Cook v. Erie Railway Co. , 58 Barb. 312 ( 1870 )

By the Court, Johnson, J.

The only questions made by the points of the defendant’s counsel are those arising upon exceptions to the charge, and to the refusals to charge as requested. The court charged the jury, 1st. That if the defendant caused the goods- to be unloaded before the time it had fixed for having them unloaded and taken away, and they received injury in consequence of being thus unloaded, the defendant was liable as a common carrier for the damage resulting from the injury, whether it had been guilty of negligence or not. And, 2d. That if the goods were not unloaded until after the expiration of the time fixed for unloading and taking them away, then the defendant was bound to exercise such care and prudence in unloading and caring for them afterwards, and before they were removed by the owner, as a person of ordinary prudence would take of his own property; and if the goods were injured in consequence of the defendant’s neglect to exercise such care and prudence, it would be liable to respond in damages for such injury. ISTo exception was taken to the first proposition of the charge; but to the second proposition exception was taken, and the questions involved were presented in various forms, by requests, and exceptions to refusals to charge as requested. The jury rendered a verdict for the plaintiff, and of course found the facts embraced in one or the other of the propositions to be true.

The question therefore arises, whether the second proposition was erroneous in point of law. I think both were entirely sound. But assuming that the goods were not taken by the owner and consignee, within the time fixed for their removal, and that he .either neglected or refused to take them within such reasonable time, what then became the duty of the defendant as a common carrier ? Clearly it had no right, in such a case, to cast the goods away, or to throw them out, and leave them where they would be open and exposed to injury from the elements. All the text books and authorities will be found to agree, that in such. a case it is the duty of the carrier to take care of them for the owner. And if he neglects this duty of taking care of the goods, he will be held liable for the damages arising from a want of such care. (Story on Bailments, § 545. Fisk v. Newton, 1 Denio, 45. Ostrander v. Brown, 15 John. 43. Goold v. Chapin, 20 N. Y. 259. S. C. 10 Barb. 612.) This care must, unquestionably, be such at least as a prudent and careful man would take of his own property, of like description. A common carrier may discharge his liability entirely, by placing the goods in a warehouse at. the place of destination, or by delivering them safely to some responsible third person, who will undertake to keep them safely, and deliver them to the consignee when called for, in case the consignee cannot be found, or he refuses or neglects to take them away within a reasonable time after tender or notice. The goods, confessedly, were not put into a warehouse, or left with a third person for the owner, but were thrown out of the car upon the ground, on the defendant’s premises, and by the directions of its agent.

The plaintiff, who resided and had his place of business 20 miles from the defendant’s depot, was then engaged in removing the goods with his own team, and could not, as it appears, conveniently take more than one load per day. In this aspect of the case, the question arose whether the defendant had taken proper care of the goods for the plaintiff^ and whether they had been injured by reason of their not having been properly cared for. This was a question for the jury, and it was properly submitted to them. The verdict must beheld to be correct, on whichever of the two grounds the jury placed it.

The request by the defendant’s counsel, to the court, to charge that after the arrival of goods and notice to the consignee, and the lapse of a sufficient time to remove them, the carrier was not bound to store them, or unload them in a place protected from the storm, unless it had such place prepared, was properly refused. The very point was decided the other way in Ostrander v. Brown, (supra.) It is well settled that the duty of the carrier is not fully discharged in such a case, until he has taken care of the goods by placing them in a safe place, or in safe hands, for the consignee.

[Fourth Department, General Term, at Syracuse, November 14, 1870.

The court also properly refused to charge that the defendant was not bound to deliver goods to the consignee personally, or to give notice of the arrival thereof. The carrier must do one or the other of these things. The proposition embraced in the request was, that he was not bound to do either, but might be discharged from all liability without doing either. But the question did not arise in the case, as notice was given, and the consignee was engaged in taking the goods, when the defendant caused them to be unloaded. It was, therefore, a mere abstract proposition having no bearing upon the facts of the case; and if it had been sound, the refusal to charge was no error for which an exception will lie.

The request to charge that if the hides were not unloaded until Thursday afternoon the plaintiff could not recover, was also properly refused. The court had laid down, in the charge, the true rule of law on that subject. The court had charged the jury that if such was the case, then the question arose as to whether the defendant had taken proper care of the property.

The verdict as to damages seems to be fully warranted by the evidence. A new trial must, therefore, be denied, and judgment ordered on the verdict.

Mullin, P. J., and Johnson and Talcott, Justices.]