London & L. Fire Ins. Co. v. Rome, W.&O.R. Co.

• Decision Date: 18 December 1894
• Parties: LONDON & L. FIRE INS. CO. v. ROME, W. & O. R. CO.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 200

39 N.E. 79

LONDON & L. FIRE INS. CO.

v.ROME, W. & O. R. CO.

Court of Appeals of New York.

Dec. 18, 1894.

Appeal from supreme court, general term, Fourth department.

Action by the London & Lancashire Fire Insurance Company against the Rome, Watertown & Ogdensburg Railroad Company. From a judgment of the general term (23 N. Y. Supp. 231) affirming a judgment and order for plaintiff, defendant appeals. Affirmed.

D. G. Griffin, for appellant.

A. H. Sawyer, for respondent.

EARL, J.

This action is brought to recover damages against the defendant for the destruction by fire of a large quantity of hay, alleged to have been delivered to it as a common carrier for transportation. It is admitted that if, at the time of the destruction of the hay, it was in the possession of the defendant as a common carrier, it is liable in this action; and the sole question for our determination is whether the hay had been so delivered to the defendant, and placed in its custody, as to make it liable as a common carrier. The plaintiff sues as assignee of the shippers, and stands in their place.

The hay, at the time of its destruction, was in the defendant'sfreight house at Cape Vincent, and had been placed there by the plaintiff's assignors, with the consent and under the direction of the defendant's freight agent at that place. The hay was delivered in bales, and it was the usage and the regulation of the defendant, known and assented to by the shippers, that they were to load it into the defendant's cars. The claim of the defendant is that its responsibility as a common carrier had not attached to it at the time of the fire, for the sole reason that the duty of loading the hay into its cars rested upon the shippers, and that its duty as a common carrier could not attach until the hay was thus loaded. There is no doubt that it is the duty, generally, of a railroad company, to load the freight delivered to it for transportation into its cars, and that it cannot generally devolve this duty by any regulation upon the shipper; and that it cannot legally, as a condition of transportation generally, exact from the shippers a contract to place the freight into its cars. But we know from our own observation that, as to hay, lumber, saw logs, live animals, and other bulky freight, the shippers usually load the freight into the cars. We need not, however, now decide whether a railroad company can, as to such bulky freight, make a regulation that the shipper shall load it, because here the shippers acquiesced in the regulation, and undertook the duty of loading. But we do not think that the fact that the shipper undertakes to load the freight into the cars necessarily postpones the time when the railroad company takes on the character of a common carrier. The rule as to the responsibility of the carrier is laid down in varying phraseology, in a variety of cases, as follows: To render a common carrier liable for goods to be carried by him, the fact that the goods were actually delivered to him, or to some person authorized to act in his behalf, must be established. His liability attaches only from the time he accepts the goods to be carried. To complete the delivery of goods to the carrier, it is essential that the property be placed in a position to be cared for, and under the control of the carrier or his agent, with his knowledge and consent. The liability of a railroad company as common carrier of goods delivered to it attaches only when the duty of immediate transportation arises. So long as the shipment is delayed for further orders as to destination of the goods, or for the convenience of the owners, the liability of the company is that of warehousemen. The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception, when they are in a fit and proper condition, and ready for immediate transportation. If a common carrier receives goods into his own warehouse, for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage, and for the purpose of facilitating it,...