36 N.Y.S. 26 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment entered in the Rensselaer county clerk’s office on November 20, 1894, upon a verdict of a jury, and from an order denying the plaintiff’s motion for a new trial. The following facts may be deemed established by the verdict of the jury: On Wednesday, the 6th day of July, 1892, a barge belonging to defendants left the city of New York with 100
The action was brought against the defendants as common carriers. No claim is made in the complaint or was asserted on the trial against them as warehousemen. Their duty as common carriers by water was, not only to convey the cotton to the port of destination, but to deliver it there to the consignee. Such delivery could be either actual or constructive. There was a constructive delivery, if the defendants unloaded the cotton at the wharf at Troy, and notified plaintiff, after the lapse of a reasonable time for its removal by the latter. Tarbell v. Shipping Co., 110 N. Y. 171, 17 N. E. 721. It was the duty of plaintiff, on receiving such notice, to at once and with diligence proceed to remove the cotton. Tarbell v. Shipping Co., supra; Hedges v. Railroad Co., 49 N. Y. 223. The cotton remained at the risk of the defendants until after the lapse of a reasonable time for the consignee to remove it. After the expiration of such time, the liability of the defendants as common carriers ceased, and, if in any way responsible, they were only so as warehousemen. The defendants had no right to place the cotton in a warehouse for the plaintiff until the latter had a reasonable time to remove it. Redmond v. Steamboat Co., 46 N. Y. 578-583. It has been held that what is a reasonable time in which to remove goods by the consignee, after the same are unloaded at a wharf, and notice given, where there is no dispute as to the facts, is ordinarily a question of law, to be passed on by the court. Hedges v. Rail
On the evidence in this case, the jury were authorized to find that, -on Saturday, the 9th of July, plaintiff received the notice sent by defendants of the arrival of the cotton; that it was unloaded on that day by noon, and plaintiff commenced drawing it away; that it was not damaged or destroyed by flee until the afternoon of the following Wednesday. We think, under doctrines established in the cases cited above, the court did not err in instructing the jury that, if they found the cotton was delivered on the dock at Troy on the morning of Saturday, July 9th, and plaintiff received the postal card notifying them of its arrival on that day, the liability of defendants as common carriers ceased before the fire on the following Wednesday, and they were only liable thereafter, if at all, as warehousemen, and in declining to charge, as requested by plaintiff, that “the question whether the cotton was taken awray by the plaintiff within a reasonable time is one, under the circumstances ■of the case, for the jury to pass upon.” If the plaintiff had notice ■of the arrival of the cotton on Saturday, the 9th, and allowed it to remain on the dock until the afternoon of the following Wednesday, It failed to act promptly and with reasonable diligence, and defendants ceased to be liable as common carriers. Hedges v. Railroad Co., supra; Tarbell v. Shipping Co., supra. And it was for the court, under the circumstances, to determine the question as to the reasonable diligence of plaintiff in removing the goods. In the case of Hedges v. Railroad Co., the action was brought against the defendant, as common cárrier, to recover for a portion of a car load •of paper destroyed by fife. The plaintiffs had notice of the arrival of the paper on the morning of the 24th' of May, and removed one load, and the balance was burned the same night. In his opinion Judge Polger remarked:
“We do not perceive that there is here any dispute as to the material facts. It is certain that, with three or four trucks, all the paper could easily have been hauled away, before the close of defendant’s business on the day on which one load was taken with one truck. It is certain, too, that, with the one truck of their own, two loads could have been received by the plaintiffs from the defendant on that day. So that it was a question of law for the •court whether it was unreasonable for the plaintiffs to employ but one truck, or, if reasonable to employ but one truck, whether it was reasonable to send it but once for paper that day. The learned trial judge left the question for the jury. In this we think he erred.”
In this case it is clear that the plaintiff could, with reasonable diligence, have removed the cotton, during the three days that elapsed after it received notice of its arrival before the fire, and, under the authorities cited, the court was authorized to determine the question as to its reasonable diligence.
The trial court was not called upon to charge, as requested by plaintiff, that, before the character of defendants as common car
We think the case was fairly submitted to the jury by the learned trial judge, that no errors were committed, and that the judgment should be affirmed, with costs.
MAYHAM, P. J., concurs. HERRICK, J., concurs in result.