67 Barb. 513 | N.Y. Sup. Ct. | 1876
At the time the plaintiff’s property was destroyed, it was in the sole possession and under the exclusive management of the Buffalo and Erie Railroad Company. Its preservation and protection from damage was beyond the supervision of the plaintiffs, and was wholly confided to the oversight of the said company and its agents.
The liability of the company for the damages arising from the loss, is sought to be maintained upon the ground that the entrustment of the property was made
A common, carrier is a person who undertakes to transport from place to place, for hire, the goods and property of such persons as may see fit to employ him.
The general business of the Buffalo and Erie Railroad was that of a common carrier. If it was in fact, or in a legal sense, transporting for hire the property destroyed, then the case is established, in every particular, against the company.
In ascertaining the particular facts of the case, I am unable to find that a compensation was paid to the plaintiffs by the carriers forming the line, for the use of the tanks. I have regarded Mr. Spear’s letter, read in evidence, under a stipulation, as recalling, and a correction of, his evidence, that leakage was paid by the companies to the plaintiffs. With this correction made, there is nothing upon which to base a finding that they were in any sense lessees of the tanks. Had such a relationship been established, it would have been wholly inconsistent with the idea that the railroads were transporting the tanks charged with the strict liability of common carriers, in case of loss.
The tanks were delivered by the owners to be used in the transportation of their own oil, and for no other purpose; they were constantly used in that business and none other. Such or similar packages were absolutely indispensable to secure safety as well as carriage. The mode of fastening to the cars was also a prudent act, if not a necessary one, to prevent injury to the tanks and loss of their contents. The way the fastening was done, and the constant use of the same on the same car, and the frequent trips made over the road,
I have reached the conclusion that the railroads, under the arrangement made, assumed as to the tanks the unrestricted liabilities of common carriers.
They received, in a legal sense, compensation for. the service of carriage. True, the money paid over by the owners was in terms for carrying the contents of the tanks; but the tanks were packages in which the oil was contained. It would be a narrow view, and one detrimental to the public, to hold to the position of the defendant. A class of trade in the country, developed since the use of railroads, which secures quick trips and permits the repeated use of the same packages in many kinds of shipments, has led to the custom of returning the package by the same line, for the purpose of being refilled for another shipment. I think the customs of trade sanction the legal position — at least so far as this case is concerned — that the carrier received a compensation in a legal sense, in the payment of freight on the oil.
It is not unlike the rule, that a carrier of passengers is liable, as a common carrier of goods, for the ordinary baggage of the passenger, and the compensation for its carriage being, in the law, included in the passage money ' paid by the traveller. (Orange County Bank v. Brown, 9 Wend., 115. Camden &c. Co. v. Burke, 13 id., 628. Hollister v. Nowlen, 19 id., 235.)
The defendant’s liability must be held to be that of a common carrier, on the authority of Mallory v. The Tioga Railroad (13 Barb., 488.) That case and this are alike in every essential particular. There, the cars were owned by the shippers, and were carried loaded
The plaintiffs are therefore entitled to recover of the defendant the value of the tanks, $200, and interest from December 1, 1867, and costs.
Judgment accordingly.
Barker, Justice.]
That case was affirmed by the Court of Appeals. See 32 How Pr., 616.
