
    Robert A. Tucker, Respondent, v. The Pennsylvania Railroad Co., Appellant.
    (New York Common Pleas—General Term,
    February, 1895.)
    A common carrier is under no obligation to retain perishable goods in storage until a more propitious state of the temperature, where the consignor has himself selected the time of shipment.
    Plaintiff delivered to defendant a number of boxes of lemons for shipment, and tendered therewith a shipping receipt upon which were stamped the words " Refrigerator car.” Defendant’s agent erased these words and stamped upon the receipt the words “Not to be loaded in refrigerator car.” It appeared that such cars were only furnished upon special arrangement. The lemons were loaded in a box car and became frosted during transit. . Seld,. that defendant was not chargeable with negligence in not storing the goods until the weather became more favorable, as it was under no duty to plaintiff to do so.
    Appeal from a judgment of the General Term of the City Court of 3STew York, which affirmed a judgment rendered upon a verdict in favor of the plaintiff and an order denying a motion for a new trial.
    
      George W. Pouoher and Gharries Caldwell, for respondent.
    
      Henry Galbraith Ward, for appellant.
   Bischoff, J.

Plaintiff delivered to the defendant' forty boxes of lemons for transportation from Mew York to.Milwaukee. While in transit the goods were injured by frost, and the plaintiff recovered for the injury upon the theory that it occurred through the defendant’s negligent manner of shipment.

To us it clearly appears that upon the issues submitted to the jury there was no evidence to charge the defendant with negligence or with any breach of its legal duty to the plaintiff.

The damage to the goods is claimed to have occurred by reason of their shipment in a box car ” at a time when the temperature was under thirty-two degrees, this class of vehicle not being constructed with a view to the exclusion of cold, and the temperature being lower than the degree noted upon the day when delivery was made to defendant and the goods forwarded.

From the record it appears that there were two classes of cars by which shipment could have been safely made, Refrigerator cars ” and Eastman cars,” the former class being constructed merely to exclude cold in winter, and the latter having the additional safeguard of artificial heat. The evidence shows that these cars were known to the plaintiff to be furnished only upon special arrangement. Upon the shipping receipt tendered by plaintiff on delivery of the goods to defendant he had stamped the words “ Refrigerator car.” These words were erased by defendant’s agent, and the receipt was returned to plaintiff stamped “ Not to be loaded in refrigerator car.” The only cars shown to have been available or in any way suitable for shipment of the goods were box cars, refrigerator ” and “ Eastman ” cars, and the trial justice instructed the jury that the defendant was under no duty to' ship by cars of the two latter classes, but left the question whether or not the loading of the lemons on that day, the weather being in the condition testified to, was lack of ordinary care,” to the jury for determination.

Of what, then, was this assumed negligence predicable? Solely of the defendant’s act in forwarding the goods upon the day of their receipt by the proper variety of vehicle.

By their verdict the jury necess’arily found that the defendant failed of its duty in that it did not retain the goods in storage, when received, pending.a more propitious state of the temperature. ISTo such duty attached to this defendant. As carrier it agreed to transport the goods, and its duty with regard to their shipment called for reasonable expedition in .forwarding them after their receipt, with, perhaps, some duty of greater expedition in .the case of perishable goods,- an unreasonable delay rendering it liable for resulting damages (2 Am. & Eng. Ency. of Law, 841, et seq. ; Tierney v. R. R. Co., 76 N. Y. 305, and cases cited); but it is no part of the law of this state that a carrier should, in the course of his duty as such, assume the functions of a warehouseman £or the purpose of delaying transit of goods after the consignor has himself selected the time of shipment.

Judgments of General and Trial Terms below reversed and new trial ordered, with costs to appellant to abide event.

Bookstaver and Giegerich, JJ., concur.

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