Peck v. Weeks

34 Conn. 145 | Conn. | 1867

Hinman, C. J.

The defendant runs a steamboat between Bridgeport and New York for the transportation of passengers and freight, advertised to make daily trips each way. In the course of business he receives freight sent by the Housatonic railroad for New York. On the 13th day of May, 1864, the plaintiffs put on board the cars' at Newtown two boxes of dressed poultry to be transported to New York, consigned and directed to “A. & E. Robbins, dealers in poultry and game, Nos. 125,127, Fulton Market, New York.” The boxes, with the poultry properly packed in ice, were taken by the cars to Bridgeport, and, on the same day, and in time for the trip to New York of that day, were delivered on board the steamboat, and a receipt for them, signed by the clerk of the boat, admits that they were received in good order, and that the boxes contained 890 pounds of poultry. The plaintiffs were also dealers in poultry, which they had been in the habit of sending in the same way to New York, by this same steamboat. But in this instance the steamboat was detained by the fog in the harbor of Bridgeport until the 15th of May, and the ice in which tire poultry was packed melted, so that the contents of the boxes were damaged ; and the question is, whether, under the circumstances of the case, the defendant is liable for this damage. A common carrier is in the nature of an insurer for the safe carriage and delivery of the goods intrusted’to him. As it is his duty to carry.safely, there is implied in it at least such reasonable care of the goods as might be expected of an owner under like circum. stances, and the extent of this care must always depend to a great extent upon the nature of the goods. Perishable goods of course require more care than others which are not perishable. The finding shows that the defendant himself recognized this liability in reference to such goods, as it appears that, when a failure of the steamboat to perform its regular trip had been apprehended, poultry previously placed on board of it by the railroad agents had been sometimes transferred, to the cars for an earlier transportation to New York.

Now the liability of a carrier is prima facie fixed by showing the delivery to him, and ther non-delivery to the consignee, of the delivery to the latter in a damaged condition; and-it is for the carrier to show that such non-delivery, or delivery in a damaged condition, was caused by one of the perils for which he is not responsible. How theñ is this liability to account for the injury to the poultry in the present case met ? The finding shows an utter absence of any attempt to preserve the poultry, either by transferring it to the cars, or by placing it in a part of the boat the least likely to be affected by the heat of the boiler. Indeed an attempt is made to excuse this total want of care by the claim that the clerk, who signed the receipt for the two boxes, did it without any knowledge as to their contents, or any knowledge even of the language of the receipt which he signed. And, it would seem that he could have had no knowledge of the language of the receipt, if he had none of the contents of the boxes, because the receipt expressly mentions the boxes as containing poultry, and gives the weight of it. Besides, the fact that they were addressed to poultry dealers in New York, had care enough been taken of them to look at the direction, would have suggested to an experienced man, engaged in a familiar business, what the boxes probably contained. It is found, moreover, that had the clerk been apprised of the contents of the boxes they would have been transferred to the cars, after the boat’s passage to New York for that day was relinquished. From this it is clear that the defendant himself understood his duty in such a case to be, either to forward such goods by some other conveyance without delay, or to take such care of them as to prevent injury by the delay. But as in point of law he must be deemed to have been apprised of the contents of the boxes, in consequence of the reception of thém by the clerk of the boat,' and his giving a receipt for them in which the contents of the boxes are expressly stated, his liability is the same as if he had kept a distinct remembrance of them constantly in his mind. Taking the whole finding therefore together, it appears to us that the injury to the poultry was caused by the negligence of the defendant in not apprising himself of the contents of the boxes, and so not taking any care whatever of them or their contents. For aught that appears the boxes may have. been placed so near the boiler as to melt the ice, and thereby cause the loss. If so no one could doubt that this would be gross negligence in a carrier of this kind of property: and it is rather an aggravation than an excuse for the negligence, that the clerk of the boat signed the receipt without giving any attention whatever to its contents, since by so doing he left the plaintiffs or their agents to suppose that the usual care which such property required would be bestowed upon it in the course of its transportation; and this prevented them from themselves paying that attention to it which they would otherwise have done. We are therefore satisfied that the plaintiffs are entitled to the amount of damage the- property is found to have suffered, on the ground of the defendant’s negligence.

But it is further claimed that, admitting this to be so, still the plaintiffs can not recover in this suit, because there is no count in the declaration adapted to the recovery of damages on the ground of the defendant’s negligence; that all the counts are so framed as to seek for a recovery on the sole ground of delay in the sailing of the steamboat; and that this delay, being caused by the fog, was a peril which excused the carrier. If this claim was well founded in fact, there doubtless would be force in it. But we think the fourth count is properly adapted to the recovery of damages for negligence, as well as for delay in sailing within a reasonable time. That count, after stating the delivery of the property to be carried, and the reception of it for that purpose by the defendant on board his boat, and that the boat did not proceed to New York on the day of the delivery, nor within a reasonable time thereafter, and deliver the property to the plaintiffs in the city of New York, goes on to allege, that “the defendant so negligently, carelessly and improperly conducted himself in this behalf, that, for want of due care in said defendant and his servants, said poultry was not conveyed to New York and delivered to the plaintiffs until the same became and was, in consequence of said carelessness and negligence, damaged and spoiled, and of no value to the plaintiffs.” Here the gravamen is the carelessness and negligence of the defendant in not taking care of the property, and in not safely delivering it to the plaintiffs in New York, by reason of which it became spoiled. We are therefore of opinion that the injury which the plaintiffs suffered through the negligence of the defendant, was the proper subject of recovery under this • count; and we accordingly advise the superior court to render judgment for the plaintiffs for the injury complained of.

In this opinion Butler and Carpenter, Js., concurred. McCurdy and Park, Js., wore of opinion that the averments of the declaration applied only to negligence on the part of the defendant in not proceeding with the boat to New York, and did not apply to negligence in not taking care of the poultry while being transported; and they therefore dissented.