Ely v. New Haven Steamboat Co.

53 Barb. 207 | N.Y. Sup. Ct. | 1869

By the Court, Gilbert,. J.

It is apparent that the circumstances in which the harsh and rigid rules of the common law, governing the liability of common carriers, had their origin, have .greatly changed, and that some amelioration of these rules has become necessary since the introduction of steamboats, railroads and the electric telegraph. ' Courts, mindful of this necessity, have gradually modified these rules in accordance with their views of public policy and individual right. The precise nature- and extent of this modification, however, is still very uncertain, and an attempt to reconcile the conflicting decisions on this subject would be fruitless. If it were neces.sary, we should be inclined to hold that, independently of the usage proved in this case, the extraordinary liability of the. defendants as common carriers ceased when the goods were landed on the wharf and weTe ready for delivery ; that thenceforth they were liable only for ordinary care, and that the law does not require from the class of carriers to which the defendants belong, a notice to consignees of the arrival of the goods carried. Such rule, we think, best accords with sound public policy, and with the intentions of the parties in' making the. contract, and it is sustained by the more judicious of the recent decisions of the courts on this subject. (Norway Plains Co. v. Boston, &c. R. R. Co. 1 Gray, 263. Thomas v. The Same, 10 Metc. 472. Lamb v. West. R. R. Co., 7 Allen, 98. Northrup v. Syracuse, &c. R. R. Co., Court of Appeals, March, 1867.) But we are of opinion that the evidence clearly establishes a course of business between the parties in relation to the mode of delivering goods* which must govern the liability of the defendants in this case. The plaintiffs had been accustomed, for many years, to receive goods by the defendants’ boats, as often as once a week. These boats arrived in Hew York each day at'stated hours, morning and evening. Upon the arrival of the boat each trip, the goods on board were landed on the defendants’ wharf, and placed in charge of trustworthy persons, employed by them to take care of, and deliver the goods to the consignees, and collect the freight, and the boat then started upon her return trip. The plaintiffs always sent their own cartman to the wharf for their goods, soon after the arrival of the boat, and there received them, from the persons so employed by the defendants. A delivery upon the wharf, therefore, in the usual way, and the lapse of a reasonable time for the plaintiffs to take away or reject the goods, terminated the extraordinary liability of the defendants as common carriers, for the reason that their contract had been performed by a carriage of the goods safely to the point of ultimate destination, and a delivery-thereof at the appointed place of delivery. After those acts, the defendants must be deemed to have renounced their liability as common carriers and assumed that of wharfingers, and they could be held liable only for actual negligence. (Hyde v. Trent Nav. Co., 5 T. R. 397, per Buller J. Gatliffe v. Bourne, 4 Bing. 314. S. C. 1 Scott, N. R. 1, and 8 id. 604. Abb. on Shipping, 5th Am. ed. 463. Gibson v. Culver, 17 Wend. 305. Goold v. Chapin, 20 N. Y. Rep. 259, per Strong, J. Hathorn v. Ely, 28 id. 78.)

[Kings General Term, February 10, 1869.

It is not contended on the part of the plaintiffs that there was any negligence on the part of the defendants.

It is, however, urged by the learned counsel for the plaintiff, that the defendants’ liability as common carriers continued until after the loss of the goods, because according to the course of business referred to, a notice should have been given to the plaintiff of the arrival of the goods. As before intimated, where the contract in terms, or as affected by the usage of trade, is to deliver the goods at the wharf, notice is not necessary. It is not itself an act of delivery, or equivalent or even akin to it. It is a substitute for it arbitrarily created. There was perhaps enough evidence that the duty of sending a notice to the plaintiff’s store of the arrival of their goods formed a part of the usage in this case, to require the submission of that question to the jury, if it had been material to the determination of the case. But we are of opinion that if the fact were so, the plaintiff’s store having been closed the whole of the day on which the goods arrived, and until ■after the goods had been destroyed, the defendants were excused from giving the notice. Absence of the consignee dispenses with notice. (Fisk v. Newton, 1 Denio, 45 Northrup v. Syracuse, &c. R. R. Co. supra.) The defendants were under no obligation to go beyond the usage alleged, and seek the plaintiffs’ elsewhere than at their store.

The fourth of July was not a holiday in any sense which affects this case.

The judgment should be affirmed.

/. F. Barnard, Gilbert ancl Tappen, Justices.]