45 N.Y. 514, Maghee v. Camden & Amboy Railroad Transp. Co.

Citation45 N.Y. 514
Party NameTHOMAS H. MAGHEE, Appellant, v. THE CAMDEN AND AMBOY RAILROAD TRANSPORTATION COMPANY, Respondent.
Case DateMay 30, 1871
CourtNew York Court of Appeals

Page 514

45 N.Y. 514

THOMAS H. MAGHEE, Appellant,

v.

THE CAMDEN AND AMBOY RAILROAD TRANSPORTATION COMPANY, Respondent.

New York Court of Appeal

May 30, 1871

Argued Apr. 26th, 1871.

Page 515

COUNSEL

Charles Jones, for the appellant. Where goods are delivered to a carrier, to be carried beyond the end of his own line, he may make a contract with other carriers. That contract

Page 516

binds the shipper and inures to his benefit. (6 How. U.S. 380.) The shipper can sue the sub-contractor. (2 Greenleaf's Ev., § 210; Sanderson v. Lambertin, 6 Binn., 129.)The second carrier is not the servant of the first. (6 How. U.S. 380; 2 Kern., 243; 1 Hilt., 235.) If the defendants are liable as common carriers, they are liable for the loss. (Merritt v. Earle, 29 N.Y. 115.) Construction of the contract, "all rail." (Cassilly v. Young, 4 B. Mon., 265; Hand v. Baynes, 4 Whart., 204.) The goods should have been stored, and not left in a shed. (Merwin v. Butler, 17 Conn., 138; Ostrander v. Brown, 15 Johns., 39; Fisk v. Newton, 1 Denio, 45.)

Charles F. Sandford, for the respondent. On the question of the carriers' right by special contract to secure exemption from liability. (Harris v. Pockwood, 3 Taunt., 264; Beckwood v. House, 5 Rawle (Penn.), 179; N. J. S. Nav. Co. v. Merchants' Bank, 6 How. U. S., 382; Stoddard v. Long Island R. R. Co., 5 Sand., 180; Parsons v. Monteath, 13 Barb., 524; Dorr v. N. J. S. Nav. Co., 1 Kern., 485; Wells v. Steam Nav. Co., 4 Seld., 375; Mercantile Mut. Ins. Co. v. Calebs, 20 N.Y. 173; Welles v. N.Y. Cent. R. R. Co., 26 Barb., 641; Smith v. Same Defendants, 29 Barb., 132; Wells v. Same Defendants, 24 N.Y. 181; Bissell v. Same Defendants, 25 N.Y. 442; P. and O. Steam Nav. Co. v. Shand, 11 Jurist, 771.) On the question of the liability of the contracting company. (McGregor v. Kilgore, 6 Ohio, 358; Fitch v. Newberry, 1 Douglass [Mich.], 1; Muschamp v. Lancaster R. R. Co., 8 M. & W., 421; Mucha v. L. and S.W. R. R. Co., 2 Exch., 415; Weed v. Saratoga and S. R. R. Co., 19 Wend., 534; Mallory v. Burrett, 1 E. D. Smith, 234; Fairchild v. Slocum, 19 Wend., 329; Crouch v. L. and N.W. R. R. Co., 14 C. B., 259; Hart v. R. and S. R. R. Co., 4 Seld., 37; Green v. Clark, 2 Kern., 343; Wilcox v. Parmelee, 3 Sandf., 610; Quimby v. Vanderbilt, 17 N.Y. 306; Schreder v. Hudson R. R. R. Co., 5 Duer, 55.) On the

Page 517

question of the respective liability of the companies. (Gesthorn v. S. S. R. R. Co., 8 Exch., 341; Fitch v. Newberry, 1 Douglass [Mich.], 1; Muschamp v. Lancaster R. R. Co., 8 M. & W., 421; Watson v. Ambergate R. R. Co., 15 Jur., 448; Crouch v. L. and N.W. R. R. Co., 78 E. C. S., 254; Hart v. R. and S. R. R. Co., 4 Seld., 37.)The shipper, who secures to himself a through rate of freight, reduced in proportion as his risk is increased and that of the carrier is diminished, should be deemed to have estopped himself from asserting against any carrier a liability voluntarily assumed by himself, when he stipulated for the rate of freight by which the carrier's compensation is measured and determined. (Collins v. B. and G. R. R. Co., 25 L. J. R. [ Exch.], 188; S. C., 29 L. J. R. [ Exch.], 41; Coxon v. The G. W. R. R. Co., 5 H. & N., 274; Fitch v. Newberry, 1 Doug. [ Mich.], 1; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 366; Allen v. Smith, 8 Cow., 301; Manuf. Oil Co. v. C. and A. R. R. Co., 52 Barb., 72; Mallory v. Burrett, 1 E. D. Smith, 234.)

ANDREWS J.

It will be convenient to consider in the first place, the nature and extent of the obligation of the Jeffersonville Railroad Company, under the contract of June 21, 1864, for the transportation of the property in question.

The road of that corporation commenced at Jeffersonville, on the Ohio river, in the State of Indiana, opposite Louisville, Kentucky, and terminated at Indianapolis, in the former State.

The goods were delivered to the corporation at Louisville, by the agent for the plaintiff, and on their receipt, a bill of lading was signed, whereby the Jeffersonville Railroad Company expressly agreed to deliver them to the plaintiff, in the city of New York, upon the payment by the plaintiff, or his assigns of a specified freight.

The undertaking of the corporation to deliver the goods was not absolute, but was qualified by the exception stated in the bill of lading, of "unavoidable accident of the railroad and

Page 518

fire in the depot," and after the specification of the freight to be paid, were the words and letters "all rail P. R. R."

The execution of the bill of lading by the Jeffersonville Railroad Company, and its acceptance by the plaintiff, concurrently with the delivery and receipt of the property, constituted a special contract between the parties for the carriage of the goods.

That corporation undertook, thereby, the carriage for the whole distance between Louisville and the city of New York, and it could not perform its contract to carry, except by the use of the roads of other corporations connecting with it, and forming a consecutive route to the city of New York.

That a railroad corporation may bind itself, by a contract to carry goods to a point beyond the terminus of its own line of road, is affirmed by the general current of authority, in England and in this country. (Muschamp v. Lancaster R. R. Co., 8 M. & W., 421; Mucha v. London and S.W. Railway Co., 2 Exch., 415; Perkins v. Portland, 47 Me., 573; Meyer v. Rutland, etc., R. R., 27 Vt., 110; Redfield on Railways, 284 and cases cited.)

And in this State the doctrine, if not established, has been recognized in several cases. (Ward v. Saratoga and Schenectady R. R. Co., 19 Wend., 534; Hart v. Rensselaer and Saratoga R. R. Co., 4 Seld., 37 Burtis v. Buffalo and State Line R. R. Co., 22 N.Y. 269; Schreder v. Hudson R. R. Co., 5 Duer, 55.)

There is a conflict between the English and American cases, as to the evidence by which a contract of a railroad corporation, to carry beyond the terminus of its own route, may be established; but this difference is immaterial in this case, as the contract of the Jeffersonville Railroad Company was express and unambiguous.

If the power of a railroad corporation, not specially authorized by its charter to make such a contract, is doubtful, such authority must be presumed in this case. The charter of the Jeffersonville Railroad Company is not in evidence

Page 519

and it is to be assumed, in the absence of proof, that the contract was not ultra vires, or made in violation of law.

The plaintiff, then, by the contract, employed that corporation as carrier for the whole distance; and it was liable to the plaintiff for any default in performing it, whether such default occurred on its own road, or the road of any other corporation in the course of the transit.

If, however, the action had been brought against the first carrier to recover the value of the goods, the plaintiff could not have recovered, if the defendant in such suit could...

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84 practice notes
  • 87 S.W. 537 (Mo.App. 1905), Acord v. St. Louis Southwestern Railway Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 16, 1905
    ...the ground on which the switch was laid is not open for use by the public. Was it at a depot or station? In Maghee v. Transportation Co., 45 N.Y. 514, 6 Am. Rep. 124, it was held that 'depot' was generally understood to be a place where a carrier is accustomed to receive merchandise, deposi......
  • 186 N.Y. 151, Tewes v. North German Lloyd Steamship Co.
    • United States
    • New York New York Court of Appeals
    • October 9, 1906
    ...59 N.Y. 611; London, etc., v. Rome, etc., R. R. Co., 144 N.Y. 200; Condict v. G. T. R. R. Co., 54 N.Y. 500; Magee v. C., etc., R. R. Co., 45 N.Y. 514; Read v. Spaulding, 30 N.Y. 630; Sloman v. N.Y. C. R. R. Co., 30 N.Y. 564; Hutchins v. P. R. R. Co., 181 N.Y. 186; Magnin v. Dinsmore, 3 J. &......
  • 122 F.2d 579 (4th Cir. 1941), 4809, San Giuseppe
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • August 29, 1941
    ...& Co. Ltd. v. Shaw, Savill & Albion, Ltd., (1916) 2 K.B. 783; The Hermosa, 9 Cir., 57 F.2d 20, 27; Maghee v. Camden, etc., R. Co. 45 N.Y. 514, 6 Am.Rep. 124; Memphis & C.R.R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; The Ida, 2 Cir., 75 F.2d 278; Globe & Rutgers Fire Ins. C......
  • 121 N.W. 78 (N.D. 1909), Hanson v. Great Northern Ry. Co.
    • United States
    • North Dakota Supreme Court of North Dakota
    • March 9, 1909
    ...229; Robinson v. Merchant's Disp., 45 Iowa 470; Disp. Co. v. Johnson, 11 S.W. 441; Rawson v. Holland, 59 N.Y. 611; Maghee v. Railroad Co. 45 N.Y. 514; Condict v. Railroad Co., 54 N.Y. 500, and cases cited; Cassilay v. Young, 39 Am. Dec. 505. OPINION [18 N.D. 327] FISK, J. Plaintiff had judg......
  • Request a trial to view additional results
84 cases
  • 87 S.W. 537 (Mo.App. 1905), Acord v. St. Louis Southwestern Railway Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 16, 1905
    ...the ground on which the switch was laid is not open for use by the public. Was it at a depot or station? In Maghee v. Transportation Co., 45 N.Y. 514, 6 Am. Rep. 124, it was held that 'depot' was generally understood to be a place where a carrier is accustomed to receive merchandise, deposi......
  • 186 N.Y. 151, Tewes v. North German Lloyd Steamship Co.
    • United States
    • New York New York Court of Appeals
    • October 9, 1906
    ...59 N.Y. 611; London, etc., v. Rome, etc., R. R. Co., 144 N.Y. 200; Condict v. G. T. R. R. Co., 54 N.Y. 500; Magee v. C., etc., R. R. Co., 45 N.Y. 514; Read v. Spaulding, 30 N.Y. 630; Sloman v. N.Y. C. R. R. Co., 30 N.Y. 564; Hutchins v. P. R. R. Co., 181 N.Y. 186; Magnin v. Dinsmore, 3 J. &......
  • 122 F.2d 579 (4th Cir. 1941), 4809, San Giuseppe
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • August 29, 1941
    ...& Co. Ltd. v. Shaw, Savill & Albion, Ltd., (1916) 2 K.B. 783; The Hermosa, 9 Cir., 57 F.2d 20, 27; Maghee v. Camden, etc., R. Co. 45 N.Y. 514, 6 Am.Rep. 124; Memphis & C.R.R. Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; The Ida, 2 Cir., 75 F.2d 278; Globe & Rutgers Fire Ins. C......
  • 121 N.W. 78 (N.D. 1909), Hanson v. Great Northern Ry. Co.
    • United States
    • North Dakota Supreme Court of North Dakota
    • March 9, 1909
    ...229; Robinson v. Merchant's Disp., 45 Iowa 470; Disp. Co. v. Johnson, 11 S.W. 441; Rawson v. Holland, 59 N.Y. 611; Maghee v. Railroad Co. 45 N.Y. 514; Condict v. Railroad Co., 54 N.Y. 500, and cases cited; Cassilay v. Young, 39 Am. Dec. 505. OPINION [18 N.D. 327] FISK, J. Plaintiff had judg......
  • Request a trial to view additional results