King v. Macon & Western Railroad , 62 Barb. 160 ( 1872 )

By the Court,

Ingraham, P. J.

The section of the code of Georgia (2055) which was admitted in evidence, was evidently intended-to limit the liability of a railroad company to its own terminus, where the contract was a gen- * eral one, merely, depending on delivery of the goods to he transported with directions to carry beyond such terminus. It neither affected the liability of companies beyond the bounds of the State, nor did it prevent the making of any special contract, where the same was made by a corporation doing business in the State. On the contrary, by section 2041 of the code of Georgia, such corporation might make an express contract, and was then to be governed thereby.

Such express contract was made by the defendant when it received the cotton for transportation, and was reduced to writing by its agent in the receipt given therefor, by which it agreed to transport the same to Hew York, limiting its liability for loss by fire to a burning on the .cars. The way bill also shows that the company received the cotton for transportation to Hew York according to the receipt.

The general liability of the defendant, independent of the statute of Georgia, has been repeatedly held, and has been lately recognized and adopted by the Court of Appeals, in Boot v. The Great Western Bailroad Company, (45 N. Y. 524,) and Maghee v. The Camden and Amboy Railroad Co., id. 514.)

Various cases are cited, in the opinions delivered in those cases, showing that such' rule exists in England, and in this country. The contract, in the latter case, was similar to that in the case under consideration; and if it is to. be construed as a special contract on the part of the defendants they would be liable on such an undertaking beyond the terminus of their own road. The agreement referred to is such a special contract on the part of the defendants, and makes them liable not only for their own default, but that of the other carriers on the line.

[First Department, General Term, at New York, April 1, 1872,

Ingraham, P. J., and Cardozo, Justice.]

In such a case section 2055 of the code of Georgia does not apply, and the defendant cannot avoid the liability of its special undertaking thereby.

The referee appears to have based his decision solely oil the effect of the section of the code of Georgia (2055) as controlling the written contract of the defendant. In this, I think, he erred.

Judgment reversed, and new trial ordered; costs to abide the event.