
    George H. Laporte, Respondent, v. Wells, Fargo and Company's Express, Appellant.
    
      Common ea/rrier— delay of a consignee in calling for his goods, subsequently stolen from the carrier — the questions as to the delay and, the care of the goods, when the facts are undisputed, are for the court—degree of care required in country districts.
    
    In an action brought against a common carrier, an express company, to recover damages for the non-delivery of goods, the undisputed proof was to the effect that the goods, consisting of jewelry of the value of $250, were received on the day of their shipment (Saturday) at four-thirty p. si. by the defendant’s agent at New Durham, N. J., to which place they were, by mistake, addressed; that the agent placed them in the usual place for the deposit of goods awaiting delivery, and immediately mailed to the consignee, who was not a resident of the place and was unknown to the agent, a notice of their arrival addressed to him at New Durham, N. J.; that the goods remained uncalled for until seven-thirty Monday evening, when the agent left the express office, and that during the same night they were stolen.
    
      Meld, there being no dispute as to the facts, that the question whether the consignee had had a reasonable time in which to remove the goods was a question of law for the court, as was also the further question whether the goods were properly cared for by the defendant as warehouseman, and that the submission of these questions to the jury was improper.
    A carrier, maintaining an office in a country village, is only bound to take such care of goods in his custody as a reasonable man would take of his own ■ property.
    O’Brien, J., dissented.
    Appeal by the defendant, Wells, Fargo and Company’s Express, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      C. B. Alexander, for the appellant.
    
      J. C. Kennedy, for the respondent.
   Van Brunt, P. J.:

This action was brought against a common carrier for damages arising from the non-delivery of goods. The facts appearing upon the trial were that on Saturday, ■ the 2d of February, 1895, the plaintiff, at the city of New York, delivered to the defendant a box containing watches and other jewelry of the value of $250, to be carried to New Durham, New Jersey, arid delivered to one J. McGrath. The box was received! at New Durham on the same day at four-thirty p. m. by the agent of the express company at New Durham, who took the box off the train. New Durham was a small place of from 200 to 400 inhabitants.. The express company’s agent, knew nothing about McGrath; in fact he did not lirre at New Durham, but at a place called Union Hill or West Hoboken, and it was by mistake that the box was addressed to New Durham. A few minutes after the express agent received the box, he deposited in the New Durham post office a postal card addressed to J. McGrath, New Durham, N. J., containing a notice that the company had received the box, and that they held it at his risk, and requesting him to call for the same. The box remained at the station uncalled for as late as seven thirty p. m. on Monday.' The agent left the office on Monday evening at seven-thirty in accordance with his usual custom, but on arrival at the office on Tuesday morning, he found that the waiting room door of the station was locked, but that the window was open, some one having .broken the glass below the catch of the window and opened the window. He further found the box which had contained the-jewelry broken open, and the papers which were in the box lying alongside and scattered, around the box. The jewelry wa,s gone.

■ Upon these facts the court submitted the case to the jury as to whether the consignee had had a reasonable time in which to remove the goods, and whether the defendant had taken reasonable care of the goods as warehousemen if such reasonable time had elapsed. Counsel for the appellant, in various forms, objected to the submission of these questions to the jury, claiming separately as to each of them that he was entitled to the direction of a verdict.

It seems to have been long settled that, in an action against a common carrier, the question as to what is reasonable time, where there is no dispute as to the facts, is a question of law for the court, and the submission of that question to the jury is ground for reversal. (Hedges v. Hudson River R. R. Co., 49 N. Y. 223.) This substantially reiterates the rule announced in Fisk v. Newton (1 Den. 45) and Northrop v. Syracuse, etc., R. R. Co. (3 Abb. Ct. App. Dec. 386). In the case at bar there was no dispute whatever as to the fact of the arrival of the goods and the length of time which elapsed before they were stolen. It appears that the consignee was not a resident of the place to which the goods were consigned ; that the goods were received at four-thirty p. m.; that said consignee was not known to the agent of the express company who received the goods; that he deposited them in the express office, the usual place for the deposit of goods awaiting delivery, and mailed a notice to the consignee on the same (Saturday) afternoon The goods remained uncalled for until Monday night, when they were stolen. It is clear that there was ample time for the removal of the goods had the consignee been a resident of Mew Durham, to which place the goods were addressed. The agent had no other means of giving notice of their arrival, and the fact that the consignee lived, at a distance from the station, at another place in no way prolonged the period of responsibility of the carrier as such, he having taken all due means for the purpose of notifying the consignee. This rule is expressly laid down in the case of Northrop v. Syracuse, etc., R. R. Co. (supra). It was there held that when a reasonable time had expired for the consignee, had he lived in. the vicinity of the depot, to call for the goods, the liability of the defendants as common carriers ceased. In that case the defendants, as common carriers, on the 8th of August, 1859, received from the plaintiffs at Tully a quantity of wheat directed to the plaintiffs at Chenango Forks, and agreed to transport the same accordingly. They carried the wheat by their railroad from Tully to Chenango Forks, where it arrived on August eighth, at a place called Chester Village. The plaintiffs were merchants residing fifteen miles from the depot, and no one was present to receive the wheat on its arrival. It was accordingly-deposited by the company in their freight house on the afternoon of August eighth. On the afternoon of .the next day the plaintiffs received information from Tully that the wheat had been sent forward to Chenango Forks, and on the following day, the tenth, they sent to the depot for-it; but, at about'eleven o’clock on the night of the ninth, it-had been destroyed by fire in ' the freight house of the company. The court held that, although in this State it would seem to be requisite that notice of the arrival of the goods should be given to the consignee in case he resides or has. a place of business at the place of destination or in its immediate vicinity, such duty does not arise where the party resides ata distance and has no agent at the place to whom notice of arrival can be given. It may be argued that the case above cited is not an authority for the proposition that, in the case at bar, a reasonable time between the arrival of the goods and the robbery had not elapsed within which-the consignee was bound to remove the goods. ■ In, that case the question was submitted to the court upon an agreed statement of facts, and the court found that a reasonable time had elapsed.; but, in the case of Hedges v. Hudson River R. R. Co. (supra), the court disposed of the question of reasonable time without any submission to the jury, but treated the same as a question of law for the court, there being no dispute in regard to the facts. A carload of. paper was shipped to the plaintiffs from Fulton, 1ST. Y., and arrived at the defendant’s freight station in the city of Hew York at seven Á. m., on the twenty-third of May. The plaintiffs received notice of its arrival at nine-forty a. m., on the twenty-fourth of May. The plaintiffs thereupon directed a cartman to bring one load of it to them as quick as he could. He took one load and unloaded it at the plaintiffs’ store about three p. m. He did not return for. another load, but for the remainder of the day carted to other places or remained idle. The remainder of the paper remained in' the car, and, in the night of that day and the morning of the following day, was burned up with the car by a fire of incendiary origin. The court charged that the plaintiffs were bound to take away the paper within a reasonable time after notice, and- that this was for the jury to decide. This,upon appeal, was held to be error; that it was the duty of the consignee at once and with diligence to act upon the notice of arrival and to seek delivery, and to continue until delivery was complete. If he had been unable in the usual course of business to obtain .delivery of all the paper, as to the balance the court held that it would have remained as it did in the custody of the defendant, who could not have divested itself of the duty to care for it as bailee thereof.

It would seem, therefore, that in the case at bar, there being no dispute in regard to the facts, it was error to submit the question of reasonable time to the jury ; that the court should have disposed of it as a question of law, and that a reasonable time had elapsed before the, jewelry was lost.

The remaining question in the case, as to whether the jewelry was properly cared for by the defendant as a warehouseman, may also become a question of law where there is no dispute in regard to the facts. In a country village the same degree of security, either as to fire or burglary, cannot be required of a warehouseman or a common carrier as such, as in larger cities where greater facilities for warehousing exist. In these cases reasonable care is a relative term, being governed by the circumstances surrounding the carrier. He is bound to take the same care of the goods which are in his custody as a reasonable man would take of his own property. If there were no better or safer place in which to deposit the goods, it would seem . that he had no alternative but to leave them in the warehouse provided by the carrier for that purpose.

Upon the whole case, therefore, it would seem that error was committed prejudicial to the defendant, and that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide event.

Williams, Patterson and Ingraham, JJ., concurred; O’Brien, J., dissented.

O’Brien, J.:

I dissent upon the ground that both the questions were properly presented to the jury, and the judgment should be affirmed.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  