Cormack v. New York, N.H.&H.R. Co.

• Decision Date: 23 November 1909
• Citation: 90 N.E. 56,196 N.Y. 442
• Parties: CORMACK v. NEW YORK, N. H. & H. R. CO.
• Court: New York Court of Appeals Court of Appeals

196 N.Y. 442

90 N.E. 56

CORMACK

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

Nov. 23, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Mark N. Cormack against the New York, New Haven & Hartford Railroad Company. From a judgment of the Appellate Division (110 N. Y. Supp. 1125), affirming a judgment of the Appellate Term, affirming a judgment of the City Court of New York in favor of plaintiff, defendant appeals, by permission. Reversed.

The action was brought to recover damages for the negligent failure of the defendant promptly to transport the plaintiff, as a passenger upon one of its trains, from the city of Quincy to the city of Boston in the state of Massachusetts on January 2, 1904. The complaint alleged: That the plaintiff purchased a ticket for such transportation and was received at Quincy as a passenger in a train leaving there at 8:40 p. m. and due in Boston about 8:55 o'clock on the same evening; that the defendant carried the plaintiff to a point within 600 or 700 feet of its terminal station in Boston, when it refused to proceed further with the train, although the station was within easy reach; and that it willfully, wantonly, and negligently refused to provide any means whereby plaintiff could be carried to said terminal station, although trains were running upon the adjoining track or tracks, and willfully, wantonly, and negligently compelled plaintiff to remain in its said car during the whole of the night of January 2, 1904, and until 6 o'clock on the morning of January 3, 1904. The plaintiff claimed to recover $2,000 damages on account of the detention and his sufferings occasioned by the cold. The answer admitted, by not denying, the allegations of the complaint in regard to the plaintiff's status as a passenger, otherwise it was a general denial. Upon the trial, after the plaintiff had rested, the defendant upon terms was allowed to amend the answer so as to set up, as an additional and separate defense, ‘that on the 2d of January, 1904, and the morning of January 3, 1904, at Boston, an act of God, consisting of a blizzard of an unusually heavy snowstorm with high wind and low temperature, prevented the defendant from carrying the plaintiff from the place mentioned in the complaint, namely, 600 or 700 feet from the South Station to the defendant's terminal at South Station in Boston, and that no negligence of the defendant in any way contributed to the condition of the plaintiff at that time and place set up and mentioned in the complaint.’ Evidence was introduced in support of this defense, after which a motion was made for the direction of a verdict in favor of the defendant. This motion was denied. The defendant duly excepted, and the case was submitted to the jury, who rendered a verdict of $50 in favor of the plaintiff. That judgment has been affirmed by the Appellate Term and the Appellate Division. The record does not show that the affirmance in either instance was unanimous. The case comes to this court under leave granted by the Appellate Division.Charles M. Sheafe, Jr., for appellant.

Charles D. Ridgway, for respondent.

WILLARD BARTLETT, J. (after stating the facts as above).

There is no conflict in the evidence as to the condition of things which prevented the train in which the plaintiff was a passenger from getting into the defendant's station at Boston on the night of the 2d of January, 1904. The weather was extremely cold-the temperature ranging from six degrees Fahrenheit to zero-and the wind was blowing hard, and a heavy snowstorm prevailed, of such proportions as to be ordinarily denominated in America a ‘blizzard.’ The snow fell to the depth of almost a foot on the level and was blown in the railroad yard into drifts three and five feet high. This drifting snow accumulated in the switches, packing in and around the points and other movable parts so that the switches could not be operated from the signal tower until the snow was removed. According to one of the witnesses, the high wind forming snowdrifts over the switches put everything in the yard ‘out of commission’ about 6 o'clock in the evening, inasmuch as the entire force of men available for the service of the defendant was unable to dig the switches out so as to operate outgoing and incoming trains. As soon as the storm commenced, the railroad company hired extra men in addition to 29 men regularly employed in the yard. One hundred and eighty-nine extra men were thus employed in sweeping out the switches by digging around the movable frogs with brooms and shovels. They worked all night, and yet it was found impracticable to move any trains in the South Terminal Station of the defendant between about 6 o'clock on the evening of January 2d, and about 6 o'clock on the morning of January 3, 1904. During this period about 95 trains were scheduled to enter and leave the station. No train due after 6 o'clock was able to get in. It was further proved that a storm of such a character as has been described is unusual in Boston, and that all the switches on the defendant's track were in perfect condition and capable of being operated perfectly if they had not been obstructed by snow and ice. There is some discrepancy as to the precise point where the train from Quincy was stalled; some of the witnesses stating that it was 600 or 700 feet outside the railroad yard, and others that it was at or near the Dover street station, about a mile distant. However that may be, there is no doubt that the train was blocked by the blizzard. Nor can there be any doubt on this record that the defendant railway corporation, through its servants and agents, made strenuous efforts during the night to clear away the obstructions so as to permit the entrance of this train and all other incoming trains into the station. These efforts, as has been seen, were not successful until the next morning.

The chief question with which we have to deal in the present case is the effect of an act of God or inevitable accident to relieve a common carrier from his obligation to carry passengers promptly. The defendant pleaded the Boston blizzard of January 2, 1904, as its excuse for delaying the arrival of the plaintiff from 8:55 in the evening until 6 o'clock the next morning. It denominates the blizzard an ‘act of God.’ This phrase has been variously interpreted. Lord Mansfield considered an act of God to be ‘something in opposition to the act of man,’ and its meaning it most frequently illustrated by reference to lightning and tempests. Forward v. Pittard, 1 T. R. 27. Some textwriters and judges have deemed the phrase synonymous with ‘inevitable accident,’ while others insist that the terms are not convertible. See Wharton on Negligence, § 553; McArthur v. Sears, 21 Wend. 190;Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292. There is an extreme subtlety in some of the suggestions in support of a differentiation, as in Blythe v. Denver & Rio Grande R. R. Co., 15 Colo. 333, 25 Pac. 702,11 L. R. A. 615, 22 Am. St. Rep. 403, where it is insisted that there is a legal distinction between an inevitable accident and an act of God. In that case a gale of wind blew a railroad train from the track and overturned a stove or lamp in one of the cars, which set fire to a package of gold and silver watches belonging to the plaintiff. The court said that the immediate resulting cause producing the loss was the fire, which might properly be termed an ‘inevitable accident’ growing out of the former disaster; while the direct cause of the agency that worked the destruction was the gale of wind, which was an act of God putting the agent at work. Whether, however, the terms ‘act of God’ and ‘inevitable accident’ are convertible or not, the snowstorm which obstructed the defendant's train in the present case was clearly an act of God within the meaning of that phrase in the rule of law which has made it most familiar; that is, the rule that a common carrier of goods is an insurer against all risks except those caused by the act of God or the public enemy. The act of God is most frequently interposed as a defense in suits seeking to charge common carriers with the partial or total loss of goods, and in such cases the following natural causes, among others, have been...