Camden & Amboy Railroad & Transportation Co. v. Belknap

21 Wend. 354 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

When the judge’s charge is not confined to a brief statement of the points of law, but extends to a review of the whole case, any particular remark which may be deemed exceptionable should be pointed out at the time. The judge will thus have the opportunity of explaining, qualifying or correcting what he has said; and if he refuse to do so, the party will then have a pointed exception, upon which his right to a review cannot be questioned. So too, where the judge lays down a number of .egal propositions for the guidance of the jury, some of which are deemed objectionable, the party should specify at the time to which point in particular his exception is intended to apply. And where any matter of law which the party may think applicable to the ease, has been omitted in the charge, the attention of the judge should be called to that fact, and he should be requested to give the particular instruction to the jury. Until this has been done the party has no just ground for complaint. And clearly, a general exception to the charge delivered, cannot raise any question about a mere omission to say something more, which was not mentioned on the trial.

These remarks will dispose of many of the objections which have been urged against this judgment. The single, general exception which was taken to the charge by the defendants below, cannot authorize a critical review of every particular remark which fell from the judge; nor will it warrant us in reversing the judgment because we may think that something was omitted, which might very properly have been included in the instructions to the jury. The most we can do on such an exception, is, to examine the general bearing of the charge, and if that is not plainly injurious to the party in some matter of law, the judgment must be affirmed.

I. But if the particular objections which have, been urged in the argument had been taken on the trial, I should not think it necessary to inquire whether every part of the charge is in harmony with all the rest, and with the law of the land. This case does not call for such a review ; for on the facts proved, and about which there was no controversy on the trial, the plaintiff below was, I think, clearly entitled to the judgment which has. been rendered in his favor. Should it be conceded that the charge was in some points erroneous, still, if in any legal mode of putting the matter the verdict must necessarily have been the same, the judgment ought not to be reversed.

The notice which the defendants had given that they would not be answerable for baggage, was of no legal importauce, and must therefore be laid out of the case. Hollister v. Nowlen, and Cole v. Goodwin, 19 Wendell, 234, and 251. We may also disregard all that was said about an express contract for the safe keeping of the baggage, and about the authority of Bliven, or any other agent of the company to make such a contract. The facts which remain, and about which there was not a particle of controversy, on the trial, are, that the defendants were common carriers between New York and Philadelphia, and that they carried passengers and their baggage, as well as merchandize. In conducting this business, the defendants, either for profit or convenience, or both, kept two officers in the city of New York; in one of which, (at No. 12 Washington street,) they were in the habit of receiving, and if requested, locking up the baggage of persons intending to take passage in the next boat that should depart. The plaintiff, intending to proceed on his journey by the next boat, delivered his baggage at this office, where it was received by Bliven, the defendants’ servant or agent, with full knowledge of the purpose for which it was delivered. Now, I think it quite clear upon this statement, that the plaintiff’s trunks were in the possession of the defendants, as common carriers, and that they were answerable, in that character, for the safe keeping of the property. The trank was lost before the departure of the next boat. On these facts, and independent of any other contract, express or implied, for the safe keeping of the property, and without regard to any question of negligence, the judge would have been well warranted in instructing the jury that the plaintiff was entitled to their verdict. The defendants had the property in their possession as common carriers, and were answerable at all events for the loss, unless it was occasioned by the act of God, public enemies, or the fraud of the owner—neither of which was pretended.

The case was tried before we had formally refused to engraft upon our code the modern English innovation of allowing the carrier to limit his common law liability, by a notice brought home to the employer. Following the rule which for a time prevailed in Westminster Hall, the learn. ed judge instructed the -jury, that the - notice which- the defendants had given, if it came to the plaintiff’s knowledge, would protect the defendants from responsibility as common carriers. .The judge was then led to inquire whether the defendants had not by contract, either express or implied, made themselves .responsible for the safe keeping of the baggage in the office, as a place of deposit. . There may, perhaps, he some - difficulty in maintaining this part of the charge, if we assume that the judge was right at the outset on the doctrine of notice. " But if we commence with the common law rule of liability, the reáidue of the charge is.of no importance. Whether right or wrong, in the abstract, no injury has been done to the defendants.. - -

Judgment affirmed.^