Jackson Architectural Iron Works v. Hurlbut

• Citation: 52 N.E. 665,158 N.Y. 34
• Parties: JACKSON ARCHITECTURAL IRON WORKS v. HURLBUT et al.
• Decision Date: 10 January 1899
• Court: New York Court of Appeals

158 N.Y. 34

52 N.E. 665

JACKSON ARCHITECTURAL IRON WORKS

v.HURLBUT et al.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from common pleas of New York city and county, general term.

Action by the Jackson Architectural Iron Works against Henry A. Hurlbut, Jr., and another. From a judgment of the general term (36 N. Y. Supp. 808), affirming a judgment for plaintiff, defendants appeal. Affirmed.

Charles A. Collin, for appellants.

Jesse Grant Roe, for respondent.

O'BRIEN, J.

The question in this case involved the responsibility of the defendants for an injury to property while it was in their custody as bailees for hire or reward. They were employed by the plaintiff in February, 1892, to transport a large planing machine, used for plaining iron, over 30 feet long and weighing over 10 tons, from the foot of Twenty-Third street, on the North river, to the plaintiff's factory at East Twenty-Eighth street, in the city of New York. The agreed compensation for the service was $60. They undertook to perform the work, and while unloading the machine at the factory it was broken and seriously damaged, and hence it is alleged that they failed to perform the service which they undertook to perform, since they did not deliver the property according to the duty imposed upon them by law. The plaintiff recovered a verdict of $500 as damages for the injury to the machine and for the loss of the use of it while it was being repaired, and the judgment entered on the verdict has been affirmed at the general term.

The principal question discussed in the case concerns the duty or obligation which the law imposed upon the defendants when they undertook to perform the service. The learned counsel for the defendants contends that their responsibility was not that of a common carrier, and that they were not subject to the strict liability which is an incident of that relation; in other words, that they were not insurers for the safe delivery of the machine, as a common carrier is for the delivery of the goods or property which he undertakes to carry and deliver. At the trial the court was requested, in behalf of the defendants, to instruct the jury that they were in this transaction carriers for hire, and not common carriers. This request was refused, and an exception taken. It will be seen hereafter that it is not very important to determine whether the defendants were common carriers, or merely engaged under a contract with the plaintiff to transport the machine for a stipulated compensation. The question with respect to the true legal relation in which the defendants stood to the plaintiff, whether a common carrier or something else, is an abstract one. But, since the defendants complain of the refusal of the learned trial judge to give to the jury the instruction requested, and insist that this error, if it be one, may have prejudiced the defendants on the whole case, it may be proper to examine it briefly, in order to see how much of substance there is in the exception.

The defendants advertised themselves as general truckmen, their particular specialty being the moving of heavy machinery. They kept and maintained for this purpose a large number of trucks and horses, and the necessary help for the prosecution of this business. On this state of facts there was no legal error in the refusal of the learned trial judge to instruct the jury that the defendants were not common carriers. Truckmen, wagoners, cartmen, and porters, who undertake to carry goods for hire as a common employment in a city, or from one town to another, are common carriers. It is not necessary that the exclusive business of the parties shall be carrying. Where a person whose principal pursuit is farming solicits goods to be carried to the market town in his wagon on certain occasions, he makes himself a common carrier for those who employ him. The circumstance that the defendants had no regular tariff of charges for their work, but that a special price was fixed by agreement, does not change the relation. The necessity for a different charge in each case arises, of course, out of the difference in labor in handling articles of great bulk. The charge in each case may be proportioned to the risk assumed, and commensurate with the carrier's responsibility as such. A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him; and every one who undertakes to carry for compensation the goods of all persons indifferently, is, as to liability, to be deemed a common carrier. Bank v. Brown, 3 Wend. 158; Schouler, Bailm. & Carr. (2d Ed.) 351; Story, Bailm. §§ 495, 496; 2 Kent, Comm. (4th Ed.) pp. 598, 599; 2 Pars. Cont. 165, 175; Ang. Carr. 870; Allen v. Sackrider, 37 N. Y. 341;Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292. While, therefore, the question as to whether the defendants were subject to the responsibility of common carriers was not very material in this case, yet we think it would be difficult to show that there was any legal error in the charge of the learned trial judge in that respect.

This was not an action against the defendants as common carriers. They were not held liable upon the ground that they were insurers of the safety of the property which they undertook to deliver, but...