Burns Grain Co. v. Erie Railroad

102 Misc. 28

• Court: New York Supreme Court
• Decided: December 15, 1917
• Status: Published

Opinion

Taylor, J.

In this action the plaintiff demands damages from the defendant, a common carrier, on account of claimed tardy delivery of merchandise. The defendant has answered and to the third sepa- • rate defense set up in the amended answer the plaintiff demurs on the ground that the said defense is insufficient in law. In considering this defense I have examined some of the authorities but will mention only two, namely, the Geismer Case, 102 N. Y. 563, and the Blackstock Case, 20 id. 48. As distinguished from both these typical cases, the failure to deliver in the usual time in the case now before me is claimed in the answer to be due neither to mob violence, or the like, on the one hand, nor to mere failure of employees of the carrier corporation to do their duty; but the claim is in the main that “at all times mentioned in the complaint the volume of freight traffic over the defendant’s lines (and over many other railroad lines) was extraordinarily large and that although this defendant had all necessary facilities on hand for ordinary traffic it was physically impossible to care for the enormous and unusual volume of freight tendered to it at all the times mentioned in the complaint. ’ ’ The further allegation is made that any delay was not due to negligence in the carrier, but solely to the aforesaid congestion of freight and traffic. So, the question arises whether under this answer a condition is made to appear whereunder a railroad was entitled to take freight for carriage knowing that business conditions were such that delivery could not be made within the usual time — and this without notifying the shipper of such situation. It may be that had the carrier accepted these goods for transportation under normal conditions, and that thereafter and prior to the commencement of the carrying abnormal conditions such as are pleaded arose, delay in delivery might have been excusable. But in the case at bar, under the conditions made manifest by the portion of the answer in question, the defendant, when it accepted the goods, knew of such conditions reasonably likely to delay delivery and knowing such conditions accepted the goods for transportation without comment. I believe that under such circumstances a shipper is not bound to be apprised of unusual conditions affecting railroad traffic; and that such conditions being peculiarly—and here admittedly—within the knowledge of the carrier the latter was bound to at least notify the shipper of possible delay before accepting the goods for carriage. Hence, there being no allegation in the answer that any such notice was given to plaintiff the demurrer is sustained, with costs to plaintiff.

Demurrer sustained, with costs.