Lewis v. New York, O.&W. Ry. Co.
| Decision Date | 03 March 1914 |
| Citation | 210 N.Y. 429,104 N.E. 944 |
| Parties | LEWIS v. NEW YORK, O. & W. RY. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Furth Department.
Action by Uriah H. Lewis against the New York, Ontario & Western Railway Company. A judgment for defendant was affirmed by the Appellate Division (151 App. Div. 949,135 N. Y. Supp. 1124), and plaintiff appeals. Affirmed.
O. M. Reilly, of Phoenix, for appellant.
P. W. Cullinan, of Oswego, for respondent.
The plaintiff was employed in a hay and coal yard in Fulton, N . Y. A car load of hay carried over the defendant's railroad was switched on a side track to be unloaded by the consignee. The plaintiff and another man undertook the work of unloading it . While the plaintiff was forcing open the door of the car with a crowbar some bales of hay which had been piled end upon end, close to the door, struck him and caused the injuries for which he sues. There is evidence that the customary method of loading a car is to lay the bales flat in the space near the door. Piled endwise they are less secure, and when the protection of the door is released there is nothing to stay their fall.
[1][2][3] We may, for the purpose of this appeal, assume without deciding that the car was negligently loaded, and that there was no contributory negligence in the plaintiff's conduct. The question remains whether the negligence, which we thus assume, is chargeable to the defendant. The defendant did not load the car. That was done by the shipper. All that the defendant did was to seal the car after the hay had been placed in it by the shipper and the door had been closed. The defendant neither packed the hay nor observed how the shipper had packed it. To charge the defendant with liability, we must therefore be prepared to hold that, after the car had been loaded and closed by the consignor, the defendant was under a duty to inspect the contents in order to protect the consignee. We think that in the circumstances of this case such a duty did not exist. The general rule is that a railroad is bound to load and unload its cars, and until it has done the work of unloading delivery to the consignee is not complete. London & L. F. Ins. Co. v. Rome, W. & O. R. R. CO., 144 N. Y. 200, 205,39 N. E. 79,43 Am. St. Rep. 752;Benson v. Gray, 154 Mass. 391, 394, 28 N. E . 275,13 L. R. A. 262. This rule, however, may be varied by contract or by a course of dealing, and is perhaps not applicable in its full force to car loads of bulky freight. Schumacher v. C. & N. W. Ry. Co., 207 Ill. 199, 206, 69 N. E. 825;Mill Co. v. B. C. R. & Ry. Co., 102 Iowa, 262, 71 N. W. 255;Railway Co. v. Bruce, 55 Ark. 65, 71, 17 S. W. 363. If the consignee undertakes to unload the car, which is switched for convenience on a side track in his yard, the carrier's function ends, and delivery is complete when the car is thus placed in the custody of the consignee. In this case the consignee assumed the work of unloading as his own. He had no reason to believe that the work of loading at the other end of the route had been done by the railroad, and the fact is, as we have seen, that it had been done by the consignor. It was through the consignor that the contract of carriage had been made, and the consignee in accepting the shipment adopted the contract thus made in his behalf. Nelson v. H. R. R. R. Co., 48 N. Y. 498;Donovan v. Standard Oil Co., 155 N. Y. 112, 119,49 N. E. 678. Indeed, the defendant's tariff schedules filed with the interstate commerce commission and the public service commission, show that ‘bulk freight will not be taken in less than car loads,’ and that ‘owners will be required to load and unload freight in car loads when carried at car load rates.’ Both consignor and consignee must therefore be taken to have understood that the defendant's contract was confined to the transportation of a car, to be loaded by the consignor at one end of the route and unloaded by the consignee at the other.
In these circumstances, we think that the defendant was under no duty toward the consignee to establish a system of inspection...
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