129 N.Y.S. 914 | N.Y. App. Div. | 1911
The plaintiff, consignor, has recovered a judgment for the value of eleven carloads of waste paper, which the defendant carrier refused to deliver to the consignee pending payment of demurrage for detention of the cars on defendant’s siding beyond the time allowed for the removal of the freight. The defendant’s undertaking was to carry the goods to Bogota, N. J., where its terminal facilities suitable for the deliveries in question consisted of sidings some three-quarters of a mile in length, inaccessible to teams and connected with delivery tracks to the plant of the Traders’ Paper Board Company, at the time in the custody of Bell as receiver, to whom the shipment was made. The custom had been to make deliveries to the consignee on such tracks, and such delivery of the goods in question was contemplated by the parties. The private track and unloading platform alongside it had capacity for eleven cars, and the question is whether this track permitted the delivery of the cars or ’any part of the same during the time for which defendant charges demurrage, and if not, whose fault precluded the delivery; was it that of the consignee in failing to unload cars entitled to precede these in question, or was it that of the carrier in failing to take empty cars out and set loaded cars in this siding with proper dispatch? The evidence on this subject was conflicting’, and if the matter was properly submitted to the jury, the verdict is conclusive as the weight of the evidence does not so favor the defendant as to demand reversal. But it is contended that the learned justice did not submit this issue distinctly and unconditionally to the jury. There is support for such exception to the charge, for it was stated: “ I instruct you, as matter of law, that before a claim for car demurrage could arise, the cars must be in a reasonably accessible place, so that they could be unloaded or the goods taken out of them. ” And again: {‘ But this claim which the railroad made is based on detaining their cars by failing to unload them, and before they are entitled to assert the claim
The judgment and order should be reversed and a new triál granted, costs to abide the event.
Judgment and order reversed and new trial granted, costs to abide the event.