175 A.D. 239 | N.Y. App. Div. | 1916
The plaintiffs have recovered judgment for the loss or damage to a part of a carload of refrigerators standing in the defendant’s Albany yard, caused by the unusual freshet in the Hudson river in March, 1913, The ground of the alleged liability is set forth in the complaint that the refrigerators in the course of transportation from Eau Claire, Wis., to Albany, arrived in the defendant’s yard at Albany, March 18, 1913; that on the twentieth day of March the plaintiffs removed part of the said refrigerators, leaving the balance in the defendant’s car in its yard, and that the defendant negligently allowed the car with the refrigerators in it to remain at a place which it knew and had reason to know was liable to be submerged in the then prevailing high water and overflow of the Hudson river, and that the river did overflow and cause the damage and loss to the refrigerators. The damage occurred March twenty-eighth.
Defendant’s only liability was for negligence as a warehouseman. The refrigerators at the time of the loss were interstate freight. (Cleveland & St. Louis Railway v. Dettlebach, 239 U. S. 588; Chicago, Rock Island, etc., Railway v. Hardwick Elevator Co., 226 id. 426; Southern Railway v. Prescott, 240 id. 632.)
The plaintiffs assumed the • burden of proving that the defendant was negligent in storing the refrigerators at a place where they were liable to be destroyed by the flood, and to sustain the verdict it must appear that the defendant did not exercise the care which an ordinarily prudent person would exercise with reference to the property at the time and under the circumstances. The complaint presents the only real ground upon which a liability could be based, and the burden
The defendant’s freight yard at Albany adjoins the Hudson river. -In it there are about forty tracks, with various switches. Access to the yard is by a single track of railroad, which crosses . the tracks of the Delaware and-Hudson Company, and a crossover or tower at the point of intersection, controlled by the Delaware and Hudson Company, allows the defendant’s cars to pass over the intersection from time to time, and the defendant cannot move its cars into or out of the yard without the signal from the Delaware and Hudson tower, the Delaware and Hudson Company having the right of way over the crossing, and the defendant’s rights at the crossing being subordinate to that right.
The defendant, March eighteenth, gave the plaintiffs notice of the arrival of the freight and required its removal within forty-eight hours. They paid the freight and draft, and the car was placed on the delivery track, the usual place for unloading. The track upon which it was placed was the highest ground in the yard and about 500 or 600 feet from the river. During the time mentioned between 300 and 400 cars were stored in the yard. Six hundred or 700 cars per day usually came into the yard. Large quantities of freight were in the two warehouses in the yard. On March twentieth, two days after the arrival of the car, the plaintiffs removed from it to their warehouse fifty-seven refrigerators, a truckload, leaving fifty-three refrigerators in the car. The street leading to the plaintiffs’ warehouse, particularly the entrance to their warehouse, was in bad condition, and for that reason the plaintiffs claim the remainder of the refrigerators were not removed at the time.
March twenty-sixth flood conditions prevailed in the watershed of the Hudson river and at Albany. The high water was caused by the excessive rains through the watershed and not by ice or melting snow. The highest track of the defendant’s yard was seventeen and sixteen one-hundredths feet above mean sea level. The floor of the car was forty-six and
On the morning of the twenty-sixth water began to come over the tracks in the yard nearest the river. That was, however, no unusual condition because frequently the summer and spring rains bring it over them. Prior to the twenty-seventh, aside from the water on the shore tracks, there had been no water in the yard proper; but upon the morning of the twenty-seventh water began to go into the yard and at about eight o’clock the yardmaster was ordered by his superior to get the cars and freight out of the yard. He immediately stopped all cars from entering the yard and used all reasonable efforts to remove the cars from the yard. He began at once to put empty cars at the warehouses to remove the freight, and began to move cars, taking those nearest the river. He had three engines in the forenoon, with ample men. About noon his superior asked what he needed and he replied that he ought to have another engine on account of'the heavy grade to get out of the yard, because he had to move rapidly in order to get any show from the Delaware and Hudson. Two large engines were sent him about one o’clock. An engine was attached to this car and other cars upon the same track about eight o’clock on the morning of the twenty-seventh, with the intention of removing them from the yard, but consignees were removing freight from these cars with trucks and this car was not moved at that time; the engine immediately began to remove other
The plaintiffs are residents of Albany, carrying on a large business there, and evidently had full knowledge of the flood conditions in the Hudson at Albany during the time in question. They also knew just where their car was located in the yard and the location of the yard with reference to the Hudson river, and at all times undoubtedly had access to the car, but did not feel called upon during the freshet to attempt to remove their freight. Other consignees having freight in the yard apparently apprehended no danger until the morning of the twenty-seventh, when they began to remove it. It is fair to assume, therefore, that the plaintiffs, the other consignees of freight in the yard, and the defendant, had no reasonable ground to apprehend danger from the flood to freight in the yard until the morning of the twenty-seventh. Perhaps the care which the plaintiffs exercised towards their freight prior to the twenty-seventh was some measure of the reasonable care which the ordinarily prudent man would exercise under the circumstances. It was so highly improbable that water would enter this car upon the high track upon which it was that no negligence can he charged against the defendant up to the
The official in charge of the United States weather bureau at Albany, on the morning of the twenty-seventh, issued a typewritten paper to the newspapers predicting that the water would reach twenty to twenty-one feet in Albany within the next twenty-four or thirty-six hours, and he telephoned to a large number of business houses to the same effect. We may
We conclude, therefore, that the judgment should be reversed as against the evidence and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed as not supported by the evidence and new trial granted, with costs to appellant to abide event.