Hoye v. Pennsylvania R. Co.

• Decision Date: 31 January 1908
• Citation: 83 N.E. 586,191 N.Y. 101
• Parties: HOYE v. PENNSYLVANIA R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 101

83 N.E. 586

HOYE

v.PENNSYLVANIA R. CO. et al.

Court of Appeals of New York.

Jan. 31, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Stephen M. Hoye against the Pennsylvania Railroad Company and another. From a judgment of the Appellate Division (100 N. Y. Supp. 190, 1121) affirming a judgment for plaintiff, defendant railroad company appeals. Affirmed.

Norman B. Beecher, for appellant.

I. R. Oeland and Stephen M. Hoye, for respondent.

HAIGHT, J.

This action was brought against the Pennsylvania Railroad Company and the Westcott Express Company to recover damages alleged to have been suffered by the plaintiff by reason of the destruction of a set of 40-cell storage batteries during transportation, which were shipped by the National Motor Vehicle Company at Indianapolis, Ind., by the Pennsylvania Railroad Company, to the plaintiff in the city of New York. The evidence tends to show that upon the arrival of the batteries in New York at the foot of Leight street the Pennsylvania Railroad Company notified the plaintiff by telephone, and thereupon he procured the Westcott Express Company to get the property and deliver it to him; that when the batteries were received it was found that they had been turned upside down and the electrolyte allowed to escape therefrom, causing the batteries to sulphate and become worthless. There was also evidence tending to show that the excelsior in which the batteries were packed had turned black and was perfectly dry, from which the inference is drawn that the batteries were overturned and the electrolyte permitted to escape some days before their arrival in New York. The defendant, the Pennsylvania Railroad Company, in its answer, after denying various allegations of the complaint, for its first separate defense alleged, upon information and belief, ‘that on or about the 1st day of May, 1903, the National Motor Vehicle Company of Indianapolis, Ind., delivered to the Pennsylvania Company certain storage batteries, which it believes to be the batteries referred to in the complaint; that said batteries were consigned to the plaintiff at New York City and were shipped, subject to the provision of a certain written and printed instrument known as a shipping receipt or bill of lading, wherein and whereby it was expressly agreed by and between the parties thereto on behalf of the plaintiff and the Pennsylvania Company and on behalf of all subsequent carriers that no carrier or party in possession of all or any of the property herein described shall be held liable for any loss thereof or damage thereto by causes beyond its control, * * * or by leakage, drainage, chafing, loss in weight, changes in weather, heat, frost, sweat, or decay.’ And for a second separate defense, that by the terms of the bill of lading or shipping receipt it was expressly agreed that ‘no carrier should be liable for loss or damage not occurring on its own road or its portion of the through route.’ At the conclusion of the plaintiff's case upon the trial the counsel for the Pennsylvania Railroad Company moved to dismiss the complaint upon various grounds, among which it was insisted that there was no evidence of a claim in writting made by the plaintiff and delivered to the Pennsylvania Railroad Company within 30 days, as required by the bill of lading. The motion was denied, and an exception taken. The trial then proceeded, the Westcott Express Company producing evidence upon which, at the conclusion of the trial, the court directed a nonsuit as to it, the Pennsylvania Company submitting no evidence. The case was then submitted to the jury as to the liability of the Pennsylvania Company, and a verdict was rendered in favor of the plaintiff.

The bill of lading contained the following provision: ‘Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than 30 days after the delivery of the property, or after due time for the delivery thereof, no carrier herein shall be liable in any event.’ It must be conceded that no evidence was submitted on behalf to the plaintiff showing a compliance with this requirement. It also appears that, while the Pennsylvania Company set forth in its answer as separate defenses the provisions of the bill of lading therein referred to, it did not allege as a defense the provision upon which the motion to dismiss was based. We have therefore squarely presented the question as to whether this provision of the bill of lading should be set forth in the defendant's answer as a defense, or as to whether compliance with it should be established by the plaintiff as a condition precedent to his right to recover.

At common law common carriers were liable for an injury resulting to property...