
    Henry A. Siebrecht et al., Respondents, v. The Pennsylvania Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    1. Carriers — Delay in transportation.
    Where a bill of lading, covering a shipment of palms, exempts the carrier from damage done by freezing while in transit, the consignors, in order to recover damages for an alleged unreasonable delay in transportation, must show, not only that there was such delay, but also that it caused the damage.
    2. Same — Delay as approximate cause of damage.
    Proof that palms, shipped on February 22d at 2 p. m., from Philadelphia to Jersey City, packed in such a manner as to resist cold for twenty-four hours and due in Jersey City on February 23d, at 2 a. in., did not arrive there until 5 p. m. of that day, and Were not ready for delivery until February 24th at 8 a. m., when they were found to be frozen accompanied by proof that during the period from February 22d, at 2 p. m„ to February 24th, at 8 p. m., the mercury, at all times below the freezing point, was lowest between February 22d at midnight, and February 23d at 8 a. m., does not necessarily show that the palms were not frozen because of the delay in transportation, nor does it justify the court in withholding the determination of that question, ■ upon all the facts, from the jury, as palms, although protected against cold for twenty-four hours, might die if they were exposed for a longer period to a temperature, which although coldest during the time of transit, was at all times below the freezing point.
    Siebrecht et al. v. Pennsylvania R. R. Co., 20 Misc. Rep. 730, affirmed.
    
      Appeal by defendant from affirmance by the General Term of the City Court of a judgment in favor of plaintiffs.
    . Robinson, Biddle & Ward (H. G. Ward, of counsel), for appellant.
    J. M. Gardner, for respondents.
   McAdam, J.

The action is to recover for damages done to certain plants of the plaintiffs while, in defendant’s care, caused by alleged unreasonable delay in transportation, during which they were frozen. ,

It appears that on Friday, February 22, 1895, at 2 p. m., one Burton, a florist and greenhouse keeper at. Chestnut Hill, Pénnsylvania, shipped by the defendant’s road a lot of palms consigned to the plaintiffs at Jersey City, which the defendant agreed to transport with due dispatch. By the bill of lading the defendant was exempted from damage done by freezing while in transit.'

.In order to recover, therefore, it became necessary for the plaintiffs to establish negligence or breach of duty on the part of the defendant; so that they were bound to prove that the defendant not zonly unreasonably delayed transportation, but that the plants were frozen during the time of delay and because of it. Read v. Spaulding, 30 N. Y. 630; Michaels v. N. Y. Cent. R. R. Co., id. 564; Condict v. Grand Trunk R. R. Co., 54 id. 500; Rawson v. Holland, 59 id. 611, 619; London & L. F. Ins. Co. v. R., W. & O R. R. Co., 144 id. 200.

The plaintiffs assumed this burden and proved that the average' time of a freight train between the place of departure and the terminus at Jersey City was from, eight to twelve hours. This would fix ábout 2 a. m. on Saturday as the proper time for the arrival of the train at its- place of destination, but the plants could not be delivered "in any event according to the usual course until the business hours of that day. According to the defendant’s evidence they arrived at Jersey City on ¡Saturday at 5 p. m. The plaintiffs had no one at the train at that time to receive the goods. Their employe Smyth testified that he telephoned on Saturday about 5 p. m to the freight yard of the defendant, and received a reply that it would be impossible for the plants to get in until 5 o’clock Sunday morning; that he drove over on Sunday morning about 8 o’clock and received the plants in a frozen condition.

Of course the defendant if free from neglect was not responsible for the weather.- It agreed simply to transport the .plants with due care and dispatch, and if within the reasonable time allowed for transportation the weather became so cold that the plants were not able to withstand it, the loss under the bill of lading would have to be that of the shipper or consignees.

The defendant produced the United States Weather Beport, which is a contemporaneous record kept by trained public servants, upon whose returns the government weather bureau founds all its forecasts, and proved by this record that from February 22d, at 2 p. m., to February 24th, at 8 p. m., the weather was coldest between midnight of the 22d and 8 a. m. of the 23d, the thermometer having fallen to a mixnimum of sixteen degrees at Hew York and twenty degrees at Philadelphia;' and that from the night of the 23d (Saturday) until the morning of the 24th (Sunday) the thermometer highered, . registering, however, some degrees below freezing.

The defendant claimed that this established that the freezing of the plants occurred between Friday at 2 p. m. and Saturday morning, when they ought to have arrived in Jersey City, and upon this theory requested the court to charge that If the jury believe ■that by usual dispatch the plants would have reached Jersey City on the morning of February 23d, and that the coldest weather after the shipment occurred in the twelve hours preceding the morning of the 23d, then there is no evidence that the plants were injured because of the longer time occupied in transportationj” to which the trial judge replied: I refuse to charge as requested, but will leave the fact to the jury to say upon all the evidence when the freezing of the plants took place.”

Of course it was for the jury to say when the freezing took place, and if the request had been that if. they found that the freezing occurred during the usual period of transportation the defendant would not be liable, it would no doubt have been charged. . But the defendant went further, and asked for a binding instruction that if the Coldest weather after the shipment occurred in the twelve hours preceding the morning of Saturday the 23d, then there was no evidence that the plants were injured because of the longer time occupied in transportation. This- result did not necessarily follow, for according to the record offered in evidence by the defendant the mercury stayed below the freezing point on Saturday and during that night and Sunday morning. This was of itself some evidence bearing ón the question and material to its determination,, in view of the expert evidence introduced.

Experts testified that plants are safely shipped during all seasons of the- year, and that those in- question were properly packed to resist freezing for twenty-four hours. It was for the jury to say whether they might not have successfully defied freezing if they had not been longer exposed to the elements. It is common knowledge that with the natural heat in live plants, like, that in human bodies, they may resist low temperature for a given time before freezing, and that the hardiest plant or body, however well -protected, may finally perish if exposed long enough to a rigorous winter temperature. This feature had to be considered by the jury in reaching a result.

The risk of freezing after the usual time for transportation expired was on the defendant, and the evidence was sufficient to. require the submission to the jury of the question whether the freezing occurred while the defendant was in default, and they found that it did occur during the period from causes for which by reason of its neglect the defendant became liable.

Negligence is in general a conclusion from the facts in evidence, to be drawn by the jury under instructions from the court, and is always so when the facts or conclusions rest in doubt. Wells’ Questions of Law & Fact, § 265, and cases collated in 3 Abb. Dig. 279, subd. 97. When the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment and discretion might differ as to its significance, it is the exclusive province of the jury to pass upon the questions involved. Thurber v. Harlem, etc., R. R. Co., 60 N. Y. at p. 331; Payne v. Troy & B. R. R. Co., 83 id. 572; Card v. Man. R. R. Co., 22 Week. Dig. 321; Hart v. Hudson R. B Co., 80 N. Y. 622.

Where the injury may havé resulted from one or two causes, one-of which would establish liability and the other excuse the defendant, and absolute certainty as to which did cause it is unattainable, the verdict of a' jury is conclusive. Durkin v. Sharpe, 12 Week. Dig. 421; Weiler v. Manhattan R. Co., 53 Hun, 372.

We have not referred to the plaintiffs’ proofs as to temperature because the exception presented for review is to the refusal to charge, which was founded exclusively on the defendant’s evidence as to temperature, conditioned upon the finding that it was true.

■ In view of the facts established and the inferences to be drawn from them, with the inherent probabilities ■— all of which were to be considered by the jury —.the trial judge properly disposed of the request to charge, and as his refusal to make it is the only ground upon which the exception urged was taken the judgment must be affirmed, with costs. i

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  