#### William S. Little *v.*James C. Fargo, as President of the Merchants’ Despatch Transportation Company.

*(Supreme Court, General Term, Fifth Department,*

*Filed January,*1887.)

1. COMMON CARRIER — LIMITATIONS OF THE LIABILITY OF — SHIPPER MUST BE SHOWN TO HAVE HAD KNOWLEDGE OF.

During the time in question the defendant company had its office at the freight office of theN .Y. C. *&*H.R. R. R.’Co., and when goods were delivered there *¡or*transportation by defendan t, receipts were given by the railroad company to the consignor. Plaintiff by his agent on April 25th, 1SS1, delivered at the freight, office for transportation by defendant to plaintiff as consignee at C. five boxes and one bale of trees in good order, and received from the N.Y.C. *&*H. R. R. R., Co., a receipt to that effect, bearing on the margin the letters *“*M.D.” indicating that they were received for transportation by defendant. They were shipped April 26th, but did not arrive at their destination until May 21st, when they were dead and worthless. The trial court directed a verdict for plaintiff for the amount of his loss and *interest,*declining to submit any question to the jury.

Defendant admitted the receipt of the property to be carried from R. to C. and alleged that its undertaking as a common carrier was qualified by special agreement by which plaintiff assumed all risk of injury by delay and loss occasioned by mob, riot, or insurrection, and that it was prevented by riotous assemblages from transporting the freight to its destination in tlie usual time. The contention that defendant was relieved from such liability is founded upon defendant’s method of business, which was that the receipts from the R. R. Co., for goods delivered at the freight house to be carried by defendant were presented by consignor to defendant’s agent and bills of lading taken from it expressing the carrier’s contract, and that those made in relation to property like that in question released the company from liability arising from its perishable character. *Held,*that plaintiff was not charged with this situation unless he was advised of this course of business of defendant when he shipped this property. That there being no evidence of such knowledge there was as applicable to plaintiff and the ti'ansaction no modification of defendant’s liability as a common carrier.

2. Contract of carrier — -What sufficient.

*Held,*that it was unimportant that the receipt taken by plaintiff *did*not express the terms of a contract to carry, inasmuch as defendant received and proceeded to transport the property without any other contract than that implied in the receipt, and that'when it assumed to do so its liability as a carrier was complete.

3. Same — What will relieve carrier from liability — Strikes. •

It having been shown by the evidence that the operation of the road over which property was transported, was interrupted by strikers, many of whom were those just previously in the employ of the company controlling the road, *Meld,*that while engaged against the company they were not its employees, and that so far as this interruption necessarily delayed the delivery of the goods, it constituted an excuse to the railroad company for any injury to freight arising therefrom, and that the same excuse would, in those .circumstances, be available for defendant, provided that in neither case it happened through the fault of the carrier, and could not by reasonable care have been . avoided.

4. Same — Negligence and diligence — Question foe jury.

*Meld,*that the whole question of diligence and negligence was properly a question for the jury.

Motion by tbe defendant for a new trial on exceptions taken at Monroe circuit, and ordered beard at general term in tbe first instance.

*Daniel H.*McMillan, for deft.; *William S.*Oliver, for plff.

*463Bradley, J.

-The Merchants’ Despatch Transportation Corn-pony, a joint-stock association, of which Fargo was president, was a common carrier, engaged in the transportation of property as such by lines of railroad, amongst which were the New York Central and Hudson River Railroad, and the Lake Shore and Michigan Southern Railway. The office of the defendant company at the city of Rochester was at the time in question in the freight office of the N. Y. C. & H. R. R. R. Co. And when goods were delivered there for transportation by the defendant company, receipts were given by the railroad company to the consignor.

On the 25th of April, 1881, the plaintiff by his agent delivered at the freight office for transportation by the defendant company, to the plaintiff as consignee, at Corning, in the state of Iowa, five boxes and one bale of trees in good order; and received from the N. Y. C. & H. R. R. R. Co., a receipt to that effect upon the margin of which were the letters “ M. D.,’ indicating that they were received for transportation by the defendant company. The trees were shipped April 26th, but did not reach the place of destination until the 21st of May following, when they were dead and worthless.

The trial court declined to submit any question to the jury, and directed a verdict for the plaintiff for the amount of his loss and interest, and exception was taken.

The defendant company admits that the property was delivered to and received by it for transportation from the city of Rochester, N. Y., to Corning, Iowa, and alleges:

1. That its undertaking as a common carrier was qualified by a special agreement by which the plaintiff assumed all risk of injury by delay and loss, that might be occasioned by mob, riot, or insurrection. 2. That it was prevented from transporting to the place of destination within the usual time, by a riotous and tumultuous assemblage of persons who by force and violence detained and delayed the transportation without its fault, and that the delivery of the goods at their place of destination was made as soon and in as good condition as it was able to do it. The usual time occupied in the transportation between those places was eight to ten days.

It is contended on the part of the defendant, that it was relieved from liability by contract between the parties; and this contention is founded upon the method and course of business of the defendant company, which was that the receipts from the railroad company for goods delivered at the freight house to be carried by the defendant were presented by the consignor to the agent of the defendant company and bills of lading taken from it expressing the contract of the carrier, and that those made in relation to property like that in question released the company from liability arising from its perishable character. *464At least tlie evidence on the part of the defendants tended to prove that such was its method and the effect of its bill of lading. And for the purposes of the question here we so assume. The plaintiff is not charged with this situation unless he was advised of this course of business and custom of the defendant at the time he shipped this property. The defendant received and undertook to transport, and did carry the goods without delivering to the plaintiff any bill of lading or informing him on that occasion of any qualification of its duty as a carrier. It may be that if he understood that such was the method of the defendant in making its contracts of carriage he would have been chargable with its legal effect although he omitted to present the receipt of the railroad company and obtain the bill of lading. It then might be said that he had knowledge that the contract was not implied by tíre mere acceptance indicated by the receipt of the railroad company. *Shelton*v. *Merchant's Despatch Transportation*Company, 59 N. Y., 258. But that question may be worthy of discussion. It is not here and we express no' opinion upon it. *Dorr*v. *N. J. Nav.*Co., 11 N. Y., 485.

Although the plaintiff had on previous occasions shipped goods for carriage by the defendant, and they had been transported by it, he says that he had never received any bill of lading, nor anything other, more, or different than the receipt of this railroad company upon the delivery of the goods, and that he never had understood or been advised of any course of business, or custom of the defendant which required the presentation of such receipt, and the taking of a bill of lading, or that the defendant had any method of making a contract for transportation at Rochester, other than that which was implied -by the receipt of property for that purpose in the manner that it was done and represented-in this instance. And while the agent of the defendant expresses quite confidently that the plaintiff understood this method of the defendant, he founds his statement wholly upon assumption and belief without the knowledge of any fact or circumstance to support his statement as evidence.

There is therefore no evidence to justify the conclusion that the plaintiff had knowledge or information of any custom of the defendant in respect to its contracts for transportation, which qualified it§-common.law undertaking as common carrier; and therefore as applicable to him and the transaction in question there is no modification of the defendant’s liability as such. *Coffin*v. *N. Y. C. R. R.*Co., 64 Barb, 379 — affirmed 56 N. Y., 632. *Nicholas*v. *N. Y.*C., *& H. R. R. R. Co.,*89 N. Y., 370.

The fact that the receipt taken by the plaintiff of the railroad company did not express the terms of a contract to carry, does not seem to us important inasmuch as the defendant received and proceeded to transport the property without.any contract other than that which was implied by the receipt of it for carriage to *465the place of destination, arid when it assumed to do so, the undertaking of the defendant as carrier was complete without any further contract. The determination in *Shelton*v. *Merchants’ Despatch Transportation Co., supra,*was governed by the fact that the shipper and the carrier had a habitual course of dealing respecting the contracts for transportation, which was properly considered in giving construction to their acts and intention at the time of the delivery and shipment of the goods, and therefore the bill of lading taken by the shipper from the carrier after their shipment, might be treated as the consummation of the understanding of those parties at the time they were delivered to and received by the carrier.

This was the ground for its support as the contract: and furnished the reason for the reversal of the court below. (4 J. & S., 527.) The right of the defendant was to withhold the transportation of the property, and decline to send it forward until the bill of lading was taken, defining and qualifying its duty or liability as carrier, and to promptly so advise the.plaintiff or his agent. The fact. that the plaintiff had that year executed with the railroad company a contract having relation to transportation by it for him, qualifying its liability in some respects, we think had no material bearing on any question here. That was made with the company as a principal party and related solely to transportation by it for the plaintiff.

The goods in question were carried by it for the defendant, and the latter was the only party with which the plaintiff contracted to transport them. ■

The defendant undertook to carry the property to the place of destination, and assumed in that respect the common law duty. And if the delay which occasioned the injury to it Avas caused by want of due diligence on the part of the defendant, it became liable to the plaintiff.

This is the more serious question.

The defendant was responsible for the failure to exercise proper care and diligence on the part of the agencies employed by it to carry the property. Their negligence is that of the defendant. And if it was without fault the plaintiff is not entitled, to recover. *Wibert*v. *N. Y. & E. R. R. Co.,*12 N. Y. 245.

The goods arrived at Englewood, a freight yard, near the city of Chicago, on April 30th, and were taken to the city, May 3rd, and delivered to connecting carrier, May 16th.

The evidence tended to prove that the L. S. & M. S. Ry. Co., encountered difficulty in moving its trains into and through the city; which was occasioned by a combination of persons, composed of switchmen of that and other railroads, and others, to obstruct the movement of the trains. That there was a strike of this class of railroad employees which commenced on May 2nd, and continued until May 16th. And they quite effectually dur*466ing tbe continuance of tbe strike, interrupted the business of the road. That although that company employed other men, and had an adequate force to operate its trains, they were prevented by this organized opposition from proceeding with the business; that the strikers got on to the trains, applied the brakes, stopped them, took out and threw away the coupling pins, thus cutting the trains to pieces ; turned switches, and in that manner derailed moving trains; sought by persuasion, and threats to induce and compel the workmen to quit the service of the company; and by other means sought to obstruct and delay the movement by the company of its trains.

This trouble was mostly within the city, but it also extended to the Englewood yard. And upon the evidence, the conclusion was permitted that the company used all reasonable means and (effort to move its trains, and that the delay in the time occupied In so doing, was without negligence or fault on its part.

So far as this interruption necessarily delayed the delivery of goods to their place of destination, it constituted a legal excuse .and defense to the railroad company for any injury to freights ■occasioned by such delay, although caused largely by the action ■of the employees of the company who were in the strike.

They were not its employees while so engaged against the company. Ge*ismer*v. *L. S. & M. S. Ry.*Co., 102 N. Y., 563.

And the same defense is available to the defendant so far as the transportation of the property in question was necessarily ■delayed and the loss occasioned by the same cause.

The railroads were the known agencies for the transportation by the defendant of the goods. The fact is so alleged and admitted by the pleadings, and the undertaking of the defendant •to carry them was so qualified as not to embrace liability for the ■consequences of necessary delays in transit by the railroad companies.

To constitute such delay an excuse, it must be without fault ■or negligence of the carrier, and such as could not by the exer■cise of reasonable care and diligence have been avoided. It is ■contended on the part of the plaintiff that there was no neces■sary occasion for any material delay in transferring and forwarding the property in question, because the connecting line for it was the Chicago, Burlington and Quincy railroad, and the trans,.fer to it could properly be made at Englewood, and that there was no occasion to take it into the city of Chicago, or to subject it to-the delay occasioned by the obstructing forces there.

The plaintiff’s agent says that the trees were destined for the C. B. & Q. R.R., for carriage beyond Chicago, that about May 12th, he found them on the platform of the freight depot of the L. S. & M. S. R. R., in Chicago, that there was then no appearance of violence or strike, and that the trees had to be taken .back to Englewood to be sent west to their destination.

*467These facts are entitled to consideration, and it may be by the use of the proper diligence, which the company was required to exercise that the plaintiff’s property may have been transferred and sent forward in time to have obviated the loss sustained, and a finding to that effect would have been supported by the evidence ; but in view of all the circumstances there was a question of fact for the jury. The evidence tends to prove that the strüe of the switchmen was general of all the railroads coming into the city, that it extended to some extent to Englewood. This property was in a freight car upon the L. S. & M. S. R.R., how it was situated in reference to other property (if any) in the same car, or the location of the car in the train of which it was a part, does not appear. It does appear that there were several trains collected at the Englewood yard. And there is some evidence tending to prove that the company was diligently malting an effort to reach its connecting lines; and whether the company failed with reasonable diligence to avail itself of all the facilities, and the best opportunities under all the circumstances, cannot be determined as matter of law upon the evidence and the inferences derivable from it.

This and the whole question of diligence and negligence, so far as it has relation to the transportation of the plaintiff’s property was properly a question for the consideration of the jury.

It may be that if the trial court had been advised of the opinion of tire court of appeals in the Geismer case (resulting in reversal of the decision of this court, 34 Hun, 50), delivered only a few days before the trial of this action, the case might have been sent to the jury upon the question referred to as one of fact for them to determine.

The motion for a new trial should be granted. Costs to abide the even.

Haight and Lewis, JJ., concur.