from the city of New York to Louisville, Kentucky, owing, as alleged, to the negligence of the defendant and delay in the transportation.

The answer alleged that the defendant was a forwarder only, and not a common carrier; it denied any negligence or unreasonable delay; and averred that whatever injury the goods sustained was caused by an extraordinary flood, and that all that human foresight and skill could do was done to avoid damage and guard against said flood. Without further particular statement of the pleadings it is enough to say that they were sufficient to raise the questions discussed and decided.

On the trial numerous witnesses were examined, and the case prepared for the argument at the General Term, states that:

“ After the evidence was closed, the following facts were agreed upon by the counsel for the respective parties and taken down by the Court. It is admitted that the plaintiffs by their agents,

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Flagg & Baldwin, of New York, delivered to the defendants at New York, 84 cases of the goods in question on the 27th day of January, 1857, and that all the goods, excepting five cases, which were damaged, arrived in Louisville in twelve or fourteen days from the time of their delivery in New York.

“ That all these goods were, when delivered to the defendant, the property of the plaintiffs, and they were partners, and that the goods were delivered to the defendant and received by him on the 27th day of January, 1857, at the city of New York, and were so delivered and received under a contract, of which the following is a copy:

“SPAULDING’S EXPRESS FREIGHT LINE,

“ Office in New York, 267 Broadway.

Mark packages 1 Spaulding’s Express,’ And ship by Harlem Rail Road,

and the route they are to go. Cor. White & Centre sts.

New York, Jan. 28, 1857. Received from Flagg & Baldwin the following packages (contents and value unknown) in apparent good order, viz.: eighty-six cases straw goods, supposed to be marked and numbered as per margin, contents and value unknown, to be forwarded by Spaulding’s Express, to the place named m the Bill of Lading, upon the following condition, to wit: that the owner or shipper hereby assumes the risk of loss or damage, by Lake or River Navigation, Fire, Leakage of all kinds of Liquids, breakage of all kinds of Glass and Glassware, or articles packed in Glass, Stoves and Stove Furniture, Castings, Machinery, Carriages, Furniture, Musical Instruments of all kinds, damage or loss of any article, the bulk of which renders it necessary to be shipped in open cars, and damage from unavoidable delays. All property shipped on this Bill of Lading will be subject to necessary cooperage; and will be delivered at the depots of the Company or Steamboat landing. It is also expressly agreed between the parties, that the said Spaulding’s Express, shall not be held accountable for any damage or deficiency in packages of goods if delivered at Louisville depot in good order, and that no liability will be assumed for wrong delivery

CONTENTS OF PACKAGES UNKNOWN.

No risk taken over $200 on any single package. No liability will be assumed for wrong carriage or wrong delivery of goods that are marked with initials, numbers, or imperfectly marked.

R. A. & Co., Louisville, Ky.

Via Indianapolis. Subject to charges to New York.

BILL OP LADING PROM NEW YORK TO LOUISVILLE DEPOT.

1st Class Goods 178 cts. per 100 lbs.

2d Class Goods____cts. per 100 lbs.

3d Class Goods____cts. per 100 lbs.

4th Class Goods____cts. per 100 lbs.

New Furniture, 1-J first class rate____cts. per 100 lbs.

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Chains, boxed, double 1st class rate.. cts. per 100 lbs.

Carriages, boxed, IJ

1st class rate.... cts. per 100 lbs.

Wagons, single .... cts. per 100 lbs.

Pianos, owner’s risk cts. per 100 lbs.

Baskets, double first class rate........cts. per 100 lbs.

Cradles, ..........cts. per 100 lbs.

Sleighs, boxed, lj 1st class rate........cts. jjer 100 lbs.

Toys, boxed, 1J first class rate.......cts. per 100 lbs.

Wagon, toy, double first class rate ... cts. per 100 lbs.

of goods marked by initials, or for wrong carriage of goods that are imperfectly marked. And in case of loss or damage of any of the Goods named in this Bill of Lading for which Spaulding’s Express may be liable, it is agreed and understood that they shall have the benefit of any insurance effected by or for account of the owner on said goods, and in case of loss on the Lakes, the freight and charges to or at Buffalo shall be paid by the owner of said goods. In witness whereof, the Agent hath affirmed to 3 Bills of Lading, all of this tenor and date, one of which being accomplished the other to stand void.

M. B. SPAULDING, Agent. V. W.

“ That the five damaged cases reached Albany on the 7th of February, 1857, and four of these were forwarded from Albany and reached Louisville on the 14th of March, then next.

“That the fifth case left Albany on 21st April, 1857, and reached Louisville on the 6th of May then next.

“ That the goods in question were damaged at depot 1D.’ by water, on the night of the 8th and morning of the 9th of February, 1857, to the amount, including interest, of $681.83. Albany, by the route of the Harlem Railroad, is 160 miles from New York city, and freight cars were running on that road from New York to Albany, daily.

“ That on the night and morning aforesaid, there was a heavy flood in the Hudson river, the water suddenly rising during the night and morning, some four feet higher than it had ever risen before, and that by said flood the goods were wet and damaged as aforesaid.

“ That depot‘D ’ was constructed with its floor at such an elevation above high water mark as would not injure goods on it, by water, from any flood such as had ever before occurred at Albany.

“ There was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of flood; and from the time it was apparent there would be a rise of water, the goods could not have been prevented from being wet as they were. The goods so wet and damaged were in five cases. The damages oh the goods in four cases amount, exclusive of interest,

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to $178.69-100, and the damages on the fifth case, marked No. 184, amount to $438.88-100, without interest. The fifth case, No. 184, contained 17 packages, consisting of wooden boxes, each closed up and holding goods. The case containing these 17 packages was in a rough box, having openings wide enough to insert one finger, and through which the packages could be seen. Interest may be computed from the 10th of February, 1857, on such sums as the plaintiffs are entitled to recover.

“ It also appeared in evidence that the said 8th of February was on Sunday, and that the said five cases of goods were brought from the depot of the Western Railroad to the depot of the New York Central Railroad, on Saturday, the 7th, and according to the custom of business, were placed in depot ‘D’ to be forwarded.

“ It also appeared in evidence that the average time occupied in the carriage of goods from the city of New York to Louisville, Ky., was about 15 days; and that the defendant had no interest in or control over any of the routes or railroads mentioned in said bill of lading over which said goods were transported.

“ The counsel for the defendant then moved the Court to non-suit the plaintiff upon each of the following grounds:

“ 1st. That from the evidence the defendant was not a common carrier, but a forwarder merely, and having well discharged his duty in that character, was not liable in this action.

“2d. That by the admitted facts in this case, the injury and damages complained of were occasioned by the act of God, to wit.: the unprecedented flood, and without any negligence or want of care on the part of the defendant. And, therefore, the plaintiffs were not entitled to recover.

“ 3d. That it could not be concluded as matter of law from the facts in this case that the goods in question had been unreasonably delayed. And if it were otherwise, the alleged delay and detention of the goods before their arrival at Albany, had no connection with the cause of the injury, to wit: the flood, and this being the act of God and the sole cause of the injury complained of, the defendant was not liable.

“4th. That by terms of the bill of lading the liability of the defendant was restricted to that of a mere forwarder, and having

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discharged his duty as such, and the injury having accrued without his fault, he cannot be made liable in this action.

“ 5th. That upon the whole case, the plaintiffs have not made out a cause of action.

“ 6th. That in any view of the case, the plaintiffs could not recover under the terms and conditions of a bill of lading a greater sum than $200 for the damage sustained by injury to the goods in Case Five, marked No. 184.

“ The Court overruled each of the above grounds, and refused to nonsuit the plaintiffs.

“ To this ruling and refusal, the counsel for the defendant then and there duly excepted.

“The Court-thereupon directed the jury to render a verdict in favor of the plaintiffs for $681.88, and accordingly the jury did render then and there a verdict for that amount for the plaintiffs and against the defendant.

“ To which direction the counsel for the defendant then and there duly excepted. An order was made by the Court, and duly entered, directing that the exceptions be first heard at General Term, and that in the meantime all proceedings on the part of the plaintiffs be stayed.”

Some facts were testified to by the witnesses, which are noticed in the points of counsel or in the opinion of the Court, which it is not necessary here to repeat.

Gilbert M. Spier, for plaintiff.

I. The defendant was guilty of great negligence and carelessness in detaining the damaged goods twelve days before their arrival at Albany, when they should have been, with the undamaged goods, delivered to the plaintiffs at Louisville. The defendants received all the goods at the same time.

There is no excuse offered in evidence for this delay.

II. The defendant was a common carrier, and liable as such, excepting so far as his liability was limited by the contract between the parties. A common carrier need not have any interest in, or control over, the means or route of transportation. (Dorr v. New Jersey Steam Navigation Co., 1 Kern., 485; Moore v. Evans, 14 Barb., 524 ; Fairchild v. Slocum. 19 Wend., 329 ; McArthur & Hurlbert v. Sears, 21 id., 190.)

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The true meaning of the phrase, “ the act of God,” is very clearly stated in 1 Smith’s Leading Oases, 270.

III. The defendant is clearly liable, from the facts disclosed, as bailee. Every bailee is responsible for loss, even by accident or force, however inevitable or irresistible, if it be occasioned by that degree of negligence for which the nature of his contract makes him generally answerable. (2 Kent Com., 597; 1 Cow. Tr., 60; Teall v. Sears, 9 Barb., 317 ; Scovill v. Griffith, 2 Kern., 509.)

IV. The clause in the bill of lading, that “ no risk would be taken over $200 on any single package,” should not prevent the plaintiffs from recovering the amount of damages suffered on the seventeen packages inclosed in the rough open box.

These seventeen packages were as distinctly visible as if they had been thrown together in a pile. They were inclosed merely for the convenience of transportation. There was no fraud, as in the case of Batson v. Donovan. (4 Barn. & Ald., 21.)

The object or intention was to guard against liability upon small packages of goods of great value; and to diminish the risk of insurance without a corresponding compensation for transportation. The bill shows that the defendant received 178 cents for every one hundred pounds: this sum was written in the printed form. . He received pay, therefore, for -seventeen packages, and not for one package only. Besides, the popular and ordinary meaning of package is not a rough open box or case, inclosing packages.

This clause is not to be regarded as stipulating for willful misconduct, negligence, or want of ordinary care. The foundation of the contract, or undertaking, between the parties, rests upon a legal implication that the bailee shall be responsible for these. (New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. U. S., 344; Story on Bailment, § 570; Camden Co. v. Burke, 13 Wend., 628 ; Lyon v. Mells, 5 East., 428.)

John H. Reynolds, for defendant

I. The defendant was not a common carrier, but -was a mere forwarder, and can be made liable, if at all, only-in that character, and by the rules applicable to that relation. He was an express-man, or forwarder of goods, by the conveyances of others. (Hersfield v. Adams, 19 Barb., 577 :; Blossom v. Griffin, 3 Kern., 569.)

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1. It appears that the defendant had no interest m,-or control over, any of the railroads over which the goods were transported; This gave him the character, and imposes the liability, of a forwarder merely.

2. By the very terms of the contract, he-was a mere forwarder as to the goods in question. They were received “to-be forwarded by Spaulding to the place named in the'bill of lading,” to wit, to'“R. A. & Co., Louisville, Ky., via Indianapolis.”

3. The goods were delivered by the plaintiffs’ agent to the Harlem- Railroad Company, and receipts taken, which were surrendered at the Express office, and the bill of lading taken. This method of doing, business indicates that'it was well understood by the plaintiff’s agent that the defendant, in the transportation of the goods, assumed the obligations of a mere forwarder.

4. The defendant, therefore, 'was only responsible for diligence and good, faith,' and- the plaintiffs had the onus to show some want of care on the part of the defendant.

■■ - 5. There was no -proof of negligence. The goods were' delivered to- the Harlem railroad, which was a proper conveyance of the goods in question to their destination.

6. It does not appear when the goods were loaded into the Harlem cars, nor is it shown why they failed to reach Albany until the 7th of -February. Whatever may have been the cause, it furnishes no ground of complaint against the defendant.

7. There is nothing in the case from which, as a matter of law, it can be determined that the goods were unreasonably delayed. It is apparent that the entire injury arose from the flood at Albany, and for this the defendant is not liable, whether he was a forwarder or a carrier.

- 8,. While the average time of-transportation between New York and: Louisville was about fifteen days,-it depended upon weather, season of the year, quantities shipped, &d, and sometimes the passage required thirty days. In the present case there was no agreement to deliver in any certain time, and hence the shipment was made subject to all the contingencies incident to the mode of conveyance, the season of the year, and the various circumstances attending the transportation of property; and to found a claim against the defendant upon any ground of delay, the plaintiffs must have given proof to show a delay arising from negligence

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9. And if the defendant is liable only as a, forwarder, he is not liable whether the injury at Albany was the result of carelessness or of inevitable accident.

II. The injury to the goods'was the result of inevitable- accident, and the defendant is not liable in any capacity.

1. It is impossible to imagine a case of an injury by the act of God or inevitable accident, if this be not one.

2. It was the result of the action- of the elements, beyond' human control. It was, in no proper sense, occasioned by the act of man, but in opposition to it, and it was am injury arising •from a cause against which human foresight and sagacity could not guard. (Redfield on Railways, 232; 233; Forward v. Pittard, 1 Term R., 27; McArthur v. Sears, 21 Wend., 192 ; Williams v. Grant, 1 Conn. R., 487; Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner v. Wright, 1 Rice, 108 ; Bowman v. Teall, 23 Wend., 306 ; Parsons v. Hardy, 14 id., 215 ; Harris v. Rand, 4 N. H. R., 259 ; Crosby v. Fitch, 12 Conn. R., 410; Morrison v. Davis, 20 Penn. R., 175 ; 1 Parsons on Contracts, §§ 635-687.)

3. In the present instance the flood was sudden, and the water was four feet higher than ever before known. It was a result contrary to all human experience, and there was no negligence in not -anticipating or guarding against it. The warehouse in which the goods were deposited was sufficient, in all respects, to protect the goods from- injury by water against any flood then before known.

4. There- was, therefore, no negligence on the' part of the carrier or forwarder, by which the goods were unnecessarily exposed to injury.

5. There can be no recovery on the ground-of-delay between ■New York and Albany; where the goods were overtaken by the flood. The delay was not the proximate cause of the peril. (Morrison v. Davis, 20 Penn. R., 175.)

6. The delay in forwarding the injured packages after their injury is not shown to- have subjected the plaintiffs to any special damage, or the goods to greater injury, and it cannot be inferred as a matter of law. The damage was occasioned solely by the water. If the goods were made worse by delay in sending them on, it was a matter of proof, and the plaintiffs gave no proof on the subject.

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7. By the contract, no damage beyond $200 can be recovered upon the package Ho. 184.

It is submitted that, upon the facts of the case, the plaintiffs were not entitled to recover, and a new trial should be granted.

It was admitted on the trial of this action that the goods in question were delivered by the plaintiffs and received by the defendant at the citj of Hew York, under the contract set forth in the case and called a bill of lading.

By that instrument, the defendant declares that he received the goods to be forwarded to the place named in the bill of lading, Louisville; and that all property shipped on that bill of lading will be delivered at the depots of the Company or steamboat landing; and in providing against liability for deficiency in packages, it is agreed that no such liability shall exist if the goods “ are delivered at Louisville depot in good orderand the stipulation in respect to amount of freight plainly embraces the compensation to be made to the defendant for the entire transportation from Hew York to Louisville.

The admission on the trial that the defendant received the goods in connection with this contract, imports that the expression, “ Spaulding’s Express Ereight Line” and “ Spaulding’s Express,” mean the defendant, M. B. Spaulding.

’ I. Upon these facts we have no hesitation in saying that the defendant undertook to carry the goods, and was not a mere forwarder whose duty consisted only in receiving and delivering the goods to others to be carried.

The observations made in The Mercantile Insurance Company v. Chase, (1 E. D. Smith, 121,) where goods were delivered and received under a contract in terms very similar to that before us, are apt to express our views of the present case on this point.; and Wilcox v. Parmelee, (3 Sandf. S. C. R., 610,) is to the like effect. The use of the term “ forward ” in the contract is controlled by the nature and extent of the actual undertaking, and did not make the defendant a forwarder in the technical sense of that word. An agreement “to forward from Hew York to Louisville” embraced carriage. It became the duty of the defendant to deliver the goods at Louisville. Whether the ■defendant used the term “carry,” or “ transport,” or “forward,”

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the goods from New York to Louisville is wholly immaterial, so long as he undertook the reception of the goods here and their1 delivery there. His duty embraced everything necessary to be done to accomplish a delivery of the goods at the place designated, and the compensation stipulated for in the contract was an expressed equivalent for the whole service. Whether the defendant used his own means of transportation in the service to be performed, or made his own private arrangement with others to perform the actual transportation, did not affect his relation to the owners of the goods with whom he had agreed to receive and deliver them. The fact proved, viz.: “that the defendant had no interest in or control over any of the routes or railroads mentioned in the said bill of lading, over which said goods were transported,” does not therefore affect the relation of the defendant to the plaintiff in this respect, since the defendant assumed to deliver, and it thereby became his duty to provide the means; and because, also, the bill of lading did not, expressly or by implication, specify any such routes or railroads otherwise than simply to say that the goods should be carried “ via Indianapolis.”

Again, the provision that in case of loss from any cause for which Spaulding’s Express should be liable, they shall have the benefit of any insurance thereon, and in case of loss on the lakesj. the freight and charges to or at Buffalo shall be paid by the owner, plainly shows that the defendant’s own understanding of' the contract contemplated liability for loss-in the course of transportation, which is obviously inconsistent with the claim now made that his duty was performed and his liability terminated by a mere delivery to others to be carried.

The only case in which a contrary doctrine has been held, is Hersfield et al. v. Adams et al., ( 19 Barb., 577 , N. Y. Special Term,) and there the decision is mainly placed on the ground that the defendants were, by special contract, relieved from liability for the cause of loss there proved. So far as it declares that the defendants were not common carriers, the foregoing reasons forbid our concurrence therein.

II. The next and only other question urged upon our attention by the counsel for the defendant, is whether the injury to the goods happened under circumstances or from causes for which the defendant is responsible.

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Unreasonable and unexcused delay in the transportation, and actual injury resulting therefrom, are the grounds upon which it is sought to charge the defendant.

By the agreement of the parties made on the trial, it is conceded that the actual injury arose from the goods being wet in the railroad depot at Albany; that the goods were, when wet, upon a floor in the depot at such an elevation above high water mark that goods thereon would not be injured by any flood such as had ever before occurred in the Hudson river at Albany; that the flood by which they were in fact injured, was a sudden rise in the water of the river, during the night, some four feet higher than it had ever risen before; that there was no negligence or omission of duty on the part of the defendant in not anticipating the occurrence of the flood; and that from the time it was apparent that there would be a rise of water, the goods could not have been prevented from being wet as they were.

Under this admission it is clear that if the defendant was without fault in exposing the goods to the action of the flood, he is not liable for the injury arising therefrom. If, in the due discharge of his duty, he had the goods in the regular and usual course of transportation, so that their being in the depot at the time was proper, then injury by the action of an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence or breach of duty not to anticipate, and from which, when the rise of water became apparent, the goods could not be delivered, is an injury by the act of God in such sense that the carrier is excused.

But the defendant had violated his duty and broken his contract, and was under the actual pressure of fault and neglect, without which the goods would have been safe.

The goods, in all consisting of eighty-six cases, were delivered to the defendant on the 27th day of January, 1857, to be carried and delivered to the plaintiff at Louisville. Eighty-one of these cases were carried and delivered within twelve or fourteen days after they were received in Hew York; that is to say, they reached Louisville on the 8th or 10th of February.

It was the duty of the defendant to deliver all the goods within a reasonable time, and according to the usual course of business over the route by which they were to be transported. There is

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nothing in the case to indicate that the eighty-one cases which were so delivered were forwarded with any extraordinary or unusual speed, but the proof is that from, ten to fifteen days is the usual time of conveyance. The presumption is, therefore, that if the defendant had performed his duty the five cases, which are the subject of controversy, would have reached Louisville at or about the same time with the others.

But these five cases were brought from the depot of the Western Railroad to the depot of the Central Railroad, at Albany, on Saturday, the 7th of February, when, as before suggested, they ought to have been at or near their destination, Louisville, Kentucky. Whether this delay arose from the detention of the goods in New York, or at the depot of the Western Railroad, or at any intermediate point, is not stated. Nor is any explanation of the cause of delay given or attempted; while it is agreed'that freight cars run daily from New York to Albany on the road by which these goods were to leave New York. If any explanation of this delay could be given, it was the duty of the defendant to give it. Enough was shown to east the burden of proof upon him. He had undertaken to carry, and the delay was, prima facie, not only unreasonable, but apparently the result of gross negligence and want of attention, either in not beginning the carriage in due time or in delaying the progress of the goods after the transportation’ was begun. It is not for the defendant to require that the plaintiffs should show the cause of the delay.

The result is, that the defendant was grossly negligent in the performance of his duty; this delay was a breach of his contract to carry and deliver within a reasonable time; and while so in fault, the goods in his charge were, in the night of Sunday, the 8th, or on the morning of the 9th of February, reached and inj ured by the extraordinary flood already mentioned.

But the defendant insists that, if the defendant was in fault in respect of the delay which had occurred, he is, nevertheless, not liable for the damage complained of; that, in such case, though the carrier be liable for delay, he is only liable for the immediate consequences of delay: by which he is understood to claim that he is liable only for such damages as the plaintiffs sustained irrespective of the injury to the goods by being wet in the flood at Albany; and, therefore, his damages are to be ascertained by

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assuming, for the purposes of the assessment, that the goods arrived safely, though not until long after the time when they should have been delivered.

This claim rests upon the ground that the delay was not the proximate cause of the injury. “ Causa próxima non remota spectatur."

The delay certainly did not cause the flood. But we think that the defendant cannot find protection in this view of his responsibility. His unexcused neglect of duty did expose the goods to the peril; and when the defendant was found in actual fault, he lost the protection from liability by inevitable accident which the law extends to the carrier in the due performance of his undertaking. From the moment his faulty negligence began, he became an insurer against the consequences which might result therefrom, whether ordinary or extraordinary.

It is true that, in Morrison v. Davis, (20 Penn. R., 171,) where goods carried in a canal boat were injured by the wrecking of the boat caused by an extraordinary flood, it was held that the carriers were not rendered liable merely by the fact that, when the boat was started on its voyage, one of the horses attached to it was lame, and that, in consequence thereof, such delay occurred as prevented the boat from passing the place where the accident happened, beyond which place it would have been safe. In considering the question, the Court liken the carrier to an insurer against loss by perils of the seas, who are said to be not liable for a loss immediately arising from another cause, although, by perils of the sea, the ship had sustained an injury without which the loss would not have taken place.

Possibly a question might be suggested whether, in that case, the mere fact that one of the horses was lame was enough to charge the defendants; but it must be conceded that, in the view taken by the Court, the case is strikingly like the present. We are, nevertheless, constrained to say, that, in so far as the principle of the decision tends to exonerate the present defendant, we cannot give it our assent.

A common carrier, in order to claim exemption from liability for damage done to goods in his bands in course of transportation, though injured by what is deemed the act of God, must be without fault himself: his act or neglect must not concur and con

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tribute to the injury. If he departs from the line of duty and violates his contract, and while thus in fault, and in consequence of that fault, the goods are injured by the act of God, which would not otherwise have caused damage, he is not protected.

The defendant was bound -to deliver the goods in a sound condition. If prevented by the act of God, he is excused; but if his own misconduct contributed to the injury by exposing the goods needlessly or improperly to the peril, his excuse fails. All ordinary perils from even the act of God he was, even while engaged in the faithful performance of his duty, bound to foresee and guard against by the exercise of a care and diligence proportioned to the danger. He was not bound to anticipate and guard against extraordinary perils which human foresight would not anticipate; but it was his duty to do nothing which should expose the goods to any perils which would not arise in the proper and diligent prosecution of the journey which he had undertaken. And if he, by needless delay, subjected the goods to damage, from whatever cause concurring or cooperating therein, he is liable.

This we believe to be in accordance with sound policy, just in its operation, and sustained by the weight of authority.

Thus, if a carrier by water deviates from his voyage and the ship and goods are lost, he is liable, although the loss was by a peril of the sea. He is not at liberty improperly to encounter mischief, even from such a cause. In principle, it can make no difference whether his deviation is intentional or negligent; it is sufficient that he is in fault, and that subjects him to liability.

So, where a carrier by land deviated from the direct and principal route, and the goods were lost by a cause which might, had he been without fault, have excused him on the score of inevitable accident, he was held liable because the loss happened in consequence of his own improper conduct: he had no right so to deviate.

The observations of TlNDAL, Oh. J., in Davis v. Garrett, (6 Bing., 716,) apply with much force to the present case. There the carrier had deviated from his voyage, and a loss occurred by a peril of the sea. He says: “Ho wrongdoer can be allowed to apportion or qualify his own wrong; and as a loss has actually happened while his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an

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answer to the action, the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done.”

In Williams v. Grant, (1 Conn. R., 492,) the true rule is stated as we think, and it covers the present case; after stating the exemption of carriers from liability for losses caused by inevitable accident, G-ould, J., says: “It is, however, a condition precedent to this exoneration that they should have been in no default; or, in other words, that the goods should not have been exposed to the peril or accident which occasioned the loss by their own misconduct, neglect or ignorance. For, though the immediate or proximate cause of á loss, in any given instance, may have been what is termed the act of Grod, yet, if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own, he is not excused.” (See also 12 Conn. R., 410; 4 Wharf, 204; Harp. [S. C.] R., 262, 468; Wilcox v. Parmelee, 3 Sand., 610.)

The defendant is, we think, liable, and the plaintiffs were entitled to recover.

A point was suggested on the hearing of the exceptions, though not argued by the counsel, relating to the amount of the damages. An entry on the margin of the contract, called the bill of lading, was in these words: “Ho risk taken over $200 on any single package.” One of the five cases which were injured contained seventeen packages, and the damage to the whole seventeen packages amounted to $438.88. It is claimed that no more' than $200 should be allowed for the injury to the whole seventeen packages.

It is obvious that, according to the very terms of the memorandum, $200 being allowed on any single package, that sum might, within the provisions of the contract, be allowed on each of the seventeen packages, unless the word “ package ” is used in a different sense in the statement of the facts agreed upon by counsel, from its meaning in the contract, which forms a part of that statement. This we cannot say.

Again, the packages thus forming one case were inclosed in a rough box, having openings through which the packages could

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be seen. The defendant, therefore, knew when he was receiving the case that he was receiving several packages, though inclosed. It does not seem to us that securing several small packages in this manner, so that they were more conveniently carried, when the carrier knew, or might, by ordinary inspection, have known that he had received, not one single package, but seventeen small packages, should render the liability of the defendant any less than it would be if the seventeen packages had been separately delivered.

And, finally, on this point we incline to the opinion that the term risk, in the memorandum in question, has reference to perils which occur without the actual fault of the defendant, and do not exempt him from liability for losses resulting from his actual negligence.

The plaintiff should have judgment on the verdict.

Ordered accordingly.