Wing v. New York & Erie R. R.

Brady, J. — The plaintiffs delivered to tbe Buffalo, Corning and New York Kailroad 144 barrels of potatoes, to be transported from Rochester to New York, at tbe same time paying the price of such transportation. That road unites with the defendants’ road at Corning, and the potatoes were sent over de-' fend ants’ road to Piermont from thence. The route of the defendants terminates at New York, although the terminus of their rail is at Piermont. No particular arrangement exists between these companies, except that defendants deliver to and receive freight from Buffalo, Corning and New York Road at Corning, and have a fixed fare thereto and therefrom. There was no agreement of any kind between plaintiffs and defendants proved, and no agreement limiting the liability of either defendants, or the Buffalo and Corning company, as common carriers. The potatoes were received at Corning, as freight is usually received there by defendants, and when they arrived in New York were frozen; and it is alleged that they were so frozen by the negligence of the defendants. They arrived at Piermont on Saturday evening, December, 1855, but the waybill of the car in which they were carried was not sent with it or brought with it, and tbe potatoes were necessarily detained until it could be procured, to ascertain their destination. The way-bill was sent for, and was received on Tuesday following tbe arrival of the potatoes at Piermont. Whether the defendants or the Buffalo, Corning and New York Road wfore responsible for the omission to bring or send the way-bill, does not distinctly appear. The testimony is, that the conductor did not bring it, [242] but whether the conductor was the servant of the defendants or the other company is not stated or established. On Tuesday the potatoes were put on the barge of defendants, at Piermont, to be sent at 4, r. M., of that day to New York, and Mr. Kimball examined one barrel while the defendants were loading them on the barge. The potatoes in that barrel did not appear to be frozen, and the agent then told Mr. Kimball that a number of the barrels which had been unheaded were not frozen. On Wednesday morning, at about 5 o’clock, that being the day succeeding the day on which the potatoes were put on the barge, they arrived in New York. Mr. Kimball saw them during the morning of that day, and they were frozen badly. ^ It seems, from this statement of the facts, that the delay at Piermont was not the immediate cause of the damage to the potatoes, and justifies the conclusion that'on their transit from that place, to New York they were frozen. The defendants insist that they are not liable, because there was no contract, express or implied, between them and the plaintiffs, and that, in any aspect of the caáe, the Buffalo, Corning and New York Road are alone responsible to the plaintiffs; but if it should be held that they are liable directly to the plaintiffs, then that they are so only for the omission of due diligence in the delivery of the potatoes, there being no agreement limiting the time for such delivery ; and further, that the potatoes having been frozen, the loss resulted from the intervention of the vis major, which in any event discharges them from liability. A great variety of questions, growing out of the relations of the companies and the plaintiffs to each other, have been presented by the appellants with, great ingenuity, and discussed ably and elaborately by appellant and respondent. It will not be necessary, however, to consider many of them, because the right of the plaintiffs to sue the defendants directly seems to be settled by several well-adjudicated cases. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. U. S. Rep. 380 ; Sanderson v. Lambertson, 6 Binney, 129 ; Green v. Clarke, 2 Kern. 343 ; 2 Greenleaf Ev., § 210. The defendants, however, were not liable, [243] ■unless guilty of negligence in the transportation or manner of carrying the freight. Freezing is the act of God, and an excuse, if the carrier be blameless. On that question the court below has found for the plaintiffs, and we see no reason to disturb that finding. It is said, by the appellants, that the judgment was entered pro forma by stipulation, without prejudice to their rights in any respect. We cannot sanction the practice of such a proceeding, and will in all cases regard the finding of the court below conclusive, unless clearly against the weight of evidence. Such is the established rule of this court. But as to the negligence of the defendants. The weather was very cold, and had been for some days previous to the day o:^, which the potatoes were examined by the witness Kimball, and was for some days subsequently, as appears by a table which forms one of the exhibits, showing an average of thirty degrees, and which table is accompanied 'by an admission that the thermometer fell ten degrees at night, during the period over which that table extends. The potatoes were perishable, and bad been kept at Piermont nearly three days; they were not injured by that delay, however, and the attention of the employees of the defendants, or one of them, was called to both of these circumstances. When placed on the barge, they were put upon the upper deck, which was enclosed, it is true, but there was nothing to prevent their being placed below deck. The only excuses offered for not putting them there are, that they were put in the usual locality, and it would have taken some time longer to do it. The fact, that they vere perishable, imposed upon the defendants more than ordinary care and diligence as mere bailees, and the obligation to deposit them most securely against cold.. That it would take longer to do it docs not relieve them of the duty. The intensity of the cold created also the obligation of additional vigilance, and what was usual was not the consideration. Whát was necessary to be done under all the circumstances was the true criterion. “ The freezing of our canals or rivers lias indeed been held such an intervention of the vis major [244] as excuses tlie delay of the common carrier by water; but still he is bound to exercise at least ordinary forecast in anticipating the obstruction — to exert the proper means for overcoming it, and to exercise due diligence in accomplishing the transportation as soon as it ceases to operate. In the mean time he must not be guilty of negligence in taking care of the article detained.” Bowman v. Teall, 23 Wend. 310. We have no doubt that the defendants did not take the care which the law exacts from carriers in the discharge of their duties, and that, as we have stated, the plaintiffs’ property was damaged by their negligence. The amount which the plaintiffs were entitled to recover, the defendants being liable, has been passed upon by the court below under a stipulation limiting the sum; but it is said that the judgment is erroneous, because the court aivarded. costs to the plaintiffs in addition to the amount agreed upon. There is no error in this. Costs followed as a matter of course upon the plaintiffs’ recovery, and, if the defendants wished to protect themselves against the payment of them, they should have inserted it in the stipulation. There is nothing in this case to justify the theory that the potatoes were frozen after their arrival in New York, and by reason of the delay of the plaintiffs in removing them. The proof establishes that the freezing took place after they were put on the barge for carriage to Now York, and such must have been the judgment, of the court below. Judgment affirmed.