
    Clinton W. Conger, and others v. The Hudson River Railroad Company.
    The undertaking and duty of a common carrier are not only to carry and deliver safely the goods intrusted to him, but also to carry and deliver them within a reasonable time, but-the first duty is absolute, the second merely relative.
    What is a reasonable time depends, in each case, when the question arises, upon., its particular circumstances, and is usually, if not always, a question of fact for the determination of a jury'.
    When it appears that a delay beyond the ordinary time was not occasioned by any negligence, fault, or want of skill of the carrier, but was imputable solely to the recklessness or carelessness of a third party, the law regards it as an inevitable accident, for the consequences of which the carrier is not responsible.
    The Judge, upon the trial, charged the jury that the defendants were responsible for the damages caused by a delay in the delivery of cattle belonging to the pliantiffs, even if a collision, which produced the delay, was imputable solely to another railroad company; and he refused to charge, as requested by the defendants counsel, that if the collision was caused by the carelessness of the other company, without any negligence or fault whatever on the part of the defendants, they were not responsible for any damages sustained by the plaintiffs.
    
      Held, that the Judge erred in his charge, and that he ought to have submitted to the jury the question whether the collision was not solely caused by the negligence of the Hudson and Berkshire Railroad Company, as evidence had been given tending to show that such was the fact.
    It seems that the defendants, if liable at all, were not so for the shrinkage of the defendants’ cattle; their disposition to become restive, and their trampling upon each other as injuries from these causes, must be deemed to have arisen from the nature and inherent character of the property carried.
    It seems, also, that damages resulting from the loss of a market, occasioned by a delay not excused; as too speculative and contingent, are not recoverable.
    New trial ordered, costs to abide event.
    (Before Duer, Bosworth and Woodruff, J.J.)
    December 4, 1856 ;
    February 20, 1857.
    Motion, on the part of the plaintiffs, for judgment on a verdict in their favor, the questions of law arising on the trial having been directed to be heard, in the first instance, at the General Term.
    
      C The action was brought to recover damages from the defendants, as common carriers, for their delay in the transportation, upon their railroad, of cattle belonging to the plaintiffs, from Albany to Hew York. \
    
      The answer denied all the material allegations in the complaint.
    The cause was tried before Campbell, J., and a jury, in November, 1854, 'and the following are the material facts proved upon the trial.
    
      ( The cattle were received at Albany in the afternoon of the 29th of March, 1854, and would, according to the usual and ordinary course of transportation on the defendants’ road, have arrived in New York early on the following morning, (Thursday,) that being what the witnesses call market day; but, by reason of delay, they did not arrive until the evening of that day. From the length of the time consumed in the transportation, the cattle, which were enclosed in cars, became weary; some lay down, and were trampled upon by others, and on their delivery in New York were found bruised and shrunken, and deteriorated in respect to their condition for market. They were sold by the plaintiffs on the following Monday, the next regular market-day, but between the Thursday -and Monday the price of cattle in the market fell, according to the testimony, $1.50 per cwt.
    The plaintiffs claimed to recover for the damages sustained from the injuries to and the shrinkage of the cattle, and also damages for the loss of the market on Thursday, on the morning of which day, as they claim the cattle should have been delivered in New York.
    The defendants sought to excuse the delay by showing that it happened without their fault.)
    The cause of delay was this: One of the defendants’ passenger trains left Albany shortly before the freight train by which the plaintiffs’ cattle were forwarded; when it reached Hudson it was run into by a train, or engine, of another (the Hudson and Berkshire,) railroad company, and, by the collision, both engines and some other cars were thrown off the track, and the further progress of the passenger train was hindered for several hours.
    This detention caused delay to the trains going up, for the passage of which the rules of the road required the conductor of the cattle train to wait at a station above Hudson. Evidence was given upon the question whether the collision resulted solely from the negligence of the Hudson and Berkshire Railroad Company.
    The defendant’s counsel, on the trial, requested the Judge to charge, that if the collision was the result of the carelessness of the Hudson and Berkshire Railroad Company, and that the defendants were not guilty of carelessness or negligence, the defendants are not responsible for any damages sustained by the delay in delivering the property; and to the refusal of the Judge to so instruct the jury the defendants excepted.
    The Judge charged that common carriers are responsible foP damages to personal property, whilst in their care, which may be ultimately delivered, whether such injury was occasioned by the carelessness or negligence of the carriers or not. That, in this case, the delay which caused the damage arose out of a collision between a train of the defendants and a train of the Hudson and Berkshire Railroad Company, and that the defendants were responsible for the damages sustained in this case, although that collision was caused by the negligence of the Hudson and Berk-j shire Road alone.
    To these portions of the charge the defendants excepted. z
    By direction of the Judge the jury, on finding for the plaintiffs, stated their assessment of damages severally in two items, viz.: For injury to the cattle and shrinkage, $260; and for loss of a market day, $520.
    The case was, therefore, ordered to be heard at the General Term, upon the questions of law raised upon the trial.
    
      W. Hullerton, for the defendants.
    I. We contend that the accident which caused the delay from which the damage arose in this case, was not the result of defendant’s negligence and that,
    II. Common carriers are not liable for damages for mere delay in the delivery of property entrusted to their charge, if such delay arose from causes which they could not control. (Parsons v. Hardy, 14 Wend. 215; Bowman v. Teal, 23 Wend. 306; Lager v. The Portsmouth R. R. Co. 1 American R. R. Cases, 171 and note.) The Judge’s charge was, therefore, erroneous, and we are entitled to a new trial.
    IH. The special contract in this case limited the liability of defendants, and they are not responsible in this case. (Lager v. Portsmouth R. R. Co. 1 American R. R. Cases, 171.)
    
      IV. The charge of the court, therefore, was incorrect. The Judge should have charged as requested.
    
      P. G. Clark, for the plaintiffs.
    We insist that the Judge correctly charged the jury, that the defendants were responsible for damages to the plaintiff’s property, whether it was occasioned by the defendants’ carelessness or negligence or not; and that the defendants were responsible for the damages occasioned, by the collision, although that collision, was caused by the negligence of the Hudson and Berkshire Road alone. 1. The defendants are common carriers, and as such are responsible for all losses, except those occasioned by the act of God or of the king’s enemies. (Story on Bailments, § 489-491.) By the ‘‘act of God” is meant natural accidents, arising from superhuman causes, and not accidents arising from the negligence of men. (Story on Bailments, § 511; 2 Kent Com. p. 602 ; McArthur v. Sears, 21 Wend. 190; Camden & A. T. Co. v. Burke, 13 Wend. 611; Mershon v. Hobensack, Supreme Court of New Jersey, Law Reporter for December, 1850, page 415; Plaisted v. Boston R. R. &c. Co. 27 Main. R. 132.) 2. The rule and the principle of the rule are the same whether there bé a total loss of the property caried, or a partial loss or damage to property ultimately delivered. (Smith v. Griffith, 3 Hill, 333; Camden & A. T. Co. v. Burke, 13 Wend. 611; Pindall v. Renck, 4 McLean, 259 ; Burritt v. Penck, 4 McLean, 325.)
   By the Court. Woodruff, J.

The undertaking and duty of a common carrier, on receiving goods for carriage, is twofold: First, to carry and deliver safely. Second, so to carry and deliver within a reasonable time.

The first duty is absolute. Hothing but the act of God or the public enemies will relieve the carrier from its performance.

The second duty is relative, depending upon various circumstances and conditions under which goods are received, the means at the command of the carrier, and the absence of fault on his part in the provision he has made for the performance of his duty.

What is a reasonable time must always be determined by the circumstances under which the carrier acts, and not by the inquiry what, under other circumstances, would be reasonable, nor even by the inquiry what period is ordinarily required for the performance of the service.

The distinction above stated is to be found in the elementary writers treating of the law of common carriers, and is, I apprehend, too well settled to be now open for discussion; and its recognition in this state unequivocally appears in Parsons v. Hardy, (14 Wend. 217); Harmony v. Bingham, (2 Kern. 99); Wibert v. The New York and Erie Railroad Co. (ib. 245: S. C.; 19 Barb. 36).

The delay in the present case is alleged by the defendants to have arisen from the negligent act of another railroad company, without fault on their part, by which their cars were thrown from the railroad track, and the passage of the following train (contain - ing the plaintiffs’ property) necessarily hindered.

The case of Parsons v. Hardy presented the precise question whether such an accident, caused by the act of third parties, through their misadventure or negligence, excused the delay. The court held, “ that evidence that the delay was so caused, was admissible,” and that if the fact were proved, and the accident shown to have occurred without any want of diligence, care and skill on the part of the carrier, it would excuse the delay.

And we understand the decision of Wibert v. The New York and Erie Railroad Co. to decide that common carriers, when there is no express agreement to carry within a limited time, are not responsible for delays occurring without their fault, and that this is true as well of the common law obligations of carriers as under our statute, which was the subject of much discussion both in the supreme court and court of appeals.

It is hardly necessary to add, that in disposing of this case we must be governed by the decisions referred to, and it is, therefore, unnecessary to extend our discussion upon this point.

The application of those cases to the present, shows that there was error in the charge of the Judge on the trial.

He charged that the defendants were responsible for the damages caused by the delay in making the delivery of the plaintiffs’ cattle, although the collision, which produced the delay, was caused by another railroad company; and he refused to charge that if such collision was caused by the carelessness of the other company, and the defendants were guilty of no _ carelessness or negligence, the defendants were not responsible'for any damages sustained by reason of delay in the delivery.

This, we apprehend, was making the duty of the defendants, to carry and deliver within the usual and customary period of transportation from Albany to Eew York, just as absolute and unqualified as their duty to carry and deliver. In effect, it allowed no excuse for delay, which would not excuse a failure to deliver.

If the accident, which caused the delay, happened through the fault of another company, and without any concurring fault or neglect on the part of the defendants, then, as to them, the accident was inevitable, in the sense that excuses the delay, within the rule declared by the cases above mentioned.

And if the defendants, therefore, failed in no duty which they owed to the plaintiff, they not having stipulated, by their contract, to carry and deliver within any limited time, are not responsible for damages resulting from the delay in delivering the cattle in question.

How the jury would have found, had the question whether the delay, and the consequent injury to the plaintiff’s cattle, were without the fault or negligence of the defendants or their servants, been submitted to them, we are not able to say. If we could determine what is the weight of the evidence upon that subject, we should not consider ourselves at liberty to do so. But if the jury had found in the defendants’ favor, upon that question, then the delay was caused by what was, as to the defendants, an inevitable accident, which, according to the cases mentioned, would excuse them.

If¡ then, the defendants are not responsible for the delay in the delivery, that being excused, the excuse must necessarily relieve them from liability for any injury to the property which is the mere result of the delay. That is, in the case before us, the injury described by the witness as the shrinkage, fatigue, and trampling of the cattle upon each other, by reason of the increased time consumed in the carriage.

So far as this was the mere result of delay, it must stand upon the same footing as the depreciation or deterioration of property, in the course of transportation, from its own inherent character and liability to decay, or injury from mere lapse of time, or from the act of carriage itself. Eo rule of responsibility imposes upon the carrier losses arising from the ordinary deterioration of goods in quantity or quality, in the course of transportation, or from their inherent infirmity or tendency to decay.)

We are not able to perceive any reason upon which the shrinkage of the plaintiff’s cattle, their disposition to become restive, and their trampling upon each other when some of them lie down from fatigue, is not to be deemed an injury arising from the nature and inherent character of the property carried, as truly as if the property had been of any description of perishable goods.

The rule undoubtedly requires of the carrier, that he use all reasonable and proper care that the delay may not be unnecessarily prejudicial.

And under the rule above stated, if the delay was without the fault of the defendants, it is entirely clear that the damages, which consisted (as alleged) in the loss of the market, cannot be recovered. The claim has no foundation whatever, save in the mere lapse of time, and if that be excused, the claim is obviously groundless.

This, perhaps, renders any further discussion of this case unnecessary ; but I add, nevertheless, the further observation, that if the delay was caused by the admitted negligence of the defendants, I very much doubt the liability of the defendants to any such claim. In the absence of an express agreement as to time, made with a view to a delivery for the market of a specified day, it cannot be intended that the contingencies of the market were at all within the contemplation of the parties; nor is it obvious what particular day is to be taken by which to test the amount of such a loss. There would seem to be no reason for taking the very day of the expected arrival, if intermediate to that day and the day of the trial, there has been a fluctuation in prices, some higher and some lower than on the first-named day. Nor would it be reasonable to fix the time for ascertaining the depreciation at the very day of the actual arrival, without permitting the defendants to say, and show, that if the plaintiff had left the property for some reasonable time thereafter, they would have realized from the higher prices then prevailing, as much, or even more, than by a sale on tfie day whep the property was expected to arrive.

In truth, damages of this description are too remote and contingent to be ascribed to the delay, whether the delay be excused or not. They do not result from the delay, but from other causes. Non constat that the plaintiffs would have sold their cattle had they arrived one day earlier; or, if they had sold them, that they would have brought any higher price than they did bring. It cannot be known but that the addition of these very cattle, to the stock on hand, would have produced, one day earlier, all the fall in the market which took place on the day of their arrival. But I do not deem it necessary to pursue this branch of the subject, since, if the delay be excused, the claim necessarily falls. In the able opinion of Mr. Justice Marvin, in Wibert v. The N. Y. & Erie R. R. Co. (19 Barb. 36,) this subject is very fully discussed, and his conclusion is ably sustained, viz., that no recovery can be had of damages of this description, from whatever cause the delay arises. In the Court of Appeals the decision that, the delay having occurred without the fault of the defendants, they were not liable at all, rendered the discussion of this other question unnecessary.

A new trial must be ordered, with costs to abide the event.  