Bers v. . Erie R.R. Co. , 225 N.Y. 543 ( 1919 )

This action is to recover damages for the loss of merchandise delivered to defendant for transportation from Passaic, N.J., to New York city. It involves the proper construction of the latter portion of section 5, paragraph 3, of Uniform Bill of Lading which reads as follows:

"Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels, or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landing shall be at owner's risk until the cars are attached to and after they are detached from trains."

The purpose of this limitation of liability is to fix definitely a time when owner's risk terminates and carrier's risk begins.

If the property was received by the defendant on a "private orother" siding, it was at plaintiff's risk, as the car from which it was taken had not been attached to a train. The merchandise had been loaded by consignors upon a car which was placed on a track in front of their warehouse. This track had been constructed by defendant on its own land, east of its freight house, for the receipt and delivery of freight at a number of private warehouses and was under its exclusive control. It extended from the freight house about a mile parallel with the main track. It was connected with the main track with two sets of switches. There is also a connecting piece of side track on which cars are placed for loading or unloading at defendant's freight house, but the track in question was used regularly by the warehouses in front of which it ran. It was a side track, a short track connected with the main track, a siding. Appellant contends that it is not a "private or other" siding. The majority of the court below held that the phrase in the bill of lading included within its terms all sidings, whether public or private. That meaning would be more clearly expressed by the use of the word "sidings" and a good rule of construction suggests that the words "or other" following the word "private" include not all sidings, but only sidings like private sidings. "When a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive" (Matter of Hermance,71 N.Y. 481, 487), and the general words are restricted to those of the same kind (ejusdem generis). The minority held this particular siding was not a siding within the contemplation of the bill of lading; that it was merely an extension of defendant's freight depot, at which it received the property, but that conclusion seems to be based on proximity exclusively.

It was not a private siding. Private sidings include mainly those which are owned or maintained by shippers for the purpose of connecting their factories and warehouses with the tracks. They thus provide themselves with conveniences which the railroad fails to furnish. It was not a public siding, open to the use of the shipping public in general, for the loading and unloading of cars, like the freight station and yards. It was not a part of the railroad terminal or freight station. It was separated therefrom as effectively as if the warehouses had been five miles from the freight depot. It was an industrial switch, a terminal facility for the use and convenience of the shippers whose warehouses were adjacent thereto. It was like a private siding in all respects except that the carrier owned it. These shippers were fortunate enough to have the advantages of a private siding without the burden of private ownership. If any force is to be given to the words "or other," as qualifying rather than amplifying the word "private," they must be extended to include such a siding as this. Thus full meaning is given to the words used and the apparent purpose of the parties is accomplished.

Cases dealing with the duty of carrier to shipper with regard to cars on such tracks do not aid us in finding a proper meaning of contractual words intended to limit liability, nor is it necessary to define the term "delivery on a private or other siding" which may present other questions. (Jolly v. A., T. S.F. Ry. Co., 21 Cal.App. 368; N.Y. Central H.R.R.R. Co. v.General Electric Co., 219 N.Y. 227.)

I, therefore, recommend that the judgment appealed from be affirmed, with costs.

HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, CRANE and ANDREWS, JJ., concur.

Judgment affirmed.