Stedman v. Western Transportation Co.

48 Barb. 97 | N.Y. Sup. Ct. | 1866

By the Court, Miller, J.

By the contract made between the plaintiffs and the defendants, risks by fire, in the transportation of the goods were expressly excepted. Under the terms of the contract, I think, only ordinary risks were intended, and that the defendants were not excused if the loss was caused by the fault or negligence of the company or its agents or employees. (Smith v. N. Y. Central Railroad Co. 24 N. Y. Rep. 230. Perkins v. The Same, Id. 206. Wells v. Steam Navigation Co., 4 Seld. 375.) The defendants, therefore, would be exempted from the claim of the plaintiffs to recover, in this action, unless their negligence as common carriers, in transporting the goods, contributed to produce the loss.

The question, then, is, whether the delay in forwarding the goods from the Western railroad depot, at East Albany, was unreasonable and established a case of negligence. I think it did not establish any such case. The goods arrived at East Albany on the 27th and 28th of June, 1861, were stored in the warehouse of the railroad company, and there remained until the 5 th day of July, when the warehouse and its contents were destroyed by fire. The defendants had no direct notice of the arrival of the property ; but, according to the testimony, they were left to be called for, in the usual course of business, which was for the defendants to send a boat for them once a week, or once every two weeks. " The agent of the defendants would come to ascertain whether the goods were there, and take them as soon as he thought there was enough to send a boat for. The agent was there on the 1 st or 2d of July, and some conversation was had with him about bringing a boat to take the goods ; but it does not appear that any boat was sent for that purpose. The goods were not left in an exposed or dangerous place ; for the building was well built and well guarded against fire.

No particular time having been named, within which the goods were to be forwarded, the defendants were doubtless entitled to such time as would be fair and reasonable, in the ordinary course of the business in which they were engaged. From the evidence in the case, and the surrounding circumstances, it would seem that the delay in the transportation of the goods was not unreasonable, but in accordance with the usual course of business, and not beyond the ordinary time allowed for that purpose. There was no agreement that they should be forwarded within a given time, or at once, without any delay ; and it was by no means remarkable that they should have been left until a load could be obtained for transportation in a boat. There is certainly no direct evidence to show any particular neglect on the part of the defendants, and. I.am not aware of any rule which could compel the. defendants to act immediately and transport what was on hand, without regard to the quantity, or the expense incurred by-thus deviating from their common custom or practice in such cases. ¡Neither is there any evidence in the case to show that the agent acted differently from what he always did, in reference to taking the goods from the railroad depot, to a'boat, for the. purpose of transportation.

■.If it be insisted that the few days in which the property remained at the railroad depot was an unusual delay, then may it not be urged with equal force that a loss of time would have been ? That they should have been moved at once, without any delay and with all possible expedition ? . L am not aware .of any case which has gone to the extent of holding that the time which the goods were detained in the present case, under the circumstances existing, was sufficient to make the common carrier liable. In Michaels v. The Central Railroad Company, (30 N. Y. Rep. 564,) to which we have been referred, where the goods were delivered to a railroad company by a connecting railroad company, to be transported to the,owners, and they yere detained some threé. days on the ground that by the regulations of the defendant they were not to be forwarded until the receipt of a bill of back charges, it was held that the company were not justified in the detention, and were liable for their loss. It will be observed that this case differs entirely from the one under consideration, where it appears that the defendants acted in entire conformity with the accustomed manner of dealing and of doing business, '

It is said that the delay was at least evidence of neglect to be submitted to the consideration of the jury, as a question of fact. The plaintiff’s counsel made no such request. If he had intended to claim that there was a disputed question of fact in regard to the defendants’ negligence, he should have made a distinct request that it should be submitted to the jury, (Barnes v. Perine, 2 Kern. 18.) When the court assumes that the weight of the ■ evidence is in a particular direction, and so decides, if no objection be taken to this course at the time, it is regarded as done with the assent of parties. They have a right to object, in all cases, where the verdict, either way, would not be set aside as unwarranted by the evidence, and if they do object, and demand the submission of the case to the jury, the demand must be complied with. (Bidwell v. Lament, 17 Row.. 357.)

[Albany General Term, September 17, 1866.

As no request was made to submit the question ás to negligence to the jury, and as there is some evidence to sustain the decision of the judge, I think that the point last discussed is not well taken.

As I discover no error on the trial below, the judgment must be affirmed, with costs.

Miller, Hogeloom and Ingalls, Justices.]