Bradley v. Lake Shore & Michigan Southern Railway Co., 129 N.Y.S. 1045

Bradley v. Lake Shore & Michigan Southern Railway Co.

129 N.Y.S. 1045 | N.Y. App. Div. | 1911

Laughlin, J.:

This is an action by a shipper against a connecting common carrier for the loss of a carload of goods. It is predicated upon negligence, and the particular negligence charged against the appellant is that, on receiving the car from the Lehigh Yalley Railroad Company its employees discovered that the car contained a consignment of acid which was leaking, and did not, with due diligence, take proper steps to transfer the goods to a warehouse or to another car. Within-three hours after the car was delivered to appellant, and before it had been moved or in any manner interfered with by appellant, the leaking acid set fire to it and the car and its contents were destroyed by fire and by explosions caused by the ignition of the fumes of the acid.

The action is on an assigned Claim of the Baker & Adamson Chemical Company, a corporation engaged in the manufacture and sale of chemicals, and having its plant at Odenweldertown, a suburb of Easton, Penn. The shipper’s plant was connected *314with, the Central Railroad of New Jersey by a spur which it owned. For some years it had been accustomed to ship a few carloads of drugs and acids, each month, and its business in this regard had been gradually increasing. When the shipper required a car it notified the railroad company, and when a car Was furnished it 'was placed on the spur owned by the shipper • and loaded by the employees of the. shipper, and then a ship- • ping order on blanks evidently furnished by the .carrier was filled out by the shipper, and'the shipper likewise filled out blank hills of lading attached to the shipping orders by perforated lines, and they were delivered to the agent of the common carrier and signed by him and redelivered to the shipper. In this instance the shipper, in the customary manner, called for a car in which to ship a carload of acid, and the railroad company thereupon delivered to the shipper an empty- box car which the employees of the shipper loaded with ninety-two carboys of acid, five cases of acids, twenty-one barrels of acids, one case of ammonia, twenty-one barrels of ammonia, four barrels of drugs and one case of drugs, and filled out the shipping order under date of July 14, 1003, for the consignment of. the carload of goods to F. W. Brown Co., San Francisco, Cal., via the Lehigh Valley, Lake Shore and Michigan Southern, Burlington and Quincy and Santa Ee and Denver railroads, and correspondingly filled out the bill of lading for signature by the agent of the initial carrier, and in due course it presumably was issued, although it was not introduced in evidence. The acids were packed partly in carboys and partly in bottles, and the bottles had glass stoppers made fast with plaster of paris and tied- with a cord dipped in wax to prevent it from rotting. The carboys had glass caps held down with zinc rings and waxed to prevent the escape of fumes, and were packed in marsh hay in wooden boxes with' hoods to protect the necks of the carboys. The bottles were likewise packed in' barrels. There were, in part at least, two tiers of: barrels and boxes. The evidence tends to show that this was the customary method employed by the shipper in packing such acids down to that time; but it • appears ...that about six weeks prior thereto, and on the 1st day of June, 1903, the Jersey Central Railroad Company filed with the Interstate Commerce Coin-*315mission a new classification- of freight, effective from June 1, 1903, which contained a note stating that “nitric acid carboys will not be accepted for transportation unless the carboys are packed with non-combustible dunnage. ” It was not shown that actual notice of this regulation was given to the shipper prior to the shipment in question; but at the request of the counsel for the defendant the court instructed the jury that the filing of the classification with the Interstate Commerce Commission was notice to the plaintiff of the rules and regulations concerning the manner in which nitric acid should be packed and that became the law of the case. The carboys in question contained a large quantity of nitric acid and it is conceded that they were not packed in accordance with said regulation. In no event, therefore, could this recovery stand for the inference is quite plain that failure on the part of the shipper to comply with said regulation was a proximate cause of the loss. The description of the goods entered in the bill of lading by the shipper followed the description contained in the shipping order, which has already been fully stated. The carboys and bottles contained not only nitric acid but sulphuric, muriatic, acetic and hydrofluoric acids as well, and there was no' specification in the shipping order or bill of lading of what the said acids were or that they were inflammable, explosive or dangerous, although an express provision printed on the shipping order and stipulated to constitute part of the contract provided that every party, whether principal or agent, “ shipping inflammable, explosive, or dangerous goods, without previous full written disclosure to the carrier of their nature, shall be liable for all loss or damage caused thereby, and such goods may be warehoused at owner’s risk and expense or destroyed without compensation.” The only other information given to the carrier with respect to the nature of the goods was a card attached to the car by the shipper the wording of which was, ‘ ‘ Acids; — Handle carefully; not to be transferred. The Baker & Adamson Chemical Company, Easton, Pennsylvania.” The car was delivered to the appellant by the Lehigh Valley Railroad Company at Buffalo, N. Y., about ten p. m. on the eve -> ing of the 18th day of July, 1903. No waybill or other evi^ o was offered with respect to the information communicated'by *316the initial carrier to the succeeding carrier; or by it to the appellant. It was not even shown that the car at the time it was received by the appellant contained the card with respect-to its contents, hut there being evidence that such a card was attached to the car by the shipper, perhaps the inference would be permissible, in the absence of other evidence, that it remained there. The employees of the appellant on receiving the car discovered that it was leaking and the odor indicated that it contained some kind of acid. The appellant as a connecting com, mon carrier was not chargeable with any knowledge that may have been acquired by the initial carrier and not communicated to it with respect to the contents of the shipment. No partnership or other relation between the carriers was shown which would make an intermediate or connecting carrier liable for any negligence on the part of the initial carrier who was the agent, not of the connecting carrier, but of the shipper with respect to billing and delivering the goods to a connecting carrier. (Hinkley v. N. Y. C. & H. R. R. R. Co., 3 T. & C. 281; affd., 60 N. Y. 644; 4 Elliott Railroads [2d ed.], §§ 1443a, 1444, 1445, 1447, 1448.) Appellant on receiving the car was, therefore, chargeable merely with knowledge of the fact that the car contained acids and that some of the acids were leaking. The evidence tends to show that strong nitric acid in sealed carboys would, owing to sudden changes of temperature, tend to decompose and give oft fumes which might burst the carboys, and that such acid is very dangerous if brought in contact with wood or other inflammable substance and may set it on fire.

It is immaterial to the decision of the question with respect to the appellant’s liability whether the leak of acid was caused by negligence of the shipper in preparing it for shipment or in loading it, or by the negligence of the initial or second carrier, or without negligence on the part of any one. There is no evidence, and it is not claimed, that the appellant was in any manner responsible for the leak. There is no evidence with respect to the-extent, of the damage done to the goods before the car was received and accepted by the appellant; nor is there any evidence with respect to the amount or value of the con-sgjj^ient that could have been saved had the appellant at once openel and transferred the contents of the car, and yet there *317has been a full recovery, as though, the consignment had been received in perfect condition and wholly destroyed through the negligence of the appellant. Moreover, it is mere speculation to say that the fire and explosions would not have taken place, owing to the leak which existed before the appellant received the car, had an attempt been made at once to transfer the contents of the car. On its having discovered that the car was in a leaky condition it was marked to he transferred to a transfer point of the appellant on the Buffalo Creek railroad track, about one and one-half miles distant-from the point at which the car was received by the appellant. It appears that the appellant only had one switch engine on hand at that time, and that it was needed for making up trains. Moreover, the employees of the appellant charged with the duty of receiving cars from other railroads were of the opinion that it would be dangerous to move the car during the night that distance virtually through the heart of the city, and through railroad yards where torches and lanterns were necessarily used. A connecting common carrier is not an insurer of goods against damages resulting thereto while in its possession, but from causes occurring before the goods were delivered to it and for which it was not responsible. At most it is only required to exercise reasonable care to save the property from further damage after the condition which is causing the damage has been discovered or should be discovered by it in the exercise of reasonable care. In the case at bar the shipper was clearly negligent in not specifying, in accordance with the requirements of the shipping order, the fact that the acids were inflammable and dangerous, which was well known to it as the manufacturer thereof. Had this been done it may well- be that the initial carrier would have insisted upon a compliance with the provisions of its classification filed with the Interstate Commerce Commission, and that the acids would have been differently packed before being shipped. Each connecting carrier on a through bill of lading, as this doubtless was, although it was not introduced in evidence, is entitled to the protection afforded by the shipping contract; and, moreover, the duty of giving notice that the acid was explosive and dangerous devolved on the shipper at common law (Barney v. Burnstenbinder, 64 Barb. *318212; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Boston & Albany R. R. Co. v. Shanley, 107 id. 568; The Nitro-Glycerine Case, 15 Wall. 524), and the safety and protection-of life and property require the rigid enforcement of that duty. That alone would relieve the appellant from liability.

As already stated, however, we are of opinion that the plain-' tiff failed to show a cause of action against the appellant on the theory of its negligence.

It follows, therefore, that the judgment and order should he reversed and a new trial' granted, with costs to appellant to abide-the. event.

Ingraham, P. J.. McLaughlin, Miller and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.