87 N.Y.S. 30 | N.Y. App. Div. | 1904
The plaintiffs were dealers in hay living at Lafargeville in the county of Jefferson. In the summer and fall of 1899 they purchased of the farmers living near the several local stations along the defendant’s line a large quantity of hay, designed to be shipped' to New York and Boston. The hay Was pressed by the plaintiffs
During the year 1899 and for sometime prior thereto, hay had been classified in what was known as the sixth class of merchandise. The charge on this class of freight from Jefferson county to New York and Boston -\vas seventeen cents per hundred.
From the" first of September to the first of January the plaintiffs shipped over defendant’s line quite a large quantity of this hay but were unable to procure sufficient cars to transport all they had on hand for shipment. They made demands daily of the various local agents for more cars but Were unable to procure them. One of the-causes of action contained in the plaintiffs’ complaint is that the defendant unreasonably neglected to provide a sufficient number of cars to forward this freight. That question was properly submitted to the jury (Root v. L. I. R. R. Co., 114 N. Y. 300) and their verdict determines that the defendant was not unreasonable in its failure to provide sufficient cars. The defendant’s general traffic manager testified that during the fall of 1899 there was an unusual and extraordinary call for freight cars and especially for the transportation of perishable goods, and apparently preference was given to-the shipment of goods of that character. The defendant was not apprised of any urgent necessity for the shipment of this hay. It was not within the class denominated perishable merchandise and its sale in midwinter might as readily be made as earlier in the-, season. It was not, therefore, called upon to put forth any unusual efforts to remove the hay. The ordinary duty of exercising reasonable care and diligence as a common carrier to furnish cars adequate for the transportation of freight was incumbent upon it, but not to-discriminate in favor of the plaintiffs Where the demands exceeded the capacity of the defendant and the anticipated or usual calls upon it. So, under the evidence, it was a fair question of fact whether there was any unreasonable neglect on the part of the defendant to» furnish the plaintiffs with the cars which they needed.
The Interstate- Commerce Act (24 U. S. Stat. at Large, 381, § 6, as amd. by 25 id. 856) provides that,, before ■ any -advance 'is; made in freight charges,, a public notice thereof of ten days shall be given, .stating ,tlie- changes- to be made and- the date when the increased rate--is to go- -into -effect! The notice in- this'cáse-was. posted at the station of the -defendant at Lafargeville -on the twenty- ' fifth day of December, and the new tariff charge- became operative on January first following; The requisite ten days? notice was not,. - therefore,, given. The plaintiffs knew of this notice- when it was- first posted, and continued to ship their hay, paying the increased rate without a murmur until all had been shipped. - It does not. appear that, any part of the same was loaded in the first few days of January, so that .the plaintiffs, we may say, did have, the full ten days? notice before they delivered their hay to the- defendant.
Nor did they make, any complaint in any way of the increased charge- the- -defendant had imposed.. They paid the money voiun- . tarily and they cannot now recover it back. ( Vanderbeck v. City of Rochester, 122 N. Y. 285; Newburgh Savings Bank v. Town of Woodbury, 173 id. 55; Killmer v. N Y. C. & H. R. R. R. Co., 100 id. 395, 401; Bennett v. Bates, 94 id. 354, 373.)
We think, it was- no error for the court to decline to permit the jury to pass'upon the question as. to- whether this increased rate was unreasonable or not. There was no proof given on the- part of the -plaintiffs to sustain that charge,, and their voluntary assent to- it implies that the- rate- was reasonable. Again,, there was no implied .agreement whereby the plaintiffs were entitled to- ship the hay at the old rate. A discrimination of that kind excepting the plaintiffs.
The other cause of action is upon an assigned claim made by one Tallman, who was also a hay shipper living’ at lafargeville. The facts pertaining to that cause- of action are. also identical with plaintiffs’ own claim.
The judgment should be affirmed, with, costs*
All concurred.
Judgment and order affirmed, with costs. -