Molloy v. . Starin , 191 N.Y. 21 ( 1908 )

I dissent from the decision about to be made. No obligation whatever rested upon the defendant as a common carrier to transport wild animals. "A common carrier is not bound to receive dangerous articles, such as nitro-glycerine, dynamite, gunpowder, aqua fortis, oil of vitriol, matches, etc. (California PowderWorks v. A. P.R.R. Co., 113 Cal. 329; Hutchinson on Carriers, sec. 113; 2 Rorer on Railroads, sec. 1231; 3 Wood's Railway Law, sec. 426.) It was thus optional with the defendant to accept the powder for transportation or not. (Piedmont Mfg.Co. v. C. G.R.R. Co., 19 S.C. 353.)" In The Nitro-GlycerineCase (15 Wall. [U.S.] 524) the defendant, an express company, was held exempt from liability for damage done the property of third parties by the explosion of nitro-glycerine which the defendant had transported, it being shown that the defendant was ignorant of the contents of the package and there being nothing in the appearance of the package to cause suspicion of its dangerous character; otherwise, there is a strong intimation in the opinion that the defendant would have been liable. Of course, the same principle of law controls the transportation of wild animals, snakes and the like. Here the defendant knew the character of the animal he was transporting, and without any legal obligation resting upon him did so voluntarily, presumably for a sufficient compensation. At the time of the injury to the plaintiff the animal was in the possession, control and custody of the defendant to the same extent as other property transported by him. Its possession in this case is emphasized by the fact that at the time he was detaining the animal on the wharf as security for the payment of the freight due for its carriage. Under these circumstances he occupied exactly the same position and was under the same liability as any other owner or harborer of a wild animal. The charge of the trial court that the defendant was bound to transport the animal was erroneous, but this error was in favor of the defendant instead of to his prejudice. It, therefore, furnishes no ground for reversal.

As the proposition that a common carrier is not bound to carry dangerous articles seems to be challenged, I may add that while decisions on the point may be few, the proposition seems to be accepted as unquestioned both by text writers and in judicial opinions. It is so stated in Angell on Carriers (§ 125). (See, also, Redfield on the Law of Railways [6th ed.], vol. 2, p. 151et seq. for a review of the law.) In answer to the suggestion that the needs for high explosives in engineering, mining and similar works, and the establishment of zoological gardens in great cities, should alter the rule, I think it overlooks the proposition that a common carrier is not necessarily a carrier of all goods that may be offered to him, but only of such as he holds himself out as willing to carry. Thus, a carrier may assume the business of transporting coal, brick and such heavy materials, without undertaking to carry dry goods, jewelry and valuable packages, and, vice versa, one may be a carrier of passengers and light and valuable packages without incurring any obligation to carry freight. In LakeShore, etc., R.R. Co. v. Perkins (25 Mich. 329) it was held that a common carrier was not bound by the common law to transport live stock, and if such obligation rested upon it, it was because it voluntarily assumed the business. In Hinkley v.N.Y.C. H.R.R.R. Co. (3 T. C. 281) the General Term of the fourth department thus stated the law: "A carrier of passengers is not obliged to carry freight, and a carrier of particular kinds or descriptions of freight is not obliged to carry any other. He is only obliged to carry such freight as he holds himself out for and proclaims and professes himself ready and willing to carry, and he may prescribe the terms, regulations and rules, within reasonable limits, upon which he will carry freight. A general common carrier may refuse to carry freight for which he has not accommodation, or which he thinks hazardous or dangerous. He may refuse to carry gunpowder, nitro-glycerine, petroleum, or the products of petroleum, naphtha, benzine and benzole, or he may stipulate as to the manner, times and mode, and risks attendant upon the receipt and transportation of such explosive and combustible articles." This case was affirmed in this court. (60 N.Y. 644.) Doubtless the carrier may lawfully carry wild animals or dangerous substances if he so elects, but I am at a loss to see how that fact tends to limit his liability to third persons. Every reason suggested — the necessity for explosives, the establishment of zoological gardens, etc. — is just as strong an argument in favor of limiting the liability of owners and possessors of wild animals or dangerous substances as it is in favor of limiting the liability of carriers, yet it is conceded by my brother WILLARD BARTLETT that the law in this state as to such owner or possessor remains in full force, and in no respect relaxed. (Quilty v. Battie, 135 N.Y. 201; Hahnke v. Friederich, 140 id. 224.) In the Quilty case a married woman was held liable for suffering her husband to keep his (not her) vicious dog in her house. Surely, considering the advantage of, if not necessity for, domestic harmony, the woman in the case cited was entitled to at least as charitable a judgment as the defendant in this case.

The judgment of the Appellate Division should be affirmed, with costs.

EDWARD T. BARTLETT, HAIGHT and HISCOCK, JJ., concur with GRAY, J.; WILLARD BARTLETT, J., concurs in result in opinion, with whom WERNER, J., concurs; CULLEN, Ch. J., reads dissenting opinion.

Judgment reversed, etc.