Ackley v. Kellogg

8 Cow. 223

Opinion

* Curia, per Sutherland, J.

The jury were properly instructed by the judge that the cause turned upon the question whether the defendants, by their contract with the plaintiffs, were to forward the goods by the first canal boat that should sail after their arrival at Troy, or whether they were specially directed to send them only in Eddy’s line of boats. If the latter were the instructions given them, then the plaintiffs were entitled to recover. But if the directions to forward them were general, then the action must fail, as the evidence shows that the boat in which they were sent was safe and in good condition, when the goods were put on board. The defendants exercised ordinary care and diligence, to which alone they were-bound executing the instructions.

[1]

What the instructions were, is léft doubtful by the- evidence. There was much testimony on both sides. The captain of the defendants’ sloop, which carried the1 goods to Troy, swears positively that one of' the plaintiffs) after the goods were put on board at New-York, came on board the vessel, and directed him to forward the goods immediately on his arrival at Troy. That 'if' any of Eddy’d boats were there, he should send them in one of those boats ; if not, then by the first boat bound north. He says he had seen the person before, and knew him to - be- one of the plaintiffs, when he first saw him. The testimony- of this witness was probably decisive with the jury, especially as the evidence on the other side was either of a- negative, or circumstantial character. We cannot, within- the "established principles which regulate the discretion of the court, interfere with this verdict as being against the weight of evidence.

The character of the defendants as common" carriers; had nothing to do with their liability in this action. They were common carriers only from New-York" to Troy. They forwarded- the goods from thfere, as 'the jury have found, in pursuance of special instructions from the plaintiffs, for which they received no compensation, and incur-ed. no responsibility. The case bears no analogy to- that *of Hyde v. The Trent and Mersey Navigation Company, (5 T. R. 389.)

It is said the judge admitted improper' evidence, to establish the interest of Standish, the plaintiff’s witness. But as he held the witness competent, the evidence, conceding that it was inadmissible, produced no effectand, as it was addressed exclusively to the court, affords no ground for granting a new trial. Nor can we regard the remark of the judge, on closing the inquiry; that he should submit the credibility of the witness to the jury.

Upon the case, therefore, the motion for a new trial must be denied.- ’

[The judge examined another branch of the motion founded on newly discovered evidence; and concluding' also against the plaintiffs upon this.] Therefore,

New trial denied.

See New York Digest, vol. 1, tit. Carrier.