McCarty et al. v. The New York and Erie Railroad Company

• Decision Date: 01 January 1858
• Citation: 30 Pa. 247
• Parties: McCarty et al. versus The New York and Erie Railroad Company.
• Court: Pennsylvania Supreme Court

Page 247

30 Pa. 247

McCarty et al. versus The New York and Erie Railroad Company.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Pike county.

COPYRIGHT MATERIAL OMITTED

M. & C. Goepp, for the plaintiffs in error.—If a warehouse is an incident to the business of a common carrier, the duty of the carrier covers the entire contract, principal and incident: Graff v. Bloomer, 9 Barr 114; Maving v. Todd, 1 Stark. R. 72; Story on Bailments, §§ 535-8, &c. Angell on Carriers, § 129, 131, 304; 5 T. R. 392; Forward v. Pittard, 1 T. R. 27; Clarke v. Needles, 1 Casey 338; Eagle v. White, 6 Wh. 505.

A carrier is only excused by the act of God, or of the king's enemies: 1 Story on Bailments, § 485, 511. A delivery of goods upon the wharf, and notice to the consignee, does not constitute such a delivery as will discharge a common carrier on the Ohio river from liability for the loss of goods; he is bound to see them actually delivered. An offer to deliver does not relieve him: Hemphill v. Chenie, 6 W. & S. 62; Graff v. Bloomer, 9 Barr 114; Cope v. Dodd, 1 Harris 33

W. & W. H. Jessup, for defendants in error.—The liability of the company as common carriers ceased with the delivery of the goods in the depot: Angell on Carriers, p. 304; Garside v. Trent and Mersey Navigation Company, 4 T. R. 581; Rowe v. Pickford, 8 Taunt. 83; Richardson v. Goss, 3 Bos. & Pul. 126; Scott v. Pettit, Id. 469; Young v. Smith, 3 Dana 92; Foster v. Frampton, 6 B. & C. 107; Allan v. Gripper, 2 Cr. & Jerv. 218; Thomas v. Boston and Providence Railroad Company, 10 Met. 472; Gibson v. Culver, 17 Wend. 305; Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389; Matter of Webb & Co., 8 Taunt. 443; Norway Plains Company v. Boston and Maine Railroad Company, 1 Gray 263; Moses v. Boston and Maine Railroad Company, 32 N. H. 523, 540.

To the same point are the following cases: Powell v. Myers, 26 Wend. 591; Gould v. Chapin, 10 Barb. 612; Clendaniel v. Tuckerman, 17 Barb. 184; Young v. Small, 3 Dana 91; Van Santvoord v. St. John, 6 Hill 157; Angell on Carriers, § 75. This rule, therefore, is fully settled in the state of New York, where the contract was made and executed.

The opinion of the court was delivered by WOODWARD, J.

The plaintiffs shipped goods from the city of New York to Port Jervis, by the railroad of the defendants. On the arrival of the goods, they were taken out of the cars, and so many of them as the plaintiffs' teamster, who was in attendance, could load and carry away were immediately taken by him, and the residue were placed in the company's depot or warehouse, at Port Jervis. Before they were removed the warehouse burned down, and the goods were consumed.

The plaintiffs charge the company in this action with the value of the goods destroyed, first, as common carriers, and next as warehousemen. The court were of opinion that the company having delivered the goods, in safe condition, according to the consignment, were not liable as common carriers, and that their liability as warehousemen depended on the question of negligence, which was referred to the jury. "If the fire," said the learned judge, "was the result of accident, a circumstance over which they could have no control, they are not liable. If it was the result of carelessness or negligence on their part, they are liable."

This mode of submitting the question of fact is complained of by the plaintiffs. It is said the judge's use of the word "accident" led the jury to believe that a loss occasioned by an accident is something different from a loss occasioned by negligence, whereas the two are identical. The opposite of accident is said not to be negligence, but design.

If accident and negligence be not opposites, we cannot regard them as identical, without confounding cause and effect. Accident, and its synonyms casualty and misfortune, may proceed or result from negligence, or other cause known, or unknown.

What the court meant, and in effect said was, that the loss complained of may have resulted from the negligence of the defendants, or from other causes beyond their control — if from the first, they would be liable for it — if from the last, they would not — and the jury were left to determine from the evidence, whether it was fairly ascribable to that cause for which, they were thus instructed, the defendants would be liable.

It is impossible for us to see any error in such instructions. If it be said, the court did not define negligence as an efficient cause, it is a sufficient answer that they were not asked to. Besides, it is by no means certain that the plaintiffs were prejudiced by the jury being left to define it for themselves.

If this point was properly submitted, the effect of the verdict is to acquit the defendants of liability as warehousemen, for without negligence they would not in that character be liable.

But loss by fire, though it proceeded from no negligence of the defendants, would not be a defence for them as common carriers. In this character they became insurers of the property intrusted to them, and were bound to deliver it against all events, the acts of God and the public enemy alone excepted.

The only material inquiry that remains on this record then is, whether the court were right in treating the defendants as discharged from the duties of common carriers, by the delivery of the goods into their storehouse at Port Jervis.

It is insisted upon by the plaintiffs, that the reception and retention of the goods in the defendants' storehouse was merely accessory to, and arising out of, the transportation of the goods from New York — that it is a service for which the company receive their reward in the freight paid them — that if they did not keep a warehouse, they would have fewer goods to carry and less freight to earn — that the warehouse, in a word, is a mere incident to their business as common carriers, and that the duty of the carrier covers the entire contract, principal and incident.

Counsel rely, for support of these positions, on a class of cases in which the loss occurred after the duty of a common carrier had been assumed, and before it was fully discharged. Thus, in Eagle v. White, 6 Wh. 505, the goods had not been delivered according to the contract of carriage, but on the contrary, the plaintiff had refused to take delivery late on a Saturday...