Lead Opinion

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *247 It is not material to determine whether it is established by the admissions in the pleadings or the finding of the referee, that the two railroad companies, which together formed the line of transportation between Buffalo and New-York, were partners. It is somewhat uncertain whether the plaintiffs should be understood to aver in the complaint that both companies were common carriers for the whole distance, or only that they ran in connection as a continuous line, each being carriers upon their respective roads; and the same indefiniteness of statement *248 is found in the report of the referee and in the bill of exceptions. In both these papers it is stated that the defendant, the New-York and Erie Railroad Company, was a common carrier between the cities of Buffalo and New-York, in connection with the Buffalo and New-York City Railroad Company. They might run in conneсtion and together cover the whole distance, each company being carriers over its own road only; or they might, if the law will permit such arrangements between railroad companies, be copartners as carriers over the entire road, as is sometimes the case in lines of stage coaches. (See Bostwick v. Champion, 11 Wend., 571; S.C. in error, 18 id., 175.) The question could only be material in reference to the plaintiffs’ argument, that the carriers having receivеd the property and commenced the transit, could not afterwards allege the accumulation of freight at a point on the route as an excuse for not delivering it at the terminus without delay. If it were essential to decide that question, I should hold that the statements were insufficient to enable us to adjudge that the two railroad companies were partners; but I am of opinion that whichever may be the proper construсtion of the allegation in this respect, we cannot disregard the fact that two separate railroads were employed in the transportation of this property from Buffalo to New-York, and that the point where they united at Hornellsville was a depot where delay might happen in consequence of an excessive accumulation of freight at a particular season. Whether, therefore, the two railroаds were copartners, or only carriers over their respective roads, the place where this freight was taken upon the New-York and Erie road, was “the place of starting,” or “junction” of railroads, referred to in the act of the legislature to be presently mentioned. The thirty-sixth section of the general railroad act, is in the following language: “Every such corporation shall start and run their cars for the transportatiоn of passengers and property, at regular times to be fixed by public *249 notice; and shall furnish sufficient accommodation for the transportation of all such passengers and property, as shall within a reasonable time previous thereto, being [be] offered for transportation at the place of starting and the junctions of other railroads, and at usual stopping places established for receiving and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discharging way рassengers and freight; and shall both transport and discharge such passengers and property at, from and to such places on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises.” (Laws 1850, p. 231.) The act contemplates that it may not always be in the power of a railroad company to dispatсh either passengers or freight immediately upon their arrival at a station or junction, and it therefore allows the company a reasonable time after their arrival and the offer of property for transportation to set it in motion from such starting point or junction. What is a reasonable period, must depend upon the actual circumstances existing at the time the property is offered for transportation. In the absence of any cause for delay it should be sent immediately forward, as the owners of property destined to a market may always be presumed to desire its arrival at the earliest practicable time. The referee has found that the defendants’ road was in good order and well equipped with cars and engines; that during the month of January, (the property in question having been received on the 18th day of that month,) a larger аmount of freight than usual had been received by the defendants to transport to New-York, and that the amount so received and accumulated exceeded the then capacity of the defendants to remove, though they ran as many freight trains as could be run with safety; and that such accumulation formed an excuse for the delay which occurred in this case. We are to presume that these facts were found upon sufficient evidence. We have then, this state of facts. The defendants were without fault in *250 respect to the state of their roads; they had provided sufficient cars and engines and sent forward as many freight trains as safety would permit, but owing to an unusual demand for transportation at that time, the plaintiffs’ property could not be sent forward faster than it was sent. If, under such circumstances, a railroad company would be liable on account оf a tardy delivery, the business would be quite too hazardous to be followed by prudent men; for, whether the carrier is answerable for losses occasioned by a falling market or not, he certainly would be for the interest upon the value of all the property, the delivery of which was delayed by his fault. But the law is not so unreasonable. A carrier may lawfully refuse to receive goods offered for transportation, because his coach is full, or because he has not the means of transporting such goods, or a carrier by water may refuse to take them until he is ready to sail. (Morse v. Slue, 1 Vent., 190, 238; Lane v. Cotton, 1 Ld. Ray, 646, 652; Story on Bailm., § 508.) The statute which has been referred to, is designed to bring these railroad lines within the general principle of common carriers, with such variations as the nature of the business requires. They are required, for instance, to have regular times for starting their trains, of which public notice is to be given, and thеy are to take all kinds of property which may be offered, in which particular they are held to rules which do not apply to other carriers; but then, as even their means of transportation are not wholly without limit, they are to have a reasonable time after the freight is offered, to send it forward. If, when a particular parcel is offered, the next train is filled up, the goods must wait for the succeeding train, or if on account оf an unusual accumulation, the means of transportation for several successive trains, or for several days are anticipated, the property must remain until its time shall arrive, subject to the qualification, that the company must not be in fault in providing sufficient accommodation for the general trafic of their road under ordinary circumstances. *251 The plaintiffs’ counsel maintains that these principles are inapplicable to this case, because, as he insists, there was but a single line from Buffalo to New-York over the whole of which the defendants were carriers, and the property having been embarked at Buffalo, there could be no excusable delay afterwards. But the plaintiffs knew that their property was started upon a branch road, and that the defendants’ main line extended west beyond the junction of the road running from Buffalo, and that an accumulation at the junction might cause a delay as probably as at Buffalo. It is not stated in the report where the detention of these goods took place, but as it is found that the delay was owing to the accumulation of freight, we must assume that it was either at Hornellsville or at some station where freight was received for transportation. We are not to assume that an undue preference was given to other freight over that of the plaintiffs, for it is specially found that this property was transported and delivered as soon as other property, during the period in controversy.

The law, upon well known motives of policy, has determined that a carrier shall be responsible for the loss of property entrusted to him for transportation, though no actual negligence exist, unless it happen in consequence of the act of God, or the public еnemy; but when the goods are actually delivered at the place of destination, and the complaint is only of a late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse him, unless he have expressly contracted to deliver the goods within a limited time. (Parsons v Hardy, 14 Wend., 215; Harmony v. Bingham, ante, 99.) I am of opinion that the finding of the referee establishes that there was no culpable want of diligence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the part оf the defendants in this case and that they are not liable to the plaintiffs for any damages.

Having come to this conclusion upon the main issue, we ought not to lay down any rule upon the subject of the *252 damages which the plaintiffs would have been entitled to recover if they had established a cause of action. If we should do so, it would not furnish a precedent by which those who may succeed us in this court or the community would be bound, should we еven consider ourselves concluded by it. It is only upon points necessarily involved in the determination of causes, that the judgments, even of the highest appellate courts, furnish authoritative adjudications. For these reasons we forbear to express any opinion upon the question whether carriers who undertake to transport merchantable commodities to market, are liable for damages in consequence of a decline in the market, where a delivery has been delayed through want of diligence in the carrier, although that question has been very intelligently argued upon the printed briefs, and we are, moreover, furnished with an unusually elaborate and able opinion upon that question delivered in the supreme court. The judgment should be affirmed.

JOHNSON, CRIPPEN, DEAN and MARVIN, Js., concurred in the foregoing opinion.

WIBERT v. THE NEW-YORK AND ERIE RAILROAD COMPANY

Court of Appeals of New York

September, 1855

12 N.Y. 245

Dissenting Opinion

It will not be denied that a common carrier is bound to receive and carry, for a suitable hire, all the goods offered to him for transportaion. (Story on Bail., § 508; Jackson v. Rogers, 2 Show., 327; Crouch v. London and N.W.R. Co., 14 C.B., 255; 2 Kent 599.) This was the rule at common law, though he was excused if his carriage were full; and he was obliged to take only such as he carried in his known and usual course of business. (Sewall v. Allen, 6 Wend., 335; Johnson v. Midland, R. Co., 4 Exch. R., 367; Story on Bailment, § 508; Parsons on Cont., 649.) Nor was he compelled to receive the goods until he was ready to set forth on the route. Common carriers were liable for all losses ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍except those occasionеd by the act of God and public enemies; but as to the time of delivery by them, it has been said, they *253 are only responsible for the exertion of due diligence. (Parsons v. Hardy, 14 Wend., 217; and see Hadley v. Clarke, 8 T.R., 259; Bowman v. Teall, 23 Wend., 306; Story on Bailment, § 545 a (4 Ed.) Hand v. Bayels 4 Whart., 204.) A carrier may also be a wharfinger, or warehouseman, or forwarding merchant; and if the property be received by him in the first instance, as such, and not as carrier, his liability is measured accordingly, until he assumes the duty of carrier. But upon the delivery of the goods to one as carrier, and acceptance thereof by him, his responsibility in that сharacter begins; and one duty is to transport the property, at least with all reasonable diligence. And I have found no case where a common carrier has been excused for detention, or a prolonged period of passage, beyond what could otherwise have been a reasonable time, when the delay was occasioned by the insufficiency of his means of transportation, after he has actually received the goods for that purpose. And, certainly, this cannot be a legal excuse, when he has not only actually so received the goods, but conveyed them, as in this case, over a portion of the route. No one will contend that a railroad company would be justified in leaving a passenger midway on his journey because they had not sufficient cars; and the same principle applies to freight, though thе absurdity of the proposition is not so striking. As we have seen, the carrier at common law, could refuse if his carriage were full; and if he could not immediately transport it, he might take a delivery of the property as depositary or bailee of a different character, until he could carry it. But if he received it as carrier absolutely, his duty, not only to preserve but to forward, immediately attached. If from any cause additional time will be required, he should receive it conditionally, or make a special contract; and in the former case, the circumstances must be such as to justify him in imposing terms. But I know of no principle by which he can receive and keep it on hand, and delay the transportation *254 beyond the usual, ordinary and necessary time, especially without notice of the expected delay and without consent of the bailor, express оr implied. That, it seems to me, would be a violation of his contract and his duty to the public, and must necessarily produce great loss and inconvenience. Those interested in the delivery of the property at the place of its destination, have a right to make their calculations upon the ability and willingness of the carrier to transport the property in the requisite time; which, unless some day is fixed, or there is some other agreеment, express or implied, or peculiar circumstances which control, should be as soon as it can be done with suitable means, and with all reasonable diligence. And if the mere delivery of the goods to the carrier, and his acceptance, impose such obligations, a detention along the route after the transit shall have commenced, certainly cannot be justified from any cause which could have been prevented by ordinary vigilance and prudence.

But some of the duties of railroads, in respect to transportation of persons and property, have been made the subject of legislative regulation. By the 36th section of the act to authorize the formation of railroads, and to regulate the same, (Laws of 1850, ch. 140, p. 231,) it is provided, that “every such corporation shall start and run their cars for the transportation of passengers and рroperty, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property, as shall, within a reasonable time previous thereto, be offered for transportation, at the place of starting and the junction of other railroads, and at usual stopping places established for receiving and discharging way passengers and freights for that trаin; and shall take, transport and discharge such passengers and property at and from and to such places,” on payment of freight c.; and they are made liable to the party aggrieved for neglect or refusal. Here is a positive injunction that *255 every railroad shall furnish sufficient accommodations for transporting all property that shall, within a reasonable time before they are required to transport it, be offerеd for that purpose. In most respects, this section is but declaratory of the common law; and I do not say that a railroad is liable if it does not meet every emergency, however great and sudden, and be ready to carry all that may be offered for freight or passage, under all possible circumstances. These corporations are of great benefit to the country, and their existence is authorized and sanctioned by law; and there is no reason why the statute should not receive a rational and not a captious construction. But if the statute be not absolutely imperative without regard to circumstances, it does require these corporations to adapt their facilities to the general wants of the community. And there is nothing in the act that relaxes the obligation of a common carrier to proceed with all diligent speed aftеr having started on the passage. In Hadley v. Clarke, (8 T.R., 259), a vogage was interrupted by an embargo; and even then, its continuation for two years, did not absolve ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the carrier from his obligation to perform as soon as he reasonably could after it was taken off. In Parsons v. Hardy supra, the carrier proved that the goods were transported with all possible diligence until they were stopped by the act of God; and it seems clear, too, on principle, that want оf accommodations or facilities cannot be a valid excuse for detention beyond the usual time after the property is once on its way.

These principles applied to this case, do not exonerate the defendants. The Buffalo and New-York city road and the defendants ran “in connection” from Buffalo to the city of New-York. There has been some question how far one railroad corporation can be sued for the negligence of another where the transportation is continuous and entire over their respective roads. (Weed v. Sar. and Sch. R. Co., 19 Wend., 534; St. John v. Van Santvoord, 25; id., 660; S.C., 6 Hill, 158; Muschamp v. Lancaster Railway, 8 M. W., 421; Cronch v. Lond. N.W.R. Co., 14 C.B., 255; Parsons on Cont., 686, 7, and notes; Champion v. Bostwick, 18 Wend., 175; S.C., 11 id., 571; Fromont v. Coupland, 2 Bing., 170; Russell v. Awstwick, 1 Sim. R., 52.) In some of the cases above cited, the corporation to whom the property was first delivered, was held liable for the default of other corporations over whose lines the property was or should have been carried; and where a carrier is in the habit of receiving аnd forwarding goods directed to any particular place, an agreement on his part to take them there, has been presumed: but where their operations are entirely disconnected there is no partnership. (6 Hill, 158.) But in many cases in which different railroad corporations cannot be considered by the public strictly as partners, they may, and often do, act as agents of each other. And in this case, the Buffalo and Nеw-York City Railroad, if the defendants can not be held liable for the negligence of the former, may be considered the agents of the defendants to receive property to be transported by them to New-York; and the defendants, in fact, received the property. The referee finds the two companies ran in connection; and if the delivery to one was not a delivery to both for all purposes, I am inclined to think, such was the mode of transacting business by both companies, that the public might, within the decisions, well consider the Buffalo and New-York City Company the agent of the defendants so far that the latter would be liable for any breach by themselves of a contract to transport property to New-York, made by the Buffalo and New-York City Company. The butter in this case, was delivered to the latter company on the 17th of January; it could have been carried to New-York in three days; and the usual time of transportation was six days; but it did not arrive there until the fourteenth, and was not delivered until the fifteenth day. The defendants actually received it on the second day after it was delivered by the owners, it having been taken nearly one fourth of the whole distance in nine hours. The referee reports that, during the winter season, three-fourths of the freight carried by the defendants goes to New-York; that during that month, January, a larger amount than usual had been received and had accumulated on the road, which was well equipped; but that the amount of freight received and accumulated was beyond the capacity of the road. These facts are relied upon as an excuse; but can the defendants, after receiving the property and after it had been carried nearly one-fourth of the distance, and without any wаrning to the consignor or consignee, be allowed nearly five times as long as was necessary to convey the property, and nearly triple the usual time, and make no compensation, and merely because they had not sufficient means of conveyance? Is this not a violation of an implied contract? It does not appear that the accumulation of business was sudden or unexpected. The road was well еquipped, but it was not shown that its capacity could not, with reasonable exertion, and ought not to have been made sufficient. But even if it could not, it is not pretended that the plaintiffs had the slightest notice that delays might occur; on the contrary, their agent was informed by the person who appeared to have charge of the freight train and assisted to load the butter, that it would be delivered in New-York in about five days. If the refereе believed this evidence, within the principle of some of the cases, he might have found there was a special contract. (Pickford v. Grand Junction R. Co., 12 M. W., 766; Scothorn v. S. Staffordshire R. Co., 8 Exch. R., 341.) But I think it is sufficient that the defendants received the property without notice to the owner that there was any ground for apprehension that a longer period than was usual would be required for transportation. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍That information, at least, they were bound to impart, that the consignor or consignee, аs the case may be, might govern himself accordingly; and they were not justified in accepting the property, even in silence, much less on a misrepresentation, when they knew that the plaintiffs must be disappointed. The judgment should be reversed and a new trial ordered.

I examined the question of damages, but the view taken by the majority of my brethren disposes of this cause without reference to that point.

GARDINER, Ch. J., was also in favor of reversing the judgment. RUGGLES, J., took no part in the decision.

Judgment affirmed.