96 N.Y.S. 1 | N.Y. App. Div. | 1905
The plaintiffs, who were copartners, delivered three carloads of evaporated apples, containing about 500 boxes each, to the Chesapeake and Ohio Railway Company at Staunton, Va., for shipment to Jersey City over its railroad and connecting lines, one of which was the railroad of the defendant which extended to said city. One of the cars left Staunton on September 30, another October 1, and the third October 8, 1901. On what dates they were received by the defendant or at what point on its railroad dóés not appear. The cars containing the apples arrived, however, at defendant’s pier in Jersey City, the terminal of its railroad, where its yard and tracks are located, as follows; The first car, which left Staunton on September
The defendant was not liable as common carrier to the plaintiffs in this case for the damages sustained by them. In fact, it is practically conceded by the respondents that, such liability does not exist. As stated by the referee in an opinion: “ They (the plaintiffs) concede that the transportation was properly made from Staunton to Jersey City, and that liability of the defendant as a common carrier ceased upon its notifying the plaintiffs of the arrival of the shipments at destination. They seek to recover herein solely on the liability of the defendant as a warehouseman.” It is well settled, as stated by the learned referee, that after the lapse of a reasonable time for the consignee to remove the goods after he is given notice of their arrival at their destination, the liability of the common carrier as such ceases, and if it is responsible thereafter it is as a
In'that .ease the court (p.180) said ": “ But a delivery -whibh will-discharge the carrier may be constructive' and not actual. To constitute a constructive delivery the carrier must, if practicable, give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual- and proper place, an'd reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, terminates. The duty of the consignee"'to receive and take the goods is- as imperative as the duty of the carrier to deliver. Both, obligations are to be reasonably construed,, having reference to the circumstances. The stringent liability of the carrier cannot be continued at the option or to suit the convenience of the consignee. •. The consignee is bound to act promptly in taking the" goods, and if he fails to do so, whatever other duty may rest upon the carrier iii respect to the goods, his liability as insurer is by such , failure terminated. (Redmond v. Liverpool Co.,
The common carrier, however, does not necessarily relieve himself from all liability by giving timely notice to- the consignee of the arrival of the goods, even although he fails to remove them within a reasonable time. “ If the consignee neglect to accept or to receive the goods, the carrier is not thereby justified in abandoning them,. or in negligently exposing them to injury. If.they are not accepted and received when^ notice -is given of their arrival, he may relieve himself from responsibility by placing the. goods in a warehouse for and oh account of the consignee, but so long as he has the custody, a duty devolves upon him to take cafe of the property and. preserve it from injury.” (Scheu v. Benedict, 116 N, Y. 513, and cases cited.)
If the goods had been stolen while in defendant’s custody because of its negligence, clearly it Would have been liable. (Tarbell v. Royal Exchange Shipping Co., supra.)
If the property had been destroyed by fire through defendant’s negligence, notwithstanding it owed no duty in respect to them as
Under all the authorities, if, after the defendant had fully discharged its duty as common carrier, it negligently suffered plaintiffs’ goods to be damaged or injured, it would be liable. So that the question arises, does the evidence tend to establish negligence on the part of the defendant ? What did it do or omit in the premises that would not have been done or omitted by a person of ordinary care and prudence ? Was it negligent because it failed to unload the apples from the cars onto the pier within ten, thirteen or fifty-seven days after it had notified .the plaintiffs of their arrival? There is no evidence tending to show that it was the custom of the defendant or of any other railroad company to so unload such goods under like circumstances. It had a right to expect from day to day that the plaintiffs would remove the same or give instructions respecting them.' A provision of the bill of lading, which constituted the contract of shipment between the parties, provided: “ Property not removed by the person or party entitled to receive it within twenty-four hours after its arrival at destination, may be kept in the car, vessel, depot or place of delivery of the carrier at the sole risk of the owner of said property, or may be, at the option of the carrier, removed and otherwise stored at the owner’s risk and cost and there held subject to lien for all freight and other charges.-” With such provision in the contract of shipment, we think the defendant was not negligent in omitting to unload the cars in question. Again, there is no evidence which shows or tends to show that the defendant knew or in the exercise of reasonable diligence ought to have known that the apples would have been in better condition if taken from the cars and placed in piles upon the pier. The fact that the goods were evaporated apples and were semi-perishable in no manner tended to establish the fact. But again, the plaintiffs knew that by the terms of their shipping contract the property “ may be kept in the car ” at their sole risk after being notified of its arrival, and, therefore, it must be presumed they knew the apples would be so “ kept in the car ” unless the defendant was otherwise instructed.. Ho instructions having been given, was the defendant negligent because* it failed to store the goods in a manner different than provided ?
Upon the main controversy in the case we think the evidence fails to establish a cause of action in plaintiffs’ favor: First, because the proof does not indicate with any degree of accuracy that the defective condition of the apples did not occur while the defendant sustained the relation of common carrier to the plaintiffs and -with
There is a question of fact presented by the evidence as to the damage done to 100 cases of the apples while on defendant’s pier, and which were flooded by salt water. It is claimed that such damage resulted from ah unprecedented rise of tide and such as the defendant could not have reasonably anticipated. Upon the whole evidence we think the question of defendant’s negligence in that regard was one of fact.
It is considered unnecessary to discuss the other questions presented by this appeal. We conclude that the "judgment should be reversed and a new trial granted, with costs to appellant to abide event, upon questions of law only.
All concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.
Redmond v, Liverpool, IF T. & Phila. S.. Co.— [Rep.