Goodwin v. Baltimore & Ohio Railroad

58 Barb. 195, 1870 N.Y. App. Div. LEXIS 91

Opinion

By the Court, Geo. G. Barnard, J.

This action was brought to recover $650. This amount was made up of two items: one for three bundles of sheet-iron lost by the defendants, who had received it as common carriers, and had failed to deliver it, amounting to $29.54; the other was a claim for damages sustained by the plaintiffs by reason of injury caused by the defendants to other bundles of sheet-iron which the defendants had also received as common carriers, to be delivered to the plaintiffs in Yew York. As to the first item, no question can be made; the loss is proved, and the defendants’ liability established. As to the remaining clause, the evidence established that the iron was unloaded upon the wharf in Yew York; that the plaintiffs received notice of the arrival of the ship in which the iron was brought; that they sent for their goods, and got a small portion uninjured; they sent for they remainder, but were unable to get it until some days after it was placed upon the pier, by reason of other freight having been so placed that it was impossible to reach the property in question; while it was in this position it was damaged to the extent claimed by the plaintiffs, by rain. Common carriers are liable in two capacities; one as insurers, and the other as warehousemen. If the injury happened while the defendants were insurers, the action is made out, without further inquiry. But the property was unloaded and upon the pier; it had been, for five days. The defendants were bound to deliver. Delivery is not effected by placing the property in a position from which it cannot be obtained by the person to whom delivery is to be made. It thus became a nice question whether the defendants’ liability as common carriers, in all its rigor, had, under the circumstances, ceased, and if so, whether the defendants had exercised that care of the property required of them as warehousemen. The judge at the circuit laid down, with eminent fairness and accuracy, the dividing line between the two liabilities, and the principles governing each. The jury have found for the plaintiffs.

[First Department, General Term, at New York, November 1, 1870.

Upon the merits, I am of the opinion the verdict is sustained by the evidence, and that the judgment should be affirmed, with costs.

Judgment affirmed.

Ingraham, P. J., and Geo. G. Barnard and Cardoza, Justices.]