#### Charles Hedges *et al.*plaintiffs and respondents, *vs.*The Hudson River Railroad Company, defendants and appellants.

1. Although the general rule is that the liability of common carriers who have received goods for transportation, either as such or as bailees only, is continued until the actual delivery thereof to the consignee, at the place of destination; yet where actual delivery is impossible, because the consignee cannot be found, or has neglected to take the goods away within a reasonable time, the carrier *120may divest himself of his common law liability as such, by storing them in a warehouse, belonging either to himself or to another, for the benefit and at the charge and ordinary risk of the owner, and to be delivered to him by the storekeeper upon payment of warehouse charges, together with those of the carrier.

So, also, where the consignee fails to take away the goods within a reasonable time after he has notice of their arrival, the carrier’s extraordinary common law risk ceases at'the end of such time, although, the goods may still remain, upon his carriage or vessel.

By usage, too, where the same exists, goods may be deposited by the carrier at a customary place of receiving them, such as a wharf, and if the person, whose duty it is to receive them, shall fail to take them away within a reasonable time after notice thereof, the carrier will, thenceforth, be discharged of all liability.

A common carrier cannot legally divest himself of his common law liability as such carrier in any other way, where the consignee can be found, than by an actual delivery of the goods to such consignee, or by giving notice to him, with reasonable diligence, and his failure, after the lapse of a reasonable time for that purpose, to take them away.

The rule adopted in Massachusetts, that where it is the usage for a railroad company to deliver goods by discharging them upon their own platform, without giving notice to the consignee or owner, the persons sending goods by them must be presumed to have assented to such usage, does not prevail in this state.

A different rule does not obtain, here, in regard to railroad companies, from that which controls aU other common carriers, whether by land or water. Where goods, transported by railroad, after reaching their place of destinanation, are before delivery to the consignees, and while yet remaining in the freight car, destroyed by fire—the consignees using due diligence in regard to taking them away—the carriers are liable.

(Before Barbour, Garvin and Jones, JJ.)

Heard March —, 1868;

decided March 12, 1868.

This action was brought by the consignee of some 2000 reams of paper, received by the defendants as common carriers for transportation to New York by their railroad, to recover damages, because of their failure to deliver 1550 reams thereof; the same having been burned in the depot yard of the defendants while yet remaining in the car, by a fire of incendiary origin.

Hpon the arrival of the train containing the paper, the defendants sent a written notice to the plaintiffs, informing them that such. paper had arrived, and also stating that unless it was taken away without delay, it would be stored *121at the expense of the owner or consignee. Immediately on receiving such notice, the plaintiffs sent up a truck and removed one load of 500 reams on the same day; and the jury found, that question having been submitted to them by the court, that the plaintiff used due diligence in regard to taking the paper away.

The action was tried before Justice Garvin and a jury. At the close of the testimony, the counsel for the defendants .moved for a nonsuit and dismissal of the complaint, upon the grounds that it appeared from the evidence:

1st. That the defendants delivered, and the plaintiffs accepted and assumed control of the paper for the loss of which this action is brought.

2d. That the liability of the defendants as common carriers had ceased, and that the paper was destroyed without any negligence or default on their part.

3d. That there was reasonable time and opportunity after the arrival of the paper, and before its destruction, for the plaintiffs to have removed the same.

4th. That the plaintiffs had reasonable time' and opportunity, after notice of the arrival of the paper, and before its destruction, to have removed the same.

5th. That the plaintiffs failed to exercise proper diligence in learning of the arrival of the paper, and in removing it after notice.

The court denied the motion; to which decision the counsel for the defendants excepted.

The justice charged the jury, among other things, that the plaintiffs had a right to take a reasonable time to take the goods away, and the jury were to say whether they prosecuted the business with common and ordinary diligence ; that if they had proper time to .get away another load, or two loads of the paper, and did not do it, then the jury were to deduct from the whole quantity 500 reams for each load, and give such a verdict as under the rule of law and circumstances they would be justified in giving. ,

*122The jury found a verdict for the plaintiffs, and assessed their damages at $984.20.

A motion was thereupon made by the defendants, upon the minutes of the judge, to set aside the verdict, and grant a new trial, upon the exceptions taken and upon the grounds that the damages were excessive; that the evidence was insufficient to sustain the- verdict, and that the verdict was against the evidence; which motion was denied, and the defendants appealed from such decision and from the judgment.

*F.*Loomis, for the appellants, defendants.

I. The liability of the defendants, as common carriers, terminated with the arrival of the paper at its place of destination and there being had in a position for the consignees to take it away, and upon the paper being placed in such position the liability of the defendants changed and became that of warehousemen. *(See Angell on*Carriers, § 302; 2 *Kent’s Com.*604.) 1. If it be urged on the part of the respondents that the onerous liability of the defendants as carriers continued until the expiration of reasonable time for them to get the paper away after notice of its arrival, the cases in this state that may be cited in support of this doctrine, are all of carriers by water, who claimed that by the delivery of the property on the public dock, or upon a float to be in a position for delivery to the connecting carrier, they had discharged their liability as carriers. Such are *Price*v. *Powell,*(3 *Comst.*322;) *Miller*v. *Steam Navigation Co.,*(10 *N. Y. Rep.*431.) But it is submitted that railroad companies are a different class of carriers, with, to some extent, different liabilities, and that no case in this state can be found upholding as against them the liability insisted on by the respondents. In Massachusetts this difference has been recognized by the highest tribunal. *(Thomas*v. *Boston and Prov. R. R. Co.,*10 *Metc.*472. *Murray Plains Co.*v. *Boston and Maine R. R. Co.,*1 *Gray,*263.) And it has been further held that the delivery may be, in the case of railroad *123carriers, in the car. *(Lewis*v. *Western R. R. Co.,*11 *Metc.*509.) 2. The storage and keeping of the goods may he, as in this case, in the car or vehicle in which they arrive, particularly if it is with the assent or at the request of the consignee or consignor. *(Ide*v. *Sadler,*18 *Barb.*32. *Labar*v. *Taber,*35 *id.*305.)

It. Granting that the plaintiffs were not bound to make inquiry for the paper after notice of its shipment, and might await notice from the defendants, the giving of such notice and a readiness to deliver upon demand and payment of freight, was a termination of the defendants’ liability as common carriers. (F*ish*v. *Newton,*1 *Denio,*45, *per Jewett, J. Goold*v. *Chapin,*20 *N. Y. Rep.*259.) 1. In this case, the notice to the plaintiffs of the arrival of the goods and that they must be taken away without delay, was such an indication on the part of the defendants, and coupled with their readiness to deliver the property, during the day of the receipt of the notice, terminated the defendants’ liability as common carriers. 2. The subsequent destruction of the goods by fire, did not make the defendants liable therefor, granting that the plaintiffs had not had full opportunity to remove them. *(Northrup*v. *Syracuse and B. R. R. Co., Court of*Appeals, *March*7, *reported in N. Y. Transcript, March*4, 1868.)

• III. The defendants delivered and the plaintiffs received the paper, and the leaving of the 1550 reams in the car was with the assent and for the convenience of the plaintiffs, and made the defendants gratuitous depositaries in respect thereto. 1. A witness for the plaintiffs testified that he presented the notice to the defendants’ agent, paid the freight bill and told him that he “ wanted the paper in that car that the car was opened for him in an accessible place, and he proceeded to take possession of the paper. The defendants had nothing further to do with it as common carriers, they had no lien on it for freight, and the delivery was complete. 2. It was a renunciation of the character of carriers. *(Goold*v. *Chapin, Labar*v. *Taber,*and *Lewis*v. *Western Railroad Co., ubi supra.*1 *Parsons on Contracts,*673.)

*124IV. The plaintiffs, to suit their necessities or convenience, could not prolong the liability of the defendants as common carriers. In this case it was to suit the convenience óf the plaintiffs that the 1550 reams were left in the defendants’ car. The plaintiffs’ witness (Raymond) swore that he was directed to go up and bring down *a load*of the paper. The plaintiffs knew how much he could bring in one load and how much paper there was, and evidently contemplated leaving the balance for some more convenient season, as they neither sent this "carman back for more, nor attempted to hire other trucks, when they could be hired in any- part of the city". *(See Moses*v. *Boston and Maine Railroad Co.,*32 *New Hamp. Rep.*523, 540; *Clendaniel*v. *Tuckerman,*17 *Barb.*184.)

V. The 1550 reams being destroyed while in the defendants’ possession, as gratuitous bailees, they are not liable except for gross neglect, and there is no evidence in the ease to establish that.

VI. The verdict of the jury was clearly against the weight of evidence and should be set aside, and the order denying the defendants’ motion for a new trial should be reversed; the defendants’ exceptions were well taken and should be sustained.

*Philip Jordan;*for the respondents, plaintiffs.

I. The defendants’ responsibility never ceased. The property was not delivered, nor did the plaintiffs accept and assume control of the paper, by reason of their paying the freight and charges; because they are in all cases obliged, by the rules of the defendants, to pay before they can get access to their goods at all. There was in fact no delivery of the goods by the defendants at any time, because the goods were never unloaded, but were still in the car when destroyed by fire.

II. Even if the defendants’ liability as common carriers had ceased, the goods were still stored by them, and destroyed through their neglect. The testimony of the. *125defendants’ witness Moran, showed that there was only one watchman beside himself for the whole freight depot; that there was no water or any materials provided by the defendants for extinguishing fire; that people were often smoking there; and that when he discovered this fire it only covered a surface of three or four feet.

IH. Three witnesses for the plaintiffs testified that one load of the paper reached the plaintiffs’ store by two and a half p. M. on the same day upon which the plaintiffs received notice. Two of them who drove the truck and loaded the paper, of their own personal knowledge say, that they could not have gone back to the depot and brought another load in time to unload before the usual time of the closing of the plaintiffs’ store, (six p. m.) The defendants produced several witnesses, (all in their interest and employ,) to disprove the plaintiffs’ evidence; • but their testimony was only general, none of them knowing the special circumstances of the case. Two of them, (Manning and Ackert,) say, that it would have taken them from ten A. m. to six p. M. to get away two loads of the paper; one, (Manning,) also says that he don’t think he could have got there or got away any quicker than the plaintiffs’ cartman, (Raymond,) did under the circumstances surrounding him at the time. They, therefore, sustain the plaintiffs’ evidence.

IV. The plaintiffs were not bound to ascertain when the paper arrived in Hew York. It is the custom of the railroad companies in Hew York to send notice to consignees when goods arrive. The defendants have printed blanks for doing so in all cases. One witness, (Kane,) also testified to the custom of the defendants and other companies, and that he had received similar notices from the defendants.

V. The damages were not excessive, because the verdict was for the value of the paper in the car destroyed, of which the price was not disputed. The plaintiffs’ evidence was direct, and amply sufficient to sustain the verdict; and the verdict was not against evidence, because there was no *126direct and positive evidence produced by the defendants against that of the plaintiffs.

By the Court, Barbour, J.

The general rule is that the liability of common carriers who have received goods for transportation is continued until the actual delivery thereof to the consignee at the place of destination. Where actual delivery is impossible, however, because the consignee cannot be found, or because of his neglect to take the goods away within a reasonable time, the carrier may divest himself of his common law liability by placing them in a warehouse belonging either to himself or to another, to be there stored for the.benefit and at the charge and ordinary risk of the owner, and to be delivered to him by the storekeeper upon payment of warehouse charges, together with those of the carrier. So, also, where the consignee fails to take away the goods within a reasonable time after he has notice of their arrival, the carrier’s extraordinary common law risk ceases at the end of such time, although the goods may still remain upon his carriage or vessel. By usage, too, where the same exists, goods may be deposited by the carrier at a customary place, such as a wharf, and if the person, whose duty it is to receive them, shall fail to' take them away within a reasonable time after notice thereof, the carrier will, thenceforth, be discharged of his liability. (2 *Kent’s Com.*597-608. *Story on Cont.*§§ 467-473. *Chitty on Cont.*483, *and eases cited by those*writers.)

I am satisfied from a careful examination of the authorities and cases bearing upon the subject, that a common carrier cannot legally divest himself of his common law liability as such carrier in any other way, where the consignee may be found, t ian, b_y am, actual delivery' of the goods to such consignee or~by giving notice to him, if he can be found with reasonable diligence, and his failure, after the lapse of a reasonable time for that purpose, to take them away.

*127It is true, the Supreme Court of Massachusetts has held, in the case of *Thomas*v. *The Boston and Providence R. R. Co.,*(10 *Metc.*472,) that where it is the usage of a railroad company to deliver'goods by discharging them upon their own platform, without giving notice to the consignee or owner, the persons sending goods by them must be presumed to have assented to such usage; thus, as it seems to me, deciding that railroad companies, in that state, may make laws,-not only for their own government, but for that of the persons sending goods by them. Similar decisions may be found in *Norway R. Co.*v. *B. and M. R. R. Co.,*(1 *Gray,*263,) and *McCarty*v. *N. Y. and Erie R. R. Co.,*(30 *Penn. Rep.*247.) The same question, however, has been adversely decided in *Moses*v. *B. and M. R. R. Co.,*(32 *N. H. Rep.*523,) and in *M. Cent. R. R. Co.*v. *Ward,*(2 *Mich. Rep.*538.) In this state, no such doctrine has ever been promulged by any of our courts; nor am I able to perceive why a different rule should obtain in regard to railroad companies from that which controls all other common carriers, whether by land or water.

Of course, if I am right in the opinion above expressed, it is unnecessary to consider whether the notice given to the plaintiffs, that the goods would be placed in store at their charge, unless taken away without delay, was, or was not, a waiver of the defendants’ right to require the - consignee to remove them within what might otherwise be considered a reasonable time, as well as the assumption of an obligation on their part to hold the goods as common carriers until they should be removed within a reasonable time, or to properly place the same in store, in case they should not be taken away by the consignee.

The direction, in this case, of the learned judge, touching the liability of the defendants in case the plaintiffs should be found to have exercised due diligence in regard to taking their goods away, was,’therefore, strictly proper; and the verdict of the jury was fully justified by the evidence. It follows that the judgment should be affirmed, with costs.